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NSW Probate and Father's WIll - Solicitors and Conflict of Interest

Discussion in 'Wills and Estate Planning Law Forum' started by wal22, 14 March 2016.

  1. wal22

    wal22 Active Member

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    My Father recently passed away. This has proved to be a difficult time. I am one of the Executors of will and we recently obtained the will from the firm of solicitors who wrote up the will. I will call them ROB Law.

    I was very disappointed to read the following sentence at the end of the will.

    "I direct my Trustees to employ ROB Law in connection with the administration of my estate."

    There is no way my Father would have insisted that this sentence be inserted. He was very critical of the firm for their billing practices and they were mistake prone. I have obtained quotes and ROB law are several thousand dollars more than the best quote I have received. ROB Law have made a difficult time, more distressing.

    Am I now obliged to use ROB Law for estate matters? This seems in direct conflict to my responsibility to administer the estate for the maximum benefit of the beneficiaries.
     
  2. Sophea

    Sophea Well-Known Member

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    I'm not 100% on this but as long as the other beneficiaries were okay with you not using ROB law for the administration of the estate, I don't think that ROB law themselves would have grounds to challenge you deciding not to use them. You don't owe them any duty, fiduciary or otherwise. I'm interested to hear other opinions.
     
  3. winston wolf

    winston wolf Well-Known Member

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    From what I know, you would need a court order to vary the will. I remember on a forum a few years ago where a poster had a worse situation where a firm had closed and sold on its business to a firm that had extraordinary fees for doing probate. That firm fought the executor to vary the will.
     
  4. Sophea

    Sophea Well-Known Member

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  5. Tim W

    Tim W Lawyer

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    For the sake of brevity and clarity, I'll refer to just one executor.

    1. First up, it's important to be clear about whether or not the lawyer is the executor,
      or if the executor (say, you) is simply the lawyer's client.
      I am assuming in this answer that the latter is the case.

    2. It is part of an executor's duty, as they do their work* to preserve
      as much of the estate as possible for the beneficiaries.

    3. To my mind, it is consistent with that duty** for an executor
      to choose a solicitor whose fees are "reasonable in all the circumstances".***

    4. Obviously you'd have to pay "ROB Lawyers" for their work up to date,
      but as the client, I can't see why an executor can't take their business
      elsewhere if they choose.

    ______________________________________________________
    * paying the deceased's bills and debts, dealing with property, financial assets, bank accounts etc

    ** You sometimes hear it called the "duty to act with due economy".
    (aka "don't blow it all on lawyers' fees")

    *** Note that fees can vary a lot, depending on the individual facts and circumstances.
    And sometimes, things can be more complex, and require more work, than you'd think.
     
  6. wal22

    wal22 Active Member

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    Thank you for your help. It is much appreciated.

    I was so annoyed by this episode, I have researched doing the probate application myself. The will is very fair and straight forward and DIY is very achievable. I can't believe that people would expect to be paid over $5.5k to do this work.
     
  7. Tim W

    Tim W Lawyer

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    It's not the mere application for Probate that can be the hard part...
     

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