VIC The lawyer who prepared my parents Will is a sibling, Is this a conflict of interest as they are also a beneficiary of the Will?

[GeorgeMarshall]

The lawyer who prepared my parents Will & POS is my sibling. Is this a conflict of interest as they are also a beneficiary of the Will?

My sibling & I do not get along and I have concerns on what could happen after my parents have passed away that the situation will get messy.

I am to be nominated as POA & Executor along with my sibling.

Is this a conflict of interest that my sibling prepared the will?

Who are appropriate witnesses for the Will in this situation?

Do all Wills get registered?

Where should the will be kept?

Any advice on what to check for or question in this situation.

Thanks.

 

[skaticeolive]

I am not a legal professional, a lawyer who is named as a beneficiary in a will may create a conflict of interest. This is because their personal interest as a beneficiary could potentially influence their actions as the lawyer responsible for preparing and executing the will. To ensure that the process is fair and impartial, it is generally recommended to have an independent lawyer involved in drafting and overseeing the execution of the will.

 

[Nighthelyn]

Dear GeorgeMarshall,

I have to disagree with skaticeolive’s position (although in truth the more accurate answer is we don’t know - I didn’t find any clear legal precedent with your situation).

A solicitor has a duty to his client and is obligated to disclose any conflict of interest, and to do everything in the client’s own best interest and not to the solicitor’s own interests. So in the situation where he makes a will, and he is an equal beneficiary to his other siblings, and is co-executor with other siblings, I am not seeing anything here that is arguably serving the solicitor‘s own interests more than his parents. Now the situation is much more clear to be in conflict if the solicitor advised his parents to bequeath more or only to him or to have him only to be executor and excluding you, but that is not what you are saying here.

The solicitor is answerable to the parents and not you so you may protest but this solicitor isn’t yet from what you are saying legally required to excuse himself from acting. Of course it is not ideal and this solicitor should seriously consider if he should place himself in this tricky situation, but there is no definite legal obligation for him to do so, at least at this point in time.

If you are unhappy of this situation you should get your own independent legal advice, although without more facts I am not seeing much recourse for you immediately but by all mean keep an eye and you should call out if you believe the solicitor does anything that is questionable - you have equal right from what you are saying to access information and jointly to be explained and make decision alongside with this solicitor.

Good luck!

-Nighthelyn

 

[Rod]

To me it seems a conflict arose when the lawyer who prepared the Will was also named as a executor and beneficiary in the Will.

The Will (and POA) may be susceptible to a successful challenge. It will be best to have the Will and POA redone by another lawyer.

Your sibling may well have prepared the documents because your parents didn't want to pay to have them completed independently, however that does not excuse your sibling who has duties beyond that of his/her parents.