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Confidentiality – existence and content of will

Each month we consider conduct and practice issues relevant to busy practitioners. This month we will consider the importance of keeping confidentiality in mind when disclosing the existence or contents of a will.

The new SRA Code of Conduct for solicitors is unlikely to change substantially from the version that has now been published. The new provision on confidentiality states (at clause 6.3):

‘You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.’

A situation that staff in law firms often face is an enquiry about the whereabouts or contents of a will when someone has died. What is the firm permitted to say? Should they hand over the will?

Note that the duty of confidentiality extends to everyone in the firm, not just the lawyers and the duty extends beyond the death of a client. By definition, the consent of the client to disclosure of the contents of the will cannot be obtained. So, what should the firm do?

Act with extreme caution. The contents of the will are not in the public domain until a grant of probate is obtained. So, the firm should not disclose the contents of the will without evidence that the enquirer is entitled to that information. The only people entitled to know what is in the will before the grant of probate is issued are the personal representatives named in the will.

So, can the firm just hand a will to the personal representatives? No.

Obtain a certified copy of the death certificate from the enquirer. Best practice would demand that a firm holding the will of a deceased obtains identification documents for all of the named personal representatives before releasing the will. If any of them cannot attend the office, they should be asked to go to a local firm of solicitors who can make a request on their behalf. Identification certified by another firm might be acceptable to some firms.

Before releasing the will to any one executor, obtain the written consent of all of the executors and ask the person taking the will to sign a receipt for it.

This might seem like a ‘hammer to crack a nut’ on occasions but we are aware of a situation where a firm handed a will to one personal representative in good faith and the others objected, which caused a lot of difficulty for the firm.

Remember – confidentiality is like the genie – once it is out, it cannot be put back.

 

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