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Rule 11

Solicitors Rules – 11 –

 

Receiving a benefit under a will or other instrument 

11.1   A practitioner who receives instructions from a person to draw a Will appointing the practitioner an Executor must inform that person in writing before the client signs the Will – 

    11.1.1   of any entitlement of the practitioner or of a practitioner who is the attorney of the nominated executor to claim commission;  

    11.1.2   of the inclusion in the Will of any provision entitling the practitioner or of a practitioner who is the attorney of the nominated executor, or the practitioner’s firm, to charge professional fees in relation to the administration of the Estate, and; 

    11.1.3   if the practitioner has an entitlement to claim commission, that the person could appoint as Executor a person who might make no claim for commission.

 

11.2   A practitioner who receives instructions from a person to – 

    11.2.1   draw a will under which the practitioner or an associate will, or may, receive a substantial benefit other than any proper entitlement to commission (if the practitioner is also to be appointed executor) and the reasonable professional fees of the practitioner or the practitioner’s firm; or  

    11.2.2   draws any other instrument under which the practitioner or an associate will, or may, receive a substantial benefit in addition to the practitioner’s reasonable remuneration, including that payable under a conditional costs agreement, must decline to act on those instructions and offer to refer the person, for advice, to another practitioner who is not an associate of the practitioner, unless the person instructing the practitioner is either:  

    11.2.3   a member of the practitioner’s immediate family; or  

    11.2.4   a practitioner, or a member of the immediate family of a practitioner, who is a partner, employer, or employee, of the practitioner.

 

11.3   For the benefit of this rule: 

“substantial benefit” means a benefit which has a substantial value relative to the financial resources and assets of the person intending to bestow the benefit.

 

COMMENTARY 

One can only guess, although a search of the records may confirm, that this rule was introduced because solicitors had found deceased estates to be an easy source of revenue.  In effect, the rule means that solicitors are well advised to avoid being either an executor (and co-executor) or beneficiary of a deceased estate in which they draw the will.

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