Sunday, October 30, 2011

Release of an Original Will to an Applicant for Letters of Administration

Ameena Sulton at Walley Estate Litigation Blog has written about a case in Ontario, Hope v. Martin, 2011 ONSC 5447, in which the Superior Court of Justice considered when a lawyer holding an original will may release the will to a person who was not named in the will as an executor (referred to as an estate trustee in Ontario), but who wishes to apply to court to be appointed as an estate trustee. You can read her post here.

In that case, the will-maker had named an estate trustee and an alternate, but both renounced. A family member wished to apply to be appointed as trustee by the court to administer the estate, but required the original will to file in court with the application. The lawyer who held the original will would not release the original will to the applicant. He was concerned that the applicant, not being named as the estate trustee in the will, and not yet having been appointed by the court, did not have authority to direct the lawyer to release the will. He was also concerned that releasing the will to someone other than the named would be a breach of his duties of confidentiality and solicitor-and-client privilege to the now deceased will-maker who had been the lawyer's client.

The applicant applied to court for an order that the lawyer release the original will, and Justice Brown granted the order. Justice Brown said that in the circumstances--there not being any dispute about the will, and the beneficiaries all consenting to the release of the will--a court order should not be necessary for the lawyer to release the original will. Justice Brown said,

[23] As identified by Mr. Rabinowitz in his paper, the real issue facing solicitors who are asked to produce the original of a will is whether the person making the request possesses the authority to do so. The appropriate response will depend upon the particular circumstances of the case and the application of practical judgment and common sense. Where a named executor makes the demand, production should be made. Where a solicitor is faced with conflicting demands, he can legitimately require the conflicting parties to obtain a court order. However, where, as here, the solicitor knew that both executors had renounced and there was no evidence of conflicting demands to assume the administration of the estate, the solicitor should have exercised some practical judgment to ensure that the testatrix’s intentions were performed without imposing unnecessary costs on the estate.
I like the practical approach suggested by the Ontario Court, but I suggest that a lawyer holding an original will must exercise caution before releasing it to someone who is not named as an executor. A lawyer who agrees to hold an original will takes a significant responsibility for safekeeping the document.  At minimum a lawyer, or anyone else holding an original will, should be satisfied that the person requesting the will has a genuine intention to apply to court to be appointed as an administrator or trustee of an estate. This can generally be satisfied when the request is being made by another lawyer, and conditions can be placed on that lawyer to hold the will until it is filed in court.

In British Columbia, if a lawyer or anyone else holds an original will, and refuses to release it, you can apply for a citation to be issued requiring the person holding the original will to deposit it with the Registrar of the Supreme Court of British Columbia. I wrote about citations to bring in a will here.

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