Where a firm holds the documents of a deceased client, the firm is obliged to provide the documents to the legal personal representative of the client upon request. It is prudent for a firm to wait until the authority of the executor is confirmed as legal personal representative after probate has been granted. The duty of confidence owed to the deceased is passed on to their legal personal representative, as does the right to assert or waive privilege.
The law practice sought guidance on whether it was ethically obliged to provide documentation from a former and now deceased client file to the executor of that client’s estate and a beneficiary of that estate. The executor and the beneficiary were the daughter and son respectively of the deceased. The law practice was retained to draft wills and Powers of Attorney for the deceased client. Three wills were prepared over a period of two years, which all dramatically changed the distribution of the estate, and changed which family members were appointed as executor. Probate had not yet been granted.
The law practice sought guidance on three issues, firstly, whether it was obliged to provide client documentation to the executor or the beneficiary. Secondly, whether the law practice was obliged to provide a medical report as to the deceased’s capacity after the preparation of the final will. Finally, the law practice queried whether it was obliged to provide a letter of advice which the deceased signed, advising of the risk of dispute due to the disparity of the distribution of the estate between the deceased’s children.