Ethics Ruling Number
R4987
Area of Law
Wills and estates
Category
Release of documents
Ethics Ruling Date
24/09/2020
Ethics Pub Date
1/12/2020
Ethics Background
In the absence of an effective lien, an executor of a will to whom probate has been granted is entitled to receive any client documents held on behalf of the deceased by the deceased’s former solicitors. A law firm acted for the executor of the deceased’s will to whom probate had been granted. During the deceased’s lifetime, the deceased had retained another firm of solicitors to act in several matters and had commenced action against those same solicitors (‘the former solicitors’) for financial loss in respect of their conduct of those matters. The VCAT proceedings remained ongoing in the name of the executor. The executor had sought relevant client files of the deceased from the former solicitors. This request was refused by the former solicitors on the basis that proper particulars of the VCAT claim had not yet been provided, and the deceased’s former solicitors should not be obliged to hand over their files to the executor of the deceased client until that happened. An Ethics Committee ruling was sought to determine whether the former solicitors for the deceased were obliged to hand over the deceased’s client documents.
Ruling
In the opinion of the Ethics Committee and on the information presented: 1. As the executor of the last will of the deceased to whom probate has been granted, the executor stands in the shoes of the deceased and is entitled to receive from the former solicitors any client documents held by them on behalf of the deceased unless there is an effective lien.

Law Institute of Victoria
Ethics Committee of Law Institute of Victoria Ltd
Legal Ethics Manager
Phone: 03 9607 9336
Email: ethics@liv.asn.au

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