Deceased client's son asks for her will and instructions before probate (Code 6.3)
Agnes Doyle has died. Her solicitors hold her will and their file of her instructions. Her executors are her two nieces. Her son, Patrick, who is not an executor, telephones the firm before probate has been granted. He asks for a copy of the will and an explanation of what his mother told the solicitor about why she left him only a small legacy.
What should the solicitor do?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: Treat the will and file as confidential and disclose them only with the executors' consent or where otherwise required or permitted by law.
THE RULE TO REMEMBER
A solicitor's duty of confidentiality continues after a client's death; the right to confidentiality passes to the personal representatives, whose consent is needed for disclosure unless the law requires or permits it.
Deceased client's son asks for her will and instructions before probate (Code 6.3)
Paragraph 6.3 of the Code requires a solicitor to keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents. The SRA's confidentiality guidance confirms that the duty continues after the client dies, and the right to confidentiality then passes to the client's personal representatives. Mrs Doyle's executors, her nieces, now control whether her will and her instructions may be disclosed. Patrick is neither the client nor a personal representative. The solicitor must not give him a copy of the will or any account of his mother's reasons unless the executors consent or some legal requirement or permission applies, such as a court order. The solicitor can politely explain the position and suggest that Patrick contact the executors or take his own legal advice.
Why A is wrong: Being next of kin does not give Patrick any right to the deceased client's confidential information; the right passes to her personal representatives.
Why B is wrong: The grant does not end confidentiality in the solicitor's file of instructions; disclosure still needs the personal representatives' consent or a legal basis.
Why D is wrong: A summary of her instructions is itself disclosure of confidential information without consent.
Why E is wrong: The duty continues after death; the right to confidentiality passes to the personal representatives.
A little more practice done.
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