A will was drafted but never signed by the client and both the draft and the firm’s notes remain on the file. The firm has received a request from the client’s daughter who is the executor of her estate. The firm have been provided with a copy of the probate. Does the firm have to release to the executor the file even if the solicitor believes that the deceased client would not have wanted this?
You will need to consider what documents are held on the file. The client documents will form part of the client’s estate and the executor of the estate is entitled to client documents, this would include the draft will. Your notes are likely to be your property (unless the client was charged for the preparation of the notes, in which case the notes would be a client document).
If you are concerned that there may be sensitive or contentious information you can ask the executor what documents she specifically requires. However, if the executor insists that the file be released then you must give the documents to which the deceased client would have been entitled to.1 The client documents must be given to the executor as soon as reasonably possible.2
Note: If you believe that there may be controversy after a client’s death or that your file has sensitive information you should raise these issues with the client at the time of receiving information. The client should be made aware that the client’s personal representative will be entitled to the client’s documents. If there is information a client may not wish the personal representative or family members to have access to then the client should consider alternative arrangements for its custody.
1 See Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) r 14.1, Glossary.
2 ASCR r 14.1. This is subject to the firm not having an effective lien over the client documents. A solicitor cannot have a lien over an executed will: Hawkins v Clayton (1987) 164 CLR 539, 550 (Brennan J).