14 May 2021
Estates – Provision of will instruction file notes upon request
Dear Mentor,
Does a lawyer have to provide will instruction file notes upon request to a child of the deceased will-maker?
If so, does the lawyer decide or is it the executor? We assume the executor can access the file upon request.
Also, what needs to be provided?
Thank you for the question.
The solicitor is under no obligation to provide the file notes to the child of the deceased will-maker.
Once the testator dies, the legal personal representative is entitled to the testator’s file, but only to the client documents: see Wentworth v De Montfort (1988) 15 NSWLR 348.
Generally, documents prepared by the solicitor for the solicitor’s benefit belong to the solicitor: see Champion v Rohrt [2016] VSCA 215 at [57] which cites Wentworth v De Montfort. The decision to release the will instruction file notes will be the solicitor’s. If releasing, the original should be retained and a copy released.
The Law Society of NSW provides guidance on its Ethics FAQ page.
Regards
Mentor
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