What to do when a client dies

They have shared their inner-most fears with us as they face a divorce or a criminal charge. We are their trusted adviser and, indeed, their friend. These relationships, when kept within proper professional bounds of course, are important and worth having.

Relationships of this kind mean that we will inevitably be affected by news of a client’s death, particularly if it is sudden or somehow related to the legal situation we were helping them with. What should we consider when we hear such news?

The first thing to do is to allow yourself a few quiet moments to process the news. Importantly, conduct an internal well-being audit and give yourself some extra time to stop and reflect on how you are feeling. Unfortunately, it is most unlikely that anyone else will think to ask the deceased’s solicitor if they are OK.  Call the SOS line, reach out to your support network of colleagues, friends or family and make yourself get a nice cup of tea.

It is also likely we will become the object of demands for information. These can come for a number of reasons. For instance, there may be a police investigation into the death. Less dramatically, there may be several people interested in the estate. And if we drafted the will, then our file is going to be of interest to them. What are our obligations?

First, review section 54 of the Succession Act 2006 (NSW) and familiarise yourself with the categories of persons who are entitled to inspect or be given a copy of a “Will” (which is defined to include “a revoked Will, a document purporting to be a Will, a part of a Will and a copy of a Will). This should be a relatively simple exercise.

Second, and more complicated, is when those people interested start to ask questions about us and the deceased. They may well want full details of the circumstances when we were drafting the will. What was the deceased’s capacity like? Did a competing beneficiary bring the deceased into your office and (figuratively) stand over them? Why were people included or excluded from the will? What about the charities?

Now we know that we would have taken all the necessary steps to ensure capacity and remove influences, to make sure that the will had the best chance of giving effect to what the deceased wanted. However, that is now potentially being challenged.

Do not immediately go on the defensive. The most important point to remember is confidentiality. Under Conduct Rule 9, we owe a very strict obligation of confidentiality and basically there are just two relevant exceptions here – client consent and compulsion of law.

The problem with client consent is that there is usually nobody who can step into the shoes of the deceased at this point. That is what half the fuss is about – who is the rightful legal personal representative (the other half is identifying the rightful recipients of any assets). Therefore, we are usually left with maintaining confidentiality except if compelled by law.

There has been some confusion in recent years about Larke v Nugus letters. These stem from the English case of Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033 which suggested solicitors should provide to anyone with an interest in it, a statement about the creation of the will. Otherwise, solicitors were arguably not assisting with the administration of justice because the matter would need to go to court to be resolved.

However, in the case of Re Estates Brooker-Pain and Soulos [2019] NSWSC 671, Lindsay J stated (at [87]) that while Larke v Nugus requests may be well-intentioned, there are a number of impediments to their implementation in practice. It is worth extracting his Honour’s observations in their entirety so you can familiarise yourself with them:

“a.       first, in the absence of any grant of representation in respect of a deceased estate and any agreement between all parties interested in an estate (assuming that they can be reliably identified), no person has clear authority to make disclosures about business of the deceased which (whether or not attended by an entitlement to legal professional privilege) might properly have been regarded by the deceased as confidential to him or her and his or her solicitor.

1. secondly, a solicitor confronted with a “Larke v Nugus letter” might not be well placed to be able to identify whether the person on whose behalf the letter is written can fairly be said to have an interest in prospective proceedings for a grant of probate or administration in respect of a deceased’s estate.
2. thirdly, imposition on a solicitor of an “obligation” to provide a detailed statement about the circumstances in which a will was prepared, or executed, may be unreasonable unless proper arrangements are made for the solicitor to receive reasonable remuneration for preparation of such a statement.
3. fourthly, if such a statement is to be prepared essentially in the public interest, it should be provided to the Court so as to be available to all interested parties (on an application of case management principles) if and when that may be appropriate, not merely made available to whoever might have seen fit to write a “Larke v Nugus letter”.
4. fifthly, if a solicitor is to be remunerated for preparation of a statement in response to a “Larke v Nugus letter” there needs to be a mechanism, not only to ensure that the solicitor who prepares a responsive statement receives reasonable remuneration for doing so, but for ensuring that such a solicitor does not charge, or receive, more than reasonable remuneration.
5. sixthly, unless the process of provision by a solicitor of a statement about the  circumstances in which a will was prepared, or executed, is subject to the control of the Court, demands for the provision of such a statement might be unreasonably made, or ignored, and the centre of focus might pass from the purposive character of the probate jurisdiction (to carry out a deceased person’s duly expressed testamentary intentions, and to see that beneficiaries get what is due to them) to the self-interested pursuit of purely adversarial litigation.”

In the meantime, let’s wish healthy and contented longevity to all, clients and us included.