Will witnessing by solicitors

09 October 2020


Like getting an unexpected fees windfall, finishing that tricky file or getting a new instruction, no month would be complete without the gazette! In fairness, the new format does bring great freshness to legal content. Page 60 contains a timely reminder from John Elliot about witnessing wills. Where solicitors are executors, they cannot witness, nor can their spouses or civil partners, nor partners in the firm. If you are an executor it is permissible for legal executives, employed solicitors or other employed staff to witness. John Elliot recommends a charging clause. To have one handy I have replicated a clause here obtained from Speirin:-

Any of my executors and trustees who is engaged in a profession may charge remuneration or fees for work done by him or her or by his or her firm (whether the work done is of a professional nature or not) on the same basis as if he or she were not one of my executors and trustees, but employed to carry out work on their behalf, and such remuneration or fees shall be paid in priority to all bequests under this my will.

What is useful with the Speirin draft, and not mentioned by John Elliot, is the additional wording regarding priority. A charging clause is treated as a legacy. So you might be aware that if the estate is solvent, but the expenses eat away the residue, all that is left to pay the expenses are the pecuniary legacies. They are next in line. The executors fees will be put into the pecuniary legacy pot for the payment of expenses, unless the will expresses otherwise. It may come in useful in marginal cases.