MAKING OF WILLS

Dominion, Volume 24, Issue 149, 20 March 1931, Page 8

MAKING OF WILLS

Public Trust’s System GRATUITOUS SERVICE Comment by Judge "The Public Trustee advertises that he is prepared to make wills gratuitously where he is appointed the executor. Such an advertisement can create a false impression in the minds of ignorant people because the advertisement doe’s not make it plain that the Public Trustee obtains his remuneration for such so-called gratuitous service from the commission he is paid for the administration of the estate,” said Mr. Justice Blair, when delivering a decision in the Supreme Court yesterday, concerning an application for the transfer of the powers of executor from the Publie Trustee to the sole beneficiary in an estate. “I have little doubt that solicitors would undertake to prepare wills gratuitously upon the same condition, and rely for their remuneration for preparing the will upon the commission to which executors are entitled under section 20 of the Administration Act,” said his Honour. “Once the Public Trustee is appointed executor he alone, within the wide limits provided by the regulations, is the judge as to the amount he is entitled to charge the estate for commission. In the case of an ordinary executor the only commission he can obtain is what this court allows him ‘for his pains and trouble as is just and reasonable.’ "I have been informed by the solicitor for the Public Trust Office that in all cases the Public Trustee, in fixing the commission he charges in any estate, takes into consideration the extent of the work involved in his administration and does not always charge the full scale rates authorised by the regulations to. the Public Trust Office Act. It is satisfactory to know that this is so, but nevertheless the fact that the Public Trust Office, for the purpose of attracting business, advertises that it will gratuitously advise persons as to the making of wills and will make wills gratuitously places the office in this position, that it has a substantial financial interest in giving such advice and obtaining the execution of such wills, and this financial interest conflicts with its fiduciary duty to testators asking advice upon the momentous question of their testamentary dispositions to their dependants and those to whom a moral duty exists.” Beason Should be Given. “Take the supposititious case of a man going to a solicitor to make a will, leaving everything to his wife,” said his Honour. "If in such a case the solicitor prepared a will appointing himself executor I would want to know why the will was so drawn. Unless it was shown that, there was some very special reason why someone other than the sole beneficiary was appointed executor, I would, if executor’s commission were applied for, take steps to ensure that no profit was obtained from the executorship. I would look upon it as improper conduct on the part of such solicitor to advise the appointment of himself unless it was shown that such appointment was advantageous to the estate.”