The issuing of section 68 letters to beneficiaries is still required in certain situations as a matter of professional standards and ethics.

The definition of client in the Solicitors (Amendment Act) 1994 includes “a beneficiary to an estate under a will, intestacy or trust”. Accordingly, since the coming into force of the Solicitors (Amendment Act) 1994, it has been understood that beneficiaries should receive a section 68 letter. This could include a residuary beneficiary or beneficiaries, an intestate beneficiary or beneficiaries or, where the residue or any partial intestacy is insufficient to meet costs arising, or any pecuniary, general or specific beneficiary.

The Law Society (primarily through its Complaints and Client Relations Committee), when considering complaints from beneficiaries that they did not receive a section 68 letter, acknowledged the distinction between complaints from those beneficiaries out of whose share of the estate costs will be deducted and complaints from any other class of beneficiaries (see practice note, December 2010 Gazette, p56).

The Law Society took the view that the beneficiary indirectly paying costs should receive a copy of the section 68 letter furnished to the legal personal representative. This was the view of the High Court in Condon v Law Society of Ireland ([2010] IEHC 52) and Sandys & anor v Law Society of Ireland ([2015] IEHC 363).

The recent decision of the Court of Appeal in Sandys & anor v Law Society of Ireland [2015] IECA [395] [430] does not support this view.

‘Client’, for the purpose of section 68 in the view of the Court of Appeal, is limited to the client giving instructions. In the cases outlined above, the ‘client’ giving instructions was a solicitor executor and, following the judgment, is not obliged by statute as a solicitor to furnish those beneficiaries with a copy of the section 68 letter. The issue of whether a solicitor executor should furnish himself or herself with a section 68 letter was not before the court.

Paragraph 57 of the judgment states: “If, in accordance with this construction, a firm of solicitors provides a section 68 letter to executors, or in the case of a sole practitioner, perhaps to himself at the commencement of the administration of an estate, there may be a separate question as to what obligation he or she owes as executor to furnish the section 68 letter at the time it is issued to any beneficiary who will ultimately, in reality, be paying those costs in the sense that they will come out of that person’s entitlement under the estate.”

While it is not clear whether a solicitor executor is obliged by statute to provide a copy of such section 68 letter as executor, there is nonetheless the issue of professional standards and ethics. When the solicitor is also acting as executor, it remains the view of the Law Society that the solicitor-executor should furnish a copy of the section 68 letter or any letter of engagement to the class of beneficiaries from whose benefit the legal costs will ultimately be paid (normally the residuary legatees). It is best and safest practice, both from the perspective of the solicitor-executor and the beneficiaries, to keep those beneficiaries who will ultimately bear the costs of administration informed of the likely costs from the outset.

Solicitors acting in the administration of an estate who are not acting as executor should advise their executor client that it is best practice to furnish a copy of the section 68 letter or any letter of engagement to the beneficiary or those beneficiaries from whose benefit the legal costs will ultimately be paid, and seek instructions so to do. It is then a matter for the executor client to instruct the solicitor as to whether or not to issue a copy of the letter to the relevant beneficiary or beneficiaries.

Upon commencement of part 10, chapter 3, of the Legal Services Regulation Act 2015, references in this practice note to section 68 of the Solicitors (Amendment) Act 1994 shall be read as references to section 150 of the Legal Services Regulation Act 2015, and references to a letter of engagement shall be read as references to an agreement under section 151 of the Legal Services Regulation Act 2015.