Solicitors Acting as Executors: Entitlement to Fees, Charging Clause and Section 82 of the Succession Act 1965

The profession is reminded of the importance of:

• Including an appropriate charging clause if the testator/testatrix appoints a solicitor as an executor/executrix, and
• Ensuring that neither the solicitor, their spouse, civil partner, or a partner in their firm witness the will.

A testator/testatrix may provide by will that an executor/executrix can be paid professional fees. The necessity for a charging clause arises from the general rule in trust law that a trustee cannot profit from their office and, therefore, is not entitled to profit costs unless the will creates an entitlement. If the will does not contain a charging clause, a solicitor/executor who instructs their own firm is not entitled to charge a professional fee.

It is equally important to remember that the charging clause will be invalidated if the solicitor/executor (their spouse, civil partner, or a partner in their firm) is a witness to the will. This is because, under section 82 of the Succession Act 1965, gifts (which are defined to include any benefit) under a will to an attesting witness or spouse of a witness are utterly null and void.

For further information, see Spierin’s Succession Act 1965 and Related Legislation: A Commentary (fifth edition, 2017) p290 [para 595].