Banking facility: solicitors should be careful how their client account is used
Q. I act as the executor of an estate and will shortly be in a position to finalise the estate and make the payments to the residuary beneficiaries. Although the amount each beneficiary will receive is not huge, one of the residuary beneficiaries is an alcoholic.
From my dealings with him, when he is not drunk, he is lucid and in my view, cannot be said to be mentally incapacitated. However, his family fear that if he receives the money, he is likely to spend it on alcohol. They have therefore asked me to retain the monies in my client account and use the monies to settle his bills and living expenses. Can I do this?
A. No. As an executor, you have a duty to distribute the estate in accordance with the will. Since you have no doubt as to his capacity, it is not clear, as a matter of law, on what basis you could withhold the monies from him.
Even if the beneficiary were to consent to your doing so, this would not be a proper use of your client account under the Solicitors Accounts Rules 1998. Note (ix) to rule 15 states that it is not a proper part of a solicitor’s everyday business or practice to operate a banking facility for third parties, whether they are clients of the firm or not and solicitors should not, therefore, provide banking facilities through a client account.
