Ethos Spring 2021

Page 40


Wills and safe custody packets

Can they be disposed of lawfully? John Buxton of McInnes Wilson Lawyers discusses the current laws around disposing of client documents, provides some guidance for ACT lawyers, and gives some suggestions for how existing legislation could be improved.

It is commonplace for solicitors to hold various documents of clients, especially Wills, Powers of Attorney and related instruments, for safe keeping. They invariably do so at the conclusion of a matter.

allowing for the likelihood of further instructions upon the death of the testator, or maintaining a degree of loyalty from the client which may lead to further and unrelated work during the period of holding.

Since amendments to the Legal Profession (Solicitors) Conduct Rules 2015 (the Solicitors Conduct Rules) in 2016, provided the client has agreed in writing, the solicitor may charge for this arrangement.

Although the storage and subsequent retrieval of the documents is undertaken in many cases without controversy, a contrary experience appears to be emerging, where practitioners, wishing to unburden themselves of the documents, are unwittingly transferring such documents in breach of their common law duties.

This long-standing practice, previously done gratuitously, was rarely formalised in any agreement other than a passing reference to it in the final letter to the client. To have a significant safe custody facility was considered to be potential capital


This situation arises solely because the solicitor cannot, or omits to, obtain the instructions or authority

of the document owners (or persons authorised to deal with such on their behalf, such as their attorney) prior to effecting a transfer. It is not permissible for a solicitor to request the proposed solicitor (or other) recipient to seek to obtain that consent/authority retrospectively. In other cases, solicitors are being told that a proposed recipient cannot take the documents absent the owner’s consent. It should be emphasised that the issues addressed here do not arise in the many cases whereby, within a firm, partners come and go, or where a firm may pass through various iterations in joining and leaving other groupings (invariably national