Law Firm Partner Appointed as Executor – void for uncertainty?

In the ACT, a solicitor appointed as executor must provide the testator with a written disclosure of any entitlement to fees or commission before the Will is signed, under the Australian Solicitors’ Conduct Rules (ASCR). A solicitor’s written disclosure ensures transparency and reduces the risk of conflict between the solicitor’s personal interest in payment and their professional duties.

Rules for Solicitors Appointed as Executor

Disclosure: The solicitor must inform the client in writing of their right to claim commission and legal fees for estate administration.

Confidentiality & Communication: A solicitor must maintain client confidentiality and communicate clearly, subject to limited exceptions.

Conflict of Interest: Personal financial interests must not compromise duties owed to the client or the estate.

Duty to the Court: The solicitor’s paramount duty remains to the court and the proper administration of justice.

Duties to Beneficiaries

As Executor: The solicitor owes beneficiaries a duty of care and must act in their best interests.

As Legal Adviser Only: If not the executor, the solicitor acts for the executor (their client) and cannot advise beneficiaries directly. Beneficiaries must raise concerns with the executor.

Key Considerations

No “Double Dipping”: A solicitor cannot charge both executor’s commission and legal fees for the same work.

Court Approval: Even if the Will authorises fees, the executor may require court approval to ensure fairness.

Beneficiary Disputes: Disagreements with a solicitor-executor may result in challenges to the Will.

Record-Keeping: Maintaining a separate file for executorial work helps protect against misconduct claims.

Why Choose a Solicitor as Executor?

Expertise: Solicitors understand the legal and financial side of estates, including property, trusts, businesses, and tax.

Independence: They provide an impartial option, which can help reduce family conflict.

Experience: Solicitors are accustomed to managing accounts, handling paperwork, and ensuring the completion of tasks on time.

Efficiency: A professional executor can usually administer an estate more smoothly than someone without legal training.

Accountability: Solicitors must adhere to strict ethical rules, providing you with added peace of mind.

When It’s Worth Considering

Family or friends are unable or unwilling to take on the role.

The estate includes complex or high-value assets, such as businesses, investments, or overseas property.

If the Will maker anticipates family disagreements, a neutral party is needed to mediate the situation.

Things to Keep in Mind

Court Approval: The solicitor applies to the ACT Supreme Court for a Grant of Probate before they can act.

Costs: Professional executors charge fees for their work. These fees are paid from the estate and can be fixed or based on a percentage of the estate’s value.

Communication: A good solicitor clearly explains the process and keeps beneficiaries informed throughout the estate management.

If you’re thinking about appointing a solicitor, talk to them first. They can explain how the process works, what fees apply, and whether this option is right for your situation.

Section 12A of the Wills Act 1968 (ACT) (Rectification):

The Supreme Court has the power to rectify a Will( if the probate copy is) expressed in a way that fails to give effect to the testator’s actual or probable intentions. Rectification can occur where circumstances or events (before, at, or after execution, or even after death) were not known, anticipated, or fully appreciated by the testator, and those circumstances cause the Will to operate contrary to what the testator probably intended. An order for rectification can add or omit material to make the Will effective. The Wills Act 1968 (ACT) provide definitions for “order for rectification”, “personal representative”, and “probate copy”.

Case law principles on uncertainty in Wills:

It is possible to appoint law firm partners as executors. However, wording matters: in (Re Horgan (deceased) [1969] 3 All ER 1570; [1971] P), the appointment was of “the partners at the date of death” (or successors), whereas the Estate of Margaret Mary Tassie [2025] ACTSC 255, the Will appointed “a partner”, raising issues of vagueness.

A Will is not void for uncertainty unless it is truly incapable of meaning. Courts aim to preserve validity where possible (NSW Trustee and Guardian v Attorney General in and for the State of NSW [2012] NSWSC 1282; 9 ASTLR

Fell v Fell (1922) 31 CLR 268

In Fell v Fell, Isaacs J articulated ten core principles for Will construction, including: construe the Will according to its written terms. 

In Fell v Fell, Isaacs J articulated ten core principles for Will construction, including: 

1. Primary Source of Meaning: interpret a Will from its own wording. Only use Outside evidence to clarify ambiguous terms, not to add new provisions.
2. Ordinary Meaning and Context: Give Words their usual meaning, but read them in light of the Will as a whole if inconsistencies arise.
3. Implied Gifts: A gift may be recognised even without explicit words if the Will’s wording makes it clear that such a gift exists to give effect to the testator’s intention.
4. No Unsupported Inferences. The court will not infer intentions unless they clearly appear from the Will read as a whole.
5. Necessary Implications Only: Courts cannot enforce an intention that is not apparent in the text. Make an implication only where the wording cannot otherwise make sense.
6. Correction of Errors. The Court may remove an obvious mistaken addition or omission or insert a word to reflect the testator’s clear intention.
7. Preventing Intestacy. Words may be implied to give effect to the Will and avoid total or partial intestacy where the wording would otherwise fail.
8. Preference for Preservation. Where several interpretations are possible, courts favour the one that preserves validity rather than destroys it.
9. Mistakes as Part of the Text. Where an error is evident from the wording itself, the Court treats that mistake as part of the Will and relevant to its construction.
10. Presumption Against Intestacy: Courts presume that a person making a Will did not intend to leave any part of their estate undisposed of.

Courts are reluctant to allow poor drafting or misuse of language to defeat clear testamentary intention (Jones v Robinson [2019] NSWSC 932).

However, appointments expressed in uncertain terms may not be successful. For example, clauses appointing executors in the alternative (e.g. “any two of my sons”, or “one of my sisters”) without clarifying conditions have been held void for uncertainty (Re Baylis’s Goods (1862) 2 Sw & Tr 613, Re Blackwell’s Goods (1877) 2 PD 72 approved in In the Estate of Rea Costello (deceased) [2014] SASC 134 and In the Estate of John Wentworth Varley (deceased); In the Estate of Jacques Johan Veldhius [2007] SASC 420).

Summary

Rectification power (s 12A): The Court may amend a Will to reflect the testator’s true or probable intentions where drafting or unforeseen circumstances cause it to misfire.

Executor appointments: Law firms (or their partners) may be validly appointed; however, the wording used is crucial to the validity of the appointment. Ambiguous formulations like “a partner” risk uncertainty compared to more explicit expressions like “the partners” or “any one of them”.

Construction principles: Courts strive to uphold wills rather than defeat them. Key doctrines emphasise the necessary implication, a preference for validity over intestacy, and a reluctance to let drafting errors override an evident intention.

Limits: If an appointment clause is too vague—such as naming “one of” several people without more—it may be struck down as void for uncertainty.

In the Estate of Margaret Mary Tassie [2025] ACTSC 255 (Muller AJ)

On 13 December 2018, Margaret Mary Tassie executed her last Will, prepared with the assistance of Snedden Hall and Gallop Lawyers (SHG). During instructions, she specifically requested that SHG act as her executor, giving sound reasons for this choice. Clause 2 of the Will accordingly appointed a director of SHG—or a director or principal of any successor firm—as executor and trustee. The Will otherwise complies with the formalities under s 9 of the Wills Act 1968 (ACT).

Julia Astrid Bridgewater, a director of Snedden Hall and Gallop Pty Ltd, lodged an application for probate on 20 December 2024. However, the probate registry issued a requisition on 31 March 2025, questioning whether clause 2 was void for uncertainty. In response, Julia Astrid Bridgewater, a director of SHG, made an application seeking rectification under s 12A of the Wills Act 1968 to replace clause 2 with an express appointment of the applicant, as executor and trustee. The applicant provided supporting evidence through two affidavits in April and June 2025.

The Court was satisfied that the deceased intended SHG to serve as executor, aware that this would entitle them to charge professional fees. The key issues to resolve were whether clause 2 was void for uncertainty and, if so, whether the Court could grant rectification under s 12A.

Summary

• Facts: The deceased executed a Will in 2018 appointing SHG as executor.
• Issue: Probate registry raised a requisition in 2025, arguing that clause 2 (executor clause) may be uncertain.
• Application: Rectification sought under s 12A Wills Act 1968 (ACT) to name SHG director Julia Bridgewater explicitly.
• Evidence: Affidavits from Ms Bridgewater confirming the deceased’s clear intention for SHG to act as an executor and be remunerated
• Questions for Court:
  1. Is clause two void for uncertainty?
  2. If so, should rectification be ordered?

The Court found that clause 2 of the Will was uncertain because it was unclear whether the deceased intended to appoint a specific director of SHG or any one of the firm’s directors. Despite this ambiguity, the Court was satisfied that the deceased’s intention was for a director of SHG to act as executor. Accordingly, it was appropriate to exercise the Court’s discretion under s 12A of the Wills Act 1968 (ACT) to rectify the Will so the applicant could carry out the deceased’s intention.

Orders

The Court rectified the Will dated 13 December 2018 by replacing clause 2 with: “I appoint Julia Astrid Bridgewater, a director of Snedden Hall and Gallop Pty Ltd of 43–49 Geils Court, Deakin in the Australian Capital Territory, to be my executor and trustee.”

Muller AJ directed the registrar to take all necessary steps to grant probate of the rectified Will to Julia Astrid Bridgewater.

Ordering payment of costs of the application out of the estate on a solicitor–client basis.