Regulate the Probate Services Industry | Campaigns by You

Regulate the Probate Services Industry | Campaigns by You.

 
A petition to call on all probate service providers to be regulated in some way.

Because not all people who provide legal advice are regulated.  This means they may or may not be qualified to give legal advice.  They may or may not carry insurance.  They may or may not sign up to any standards of professional behaviour.

Because this is a time when families are vulnerable and where financial details are being exchanged, and the public needs to have some certainty that they can trust their advisers to do a proper job (and if they do not, there will be compensation) to not sell on their details, to administer the estate as efficiently as possible, whilst taking a reasonable amount of care.

Vulnerable people should be treated with respect, and not merely fodder for the mincing machine.  They need to be protected, because of their vulnerability at a sensitive time.

An unregulated business has no interest in anything but their profit, and remaining within the confines of the law. Whilst an unregulated business may choose to ascribe to a code of ethics, if that is not regulated, then how can it be enforced?  There is no obligation on such a company to even profess such concepts.

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Open Letter to anyone who made a Will with HSBC and appointed them as Executors

Open Letter to anyone who made a Will with HSBC and appointed them as Executors.

 

It’s a good letter:  I’m not sure whether whoever reads it realises that it is carefully written and may have taken a good few hours to check and double check, particularly when it refers to the organisation(s) to whom the wills have been sold.  Just as “concerned” means “angry”  and “precise” means”nitpicking in the extreme” in legal terminology, the swathes of what is not said about Simplify and its associated companies speak volumes.

It might seem odd that your executors can sell on the rights to deal with your assets, as the bank have done here.  But this sort of thing has happened, by and large, for professional executors over the years, albeit perhaps not so obviously.  Law firms never die, they just get taken over…  successor firms can prove the wills of the prior firm if the will was drafted that way.  Or encourage the clients to make a codicil (and in doing so, both correct any massive errors in initial drafting and/or update terms).  It is no mistake that the wills stored by a firm are called a “will bank”.  Usually, however, with a whole firm takeover, the wills and live files, the contacts and reputation are all bound up together and described as “good will” valued for a greater or lesser amount than the desks, carpets and computers.  Slightly less clear that your will can be seen as a commodity in itself, for sale to another organisation for a price, whilst still being your own property as a client.

 

Who you choose to be your executors is a personal choice – you might prefer a professional executor because your family do not get on well with each other – or you think that it is too much of a burden for friends to bear.  That’s quite alright for you to make this choice – but as this letter rightly points out – the terms on which you appoint a professional do need to be made clear to you – they will charge for their work – and how they do this should be something you feel comfortable with – these are your assets, after all.

Some professionals are bound by professional codes in their conduct towards the public – solicitors are – you can make complaints to the SRA if you feel you have not been treated in a fair way.  Accountants have a professional body too – it is fair to say that complaints to a professional body can be incredibly damaging to the firm, and so a reasonable amount of time is spent in trying to do the right thing and not get complaints in the first place.

If you are to choose a professional, then it’s a good idea to see what institution regulates them – who is the person that they have to answer to when you are no longer alive to express your concerns – who can your beneficiaries turn to when they think they are being overcharged, or waiting for ages – is there anything or anyone to protect them?

 

Wright and another v National Westminster Bank Plc [2014] EWHC 3158 (Ch)

Applying Pitt v Holt – Unilateral transaction — life death litigation.

I can’t find a publicly downloadable account of the judgment in this case, and this report does quote some of the detail.

The lesson being highlighted for practitioners is that the gift of something must be certain.

I wonder whether there was adequate advice on the part of the advisor assisting them with setting up an intervivos trust.   Perhaps it might have been part of the advisor’s targets to sell this sort of structure.

Perhaps even, there were detailed attendance notes of what was said when, and whether it appeared as if the clients understood that they could not have the income from what was given away, that a valuable source of income on a daily basis would be removed.  Hindsight has a terrible clarity, but surely that is the basis of any advice about giving up assets.  A clarity that this money is no longer yours, but you can watch over it.  With perhaps more care than you have done with your own assets, precisely because it belongs to another

 

Golden, but tactless

Golden – but tactless.

If you are making radical changes to your will and you are of advanced years, or have a history of mental illness (which includes strokes and tumours), please do not be offended if your solicitor explains that they would like to consult your doctor.

The solicitor (and this includes members of the Society of Trusts and Estate Practitioners) is trying to do the best for you. This means that they are trying to make sure not only that your will is drafted following your instructions, and executed in accordance with the formalities, but that it will stand being tested at a later date.

People who are disappointed at being left out of a will do sometimes allege that the person making the will did not know what they were signing – this could mean literally – the person did not understand the English language, could not read through blindness or partial sight, or were deceived in putting their signature to the paper in front of them. Or it could mean a deeper sense of understanding – that the person signing the will did not have the necessary mental awareness to be able to make a will.

In such cases, the law states that the solicitor should obtain the professional opinion of a doctor that the person has testamentary capacity *at the time of giving instructions preferably* – and if they did not, the solicitor has to explain why not – and it is seen as a major blow to the will being proved if there is a reasonable doubt.

“ the Defendants have only themselves to blame for not having [the testatrix] assessed by a psycho-geriatrician in order to determine her capacity in May 2007. [He] accepted that he was aware of the golden rule for solicitors dealing with aged or seriously ill testators , viz. that it is best practice for the will to be witnessed or approved by a medical practitioner who ought to record his examination”

In the recent case of Catling –v- Catling, the judge was particularly scathing of the “professional” adviser (Mr Wallace) that assisted the late Mrs Catling in the preparation of her final will (executed in 2007).

In that case, Mrs Catling had ceased to use her solicitors of many years, who had prepared many previous wills for her. Those wills were very different from the last will that was presented to be proved. In earlier wills, Mrs Catling had treated her children equally. In the final will, she excluded all but her youngest child, Kevin.

The judgment does present many unhappy facts – it appears that Mrs Catling did make wills with her usual solicitor, but that he had found himself unable to continue to advise her because of the suggestion that she was being manipulated by Kevin and his wife, with whom she lived at the time of the will being made, Kevin’s wife being the main carer for Mrs Catling. Mrs Catling also made an Enduring Power of Attorney, which was registered in 2005 appointing that solicitor to be an attorney, but from which he retired, from a sense of being compromised.

 

It appears that the replacement for that solicitor was Mr Wallace. He was not legally qualified, having only completed a law degree and not completed any further training. He was also a trained builder and described himself as a student barrister – but it appears that Mrs Catling and her family believed him to be a barrister or solicitor and that their misunderstanding was not cleared up immediately. Mr Wallace had a set of terms of engagement that were onerous and not in Mrs Catling’s interest, and the will he drew up contained wide powers for him to charge fees for being her executor, and at the same time wide exclusions from liability and high charges for interest on unpaid bills.

Evidence given in the trial confirmed that once Mrs Catling had sold the house she lived in and moved to live with Kevin and his wife, the rest of the family were continually denied access to her – told that it was not a convenient time, or were unable to speak to her on the phone. This conduct had been raised with Social services,

The story transpires that Mr Wallace visited Mrs Catling between two and four times a week for about two years (that sort of attention is not necessary for making a will and quite unusual). He did spend time with Mrs Catling alone, but the instructions for a will appear to be sketchy, and show that Kevin was present at the time, and to have given subsequent instructions. Mr Wallace also appeared not to understand that there might be any impropriety in having Kevin present, or having Kevin give the instructions for the will. There appears to be no time at which Mr Wallace saw Mrs Catling independently of Kevin and attempted to ascertain her instructions. The time taken to complete the will from initial instructions to execution took some 16 months, which the judge found to be unreasonable, given Mrs Catling’s health and dementia (which may well have been apparent, since the Enduring Power of Attorney was registered in 2005 on her previous solicitor considering that she had lost or was losing the ability to look after her property and financial affairs)

A medical expert was appointed by the court to give evidence on whether Mrs Catling could have understood the earlier wills, made with solicitors, and whether she could have had the necessary mental awareness either at the time of giving instructions, or when executing the will. That expert drew upon as many sources of information as were available in order to come to his conclusion:

By May 2007 I consider that the testatrix was different from dementia of at least moderate degree. If the MMSE score of 4/26 elicited one or two months after she made the ~Will was a reflection of her cognitive state at the time she made her will, it is likely that she was severely demented and would, in my opinion probably not have fulfilled the Banks –v- Goodfellow test because she would have been unable to exercise judgment in assessing the competing moral claims of her eight children for her bounty. It is also probable that she would not have been able to appreciate the extent of her estate. However, it is also possible that delirium, contributed to the low MMSE score in June or early July 2007 and that her score might have been higher in May. I do not consider it safe to presume that the testatrix did have the capacity to make a will in May 2007. Nor do I think that she would have been able to recall that she was making a will drawn up on her previous instructions”

In his concluding words, the judge not only came to a decision on the mental capacity of the testatrix based on the expert evidence, but stated that “this conclusion is reinforced by the Defendant’s failure to follow the golden rule”

Solicitors are fat cats. They deserve to be undermined…

The reason I became a solicitor is nondescript and boring – it seemed like a good idea at the time.  Frankly, I have become more cynical, but strangely more idealistic as I have grown older, and seen more.  That strange principle, of what it means to be a professional, separates me from those whose only motive is to make money – with no overwhelming and overriding principle of responsibility.

 

Perhaps it is being a parent.  Or perhaps it is having the knowledge that you are told so much in confidence, in complete trust, by people who are vulnerable by imparting such information, let alone by the circumstances that brought them to you.  You are the last bastion of truth and honesty before the marketers get their way.

 

But we are also businesses – we no longer have a monopoly of being service providers.  And I am told that this is because solicitors are fat cats (don’t make me choke, if I rented a house I would be on housing benefit and that would bring in more).  And because solicitors are the establishment.  Such establishment needs competition.  Competition is good, competition makes us thrive.

 

Except, it is not a level playing field. There are some activities that are not restricted to solicitors only – activities like will writing and estate management – both of whom I would suggest do ask for a high level of trust and confidence not only in the skill concerned, but also in putting the customer first.  There is a huge amount of regulation that a solicitors firm has to comply with, not only in relation to client money, but also in relation to good behaviour of the individuals (outside their working hours) and there is a standard by which they can be judged – even passing the standard by a very small amount does not mean you have come away looking good – being called to account in itself is potentially damaging, and something that most law firms will try to avoid.

All modern law work is about risk assessment for the solicitor – either risk of getting it wrong, risk of appearing not to do the right thing, risk of overcharging, risk of having a complaint made against you.  And that’s all well and good – we should be kept on our toes.  But…  here’s the rub – not all people providing legal services are bound to the same standards.  If you choose an unregulated body to do the work for you, then you may be in the unfortunate position that you cannot complain that the charges are too high (look in the small print of the glossy charges brochure) or that the service is too slow (who are you to say what is slow?) or that you think they have not done their best to sell your auntie’s house – they virtually gave it away – it was worth far more! or that they never kept you informed (after all, you are the one that gets the proceeds of the estate in the long run.

 

How is it that unregulated companies manage to sell their service in this way, calling themselves “almost solicitors” and yet are not obliged to abide by certain professional standards?  Everyone from the establishment agrees on how to play fair, and makes an effort to give the customer the benefit of the doubt in all things, and yet…

Is it the pricing?  Solicitors have been charging by the hour for a long time – because that is one of the ways of working out how long something will take – how much work you have to put in, means the fee is commensurate with the job concerned.  Solicitors should give an indication of how much it is likely to be for each stage of the work – there is an estimate of costs for you.

Would customers prefer that every little detail is written down and added to the bill?  So that they know the price of every single step?  Having recently seen the third party disbursements brochure for a non regulated business, I can see all sorts of things that I just bundle into the price of doing the job.  And consider them essential in order to do the correct job for the client.  There is no way that I could cut the corner, then blame the client on the basis that “you didn’t want me to do that search, so I didn’t do it, and lo and behold, look at what a pile of mess you are in”.  The search is an essential part of the transaction, without which you have not correctly advised.  Interpretation of the search is my job, and advising on it.

What is it like for the customer?  Do customer’s seriously like a contract that is followed by pages and pages of sub-costs for this that and the other?  Trouble is – if you are paying for work from an unregulated body, you can’t complain anyway!  How is that remotely fair for the public, who can’t be expected to know what sort of expenses are involved.  If replacing the engine oil is a necessary part of my car service, as the current oil is drained to reach the part that needs replacing, am I happy with the thought that the service is £200, plus oil drainage fee, plus environmental disposal fee, plus 6 litres of fresh oil, plus an oil gauge testing fee?  (you can tell I know absolutely nothing about how much oil is needed for a car…    You might as well charge me the amount it will actually cost you, rather than adding on spurious details that make it seem like you had to do more…

*cough*  This has turned into something of a rant.  Partly because it seems so damn unfair  – how does the public know what they are buying?  And how do they know the difference between a regulated person and someone who is not?  How do they have any idea of how vulnerable they are, if the service is not good, or the product is substandard?  To whom do they turn?  Just have a quick word with the Legal Ombudsman, as I did, and you will find that they cannot be turned to, if the will writer is not an “approved person”.

 

Being a solicitor is for me about trying (I am human, so I fail, hopefully not too often) to do the right thing, the legally correct thing, and to use the law to protect and serve the interests of those who do not know the law, but have other excellent reasons for needing assistance.  When I come up against people whose main ethos is to make money and to push customers in at one end and relieve them of their money at the other end, without regard for the actual person, that offends me.  I told you I have got more idealistic as I’ve had more experience…

Fraud and abuse

STEP have just sent a set of newslinks round and this story about a crooked solicitor is one of the things that I get an almost visceral reaction to.  I can’t explain it – it just seems as wrong to take money that has been entrusted to you, as it does to abuse the trust of a child – something that is beyond acceptable, and quite revolting.

Its one of those high horse things, I suppose – and heaven knows I am  not perfect  – but to make a mistake is one thing – to set out to plunder the money that belongs to another in order to get yourself out of a hole is disgusting.  Who is the person that you should be able to trust with your money, to look after you – if you pay them a fee for their time?  a lawyer.

There are cynics out there who would undoubtably say that you should never trust anyone – and point out that we once had trust in bankers and look how long we’ve had to pay for that trust.[1]

I can understand that reaction – and especially in jurisdictions where there is a general breakdown of law and order, or where the political system may be less than transparent, and potentially corrupt, temporary or imposed by force.  Those situations are not civilised, the rules of trust there are limited to you and yours and self preservation in a time of trial, of war or otherwise.

But we are living in England.  We are not at war.  We live in a democracy.  Our currency is more or less stable.  This is our civilised time, where we should have standards and trust and faith in those who profess to take care of us.  Profess – abide by a code that is to honor the individual patient or customer or student, rather than to abuse.  That professional code is not uncommercial, but should be reconcileable with business interests, and where they conflict, should prevail.  All solicitors have that in their Professional Code of Conduct, in case you wondered.

I hope that this man does have some sort of criminal sentence.  As justice must be seen to be done.  And that by looking at his path, we can learn how to catch people sooner.  Because this is a regulated profession – there must be some safeguard for the public and accountability.   Let’s not even consider the unregulated business that deals with probate and attorney matters.  Would an unregulated provider of such services face headlines in the papers and such destruction of their career and livelilhood and personal humiliation?

 

[1]  I do not remember my bank or supermarket professing any ethical obligation to me, except in relation to the selling of investments under the FSA code.  I expect my bank and supermarket, to be businesses whose prime objective is to make money out of me:  how they treat me along the way is whether I choose to stay with them or not.   I feel no personal connection to my bank other than that of inertia or convenience – a bottle of Ribena is the same in Tesco as it is in Sainsbury as it is in Asda.  If my favourite item disappears from a shelf, I can choose to go without or find it elsewhere.  I cannot trust that the supply is tailored to my needs, or desires, or that my continued use of a particular bank or store brings greater rewards than shopping around.  But then they never promised that in the first place, did they?