The (expensive) case of the missing Will

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18 February 2013

A man walks into a solicitor’s office. He presents respectably – suit, tie, polished shoes and briefcase, from which he extracts proof of his own identity and certificates to show that his mother (whose only child he claims to be) has recently died.

“She left no will that I can find,” he explains at this first meeting. “So I’d like your firm to organise…what is it called? Probate? Administer the estate? I’m the only beneficiary.”

Welcome to the era of suppressed and fictitious Wills, fraudulent claims, family fall-outs…and a thousand other factors that have propelled trust and probate insurance claims to second largest of all notifications. This parallels the increase in contentious probate and related actions reaching Chancery – up by 79% between 2006 and 2010 according to the latest Ministry of Justice figures.

In theory it should be all-but impossible to settle an estate without knowing if there is or is not a valid Will. The first question on Probate Application Form (PA1) is “Did the deceased leave a Will/codicil?” HMRC put a similar question on the IHT form, and are not normally easy to fob off or evade.

So where is it all going wrong? Surveys by the Certainty National Will Register, show that;

  • 98% of solicitors say they hold Wills where the testator has most likely died but they were not contacted by either the executors or the beneficiaries.
  • The vast majority of family members – 67% – say they wouldn’t know where to find a parent’s Will. Often this is because the testator simply did not tell anyone where they kept it, even though they had made it through a solicitor.
  • 93% of solicitors said they would trust a new probate client who said there was no Will among the deceased’s papers – even though they had not met that client before.

In these litigious days lay people will increasingly look for someone to blame – and may decide that suing a solicitor is their best solution – is it time for the legal profession to start managing the risk?

Gill Steel, an experienced trainer to the private client practitioner and director of LawSkills Limited, points to reasons why solicitors need to safeguard their own interests before taking instructions from a client whom they don’t know well: “For most of my career it was usual for a solicitor to take at face value what a client told you as to their marital status, their domicile and any other direct question – such as, did the deceased leave a Will?

“In recent years, as more regulatory requirements have emerged, the naivety of accepting at face value the instructions we receive or the answers we are given without asking for or unearthing supporting evidence is becoming apparent. For example, with the increase in cohabitation, not asking for sight of a marriage certificate when taking Will instructions may well leave the practitioner vulnerable to a claim in negligence. Suppose it turns out that advice as to the tax treatment of that Will was based on the clients’ assumption that they were married on the ‘common law’ wife principle that so many clients believe in – only for the practitioner to discover to their cost in the administration of the estate that the parties were cohabitants and had never married!”

Gill points to other risks that solicitors may face: “Estate administration practitioners are well aware that HMRC ask the question on the IHT 205 and 400 forms as to whether the deceased died married or not. How can practitioners answer this question without sight of the marriage certificate? So why do practitioners not feel the same way about answering the questions as to whether the deceased died with or without a Will? Surely it is now becoming necessary to look again at the risk profile of probate practice and include within it the risk of not proving a Will where one exists or of not proving the correct Will.

“This is especially important when family members suggest that the deceased died intestate. Acting incorrectly in such a situation can only increase a law firm’s risk profile.

“A firm managing its risk well may already include all the usual checklists and file reviews and other sensible steps to minimise risk in its toolbox but these are to no avail if there is no evidence that the Will propounded can reasonably be assumed to be the last Will or that the intestacy rules are correctly to be applied in the absence of a Will.”

Gill Steel concludes: “Risk management is, since 6 October 2011, a mandatory requirement under Outcomes Focused Regulation (OFR). The comfort of prescriptive rules of conduct for solicitors has been replaced by the uncertainty of freedom to do the best for clients in accordance with a set of Principles and Outcomes. Each firm has to scrutinise itself and report any failures. How will the Compliance Officer for Legal Practice (COLP) in your firm satisfy him or herself that the estate administration team has minimised the risk of administering an estate incorrectly?

“Certainty’s Will Search provides the COLP with comfort that adopting its use will provide some evidence of good practice and so assist in the management of probate risk in that firm.”

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