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The perils of probate

11 December 2016

One of the avowed intentions of governments of every hue is to open up the lucrative legal services market beyond the closed shop of solicitors and barristers. This year saw two reports and consultations by the Competition and Markets Authority (CMA) who believe that individuals and small businesses, at critical points in their lives, are poorly served by this £12 billion annual industry.

It is a little known fact – even among solicitors – that even though when one practices using the description solicitor every aspect of that practice is regulated by the Solicitors Regulation Authority (SRA), in fact only a small proportion of what a solicitor does is a reserved activity – the majority of work undertaken by a solicitor is non-reserved and could be undertaken for a fee by Tom, Dick or Harry.

Will writing and the administration of estates are non-reserved activities. That explains why there are so many Will writers, providers of powers of attorney and related retirement planning services including family protection trusts and estate administration specialists in practice. Google 'will writers' and you will never re-gain control of your inbox again and not one respondent will be a solicitor. These activities are unregulated.

Whilst many and no doubt the majority provide a good service to their clients and high quality legal advice, recent experience is showing that a number charge for services that are not required. Perhaps of greater concern is the fact that if litigation solicitors report growth in one area it is in that of financial abuse of the elderly and challenges to Wills.

Hopefully in early 2017 we will have the Supreme Court decision in Ilott v Mitson. It is regardless of the eventual decision a useful illustration of the perils of Will writing. Mrs Jackson was a widow who lived alone and had one daughter, Mrs Ilott. They were estranged and had been for many years before Mrs Jackson died (Mrs Jackson despised her son in law). Mrs Jackson left a modestly sized estate and bequeathed it all, approximately £600,000 to charities she appears to have selected at random. No one suggested that Mrs Jackson didn’t know what she was doing and no one suggested that there was any close connection, still less financial maintenance or obligation between Mrs Jackson and daughter Mrs Ilott.

Nonetheless, the Court of Appeal held that under the 1975 Inheritance Act Mrs Ilott, as a daughter had a right to claim and that in all the circumstances (a comparison of the size of the estate to Mrs Ilott’s very modest means and the fact she lived in a housing association property and a quixotic selection of charities) it was right that Mrs Jackson’s estate should make provision for her daughter to the tune of providing money to enable her to buy a house and a small trust fund.

The case is an excellent illustration of the fact that it is not sufficient for a Will writer simply to ask a Testator what he or she may want and then simply write it down with a few ‘I hereby bequeath…’ and ‘aforesaids..’ thrown in.

If one then takes into account difficult issues such as undue influence, fraudulent calumny and judgments about capacity and the fact that we have an increasingly elderly population and one which is increasingly taking medicines that have effect on cognitive functions, there is little wonder that this area of professional negligence is growing and will continue to do so.

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