Law: Fees in estate of shock: Where there's a will, there's a bill . . . and, increasingly, a dispute about overcharging. Sean Webster investigates

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The Independent Online
COMPLAINTS concerning allegations of delays and overcharging by solicitors administering estates are being referred to the Legal Services Ombudsman, Michael Barnes, in increasing numbers. The Ombudsman's latest annual report, published this week, shows that probate is now the second most common cause of complaints against solicitors, after family proceedings.

According to Mr Barnes, one of the main reasons for complaint is that beneficiaries of wills, who are not executors, have no legal right to challenge the fees of solicitors dealing with the administration of the estate. Their liability is to the estate, and not the beneficiary, who is therefore not entitled to challenge the bill by using the Law Society's remuneration certificate procedure.

In one such case, Frank Selby, a pensioner from London, has had to wait five years for a law firm to complete the administration of an estate. He has challenged the pounds 5,933 bill charged by the executors, a solicitor and his wife, but as a beneficiary of the estate he has been unable to get the bill reduced.

The Ombudsman would like to see an amendment to the rules to allow beneficiaries the same rights as executors to challenge solicitors costs. Consumer groups back the view: earlier this year, for example, the Consumers Association ran a campaign calling for a change in the law.

And David Hartley of the Law Society says the criticisms by the Ombudsman have prompted the society to reconsider the position of beneficiaries. The issue is likely to be on the agenda at next month's council meeting.

Tony Girling, a partner in the Kent firm Girlings, and the chairman of the Law Society's probate campaign committee, also favours a change in the system. 'It's unsatisfactory for the public,' he says. 'There is increasing concern that beneficiaries can't get redress.'

Complaints about delay in probate work arise more often than not because it is undertaken by practitioners who do not specialise in it: Law Society statistics show that 97 per cent of all law firms handle some form of probate work. And there is, says Mr Girling, a temptation to put probate work at the bottom of the pile 'because there isn't the same pressure of time as there is in conveyancing or court work, and you don't have the client pressing you'.

He warns, however, that if poor standards continue, accountants are likely to succeed in their challenge for work on administration of estates in the future. This competition, he says, is likely to increase as the Government prepares to implement rules under the 1990 Courts and Legal Services Act that will abolish solicitors' monopoly on grant of probate and create licensed probate practitioners.

The Institute of Chartered Accountants for England and Wales has already applied to become an approved body for probate work. Giles Wintle, head of business law at the institute, says its members are 'very interested in pursuing probate work'. The Institute of Legal Executives has also applied for approved body status.

Tony Girling is calling on law firms to allow only probate specialists to take on the administration of an estate, even if it means turning down work. In turn, he advises members of the public to ask for an undertaking that the administration of an estate will be carried out by a specialist. If the firm is unable to provide such an undertaking, the client should go elsewhere, he says.

A recent Court of Appeal decision raised a further concern for probate practitioners. In the case of Jones vs White, Sir Donald Nicholls, the Vice- Chancellor, decided that solicitors could be liable in damages to a disappointed prospective beneficiary where there had been a delay in drawing up a will. In this case, a former Birmingham law firm, Philip Baker King & Co, and one of its legal executives had to pay out pounds 18,000 to two prospective beneficiaries, after the firm had failed on three occasions to keep appointments to draw up a new will. The court ruled that the firm was liable for the delay which resulted in the two people inheriting nothing. Peter Wylde, a partner with Irwin Mitchell in Sheffield, who specialises in professional negligence work for plaintiffs, describes will-making as 'generally a pretty sloppy area' in law firms. The problem stems, he believes, from its lack of profitability. Typically, firms treat will-making as a loss leader, charging only pounds 30 or pounds 40 a time.

Mr Wylde warns that firms should be totally candid with clients about what is involved. 'They must tell clients clearly how long they need to draw up the will, even if it is six weeks. They must also make it clear that whatever the client tells the solicitor he wants in his will is ineffective until the document is drawn up and executed.'

The author writes for Solicitors Journal.

The Law Society called this week for reconsideration of the rules for opening probate work to non-lawyers. In its response to the consultation paper published in February by the Lord Chancellor's Advisory Committee on Legal Education and Conduct, the society says that the advisory committee's proposals on training, 'fitness and properness', regulation and compliance are 'seriously flawed', and contain no indemnity and compensation measures, unlike the similar structure established on the introduction of licensed conveyancers. 'Probate practitioners will expect to be appointed to wind up estates. This will require them to deal with complex legal questions and to control large sums of money,' said Paul Marsh, chairman of the society's property and commercial services committee. 'The protections for the public envisaged in the consultation document are completely inadequate.'