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Strange letter from a solicitor

including wills and probate
stewamax
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Re: Strange letter from a solicitor

#232043

Postby stewamax » June 25th, 2019, 8:22 pm

The recent introduction of the GDPR (data protection) legislation reinforced the principle of ‘positive opt in’ where, although implied consent still exists, it is usually contingent on the ‘customer’ having already opted in to something else. If I join (opt in to) a chess club, I am giving my implied consent to receive communications specific to my membership of the club (a list of planned matches for example) but the club may not then also send me mailshots for chess sets or signed photos of Garry Kasparov unless I further opt in to receive such more general mailshots.

In Rust vs Abbey Life there had already been an exchange of communications sufficient to constitute a contract whereas in Felthouse v Bindley there had merely been a prior informal and inconclusive discussion. Brogden v Metropolitan Railway Company had a similar outcome to Rust, where there was both an exchange of unsigned contracts and where Brogden continued to perform the ‘contract’ (deliver coal) with no refusal to accept or attempt at recission of the ‘contract’ by Metro Railway.

It would be bizarre to assume that my sending a communication to someone to which they didn't reply could constitute a contract between us unless there was some prior connection or arrangement between us. The recipient may not have even received the communication!

It is similar in principle to inertia selling where the recipient not only has no need to acknowledge receipt (although it would nevertheless be a good idea to do so) but also has no need to return the goods - it is up to the vendor to arrange collection.

Avantegarde
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Re: Strange letter from a solicitor

#232106

Postby Avantegarde » June 26th, 2019, 9:30 am

Nemo wrote:In answer to this we received a copy of the probate which stated that Mrs N and a partner were executors and trustees. It went on to say

If you are happy to carry on as trustee could you, please sign and send back our Acknowledgement of out terms along with two pieces of ID from this list enclosed in ou previous correspondence.

Alternatively, if you wish to retire as trustee, we will arrange the necessary documents to be sent to you for signature.



Surely the law firm here is acting unprofessionally by misrepresenting its own powers and authority? It is suggesting that it has some sort of superior authority over the other trustee (when they must, presumably, have equal status). And that this arrangement involves Mrs N being a client of the law firm - or at least being treated as such. I'd write back telling it, politely but firmly, that it has the wrong end of the stick. Have you followed Clitheroekid's advice?

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Re: Strange letter from a solicitor

#232124

Postby scrumpyjack » June 26th, 2019, 10:44 am

Why not write back and suggest they resign as trustee? You have as much right to suggest that to them as they do to you.

Nemo
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Re: Strange letter from a solicitor

#232138

Postby Nemo » June 26th, 2019, 11:33 am

Surely the law firm here is acting unprofessionally by misrepresenting its own powers and authority? It is suggesting that it has some sort of superior authority over the other trustee (when they must, presumably, have equal status). And that this arrangement involves Mrs N being a client of the law firm - or at least being treated as such. I'd write back telling it, politely but firmly, that it has the wrong end of the stick. Have you followed Clitheroekid's advice?


I think that they are somewhat unprofessional.

The person that I'm dealing with is described as assisting with the computerised records and general office assistance - low in the pecking order and probably doesn't know what she is doing. I can't make out if she is something of a loose cannon or if this is their firm's policy. If she is acting on her own then I'm not impressed with the solicitors in allowing this to happen.

Alternatively the firm may be struggling financially as many solicitors are - I'm aware of one firm of solicitors, an LLP, going 'bump', and I have seen a solicitor's accounts where they were losing money and everything, including homes, were mortgaged up to the hilt.

Mrs N doesn't want things to get too antagonistic as she may have to work with the firm at some time.

I've made the position very clear, but their reply basically ignored the content of the letter and said comply or resign.

I have now drafted a letter which includes much of the advice given here, including the para. by CC. and also:

I am therefore not going to follow your instructions or resign as trustee


Mrs N would like to thank everyone for their advice, as would I.

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Re: Strange letter from a solicitor

#232142

Postby UncleEbenezer » June 26th, 2019, 11:53 am

Just a thought.

If a solicitor is trying what looks like some very sharp practice on Mrs Nemo, how many other victims might there be? Especially bearing in mind it's a position of authority: the average person would naturally be somewhat in awe of a solicitor?

Is there not a solicitors regulatory authority of some kind, and should Nemo be drawing this story to their attention?

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Re: Strange letter from a solicitor

#232174

Postby Lootman » June 26th, 2019, 2:22 pm

UncleEbenezer wrote:If a solicitor is trying what looks like some very sharp practice on Mrs Nemo, how many other victims might there be? Especially bearing in mind it's a position of authority: the average person would naturally be somewhat in awe of a solicitor?

Yes, I suspect that whilst solicitors in this situation are careful to avoid actually lying, they are probably quite comfortable with allowing the "client" to assume something that is not true, to their benefit.

Like in my case with the solicitor who assumed that they would be carrying out executor duties on a will where they were not named as such, merely on the basis that they had safekeeping of the will. They made a big deal of reading the will to me (the real executor) and telling me how they would proceed with applying for probate, when in reality all they needed to do was hand over the will to me so I could act.

He also either lied or made a mistake when he told me that I could not rent out the deceased's home until probate was granted, which is 100% false.

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Re: Strange letter from a solicitor

#232181

Postby chas49 » June 26th, 2019, 3:07 pm

UncleEbenezer wrote:Just a thought.

If a solicitor is trying what looks like some very sharp practice on Mrs Nemo, how many other victims might there be? Especially bearing in mind it's a position of authority: the average person would naturally be somewhat in awe of a solicitor?

Is there not a solicitors regulatory authority of some kind, and should Nemo be drawing this story to their attention?


Indeed there is just such a body - the Solicitors Regulation Authority (https://sra.org.uk/home/home.page)

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Re: Strange letter from a solicitor

#234981

Postby Nemo » July 8th, 2019, 6:45 pm

Further developements, this time from a solicitor (the fellow trustee).

Basically he suggests that the trust is a client of his practice, and I (I = Mrs N) and him are therefore clients of his firm. He still wants the terms of engagement letter signing as well as my ID for money laundering purposes. Sounds a bit more plausable but I'm not totally convinced.

He mentioned his accumulated costs which consists of insuring the property (fair enough), and the following which does concern me.

When the life tennant dies or vacates the property the bulk of the proceeds go to various charities. He says he keeps writing to these as they keep enquiring if the property is occupied. This suggests that he has written to potential beneficiaries advising them of their potential windfall while the trust is still running (relative still alive). I find this most unusual and wonder if this should happen?

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Re: Strange letter from a solicitor

#234984

Postby PinkDalek » July 8th, 2019, 6:51 pm

Nemo wrote:When the life tennant dies or vacates the property the bulk of the proceeds go to various charities. He says he keeps writing to these as they keep enquiring if the property is occupied. This suggests that he has written to potential beneficiaries advising them of their potential windfall while the trust is still running (relative still alive). I find this most unusual and wonder if this should happen?


It is standard practise for charities or those with a reversionary interest to write to ascertain if a life tenant is still around. At least it was in the Eighties. Something I used to do once a year, on behalf of a member of the family. Never wishing ill on the life tenant.

Presumably the charities became aware of the situation back in 2000.

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Re: Strange letter from a solicitor

#234989

Postby Nemo » July 8th, 2019, 7:14 pm

Thanks PD, very helpful

I'm still puzzled why he would advise the reversionary interests of the situation. Surely this should happened when the trust ends? Or is it a legal requirement?

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Re: Strange letter from a solicitor

#234995

Postby PinkDalek » July 8th, 2019, 7:41 pm

Nemo wrote:I'm still puzzled why he would advise the reversionary interests of the situation. Surely this should happened when the trust ends? Or is it a legal requirement?


Clitheroekid and/or others will no doubt correct me if I'm wrong but your OP mentioned a death in 2000. Presumably, from what you've written, that involved a Will which, after Grant of Probate has been obtained, will be available at the Probate Registry for a fee. Charities and others will, either themselves or through intermediaries, keep an eye on the contents of filed Wills and take a note of when they are beneficiaries.

Extracts from Wills do appear in the press. Again others will know how but these do often mention Charitable bequests. I've assumed they are derived from Wills filed at the Probate Registry. Unless The Gazette mentions such matters (I haven't looked) https://www.thegazette.co.uk/wills-and-probate.

Alternatively, maybe the deceased advised the Charities of the bequests or the solicitor let them know they were ultimately to be beneficiaries.

I can't help on the fees situation, though, although the more recent explanation does appear to make some sense.

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Re: Strange letter from a solicitor

#235089

Postby didds » July 9th, 2019, 8:41 am

On a more pragmatic note, all these letters to charities every year telling them the trust is still live - who is paying for them? The estate? When do these invoices/costs get presented?

didds

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Re: Strange letter from a solicitor

#235101

Postby Nemo » July 9th, 2019, 9:47 am

Alternatively, maybe the deceased advised the Charities of the bequests or the solicitor let them know they were ultimately to be beneficiaries.


The first of these did not happen and why would the solicitor advise potential beneficaries - not a normal thing surely? Assuming potential beneficaries become aware of the situation them why would they continully write to a solicitor? It is just additional costs for them and won't speed things up.

Something doesn't feel quite right about this.

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Re: Strange letter from a solicitor

#235116

Postby fisher » July 9th, 2019, 11:08 am

Nemo wrote:
Alternatively, maybe the deceased advised the Charities of the bequests or the solicitor let them know they were ultimately to be beneficiaries.


The first of these did not happen and why would the solicitor advise potential beneficaries - not a normal thing surely? Assuming potential beneficaries become aware of the situation them why would they continully write to a solicitor? It is just additional costs for them and won't speed things up.

Something doesn't feel quite right about this.


And, even if they do write, surely the solicitor is under no obligation to reply to them, especially if him replying involves a cost to the trust.

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Re: Strange letter from a solicitor

#235122

Postby Howard » July 9th, 2019, 11:19 am

Could I suggest looking at the situation from a different angle?

Mrs N voluntarily took on a serious role in 2000 when she became a Trustee. I'm not a lawyer and know little about Trusts but If you look at the legal responsibilities of a Trustee, they are well-defined and significant. For example:

Since the trustee holds legal title to the trust property, he or she owes fiduciary duties to the beneficiaries who hold equitable title. The trustee must distribute the property in accordance with the settlor’s instructions and desires. His or her three primary jobs include investment, administration, and distribution.

A trustee is personally liable for a breach of his or her fiduciary duties. The trustee’s fiduciary duties include a duty of loyalty, a duty of prudence, and subsidiary duties. The duty of loyalty requires that the trustee administer the trust solely in the interest of the beneficiaries. The duty of prudence requires that the trustee is held to an objective standard of care in managing the trust property. Subsidiary rules include the duty of impartiality (no favoritism between classes of beneficiaries), the duty not to comingle trust property and the trustee’s personal property, and the duty to inform and account to beneficiaries. The trustee will always have duties, or the trust will become passive and legal title will pass to the beneficiaries.

I'm quoting from:

https://www.justia.com/estate-planning/ ... abilities/

There is a lot more detail about how a Trustee should act on behalf of beneficiaries, which in this case presumably include charities.

Surely Mrs N must decide whether or not she has satisfactorily carried out her duties as a Trustee in protecting all the beneficiaries in the past. And whether she wants to carry out these duties in the future. At least, she should ascertain the financial situation, and the "reasonableness" of the costs and fees incurred/charged by her fellow Trustee. This may then help her decide whether she wants to carry on as a Trustee or resign.

I'm not generally a fan of Solicitors, but this one seems to be carrying out the duties of a Trustee, especially in keeping the beneficiary charities informed. Personally I'd want to now see a summary of the Estate's financial situation if I were a fellow Trustee. And in the future I'd ask for an annual summary to show that I was carrying out my responsibilities.

And if I was married to an Accountant he'd be able to give an informed view of the financial situation. :D

Given the responsibilities involved, inaction is probably not the best strategy?

regards

Howard

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Re: Strange letter from a solicitor

#235129

Postby Dod101 » July 9th, 2019, 11:39 am

Nemo wrote:
Alternatively, maybe the deceased advised the Charities of the bequests or the solicitor let them know they were ultimately to be beneficiaries.


The first of these did not happen and why would the solicitor advise potential beneficaries - not a normal thing surely? Assuming potential beneficaries become aware of the situation them why would they continully write to a solicitor? It is just additional costs for them and won't speed things up.

Something doesn't feel quite right about this.


The problem with the world in general is that we are so very cynical and untrusting, often for good reason, but the way this story is playing out now makes sense to me. Work, only what we might call 'maintenance' work, is being carried on by the firm of solicitors of the fellow trustee on behalf of the two trustees and to that extent both trustees are clients of the firm. Presumably there are funds to pay for this work. Trusts do not often just run themselves.

As for advising charities of their reversionary interest, I think that is standard practise. I have been the treasurer of more than one charity in that position and have been advised of the reversionary interest each time at the time when a trust has been set up (at the time of a death of course). Obviously the charity can do nothing but wait, but from time to time is likely to check up and make sure that they have not been forgotten, in fact they may even have a duty to do so. It is for the trustees to ensure that the reversionary interest has not been triggered, in this case by the death of the tenant.If I were Mrs N, I would make an appointment to meet her fellow trustee and discuss her concerns, and get the matter sorted out. She is surely entitled to do that and as a trustee has a duty to take an interest and ensure things are in order. There is no point either, in encouraging ill feelings.

Since I have typed this Howard has put the matter more formally and I agree with what he is saying.

Dod

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Re: Strange letter from a solicitor

#235158

Postby Dod101 » July 9th, 2019, 12:38 pm

As for the need for ID it is quite possible that the compliance dept of the solicitor's firm is leaning on him and saying 'Look we need ID from your fellow trustee or get her to resign. We need to get this resolved.' Another reason why not to ignore the letters as that will only be winding up the fellow trustee.

Dod

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Re: Strange letter from a solicitor

#235170

Postby Nemo » July 9th, 2019, 1:10 pm

Presumably there are funds to pay for this work.


No. The only asset in the trust is the property. The person with the life interest is paying the house insurance and maintaining the property.

Very little to do apparently.

The solicitor is just accumulating costs to be paid when the trust comes to an end.

The problem with the world in general is that we are so very cynical and untrusting, often for good reason


Afraid so. I was recently an expert witness in legal action over land - various legal firms involved and some of their actions appeared to me a little questionable to say the least.


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