Strange letter from a solicitor

[Nemo]

In early 2000 a woman died died leaving her house in trust for the life of her son who had the right to live there until his death, or until he left. A close relative of the woman (X) and her solicitors (or, more accurately one of the partners) were appointed as trustees. X heard nothing for many years assuming that the solicitor was dealing with whatever was necessary.

X recently received two Terms of Business Letter addressed to him personally along with a requested to sign and return one copy. Along with this was a request for two pieces of ID to comply with the money laundering regulations.

Following discussions with me X wrote querying this as he had never appointed the solicitors to act for him. They were appointed by his relative, along with X, to act as trustees.

The reply from them states that if X is happy to carry on as trustee then X must sign the Terms of Business Letter and provide ID. Alternatively, If X wants to then he can resign. They seem to imply it was a choice of one or other of these two options. The Terms of Business Letter contains details of fees (£275 an hour) along with details of how he is to be billed. X is now retired an in no position to pay such fees, nor do I see that he should.

I’ve suggested that X write back stating (again) that he have never instructed them to act for him and would not be signing anything and had no intention of resigning.

Before doing this, I would be grateful any advice.

[PinkDalek]

Have you seen the terms of the Trust and what do they say?

[Nemo]

There is this in the last paragraph of the Will:

Any trustee being a solicitor or other person engaged in a profession or business may be so employed or act and shall be entitled to charge and be paid all professional or other charges for any business or act dome by him or his firm in connection with the trusts of this my Will including acts which a trustee could or should have done personally.

Not sure exactly how this can be interpreted but it was in the Will over which X had no control

[Clitheroekid]

It is indeed a bizarre letter. A solicitor trustee in that situation is entitled to be remunerated out of the trust assets, but he can't look to his fellow trustee(s) for remuneration.

It does rather sound as though he wants X to resign, so he can then plunder the state to his heart's content, without any pesky objections from X!

I would therefore advise X to write back to the solicitor saying that he does not consider himself to be a client of the solicitor, and will not, therefore, be signing any terms of business. Neither will he consider resigning as trustee.

As a trustee of the estate X should have received and approved regular trust accounts, including all solicitors' bills that have been charged, but as you say he'd not heard from them for years it sounds as though he may not have.

If that's the case, then he should say something to the effect: "I am rather surprised that this issue has been raised nearly 20 years after the death of [name]. As I've never seen any bills from you I can only assume that this is the first time you are intending to issue a bill, so please let me know what you are proposing to charge the estate, so that I can, as trustee, approve such charges".

The result might be interesting!

[Howard]

Come on Nemo!

Brilliant advice from CK.

What happened next

[Nemo]

Hi Howard

Yes, good advice from CK.

I've just done nothing! I don't see why I should as they appear very intransigent - they couldn't explain why they wanted me to sign a letter of engagement, but just insisted that I did so.

If I get any further letters then I will write along the lines suggested by CK.

I came across the firm in question professionally many years ago. They were a prosperous firm in a market town that was the center of a farming community - the town at one time even had a Rolls Royce dealership.

The whole area is not looking the place that it did and I suspect the easy money that they once made is no longer available.

I don't think that they can do too much without my consent and I have The Law Society that I can query anything with if I'm not happy. The last letter from them was dated 1st May 2019 when they just again asked me to sign an engagement letter and provide my ID for money laundering purposes.

The unqualified clerk that is dealing with the matter seems a bit of an idiot, so I'm just ignoring them.

I'm not happy with the firm but I'm stuck with them as they are with me!

[Nemo]

Just one more point, Mrs Nemo (who is actually the trustee) tells me we received a telephone call from the solicitors a few weeks ago when we were out but they left no message.

If she does receive a call she will ask them to write or email.

[Dod101]

Meanwhile, the son is living there happily? Does Mrs Nemo have any duty of care as a Trustee?

Dod

[GoSeigen]

Just one more point, Mrs Nemo (who is actually the trustee) tells me we received a telephone call...

Trying to get my head around who is involved here. I assume the above is mis-typed and should read:

Just one more point, Mrs Nemo tells me (I am actually the trustee) we received a telephone call...

And if Nemo is actually the trustee then Nemo is X in the OP? But then Nemo writing in the OP states:

Following discussions with me X wrote querying this...
[...]
I’ve suggested that X write back stating (again) that he have never instructed them to act for him...

Am I to understand that X aka Nemo has been having these conversations with himself, or is there another explanation?


GS

[Nemo]

Hi Dod101

No duty of care as far as I can see. Property in trust until a) death or b) he leaves.

I assume that ignoring the letter is the best thing that I can do (for me/I read Mrs N).

[Nemo]

Hi GoSeigen

Sorry if it's a bit confusing. Mrs N is the trustee.

I'm a Chartered Accountant in practice and seem to have taken over this as Mrs N was a bit concerned about what was happening. All letters to/from solicitors are in her name, but written by me.

[Clitheroekid]

I've just done nothing! I don't see why I should as they appear very intransigent - they couldn't explain why they wanted me to sign a letter of engagement, but just insisted that I did so.

This is not a good strategy.

It's annoyingly common for clients not to return signed terms of business, mostly through laziness, but no doubt occasionally because they think that by not doing so they can avoid any liability for payment.

Consequently, many firms (my own included) put something in either the terms of business or the `client care letter' (the several pages of waffle that we are forced to send to new clients) to cover this possibility.

In my own case, the following paragraph is printed above the signature section:

Although your continuing instructions in a matter will amount to an acceptance of these Terms and Conditions of Business, I should be grateful if you would sign one copy below and return the signed copy to me for retention on the file.

The effect of this is to impose the terms on the client whether or not they return a signed copy. The onus is then on them to actively reject the terms if they don't like them.

I'm pleased to say that I've never had to test the efficacy of this in court, but I'm fairly sure it would stand up.

But even in the absence of such an express provision you would probably, by having received but not objected to the terms, be deemed to have accepted them anyway.

So if you don't let your views be known about the situation you may be seen as accepting it, and thereby also accepting the consequent liability for the payment of the firm's fees.

I would therefore strongly recommend that you (or more accurately your wife) should respond to the firm on the lines suggested.

[Slarti]

But even in the absence of such an express provision you would probably, by having received but not objected to the terms, be deemed to have accepted them anyway.

Despite Felthouse v Brindley (1863) ?

Slarti

[PinkDalek]

But even in the absence of such an express provision you would probably, by having received but not objected to the terms, be deemed to have accepted them anyway.

Despite Felthouse v Brindley (1863) ?

Slarti

See Brogden v Metropolitan Railway Company (1876–77) L.R. 2 App. Cas. 666 and RUST v. ABBEY LIFE ASSURANCE CO. LTD. AND ANOTHER. [1979] 2 Lloyd's Rep. 334 COURT OF APPEAL.

[Nemo]

Hi CC

I did wonder about replying as it is never good professionally to leave things 'hanging'. However you are referring to your clients and Mrs N have never been a client of the solicitors, nor ever approached them to act.

My initial letter to them was along the lines of

I am a little surprised by the content of your letters and the enclosed Terms of Engagement Letter. There seems to be some confusion by you as I have never instructed your firm to act for me....

....I understand that my late ............. instructed you to prepare her will in which she named your firm and myself as executors and trustees. I have never had any further involvement and consequently will not be signing the Terms of Business letter or complying with your money laundering procedure.

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.

I have not replied to this letter. it seems to be pushing Mrs N into either signing the engagement letter or resigning. I thought about writing along the lines of

I'll do neither thanks

but don't see what good this will do given the intransigence of the firm.

I do wonder how many people would think that they have to sign this type of letter though?

[Lootman]

even in the absence of such an express provision you would probably, by having received but not objected to the terms, be deemed to have accepted them anyway.

Surely such an assumption presupposes some kind of prior agreement, presumably oral. So that, if I had previously asked you to act for me, and you have started work, then I am presumed to have agreed to your terms and fees even if I do not sign an agreement letter.

But in this case the solicitor is writing out of the blue, making a daring assumption that there is such an agreement and meeting of minds, when clearly there is not.

I am not a lawyer but I struggle to believe that, if I were, I could impose terms on a person with whom I have no business relationship, merely by writing them a letter and not getting a reply. If that were the case there would be a huge number of such speculative letters going around, each with the hope that the recipient doesn't reply and there is a "gotcha". Just because I write to you and claim that you owe me a million pounds doesn't mean that you are punished for ignoring my audacity.

I have always taken the view that I am under no obligation to respond to any letter or demand, and that it cannot be reasonably or legally assumed that I agree to something just because I don't affirmatively repudiate it. Rather the other party has the burden of proving, in a court of law if necessary, that I agreed to something. An assumption is insufficient.

In practice however much would depend on whether I wanted something from them, or whether they wanted something from me.

[Slarti]

But even in the absence of such an express provision you would probably, by having received but not objected to the terms, be deemed to have accepted them anyway.

Despite Felthouse v Brindley (1863) ?

Slarti

See Brogden v Metropolitan Railway Company (1876–77) L.R. 2 App. Cas. 666 and RUST v. ABBEY LIFE ASSURANCE CO. LTD. AND ANOTHER. [1979] 2 Lloyd's Rep. 334 COURT OF APPEAL.

Interesting.

I was never taught about the first one when doing Basics of English Law and the 2nd one hadn't happened.

We keep on learning.

Slarti

[stewamax]

As a non-lawyer, I am reminded of a slightly earlier case of More, Sir Thomas vs Henry VIII (as retold in Bolt’s A Man for All Seasons):

Cromwell: Yet how can this be? Because this silence betokened, nay, this silence was, not silence at all, but most eloquent denial!
More: Not so. Not so, Master Secretary. The maxim is "Qui tacet consentire"; the maxim of the law is "Silence gives consent". If, therefore, you wish to construe what my silence betokened, you must construe that I consented, not that I denied.
Cromwell: Is that in fact what the world construes from it? Do you pretend that is what you wish the world to construe from it?
More: The world must construe according to its wits; this court must construe according to the law.

a case that unsurprisingly was decided in favour of the Crown and More lost his head.

[JonE]

I have always taken the view that I am under no obligation to respond to any letter or demand, and that it cannot be reasonably or legally assumed that I agree to something just because I don't affirmatively repudiate it. Rather the other party has the burden of proving, in a court of law if necessary, that I agreed to something. An assumption is insufficient.

Always? Any letter or demand? Rather than ignore them, I chose to respond in a timely manner to appeal against incorrect tax assessments/computations which over-stated my liability. ;^)

Cheers!

[Lootman]

I have always taken the view that I am under no obligation to respond to any letter or demand, and that it cannot be reasonably or legally assumed that I agree to something just because I don't affirmatively repudiate it. Rather the other party has the burden of proving, in a court of law if necessary, that I agreed to something. An assumption is insufficient.

Always? Any letter or demand? Rather than ignore them, I chose to respond in a timely manner to appeal against incorrect tax assessments/computations which over-stated my liability. ;^)

Well yes, I was not advocating that one ignores correspondence from the taxman, as a good example.

It was more an attack on the idea that "silence is consent", as stewamax so eloquently described it, in relation to the idea introduced by CK that he can unilaterally impose an enforceable contract on someone merely be writing to them asserting one, and then not getting a response.