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A Suspicious Will Taking

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wessexmario | 19:03 Thu 21st Apr 2016 | Civil
14 Answers
M = man, ill in hospital having his will taken.
D = daughter of M
S = solicitor, STEPs qualified, taking the will.
T = a solicitor who worked with S, inexperienced in wills, trusts etc.
P = a psychiatrist employed by S to do a mental capacity assessment of M

That morning, a succession of meetings occurred in the hospital.

Meeting 1.
First, M, D, S, T and P all had a long chat together about the family and options for the will, during which M stated many times that he wanted D to be his sole executor. At the end of this long chat, M was quite tired (with a terminal illness, he died very soon after)

Meeting 2.
During a break (away from M and D) P reported that:
S and T discussed and agreed with P that it would be "best for M" if T was appointed the second executor.
(we already have that discussing M's legal affairs with P was a breach of client confidentiality by S and T)

Meeting 3.
T and P with M (S and D were not present)
in P's report, he describes:
- that P and T discussed with M the problems that D would face as a lone executor.
- that P then asked M who he would like to have as the second executor, and that M said "T".
- that P then explained to M about the purpose and role of powers of attorney, and P asked M who he would want to be his attorneys. According to P in this meeting M said "D and T". (in meeting 1 it was "only D")

P reports that "T did not attempt to prompt or influence M", so if that's true then it implies the only other person present who could have influenced M's change of mind to appoint T as executor was P.
S was quickly recalled into the meeting, and asked M to sign a will making D and T joint executors.

Immediately after.
It was then all a complete shock to D (and later to the rest of the family) to find that her dad had just changed his mind about her being the sole executor, (which she had been for many years in his previous two wills) even though he had stated so again many times to them all during meeting 1.

We have a reasonably strong case against the solicitors, but trying to work out if the psychiatrist was operating outside of his remit. (he was, but we need to find some law or professional rule that he's broken) P's report is suitably vague about what M actually said, and S and T say even less about what happened after meeting 1. One strange thing about the whole affair is that P wrote more in his report about the legal, non-medical, facts relevant to a will-taking in meetings 2 and 3 than either S or T did in their reports.

Was P, as a non-solicitor and charging M a fee for his services [ostensibly writing a medical capacity report], giving legal advice illegally?
It seems to me that legal advice was given in the course of a paid service, and as this information was specific for M (as described in meeting 2) not generic legal information, does this constitute an illegal practice?

I'm not sure. I don't want to dilute an otherwise good case against S and T with a false accusation about P, but additionally, if it's definitely a wrong doing then I'd like to include it.

Was P giving "legal advice" illegally?

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Blimey I thought this was a university law question but it clearly isnt Long post asking if P were acting with his professional duties. The duties being towards M ( almost exclusively ) and I think it is pretty obvious that P was acting in M's interests even tho it really irritated D Much longer answer: the doctors are generally governed by the regulators rules...
19:29 Thu 21st Apr 2016
Blimey I thought this was a university law question but it clearly isnt

Long post asking if P were acting with his professional duties. The duties being towards M ( almost exclusively ) and I think it is pretty obvious that P was acting in M's interests even tho it really irritated D

Much longer answer:
the doctors are generally governed by the regulators rules which are here
http://www.gmc-uk.org/static/documents/content/GMP_.pdf

I have been thro it and I think P acted OK

ref7 gives even more exciting stuff about end of life care which I havent accessed but which will be on the GMC site

Good reading

D's legal duties are to collect M's assets and pay debts and the usual a ( winding up the estate ) and then distribute the estate according to the will,
and quite frankly I think she should get on with it
without being sidelined on this long exhausting quest
unless of course the last will differs substantially from the longstanding second last one
which is an answer i knnow to a queston you didnt ask
Anyone is free to give legal advice, irrespective of whether they're paid to do so or not.

For example, you, I or anyone else can open an office on any High Street, using the title 'lawyer' and start charging for legal advice. (It would only be illegal if we used a 'protected title', such as 'solicitor' or 'barrister', rather than the generic and non-protected term 'lawyer' or if we pretended to have qualifications and/or experience that we didn't possess. There would also be a 'trading standards' issue if the quality of the advice offered wasn't as good as a client might reasonably expect from a paid 'lawyer').

So I can't see that P was acting 'illegally'.

However S and T should have pointed out to M (including via P, if we're to allow that Meeting 2 took place) that, while D might well have experienced problems acting as sole executor, it did not automatically follow that a second executor should be appointed. If D found the task of acting as executor to be difficult, she could simply have employed her own solicitor (who did not, of course, have to be either S or T) to take on the task on her behalf (with the costs of doing so automatically coming from M's estate).

So, while your post raises questions about whether S and T dealt appropriately about a possible conflict of issues (i.e. whether to get more work for their firm by failing to mention to M that D could employ her own solicitor), I find nothing at all wrong with P's actions. (P simply found him/herself acting as an intermediary at a difficult time, as well as carrying out the professional work that he/she was being paid for, and did his/her best under the circumstances).
Question Author
D happens to be a senior executive in a large company, she can quite easily cope with being an executor, the solicitors never even asked (she was there) if she'd think she'd have problems.
The solicitors side of it is fairly damning (the estate is a long way into probate now and there are other major issues that are being dealt with) but we were trying to work out if the psychiatrist was 'in' on the process, or just innocently caught up in the rogue solicitor's scheme. If he's legal with what he did then good, the bigger fish are already heading for the net.
Best of luck with this!
By the time the lawyers have taken their fat fees , you will be VERY lucky if any of the estate is left! I can see the '£' signs twinkling in their eyes already!
eddie - great but just answer the question ....

I have read cursorily ref 7 which is available on the GMC
and he seems to have done it er by the book
but you should have a read yourself

assessing capacity which I think he [P] has done here may involve more than the patient ( which I have never understood ) - and I still think he can defend acting in Ms interests even tho it posses off D

a dirty scuzzy conspiracy that you are suggesting has to be pleaded direct
and it never get up and run if it a " the only conclusion". If the only thiing is - "well it is all very suspicious and we dont know why they did this and so it MUST be a private arrangement" then you are doomed.
oh and dishonesty has to be directly pleaded as well - you cant successfully plead - oh well we dont know why they did this so it must be dishonest. that is another doomed line of argument
I mean Jesus the only lesson here for me is NOTto have meeting 1
but to write your will in a timely fashion when you are well

It seems that M had plenty of time ... but didnt use it wisely

sorry I didnt call for P to be manacled and led straight off to the slammer
^^ What P P is trying to say (in his usual somewhat 'roundabout' way) is that it all looks above board and you have no case for a complaint!
My point is that lawyers just love this sort of argument as they know that win or lose they get their fees and those fees will come from the estate. Legal fees have to be paid before the estate (if there is any left) can be distributed!
Question Author
thanks all, you're confirming what we thought. We do have a good case of multiple indefensible errors made by the solicitors during the probate (yes, including them taking far more than a reasonable amount of fees) but as I said in my previous, we really don't want to add any arguments that will dilute the strong points we're already making.
You've clarified for me that we should leave the mental heath assessor out of it, he's not really relevant to the case anyway.
Other people have answered fr better than i could ever do, however i wonder if you would mind satisfying my curiosity?
What is your ultimate aim? What do you want to happen? Clearly the person had another will previously - are you hoping to get the latest one set aside?
um yeah eddie
he wants to know if P acted unlawfully ( No I think )
but he also wants to know why ( it was OK to do as he did )
Question Author
Those solicitors from hell made an art form out of claiming fees. They made loads of mistakes, of course charging us for that work. They then charged us for the privilege of arguing who was right or wrong - multiple iterations of course, escalating to more senior [aka more expensive] members of the firm. Then, once they realised we actually were right and not going to back down, charged us for the work to correct those mistakes. And the whole thing repeated time and again over multiple issues.
The bottom line is they were just too incompetent and greedy so instead of getting away with an odd overcharge, our tome of a complaint about them is going to make the great train robbers look like babes in the wood.
I take the point PP is making, & clearly you can't make a case against P. But to me the whole thing stinks of collusion & manipulation. I do hope you succeed in your action against the solicitors. The Solicitors Regulation Authority is - I think - more independent and worthwhile than the old system of complaining was.
Ihave only answered about P

your other gripe- overcharging for crap standard work
you should take thro the normal channels
and ask the solicitors to look at what they are doing first
( they may reduce their fees to a reasonable level )

I had guessed that the other executor was a law firm
and they had said 'hooray the old man has died' and immediately activated their charging clock and set it to 'maximum'
Question Author
yes we are writing a formal complaint to the firm. After deleting all the trivial stuff and things that's aren't cut and dry, it's still around 100 pages of A4 - and that's without all the evidence attachments.
We fully expect them to try and waffle around most of the points (they have form in that they have done that will all previous less formal complaints, not actually answering any properly), so we're certain we'll then have to escalate to the legal ombudsman/SRA in due course.

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