Sunday, August 19, 2007

Scottish Law Commission omit calls for protection from crooked lawyers & executors while recommending Inheritance Law reform

Wives & children of the deceased should be given greater protection against a possible disinheritance by their partners & parents under new proposals to grant greater rights over the current 'laws of succession', reports the Herald newspaper.

The current laws on inheritance & wills are rather antiquated - just like many parts of Scots Law these days sadly, antiquated and not really reflective of life in the 21st Century (although some ex-judges and a few members of the judiciary seem to prefer it that way .. or worse, fight to preserve ancient law with the odd loophole, having to rely on judicial whim to let cases through).

At the moment, dependents have a right to one-third of a deceased parent's 'non heritable', or more commonly referred to "moveable estate" regardless of the terms of a will, whether they are included in it or not.

"Moveable estate' doesn't really include properties, it's more like cash, bank accounts, etc .. but one point on this would be that in several observed cases, lawyers have taken advantage of such incidents by altering the wills of deceased clients to write out family members, and then scooping the remaining properties of the client for themselves or selling them to preferred clients & colleagues .

However, the Scottish Law Commission has strangely missed the most glaring recommendations for overhauling the laws of succession - and those are, stronger regulation & oversight of how wills are handled by the likes of the legal profession & courts, protection for beneficiaries against negligence, corruption & incompetence by crooked lawyers, accountants & other professionals, including protection against crooked executors.

One could ask why the Scottish Law Commission didn't recommend increased protection from the likes of negligent, corrupt & incompetent solicitors & executors ... could it be too many links to the legal profession or perhaps, not enough statutory powers given to them by previous administrations because the legal profession itself doesn't want the SLC to have too much power, much like the position of Scottish Legal Services Ombudsman has been since it was formed from the Law Reform (Misc Provisions) (Scotland) Act 1990

The answer to that may well be that if such protections were put in place, the likes of actions of crooked lawyers such as Andrew Penman, of Stormonth Darling WS, Kelso, and crooked Executors such as the Norman Howitt of Welch & Co, Accountants in the Scottish Borders , wouldn't so frequently take place .. and the legal profession wouldn't be so easily able to milk dead clients assets for furthering their own legal firm's profits & wallets while many families in Scotland get ripped off in an almost daily occurrence from the Scottish legal profession.

Of course, I have the example of what happened to my late father's estate to illustrate what so many in Scotland go through when dealing with crooked lawyers & crooked executors out to ruin an estate for their own personal profit & gain.

Norman Howitt, the Executor of my late father turned up the day after my father died, with a hand written list of 'addittions' to my father's will in Mr Howitt's own favour and of other unspecified relatives & 'unidentified people'. The 'additions' were written in Mr Howitt's own handwriting, and also strangely wrote myself and my mother out of the will - much to the amazement of myself, my mother, my own lawyer, family & friends, and the Police.

Suffice to say the 'amendments', seemingly written after my father's death, with nothing to prove otherwise, and in the Executor's favour, didn't get the time of day but these unsubstantiated handwritten 'amendments' didn't stop Norman Howitt, teaming up with the lawyer crooked lawyer Andrew Penman Andrew Penman to ruin my late father's assets & estate, in their own interests. paying themselves fat fees along the way and making sure no one got anything.

Not content with ruining my late father's estate and trying to write myself and my mother out of my father's will, Norman Howitt then went on to take all my mother's assets too including her bank book & pension book, while Mr Howitt and Mr Penman made sure no one bought the properties of my late father in Jedburgh ... no doubt so they could be sold to a preferential colleague perhaps ...

A severe example of a crooked lawyer & crooked executor one might think ? but in reality a common occurrence which only goes on and on because lawyers regulate complaints against their colleagues via the corrupt Law Society of Scotland, and make sure that when a family of a deceased client complain a crooked lawyer has wiped out their inheritance, nothing is ever done against the offending legal firm or lawyer concerned - and to make sure nothing is done, the family of the deceased client are obstructed to the nth degree by the protectionist Law Society of Scotland and prevented at all costs by the most senior members of the legal profession to obtain legal representation to pursue the likes of crooked lawyers & crooked executors for negligence & compensation for what was done.

So you see - when lawyers & executors rip off a will and a family - nothing gets done, ever - and the lawyers & executors get away with their frauds & rip offs because their professional regulatory bodies, the law, the Police and politicians all take a back seat, seemingly quite content to do so, and safe in the knowledge the many victims are never given a significant public voice calling for reforms.

The dead client is robbed (easy since they are dead), the remaining family & beneficiaries are robbed (easy because nothing can be done about it since lawyers regulate themselves) and executors get away with it too because they cut the crooked lawyer in on the deal ... all the while politicians & the courts stand by doing nothing because of their good friends in the legal profession need to make their fat profits.

Here's another common example of what happens to residual estates of deceased clients, involving the famous Scottish legal firm of Turcan Connell : Law Society of Scotland rejects complaint over estate ruined by huge legal fees

Reform is needed - but the rules & laws governing Executors etc are stuck in the dark ages, with the approval of many in the legal profession it seems because they make money from it in an easy hit against deceased clients and grieving families whom the likes of solicitors, accountants & others easily target for money.

The Scottish Parliament must have it's say on this issue, and people, particularly those who have experienced the full horrors of solicitors & executors mishandling wills should write to their MSP and the Scottish Executive with their experiences, to bring reforms & protections against the mishandling of wills by the law and those professions & executors charged with such duties.

Report from the Herald newspaper to follow :

Shake-up of law on wills aims to protect children

CALUM MacDONALD August 17 2007

NEW PROPOSALS: Parents will no longer be able to cut dependant children out of their will

Parents would no longer be able to disinherit their dependent children by cutting them out of their wills under new proposals which amount to the most radical shake-up of Scotland's inheritance laws in a generation.

Spouses and dependent children would be given greater protection against being disinherited while co-habiting partners would see their rights to make a claim on an estate extended under the proposals.

And in cases where a person dies without leaving a will, surviving spouses should inherit their entire estate, according to the Scottish Law Commission (SLC), which published the proposed reforms yesterday.

Scotland's inheritance laws, otherwise known as the laws of succession, are in need of a radical overhaul to reflect changes in society such as the legal recognition of gay relationships, the increasing number of step-families and divorces, according to the SLC. The report from the SLC deals with two major issues: the position of surviving spouses, civil partners and co-habitants when a person dies without having made a will; and the protection of close relatives from being disinherited.

It says that the current rules governing intestacy, when a person dies without a will, sometimes fail to provide a fair result for surviving partners and therefore should be changed. At present if a person dies and leaves a large estate or a mainly heritable one - in other words one comprising land and buildings - and is survived by a spouse or civil partner but has no children, the spouse will be the major beneficiary.

However, a substantial proportion may go to the dead person's parents, siblings and even the sons and daughters of siblings who died before them. In some circumstances they can inherit more than the spouse.

The SLC proposal is that in this situation the surviving spouse or civil partner should be entitled to the whole estate.

The other major proposal contained within the SLC report deals with close relatives who are disinherited. Under Scots law someone who makes a will is able to disinherit any member of his or her close family by leaving all of their estate to other people.

The SLC said: "There is strong and consistent public support for some protection for spouses, civil partners and issue and dissatisfaction with the existing regime of legal rights applicable to them."

It proposes that in these circumstances spouses and civil partners should be entitled to a quarter of what they would have got had there been no will, and that dependent children should be able to apply to court for maintenance from the estate. The definition of who would qualify as a "dependent" child under the new proposals has still to be decided.

It also recommends that co-habitants be entitled to a share of the estate in these circumstances.

The report also calls for new legislation to prevent a person evading the protections against disinheritance by giving property away before they die instead of leaving it in a will. Currently in Scots law there is nothing to prevent a person doing this.

The SLC proposals were welcomed by academics and legal practitioners alike.

Alan Barr, a partner with Brodies LLP, said: "I think these proposals are entirely reasonable.

"It's not a root and branch removal of the law as it stands, but it's modernising and deals with problems that people have perceived about it.

"There is always a balance to be struck between whether on the one hand you should be able to do exactly what you like with your estate, and on the other whether people should be bound to provide for at least some of their family.

"This is an attempt to change that balance slightly and to simplify what is very complicated law."

Michael Meston, emeritus professor of Scots law at the University of Aberdeen and one of the foremost authorities on the Scots law of succession, said: "The law in this area is undoubtedly in need of improvement.

"These proposals are very welcome and address a much-needed improvement in the law."

26 comments:

plum duff, somewhere said...

OK FINALLY beginning to understand this now you tell us Howitt tried to alter your father's will after his death.

Obviously he had it in for you all along and your mum too.He must have been very desperate along with Penman to make sure you didnt get a penny.

Anonymous said...

Not such a good idea to let a lawyer or accountant handle your will then.Thanks for the tip !

Keep up the good work Mr Cherbi

Anonymous said...

This seems to happen a lot.A lawyer or someone turns up after the death to say they just altered their will in their favour.Good thing to point out Peter and ripe for reform as you say.Your poor mother for what happened.No wonder she took a stroke when she found out.

independence or bust said...

Who is this Scottish Law Commission and what are it's real motives?

I get this : http://www.scotlawcom.gov.uk/ and it claims to be independent but looks like its full of lawyers again. Look here !: http://en.wikipedia.org/wiki/Scottish_Law_Commission

Peter Cherbi said...

#plum duff @7.24pm

Yes, Howitt has always had it in for me.I think that much is obvious.My mother too it seems as his 'amendments' to my father's will also saw my mother get nothing ... then when she did, he went along to make my mother sign a form making him her representative then setting up the trust so he had control of her money too, while paying him for his services. Mr Penman knew all this was happening and went along with it of course.

Quite a "feeding frenzy" as one journalist remarked at the time.

#anonymous @8.37pm

I agree. It seems to be a common occurrence that lawyers & executors will rip off a deceased client's estate, showing how lax the laws & regulation really are in this area.

No one wants to know anything about it or do anything about it because the lawyer makes money and so does the executor, and since they are members of professional bodies, that has to be the right thing to do of course - even if they break the law.

#independence or bust @ 0.13pm

Thanks, and yes, a good point.I will update the article with that link.

Anonymous said...

No rest for the righteous Mr Cherbi and your "admirers" !

I broke into my Sunday to read your latest and you do not disappoint.Still of the feeling you will do better over here than over there.

Break into your Monday and email me.

Anonymous said...

quite a horrible story.I hope you get some justice someday over what happened.

Anonymous said...

Thankyou for your personal case history Mr Cherbi.
Unfortunately it seems to be just another example of self-preservation by one of the many professional bodies or other 'organisations' which are very largely self-regulating. If ever anything ever was likely to 'stink' then these are the bodies that will. It is also a general reflection on what society will accomodate or tolerate, and since we too often see corruption from the very highest levels of office in the Land then it's not so much 'too shocking' as 'too unacceptable'. Then the root of the problem is that those in the ''know'' are too frightened to jeopardise their own standing by being open and honest for rather obvious personal reasons...and I dare say that too many of us would be also cowed from doing the ''dirty'' on our colleagues in such similar circumstances. It's a real conundrum and basically shows the threat of 'intimidation' exists in a far wider spectrum than just the normal cases of 'workplace intimidation' - this is a far more insidious environment (twisted and powerfully inventive brains), and professionals are far more reluctant to enter a complaint openly on the system, with far too much more 'to lose'...! Society's and personal weak values and standards come to mind...sadly it means that people have to be continuously guarded and almost be trusting of no-one -a very, very sad state of affairs, but hey-ho..real life, in the VERY raw. Extremely difficult to regulate especially when the old folks (or others less able) are caught at their most vulnerable. We just need to keep talking and spreading the word.

Anonymous said...

To Anonymous, above.

Please do not slag off the SLC. It has no real power, is comprised of academics who have no love of commerce and are disinterested parties, generally seeking to make law clearer for people and not shrouding it in jargon.

Two of the Commissioners, Professors Gretton and Maher QC, taught me Law and they are the most anti-establishment academics I can think of. Gretton in particular is on your side, Mr Cherbi, from his own comments about wanting the Law to work more for people than for lawyers. He hates the language documents are written in - attempting to confuse laypeople.

SLC only has powers to recommend change and, in particular with the new widening of rape laws it recommended, does a decent job.

Peter Cherbi said...

#anonymous @ 10.19am

A very good comment, and I totally agree with you. Hopefully as we spread the word people will begin to listen.

Quoting your comment directly "It's a real conundrum and basically shows the threat of 'intimidation' exists in a far wider spectrum than just the normal cases of 'workplace intimidation'" ....

Yes, I found this 'intimidation' to be the case in fighting the legal profession - any & every organisation I turned to would end up being 'got at' in a sense, with verbose & threatening letters sent to these organisations by the Law Society of Scotland and ICAS, virtually ordering them not to assist me or even communicate with me.

The same happened even with the Police in the Borders, with Mr Howitt using them to try & cover his tracks of selling my late father's car to his business associate Mr Felix Sears of Melrose, then smuggling the money received into his accounting firms business account. Even the Police, who discovered Mr Howitt's statements to be fake and an attempt to (as one Chief Inspector said) "pervert the course of justice" were also reluctant to do anything against him. Very odd, that professionals can go about setting people up for crimes then when they are discovered as being crooks themselves, the authorities shrink from doing anything.

I am still hopeful the new administration in the Scottish Executive will make some changes, slowly but surely, again, keeping the pressure up and keeping the public informed, which does bring out news of other similar cases will help in the long run.

#anonymous @ 10.52am

I agree with your comment, although hopefully, the Scottish Law Commission will read my case history - an example of which others have suffered too and make some recommendations for strong, independent regulation of lawyers, executors & other 'professionals' who do handle wills & probate services, and pro active protections for families & beneficiaries to prevent what happened to me & others, happening to more people in the future.

Anonymous said...

A good point Mr Cherbi.If the Scottish Law Commission are reading this blog (heaven help their nerves after such) they should move to recommend more consumer protection for the families of deceased partners as you suggest.

Anonymous said...

Alan Barr from Brodies LLP is a fine one to talk.How many wills have Brodies ruined over the years.Must be hundreds or thousands by now.

I like your story on Turcan Connell and their client Dr Forrest.Cant find it on the herald website now after their relaunch what a pity but good to see its here.

Anonymous said...

with respect to the anonymous who doesnt want us slagging off the SLC I think the other anonymous has the better measure of whats going on in the legal fraternity.The Law Commission seems to lack teeth or the desire to rock the boat.Stick Cherbi on it and see what happens when he gets to have a go at making recommendations.

Anonymous said...

if ANYONE thinks these academics on the Scottish Law Commission will listen to victims of crooks they can think again.Has anyone ever tried telling this lot what to do ?Too many bloody Phds LLBs and so on will put paid to listening to ordinary people.Why should they listen to anyone anyway they have been appointed by ministers so they can sit on their behinds and pontificate while the rest of us get screwed by their delightful colleagues in the legal industry.

Anonymous said...

Anonymous at 5:59 AM your prejudice and ignorance saddens me. What is wrong with having a couple of degrees? Does that stop these men doing good work? No, it honestly doesn't. Sometimes the comments on this site annoy the hell out of me. At least Peter Cherbi is a reasonable analyst of the wrongs in our legal system, rather than just posting ill-informed bile on the site as you have done.

Anonymous said...

to the last anonymous.
Why don't you try contacting the Scottish Law Commission with your problems first and see if they will listen before writing them off as academics in ivory towers ?

Peter Cherbi said...

#Anonymous @ 5.59am

Your generalisation on qualifications astounds even me and you are very wrong indeed if you think the entire legal profession and ranks of qualified professionals go along with the way their governing bodies rule policy towards the public or on serious issues such as the ones I am tackling.

The Scottish Law Commission are appointed by ministers. If you want the SLC to assist you, or make points for it to debate, I recommend you contact them and see what kind of response you get, as others are suggesting.

Their website and contact details are as follows :

http://www.scotlawcom.gov.uk

The Chief Executive
Scottish Law Commission
140 Causewayside
Edinburgh EH9 1PR

Tel: 0131 668 2131
Fax: 0131 662 4900

Email: info@scotlawcom.gov.uk

If you think I did all this campaign to reform the legal profession on my own, you are very wrong. Actually - no one can do such a thing alone. You have to engage to a certain extent the organisations or members of which you have issues with, obtain media coverage if you can, present the issues to the likes of consumer bodies & other organisations who do and did listen to me, and many others, engage politicians (always the most difficult bit sadly), and come to a point where you are effective enough to bring change to an issue such as we have all done on things like regulation of the legal profession etc.

If you have a dislike of people with qualifications however, there's nothing I can do for you and suggest you refrain from making futher idiotic comments such as the one you made.

Poirot said...

Good reply Peter.

Level headed even after all they've put you through.You should really study for an LLB yourself one day.

Anonymous said...

Mr Cherbi your modesty is the more astounding and while I don't always agree with your postings or those who make comments, I think it is high time certain people made peace with you and those you either represent or assist, for all our sakes.The Law Society of Scotland consider you the greatest threat to the debate on legal issues. Why else would so much effort go into attacking your credibility and case(s) against various solicitors which have heaped so much negative attention on the legal profession.If there was an accounting of just how much financial cost it has taken to challenge your campaign, the membership as you call us would call for heads to roll at our pain in the backside Law Society.

Anonymous said...

anonymous - there is no one brave or honest? enough to ask for this change you speak of because if they do they will lose their practising certificate.

Anonymous said...

I think what the poster who commented against people not listening to anyone but themselves is really trying to convey their frustration getting nowhere against lawyers etc
I'm agreeable to some of the things said as I made a complaint against my own solicitor and got absolutely nowhere other than accumulating 30 or so letters from the law Society and a lot of wasted time,money lost to the solicitor in the first place then trying to pursue the complaint then on another lawyer trying to get something done (which was another costly con).Its taken Peter Cherbi 20 years ? to get somewhere on this.Why should it take that long ? Why is no one listening to the victims of crooked lawyers etc Those are the questions that no one can answer with the truth.

Anonymous said...

"The same happened even with the Police in the Borders, with Mr Howitt using them to try & cover his tracks of selling my late father's car to his business associate Mr Felix Sears of Melrose, then smuggling the money received into his accounting firms business account. Even the Police, who discovered Mr Howitt's statements to be fake and an attempt to (as one Chief Inspector said) "pervert the course of justice" were also reluctant to do anything against him. Very odd, that professionals can go about setting people up for crimes then when they are discovered as being crooks themselves, the authorities shrink from doing anything."

Thats terrible !Surely something has to be done about Norman Howitt and those who covered up for him.What about this lawyer Penman.Who else has he robbed ?Why did his colleagues cover up for him when his guilt is so obvious ?

Peter Cherbi said...

#Anonymous @ 5.36pm

The campaign for reform of the legal profession is much wider than myself, thank goodness. The intervention in the debate from the likes of the Scottish Consumer Council, the National Consumer Council, and Which? are a sign of that - and it's a good thing we have those organisations too.

#Anonymous @ 8.13pm

No one wants to do anything at all to help people who have been ruined by crooked lawyers - otherwise as plenty people now understand, something would have been done about this issue a long time ago.

I don't think I can find words to write how the likes of Howitt & Penman, their business colleagues, even their familes & friends turned on me and my family, to make our lives a misery, just to cover up their very concerted fraud against my late father, and then my mother. I could only describe it, for want of better words, as a wall of evil which sprang up to defend very dishonest people who have enveigled themselves into respectability in society.

These people I speak of, Howitt, Penman, and their associates, are not to be trusted and have done to others, what they did to me & my family.

fed up / nowhere special said...

as a wall of evil which sprang up to defend very dishonest people who have enveigled themselves into respectability in society

That has to be about the best description I've ever heard of how these leeches of society protect each other.Got to hand it to you Peter, you have a way with words !

GOod luck mate and to all those in the same boat.

Anonymous said...

phew what a read - and to think the world is worried about bad chinese products ! you guys in Scotland must have the worse lawyers on this earth !

Anonymous said...

I understand why you feel aggrieved at what happened but you have put that experience to good use and helped others which was very good of you.Very sorry to read the newspaper article on what happened to your mother and a terrible experience for you again but good luck as everyone says and hope the future holds brighter times for you.

I agree with the people who say Mr Howitt, Penman and their followers should be locked up.