FROM ROGUES TO RICHES: Scottish Legal Complaints Commission refuse to identify corrupt solicitors in case findings - as derisory payments to executry fraud & legal malpractice victims revealed

‘Independent’ lawyer’s self regulator continues to look after profession. SCOTLAND’S ‘independent’ self regulator of solicitors – the Scottish Legal Complaints Commission (SLCC) has refused to publish the identities of tens of high profile law firms and solicitors across the country involved in serious malpractice resulting in upheld complaints & compensation payments to clients.

The ‘independent’ SLCC – controlled by the Law Society of Scotland and funded by clients legal fees to solicitors – also revealed brief details of case summaries where small payments starting from a range from a miserly £1 to £299 and up - have been paid out to the bereaved families of deceased loved ones.

The paltry compensation sums were paid out after lawyers look advantage of a regular scam by ripping off the wills & executry estates of dead clients.

Even in cases where tens of thousands of pounds were plundered from bank accounts and assets relating to wills handled by solicitors - a mere few hundred pounds were paid out to families & loved ones who were intended to inherit the possessions of their relatives.

The SLCC has refused to publish figures quoting actual payments or any figures identifying the extent of the actual losses suffered by victims after lawyers fleeced client assets and executry estates.

Instead, the lawyer backed self regulator has set out a vague structure of figures, which allow the lawyer backed regulator to make spurious claims of protecting consumers while in actual fact failing to deliver back to victims what is estimated to be tens of millions of pounds a year defrauded out of the executry estates of deceased Scots and their families - by the legal services industry.

Mired in accusations of pro-lawyer bias and corruption – the SLCC has also announced its latest 4 year strategy to:

* Increasing public awareness of the right to make a complaint about a lawyer and increasing the SLCC’s visibility

* Working to understand the public’s and the legal profession’s expectations of professional standards, including highlighting complaints processes

* Developing a culture of learning, so that  complaints made to the SLCC can be used to improve levels of service, as well as national professional standards and regulation

* Further developing the SLCC as a high performing organisation

* Making sure that compensation or fee refunds awarded by the SLCC are always received by consumers (in a tiny minority of cases this doesn’t happen at present)

Commenting on the strategy announcement, SLCC Chair Bill Brackenridge said: “We’ve finalised our strategy at a time when consumer rights have been climbing the public agenda”

He continued: “And we’re now planning for the years ahead.  We’ll have been running for ten years in 2018 and we now have a path, for then and after, to a more effective and efficient system for legal complaints.  Working in partnership will be crucial to its success and I’d like to thank our stakeholders for an open and challenging debate around the consultation.”

However, a recent media investigation into the Scottish Legal Complaints Commission recently revealed most of the SLCC’s key staff and investigators are in-fact families, friends & business associates of solicitors, reported here: 'Independent' Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission - A history of pro-lawyer regulation.

SOUNDS FAMILIAR? Read on - Your solicitor could be among the guilty:

Determination Decisions

The Scottish Legal Complaints Commission now publishes anonymised Determination decisions – which give a brief description of complaints decided upon by the SLCC.

However, the heavily redacted case summaries crucially exclude the identify of law firms and solicitors involved in the complaints – meaning any consumer could unknowingly be using the same law firm or talking to the same solicitor – who has just been found guilty of dodging complaints investigations and ripping off other clients.

The SLCC claims it believes the information is useful information for both potential complainers and practitioners and “that this demonstrates better transparency of our process”

However, the SLCC goes on to state “We need to balance that transparency with our duty to protect confidentiality. Because of that, we publish anonymous complaint information and have, as far as possible, removed any identifying features.”

The SLCC further stated “It is also important to bear in mind that information given about a complaint is only a brief summary of the Determination Committee’s findings. In making decisions, consideration will have been given to specific facts and circumstances which, again for reasons of confidentiality, cannot be provided here. We hope, however, that the published information is sufficient to benefit both potential complainers and also those who provide legal services.”

Where a complaint has been upheld, the total amount the SLCC can award is capped at £20,000 – a cap set by the Scottish Government & Scottish Parliament after the legal profession lobbied against higher amounts of compensation during the passage of the Legal Profession & Legal Aid (Scotland) Act 2008.

Compensation for actual loss (quantifiable): Level 1 : £1-£299, Level 2:  £300-£649, Level 3: £650-£999, Level 4:  £1,000-£4,999, Level 5: £5,000-£9,999, Level 6: £10,000-£14,999, Level 7: £15,000-£20,000

Compensation for inconvenience, distress and loss of opportunity:Band A £1-£150, Band B: £151-£750, Band C: £751-£1,500, Band D £1,501-£5,000

Determination Decisions: January - March 2016

Upheld and part-upheld decisions

16/1 Residential conveyancing: The complainer complained that the named solicitor had (a) failed to obtain instructions from the complainer's partner until a week before completion of the sale, and (b) failed to ensure that there was a provision in a Minute of Agreement for the sale proceeds to be held on deposit, rather than distributed on completion of the sale.

The Determination Committee was satisfied that the solicitor had acted correctly in distributing the funds, but that there was lack of effective communication with the complainer prior to the sale about distribution.  The Committee agreed that the solicitor had failed to act in the best interests of the complainer by failing to clearly explain what would happen in the event of implementation of a Minute of Agreement agreeing to equal division of the sale proceeds.

The Committee decided that both issues amounted to inadequate professional service.  The Committee decided that the firm should pay to the complainer compensation of Band C for distress and  inconvenience on several occasions.  The Committee directed the firm to pay a Complaints Levy of £500.

16/2 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm's own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/3 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm's own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/4 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm's own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/5 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm's own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/6 Family: The complainer complained that the named solicitor had (a) advised the complainer at the initial meeting that the information relating to the source of the deposit was not required, but later advised that this information was vital and incorrectly alleged that the complainer had failed to provide this information at the initial meeting, (b) failed to communicate effectively by failing to respond to basic questions, (c) failed to proceed with division of assets and sale proceeds when instructed, and (d) failed to deal adequately with the complaint.

The Determination Committee decided that there was sufficient evidence to uphold issues (a) and (c) as inadequate professional service.

Regarding (a), the Committee agreed that the solicitor had failed to identify the client's objectives at the outset, and thus advised the complainer to pursue an un-necessary course of action.

The Committee decided in respect of (b) that the client had been kept informed during the case.  The fact that the solicitor had not been able to answer very specific questions about matters extraneous to the case had also been explained, and as such, there was no breach of the Service Standards. 

In respect of (c), the Committee was satisfied that the solicitor had delayed raising the action for several weeks.

Regarding (d), the Committee agreed that the evidence showed that the solicitor had attempted to address the complainer's concerns, and that the suggestion to the client to seek alternative representation was unreasonable or unusual where dissatisfaction had been raised.

The Committee decided to uphold the complaint and  ordered the firm to reduce its fees by one third and to pay to the complainer compensation of Band A for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £700.

16/7 Residential conveyancing: The complainer complained that the named solicitors and the firm had (a) unduly delayed registering the disposition, and (b) delayed informing the complainer of the mistake.

The Determination Committee decided that there was sufficient evidence to uphold a finding of inadequate professional service against the firm.

The Committee decided, (a) the solicitor had failed to prepare and register the disposition following settlement and had delayed registration by approx. a year and a half.

In respect of (b), the Committee agreed that the solicitor had failed to inform the client that the disposition had not been registered timeously, and only after a number of months, once the defect had been rectified.

The Committee ordered the firm to refund part of the fees (£100) and outlays (£30), and to pay to the complainer compensation of Band B for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £500.

16/8 Family: The complainer complained that the named solicitor and the firm had (a) delayed/failed to obtain all of the husband's financial information, failed to set up meetings and failed to follow instructions to communicate with the opposing solicitor, (b) failed to provide consistent advice, (c) included incorrect information in the offer of settlement, (d) failed to thoroughly examine the proposals for settlement, (e) failed to submit cravings on the complainer's behalf, (f) failed to respond to requests for an interim account and failed to keep updated regarding escalating costs, and (g) delayed settlement negotiations.

The Determination Committee was of the view that there was no evidence to support the complaint, save as for issues (e) and (f) regarding the failure to submit cravings in the Defence, as required by the Ordinary Cause Rules, and the failure to issue an interim account as per the complainer's request, or communicate adequately with the complainer about the increasing fees.  The Committee was satisfied that these issues could amount to inadequate professional service, as there had clearly been a breach of the Service Standards for diligence and communication.

The Committee ordered the firm to pay compensation to the complainer of Band B for the inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £500.

16/9 Litigation: The complainer complained that the named solicitor and the firm had (a) raised an action incorrectly naming the complainer individually, rather than in the name of the business, (b) failed to lodge the application timeously, (c) failed to lodge a properly framed application and delayed amending the application.

The Determination Committee decided that (a) there was insufficient evidence to reach any conclusion that the court action had been raised in the name of an incorrect party.  However, the Committee was satisfied that (b) the firm had failed to exercise the normal care and diligence expected of a competent solicitor by delaying the lodging of the application, and (c) failing to properly frame and amend the application.

The Committee decided to uphold the complaint and  ordered the firm to pay compensation of Band D for inconvenience and distress.  The Committee directed that no fees or outlays should be charged to the complainer.  The Committee directed the firm to pay a Complaints Levy of £800.

16/10 Litigation: The complainer complained that the opposing named solicitor and the firm had failed to act in the best interests of his client by unduly delaying the conclusion of the dispute for over 2 years.

The Determination Committee was satisfied that the cumulative effect of the identified delays adversely impacted on the service provided by the firm to its own client. Consequently, the complainer suffered as a direct effect of the deficiencies in the service to the client.

The Committee ordered the firm to pay compensation to the complainer of Level 4 for actual loss and Band B for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £300.

16/11 Residential conveyancing: The complainers complained that the named solicitor had (a) failed to ensure that a Completion/Habitation Certificate was available at conclusion of the purchase, (b) failed to advise of the consequences of completing without the Certificate, (c) failed to take instructions/obtain informed consent before agreeing a retention sum with the builder's solicitors, and (d) failed to advise prior to completion that the property had not been passed as fit for habitation.

The Determination Committee was satisfied that the firm (a) did not take all reasonable steps to ensure that their clients' interests were protected at settlement, and (b) & (d) failed to clearly and fully explain the significance of settling without the relevant Completion and Habitation certificates. The Committee accepted that the firm had not investigated why the Certificate had not been issued or asked about any underlying issues.

Regarding (c), although the Committee was satisfied that the firm had sought instructions about the retention of £10,000, there appeared to be no evidence to show that the consequences of proceeding in the way suggested by the developers was explained to the complainers, and that they were not advised about what a Completion Certificate was or the implications of proceeding without one.

The Committee ordered the firm to pay to each the complainers compensation of Band D for inconvenience and distress.  The Committee directed that fees in the sum of £660 (plus VAT) should be refunded to the complainers.  The Committee directed the firm to pay a Complaints Levy of £3,000.

16/12 Family: The complainer complained that the named solicitor and the firm had prepared an initial writ which contained a number of serious errors, including incorrect details of the children's address and what was in the children's best interests.     The Determination Committee was satisfied that the evidence showed that the firm had failed to ensure that the writ contained the necessary averments and fundamental flaws, which resulted in the action having to be dismissed and resurrected by newly instructed agents.

The Committee ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress.  The Committee directed that there should be a full refund of fees (£700) and no further fees charged to the complainer.  The Committee directed the firm to pay a Complaints Levy of £400.

16/13 Family: The complainer complained that the named solicitor had (a) failed to deal with a Motion to recall the Sist and request a Proof, contrary to numerous requests, (b) failed to submit the Motion to Court and charged inappropriately for doing so, (c) unduly delayed sending the Motion to the opposing solicitors, despite confirming that this would be carried out the following week, (d) unduly delayed updating on the position regarding the failed submission of the Motion, despite having given an undertaking to do so, (e) unduly delayed reminding the opposing solicitors that a response was still outstanding, despite two reminders to do so, (f) unduly delayed forwarding correspondence from the opposing solicitors, despite being reminded and advised of the urgency of the matter, (g) failed to raise various financial issues with the opposing solicitors, despite numerous requests to do so, (h) failed to confirm advice provided in writing, despite having agreed to do so, (i) failed to challenge a report, despite having accepted instructions to do so, (j) declined to provide further advice until the outstanding account had been settled, despite this being contrary to the terms of business, and (k) failed to deal adequately with the complaint, by ignoring concerns.

The Determination Committee was satisfied that (a) & (b) the solicitor had failed to enrol a Motion, despite having undertaken to do so and charged the complainer for having done so.

Regarding (c), although the Committee was content that the complainer had been advised of a timescale, there was only a 4 day delay.  The Committee was not satisfied that this short delay amounted to an inadequate professional service.

In respect of (d), the Committee noted that there had been a 4 week period between the date when the solicitor intended to enrol the Motion and the failure to do so being advised to the complainer.  The Committee's view was that the solicitor should know the client's business at all times, regardless of when he actually remembered the oversight.  The Committee's view was that the delay was a breach of the standards of both diligence and communication and amounted to inadequate professional service.

Regarding (e), the Committee was satisfied that there had been a 5 week delay, despite 5 prompts by the complainer.

As regards (f), the Committee was satisfied that there had been a 4 week delay in the information being provided to the complainer, despite the solicitor being aware of the urgency.

In respect of (g), the Committee agreed that the solicitor had failed to follow instructions in this regard on at least 4 occasions.

Regarding (h), the Committee was satisfied that the evidence showed that the complainer had requested the information on a number of occasions, and that this had not been provided.  The solicitor had the opportunity of clarifying the information sought after the meeting, as subsequent requests were made.

In respect of (i), the Committee agreed that the evidence did not support the complaint that the solicitor had been asked to challenge the content of the report, other than in relation to fees.  Accordingly, this issue was not upheld.

Regarding (j), the Committee agreed that the solicitor had acted unreasonably by refusing to continue to provide advice to the complainer prior to the expiry of 30 days for settlement of the account, as allowed for in the terms of business letter.

Finally, in respect of (k), the Committee noted that there was no evidence to support the solicitor's indication that the complainer had been invited to discuss the complaint, as per the terms of business letter.  The Committee was satisfied that without written confirmation and the complainer having denied having received any such invitation, that there had been a failure to comply with the terms of business and that this failure amounted to an inadequate professional service.

The Committee decided to uphold the complaint in part and ordered the firm to pay compensation to the complainer of Band C for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £700.

16/14 Residential conveyancing: The complainer complained that the named solicitors and the firm had (a) failed to advise that a more in depth survey report should be obtained, (b) failed to obtain/discuss the terms of a timber report, (c) failed to follow up the issue of guarantees for damp treatment and woodworm, and (d) failed to advise of notification of timber infestation requiring full chemical works being undertaken.

The Determination Committee agreed that the firm had failed to provide the complainer with documents relating to previous investigations of damp and timber defects and failed to advise the complainer that further investigations should be carried out given the terms of those documents.  The Committee also agreed that one of the named solicitors had failed to obtain a copy of the report instructed by the complainer and did not advise about its terms prior to the conclusion of the missives.  The Committee was satisfied that one of the named solicitors had failed to follow up the issues of guarantees and that the firm had failed to advise of the terms of a letter from the sellers advising that there was an infestation of woodworm and that full chemical works should be carried out.

The Committee ordered the firm to pay compensation to the complainer of Band C for the distress and inconvenience caused by the inadequate professional service.  The Committee also decided that the firm's fees should be reduced by 35% (approx. £250 plus VAT) and refunded to the complainer.  The Committee directed the firm to pay a Complaints Levy of £1,000.

16/15 Residential conveyancing: The complainer complained that the opposing named solicitor and/or the firm had failed to register the sale of the ground or have the title deeds updated in relation to the part of the complainer's garden that the firm's client had purchased.

The Determination Committee agreed that the solicitor had failed to record the title deed in favour of the firm's own client (the complainer's neighbour), resulting in an inadequate professional service to their own client and which had a direct adverse impact on the complainer.

The Committee ordered the firm to pay to the complainer compensation of Band A for the inconvenience and distress and level 2 for actual loss, due to the need for a new deed plan to be prepared.  The Committee directed the firm to pay a Complaints Levy of £200.

16/16 Family law; failing to respond: The complainer complained about the named solicitor and/or the firm had (a) failed to include information required in a Pensions Sharing Order and failed to ensure that the Schedule was attached to the Minute of Agreement, (b) failed to ensure that the Minute of Agreement was sufficiently robust regarding the pension entitlement and net proceeds of sale, (c) failed to intimate the Agreement and Decree to the pension trustees within the appropriate statutory timescale, (d) failed to distribute the proceeds of sale in accordance with the Minute of Agreement and unduly delayed discharging the bank loan, (e) inappropriately and without authority, deducted the fee note from the proceeds of sale without having issued a fee note, (f) erroneously withheld the balance of the proceeds of sale, (g) failed to raise a court action, despite having been instructed to do so, (h) failed to respond to the letter of complaint and failed to provide a breakdown of fees, and (i) failed to implement a mandate.

The Determination Committee was satisfied that the evidence showed that the firm had (a) failed to ensure that the pension plan details were contained in the document sent to the pension trustees, (d) failed to distribute funds timeously, and (e) deducted fees from retained funds without the knowledge of the complainer. The Committee was not satisfied that the evidence supported the remaining issues of complaint or that there was lack of evidence to prove these issues on the balance of probabilities.

The Committee ordered the firm to pay compensation to the complainer of Band B for inconvenience and distress, and that fees charged should be reduced by £100.  The Committee directed the firm to pay a Complaints Levy of £400.

16/17 Residential conveyancing: The complainer complained that the named solicitor and the firm had (a) failed to obtain a Letter of Comfort from the Council and/or failed to determine the exact amount of the liabilities owed by the sellers in respect of outstanding Statutory  Notices, and (b) failed to negotiate an appropriate retention amount in the missives.

The Determination Committee decided that (a) there was evidence that the firm failed to take adequate steps to determine the liabilities of the sellers, and (b) that the firm failed to negotiate an appropriate retention.  The Committee decided that the complaint should be upheld to this extent.

The Committee ordered the firm to pay to the complainer compensation of Band C for distress and inconvenience and Level 4 for actual loss.  The Committee directed the firm to pay a Complaints Levy of £800.

16/18 Litigation: The complainers complained that the named solicitor and/or the firm had (a) systematically lied regarding the action being taken in connection with the claim, and (b) falsely charged the complainers for costs in relation to water and planning applications.

The Determination Committee decided that (a) there was sufficient evidence to support the complainers' contention that the solicitor had incorrectly advised them that various steps had taken place to progress the action, and (b) the solicitor falsely advised the complainers that the sellers would pay for the costs of the work, despite having obtained no undertaking that they would do so.

The Committee ordered the firm to pay to each of the complainers compensation of Band D for distress and inconvenience, and that no fee note should be rendered.  The Committee directed the firm to pay a Complaints Levy of £1,000.

16/19 Residential conveyancing: The complainer complained that the named solicitor and/or the firm had failed to advise about the Capital Gains Tax liability on the transfer of title.

The Determination Committee upheld the complaint on the basis that the options available to the complainer should have been explored, and the complainer had not been advised of the tax liability and/or was not advised to seek tax advice from another source.  The Committee's view was that the complainer had suffered a loss of opportunity to consider all available options and was not fully informed as a result of the inadequate professional service.

The Committee ordered the firm to pay compensation to the complainer of Band D for worry and distress. The Committee directed the firm to pay a Complaints Levy of £850.

16/20 Litigation: The complainer complained that the named solicitor and/or the firm had (a) failed to advise him at any time about the strength of his claim, (b) failed to advise him of the potential for a costs order being made if the case was lost, and (c) failed to keep the complainer updated or advised about what SLAB required for the funding application.

The Determination Committee decided in respect of (a) that the firm had failed to give appropriate advice, either in writing or otherwise, about the strength of the claim. Such advice should have been provided in writing before court proceedings were raised.  In respect of (b), the Committee was satisfied that the evidence indicated that the firm had failed to provide appropriate advice regarding potential liability for expenses if the action was unsuccessful, or the potential magnitude of that liability.  The Committee agreed that the evidence did not support (c), that the firm had advised the complainer of the date of the hearing, that the firm had passed on any requests received from SLAB, or that SLAB had been in touch with the complainer directly.

The Committee ordered the firm to pay to the complainer compensation of Level 5 for actual loss and Band C for inconvenience and distress resulting from the inadequate professional service.  Additionally, the Committee decided that the firm should not be entitled to charge any fees or outlays for the service provided.  The Committee directed the firm to pay a Complaints Levy of £1,500.

16/21 Executry: The complainer complained that the named solicitor and/or the firm had failed to ensure prompt and transparent fee arrangements, having issued a final fee note in June 2014, for work carried out between 2008 and 2013, without any prior warning or discussion.

The Determination Committee decided that there was evidence of a failure to set out the basis upon which fees would be charged from the outset and the delay issuing the fee note at the conclusion of the instruction amounted to inadequate professional service.

The Committee ordered the firm to pay compensation to the complainer of Band A for inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £50.

16/22 Executry: The complainer complained that the named solicitor and/or the firm had (a) failed/delayed to respond to telephone calls and keep the complainer updated, (b) failed to explain the increase in fees, despite numerous requests, and (c) failed to provide adequate advice regarding an insurance policy claim.

The Determination Committee decided regarding (b) that the failure by the firm to keep the complainer updated regarding increasing costs and that the fees had exceeded the original amount quoted amounted to an inadequate professional service.  The Committee noted that the firm had failed to provided the complainer with a copy of the Law Accountants fee note, despite there having been a fee rendered for the service and that the letter of engagement was unclear and difficult to understand.

The Committee decided that the evidence showed that the firm had (a) been in regular communication with the complainer who had been kept up to date.  The Committee could find no evidence to support complaint (c).

The Committee ordered the firm to pay to the complainer compensation of Band B for distress and inconvenience and to refund excess fees (approx. £5000).  The Committee directed the firm to pay a Complaints Levy of £250.

16/23 Residential conveyancing: The complainer complained that the named solicitors and/or the firm had (a) failed to adequately advise of the position regarding the alterations to the attic space, (b) failed to check/advise the complainer to ensure that the attic alterations were in line with building regulations, and (c) failed to fully advise of the risks proceeding with the purchase without verifying the position regarding the alterations.

The Determination Committee decided to uphold all 3 issues as inadequate professional service, as the evidence supported the complaint that the firm had failed to address all 3 matters adequately.  The Committee was satisfied that the firm had failed to fully advise the complainer about the potential issues regarding the building control documentation for the alterations, there was a failure to communicate throughout the transaction, despite requests for clarification, and that the firm had not alerted the complainer to the potential risks or consequences of proceeding without the adequate documentation. 

The Committee ordered the firm to pay compensation to the complainer of Level 2 for actual loss and Band D for distress and inconvenience.  The Committee also ordered a full fee refund (approx. £600 plus VAT).  The Committee directed the firm to pay a Complaints Levy of £2,000.

16/24 Family: The complainer complained that the opposing solicitor and/or the firm had failed to obtemper an Interlocutor (which ordered the firm to notify the complainer of a court hearing date), by sending the notice to an address where the complainer had not lived for a number of years.

The Determination Committee decided that the firm had failed to fulfil the commitment to the Court, to the client and to the complainer, to prepare the case diligently and to communicate effectively.  The Committee accepted that the firm had served papers at an incorrect address, which did not match the address on the Court Record for the action.  As a result, the Committee was satisfied that the firm had provided their own client with an inadequate professional service, as a client would expect the firm to properly designate the parties and the failure to do so, could have led to additional time and cost to the client for the rectification of any errors. The Committee agreed that there had been a direct adverse impact on the complainer and on that basis, the complaint was upheld.

The Committee ordered the firm to pay compensation to the complainer of Band B for the inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £200.

Not upheld decisions:

16/25 Litigation: The complainer complained that the named solicitor and the firm had (a) failed to conduct the court case adequately by ignoring expert opinions, reports, evidence and failing to call specific witnesses and had quoted an incorrect name in the court documents, (b) failed to provide adequate advice about the settlement, by failing to advise that the opponent was obliged to issue a VAT receipt, despite instructions that the offer was to be inclusive of VAT, and (c) acted in an aggressive manner and threatened to cease acting on multiple occasions.

The Determination Committee was satisfied that the solicitor had exercised professional judgement and there was no evidence to show that this was unreasonable.  The Committee agreed that the solicitor followed clear instructions and there was no evidence that the solicitor failed to advise adequately about the terms of the settlement.  The Committee agreed that the evidence showed effective and clear communication by the solicitor and there was no evidence to support the complaint that the solicitor had acted in an aggressive manner.

The Committee decided not to uphold the complaint.

16/26 Family: The complainer complained that the named solicitors had (a) failed to provide adequate information about fees, (b) failed to keep the bank informed of a significant overspend, despite being aware of the limitations in funding, (c) failed to follow instructions by allowing 3 staff members to attend at court, thus incurring unnecessary costs, (d) failed to pay Counsel's fees before taking the firm's fees, and (e) failed to advise Counsel to withdraw from acting.

The Determination Committee decided that (a) sufficient information about fees had been provided before the offer was rejected, (b) the bank had been kept up to date and advised of the reasons for the increases in funding, (c) the firm did not accept the instruction to only have 1 person at the court hearing.  The firm did not, therefore, fail to fulfil a commitment to the complainer and fees were not unnecessarily incurred, as the need for additional staff was explained and professional judgement in this regard was exercised reasonably.

Regarding (d), the Committee could find no evidence to support the complaint that an instruction had been given or accepted that Counsel should be paid in the first instance.

In respect of (e), again the Committee could find no evidence to support the complaint about the withdrawal of Senior Counsel from the case.

The Committee decided not to uphold the complaint.

16/27 Family: The complainer complained that the named solicitor and/or the firm had provided inadequate and inconsistent advice about the availability of Legal Aid within the firm.

The Determination Committee was satisfied that the evidence showed that the advice provided was clear, consistent and in accordance with the firm's policy on Legal Aid.  The Committee did not consider that there was any contradictory information provided, or that the quality of communication from the solicitor and/or the firm was inadequate.

The Committee decided not to uphold the complaint.

16/28 Residential conveyancing: The complainer complained that the named solicitor of the firm had failed to advise the complainer to take steps to confirm the validity of a Letter of Comfort or advise the complainer to insist on a Certificate of Completion from the sellers.

The Determination Committee was satisfied that the evidence showed that the firm had adequately advised the complainer of the available options and how to protect the position.  The Committee agreed that there was no requirement for the firm to insist on a Completion Certificate.

The Committee decided not to uphold the complaint.

AVOID THE BIG R.I.P-OFF : Make sure you choose someone capable & honest as your Executors instead of a THIEF or a CROOKED LAWYER

Avoiding crooks after death : Law Society of Scotland solicitors make the worst Executors possible. NOVEMBER, the month of writing wills according to the Law Society of Scotland, whose members are engaged in their annual campaign to persuade their clients and the vast uninformed swathes of the general public to write a will, and, name a lawyer as their executor to ensure a ‘perfect execution of your last wishes’.

However, the ‘perfect execution of your last wishes’ when a client takes the idiotic decision to make their solicitor as their Executor, is very far from perfect for those you leave behind, as the normal pattern which follows is the solicitor acting as your Executor empties your bank accounts & sells your possessions to line their own pockets.

Choose someone better qualified to be your Executor is a claim often bandied about by the legal profession, who, lets face it are there to sell themselves and their services, not do you a favour just for the hell of ensuring what you leave after death is passed onto those you want to leave it to. The list of reasons why you should appoint a professional will be long, incredulous, corrosive, divisive, and in some respects, just plain full of lies to get you to sign up to a dodgy will written in a lawyer’s office, witnessed & signed by one of their own colleagues or secretaries, naming themselves as your Executor. Don't do it. Whatever you do, do NOT choose a solicitor as your Executor.

I am not going to sit here and give you examples of how some dead rich celebrity who thought they were being clever by appointing people close to them along with a ‘professional’ as executors will help you avoid a rip off, because well, it doesn't help. In fact, appointing one of your intended beneficiaries or say, a loved one, along with a solicitor or other professional to act as two Executors of your will, can do even more harm when both begin to battle with each other when, for instance, it is discovered the lawyer decides to help themselves to your money instead of passing it on to your family, The result of such a dual appointment often ends in a negative value of your remaining estate after your oh-so-trustworthy solicitor turns into a shark, intentionally burning up all your remaining assets to fight the other Executor for control of your remaining estate.

Speaking not just as a journalist but also as a victim of the sheer greed of the legal profession & the Law Society of Scotland, simply put, don't appoint a lawyer as your executor. Those you leave behind as beneficiaries will regret it, and I can assure you they will be treated to the horrific Andrew Penman & Norman Howitt experience which happened to my family. You can read all about this here : The Andrew Penman Crooked Lawyer Experience & The Norman Howitt Crooked Accountant Experience

Some basic tips about who to appoint as your Executor and what to say in your will to limit anything which you do not want to happen.

For an Executor, choose someone you feel your family and beneficiaries will trust, or at least they like. In most cases a will is divided up between partners & children or relatives, so choose your remaining partner and one of the children as Executors. If you choose two Executors, at least there are checks & balances on both. Choose someone who will not side with one against the other, or use their position for their own ends to generate huge fees (as a lawyer usually does) for their own work as your Executor.

Now the question of fees.

Within your will, you can easily set financial limits on who should be paid how much to wind up your estate or carry out work as your Executor. This is a good idea to put it down in writing how much, if anything your Executors should be paid. If for instance, your Executors are also beneficiaries, it may well be they do not require payment because they are going to receive the bequest you made them in your will.

At some point, unfortunately, your Executors may require the services of a solicitor or a bank for certain documents regarding your finances but these services should not be strung out for months & years just because a lawyer wants to fatten up his wallet.

To avoid a rip-off if your Executors need to use a solicitor or bank, a good idea is to set strict limits on how much should be paid out of your estate for any legal fees, so you limit how much a lawyer can plunder from your finances. After all, you don't want to leave your money to your solicitor do you, you want to leave it to y our family, right ?

Now, where to store your will.

Obviously you should make several copies of your will. Your Executors should be given copies, or at least told where they can obtain a copy of your will, if, for instance you choose to store it in a safe deposit box at a Bank or with someone who can be trusted.

Often another ruse of the legal profession is to claim they will store your will for free. However, this is simply, a lie. Your solicitor will charge you on a yearly basis for storing your will, property titles and other documents. If they don't you can be sure they will charge for all those years of ‘free storage’ when they come to administer your will, by inflating their fees exponentially.

A case last year which was drawn to my attention of a will, stored for free for ten years, turned out to be not so free when the solicitor charged the estate a whopping TEN THOUSAND POUNDS for ten years of storage. As there was nothing written into the will to say it had been stored for free by the solicitor, the family fought the fee demand but were forced to pay, after an expensive court action. As you see therefore, lawyers have an answer to everything when it comes to money.

Being an Executor is too difficult, it must be done by a lawyer – says the lawyer !

Don't listen to the legal profession about the winding up of an estate being incredibly complicated and the position of an Executor being so frightening it can only be performed by a solicitor. This is all nonsense. There are many people out there each year who manage to navigate the maze of winding up an estate without the need to use a lawyer. Its much cheaper, it usually ends up settled more amicably, honestly and without the five, ten or fifteen years of fuss a lawyer may make of it, just to keep sending in bills for work he never did.

Earlier this year I reported on how the Office of Fair Trading (OFT) had exponged the myth that writing a will meant it was required to appoint a solicitor as an Executor, in an article here : Where There’s A Will There’s A Crook : OFT say choose your will writing service wisely, consider costs, avoid making a solicitor your executor

Here’s what the OFT had to say back in February 2011 :

• Consumers making a will should not be led to believe that appointing a professional executor is essential or the norm.
  

• Consumers should not be encouraged to appoint a professional executor unless it is clearly in their best interests.
  

• Providers should be satisfied, before the will is drafted, that the consumer has the information necessary to make an informed choice. The consumer should understand the options around executor appointments and be aware of the likely basis of charging for the professional executor service.

The OFT reminded consumers there is no requirement in law to appoint a professional executor, although, according to a survey published by the OFT last year, some 43 per cent chose to appoint (usually through ignorance) the same professional will-writer or solicitor who wrote their will.

While the costs for preparing a will can be relatively modest, the costs for a professional executor to administer an estate can be high and vary considerably. For an average estate, consumers can pay between £3,000 and £9,000. Failing to shop around for executor services could be costing UK consumers around £40 million a year, according to OFT estimates.

You can read my earlier coverage about wills here : You and Your Will

An article I wrote in 2009 covered extensive examples of fraud committed by lawyers & Executors against wills : Consumer warning on wills : Don't make your lawyer your executor as soaring cases of 'will fraud' show Law Society closes ranks on complaints

Over the six years of this blog, some readers have come to me asking me to be their Executor. I have refused. It is simply not feasible for me to be an Executor to a hundred wills.

However, in one case recently, the two Executors of a will of a friend came to me for help, as they could not reach an agreement on a particular transaction. I was happy to talk to both, at no cost. There is no cost because I have already been through this experience. After our talk, the two Executors resolved their differences and the property involved in the transaction was sold for a higher value than the suspiciously lower value presented to them by a solicitor. The family received what had been left to them without further worry.

Lets call it, free mediation, backed up by the possibility if the two Executors had not resolved their difficulties, headlines would have ensured they did, as my primary concern was of course for the remaining family as beneficiaries who had been put in the unenviable position where one Executor had been poisoned by a crooked lawyer out to buy up what he hoped would be a cheap house. It felt good to protect another family from a lawyer led rip-off and it doesn't cost anything to prevent a fraud, really. It was a service, and a duty, to a friend. I would encourage others to do the same.

Incidentally, some people might wonder why the not-so-merry month of November is designated as a good month by the legal profession to run will writing campaigns. Well simply, as one solicitor told me, its because old people tend to die off in the winter, or there are more fatal accidents during the winter. Lovely people aren’t they .. the legal profession who come up with all this kind of stuff. If you take my advice you will steer clear of them when writing up your will. They are not in it for you, they are in it for themselves, and when it all goes wrong, the Law Society of Scotland and the equally prejudiced complainer-hating Scottish Legal Complaints Commission (SLCC) will be of no use to you at all.

One of the most important things you need to remember is, where there is a will, there is a crooked lawyer from the Law Society of Scotland. So, when you come to write your will, don't appoint a THIEF or a CROOKED LAWYER (or as someone recently asked me A BANK) as your sole Executor. Those who you leave behind don't need to live through yet another horror story after having to get through your death. A free guide from Citizens Advice Scotland on Will writing is HERE although I must admit there is a lot of rubbish in the guide such as naming solicitors & banks as executors which is just a complete no-no in the 21st Century. Just make sure you miss out any of the parts which suggest you need to appoint a solicitor to do this or that, at horrendous cost to your estate and your remaining family.

If you want to discuss with others, issues about wills and problems in writing wills or problems with Executors, I would encourage you to visit the Consumer Action Group forums and participate. If there is an issue or a problem with a will in Scotland involving crooked Executors or crooked lawyers which you feel should be published, please contact me via scottishlawreporters@gmail.com

Where There’s A Will There’s A Crook : OFT say choose your will writing service wisely, consider costs, avoid making a solicitor your executor

Surveys reveal consumers frequently make poor choices in will writers & executors. EVERY ONE of us should ensure our assets & financial affairs are put in order after we die, however the dangers of writing a will with an unscrupulous professional such as a crooked lawyer or an overcharging bank are well known to many families & relatives across Scotland who, after the death of their loved ones, have ended up being forced to deal with complicated complaints procedures put in place by biased self regulators such as the Law Society of Scotland or some rather dubious Ombudsman with little or no powers to put right the inevitable financial disaster for the beneficiaries, while the solicitor or bank pockets the remains of the will.

OFT say consumers should not be led to appoint a professional solicitor as an executor. Today, the will writing services of the banks has come under wider public scrutiny as the Office of Fair Trading (OFT) announced the big four banks, Barclays, HSBC, Lloyds Banking Group & Royal Bank of Scotland have all voluntarily agreed to review and, where necessary, improve the way they sell will-writing and executor services. The move follows discussions with the OFT during 2010 as part of a wider effort to improve the will-writing market for customers and their beneficiaries, following concerns that some (well, most) consumers are appointing professional executors without fully understanding the likely costs and the alternative options.

The OFT’s announcement states the big four banks have agreed to meet three key principles, to ensure customers are able to make well-informed decisions.

• Consumers making a will should not be led to believe that appointing a professional executor is essential or the norm.
  
• Consumers should not be encouraged to appoint a professional executor unless it is clearly in their best interests.
  
• Providers should be satisfied, before the will is drafted, that the consumer has the information necessary to make an informed choice. The consumer should understand the options around executor appointments and be aware of the likely basis of charging for the professional executor service.

The OFT reported all four banks are currently reviewing their product literature and processes and any necessary changes should be in place within six months at the latest. Barclays Bank, HSBC, Lloyds Banking Group and RBS Group are the only banks that currently offer will-writing and executor services, however consumers may not always be aware that each bank outsources the preparation of wills to external solicitors, although the bank provides the executor service itself.

While the OFT survey applies only to will writing services of banks, services which are used perhaps more so in England & Wales than in Scotland, many Scots consumers who are thinking of writing a will usually end up blindly walking into a solicitors office somewhere in the country, with absolutely no knowledge of what to expect from their solicitor or bank in terms of what kinds of services are offered, how much a will could cost to be implemented after death, and what action could be taken by beneficiaries if there is poor or negligent handling of a will by the executor, the bank, the solicitor or the will writer who drew up the will in the first place.

If the lack of information on costs of handling a will and how to put things right if its handled badly isn't confusing enough, the serious question of who to appoint as executor is often handled poorly by consumers, who, almost unbelievably in 2011, end up appointing the same solicitor who writes the will, which is almost like giving a blank cheque to a house burglar who will more often than not charge as much as they can for handling a will after death, to the point in some cases, there is no money left for anyone except themselves.

The OFT today reminded consumers there is no requirement in law to appoint a professional executor, although, according to a survey published by the OFT last year, some 43 per cent chose to appoint (usually through ignorance) the same professional will-writer or solicitor who wrote their will.

While the costs for preparing a will can be relatively modest, the costs for a professional executor to administer an estate can be high and vary considerably. For an average estate, consumers can pay between £3,000 and £9,000. Failing to shop around for executor services could be costing UK consumers around £40 million a year, according to OFT estimates.

David Stallibrass, Director in the OFT Services and Public Markets Group, said: “The wrong decision when appointing executors could mean a potentially expensive professional service is chosen, when a family member or friend may be quite capable of handling the task either alone or with professional support. We are pleased that each of the banks has agreed to review its selling practices and marketing literature to ensure customers are getting the information they need to make informed choices.”

When a will is prepared, thought will usually be given to who is legally responsible for administering the estate according to the provisions set out in the will. When appointed under a will, these persons are known as 'executors'. Lay executors - such as friends or family members - can be appointed instead of appointing a solicitor who can end up charging what they like for administering the provisions set out in the will.

The alternative is that consumers can employ a professional executor, who will administer the estate in return for a significant fee - often a sizeable percentage of the value of the estate or possibly even the entire estate if the actions of some solicitors are taken into account. Any consumer ignorant enough to appoint such a person who is covered by their profession’s self regulator may end up appointing the same person or firm who wrote the will such as a solicitor. Bad decision in nine out of ten cases.

Speaking from a personal perspective as a victim of the legal profession over a will rip off, if you do end up appointing a solicitor as your executor, you may well end up with an Andrew Penman, or a Norman Howitt which means you are basically giving all your money, property, possessions etc over to a lawyer so they can enjoy it. Bad decision.

Don't do it. Don't fall into the trap of trusting the person behind a desk in a lawyers office just because they sit in an office and give the appearance they can be trusted. The experience of many people each year in Scotland indicates when it comes to wills and solicitors, the phrase “Where there’s a will, there’s a crook“ has considerable weight.

Case after case has proved the Law Society & SLCC take no action against lawyers who rip off wills & bereaved families. Do you really want to put your remaining family, friends or loved ones through the nightmare of dealing with a crooked lawyer, crooked law firm, or even worse, having to go through the self protecting Law Society of Scotland or the anti-client Scottish Legal Complaints Commission ? Take my advice, avoid it all and make sure you never appoint someone such as a solicitor or an accountant as your executor, certainly not in Scotland, because there are absolutely no safeguards to poor, negligent or even the criminal handling of wills by Scottish solicitors.

Given the significant degree of negligence or even criminality in the handling of wills in Scotland, it is long past time for a review of will writing services offered by the legal profession, and wider public education of the real costs & hidden dangers of who you as consumers allow to write & implement your final wishes.

However, any such review of the disgraceful state of will services offered by the Scottish legal profession may well have to come from south of the border because most political parties in Scotland realise its just too much of a cash cow for their friends & donors in the legal profession, a cash cow for lawyers which is guarded to the death …

My previous coverage on the subject of wills, will writers, and the crooked lawyers who handle wills can be found here : Where there's a Will, there's always a crook, a crooked lawyer & a crooked self regulator

Clients should make clear & specific wills after ‘surprise twist’ lawyer's 'file note' backs sale of elderly lady's house for care home expenses

The poor wording of wills, often the blame of solicitors can lead to financial disasters affecting families & beneficiaries later on. CONSUMERS across Scotland should heed warnings over the correct preparation & wording of their own will & final testament, paying particular attention to any involvement by solicitors in their residual estate after a Glasgow Sheriff heavily criticised the lack of full clear notes & instructions given, and retention of files by an unnamed law firm, after ruling on a case involving an application under the terms of the Adults with Incapacity (Scotland) Act 2000 for the appointment of a lay individual to be welfare Guardian to a lady aged 87 who owned her own home but is now living in a care home, and for a solicitor to be her financial Guardian.

The case, which for the avoidance of doubt, has not alleged any wrongdoing on the part of the unnamed law firm or beneficiaries, involved a wrangle over the status of the elderly lady’s house, which she had bequeathed in her will to a named beneficiary, although the ‘requirements’ to pay for care costs meant her house will have to be sold to fund the ongoing cost of care rather than pass on as per the apparent instructions of her will.

The unnamed elderly lady had made a will in 2003, when she still had capacity, in which she made a specific bequest directing her executors that in the event of her death, they should convey and make over to a named individual the house in which she then resided (or any other house which she might then own and occupy as her principal residence). She still owns the house in which she resided in 2003, but has not now occupied it since January 2010, and is not capable of returning there. She had also directed that the residue of her estate should be divided equally between two charitable organisations.

When the application was received at Glasgow Sheriff Court, it disclosed the provision in the Will and the need to sell the house, but the applicants did not seek to have the Application intimated to the individual named in the bequest (the beneficiary). The Sheriff stated he thought it was appropriate that it should be so intimated and ordered that it be done as the house is valued at £140,000, and the potential loss of that bequest is therefore substantial.

The solicitors suggested that since the house represented about 70% of the value of the unnamed adult's estate, the court should direct that a codicil be executed giving the beneficiary 70% of the estate remaining at death instead of the house itself, however Sheriff Baird doubted that the court had such a power under the Adults with Incapacity Act.

At the date of the Hearing, according to the Sheriff's opinion, there was produced a letter from the prospective beneficiary, indicating that it was understood that the need to make proper provision for the continuing care was paramount, however the Sheriff went onto say “it seemed unclear to me whether the individual concerned appreciated the full implications of what was proposed. Sheriff Baird stated in his opinion he was shown the letter which had been sent to that person by the applicants' solicitors”. Sheriff Baird then went onto criticise the terms of the letter, saying “it did not seem to me that it spelled out the potential consequences as clearly as it might have”.

Sheriff Baird’s opinion, published on the Scottish Courts website then went onto report the “surprising twist” of a file note being found by the solicitors acting for the lady now resident in the care home, stating : “The case then took a slightly surprising twist. The applicants' solicitors, who had acted for the Adult when the Will was executed in 2003, looked out their file in connection therewith, and found a file note of the interview which the partner acting had had with the Adult. That note, written in the manuscript of the partner, but taken during interview with the client and clearly reflecting the intention of the Adult, states the identity of the potential beneficiary and then says "House only, not money if house sold". In fact, in the original manuscript version, the word "not" is underlined twice.”

While the Sheriff went on to say “All of the individuals involved here are thoroughly responsible professional persons, all acting from honourable motives”, the effect of the content of the apparently forgotten then found file note “is that there now exists clear and unequivocal evidence that the Adult did not intend to distribute her estate by leaving the potential beneficiary the equivalent of 70% of her estate; rather, she intended that person to inherit her house on her death, and nothing at all if it transpired that she did not own a house at the time of her death.” thus ensuring there was no question of the court intervening and authorising any alteration to be made to the terms of the Will.

Sheriff Baird concluded solicitors should learn lessons from this case in terms of the amount of documents & information engathered during the preparation of clients wills. He said : “There is a lesson to be learned. It is that practitioners who are instructed by a client to prepare a Will ought to make full and clear notes of the instructions given, perhaps ought to canvass alternative destinations in the event of subsequent changes in circumstances, and ought to give serious consideration to retaining all such files for future reference.”

Well, although again I would stress there is no evidence or claim of any wrongdoing in the case heard by Sheriff Baird at Glasgow Sheriff Court, from my personal experience of having been a victim of an executor, an accountant trying to insert apparently made up wishes or codicils into one of my own parent’s wills, anyone who has made a will or is thinking of making one should ensure the wording of their will is strict and to the letter of their precise instructions, while of course, ensuring you never making the mistake of appointing an untrustworthy solicitor, or an untrustworthy accountant as your executor, as you will be preparing the ground for another successful rip-off where your family and beneficiaries end up with not one penny, and in fact possibly being asked to contribute to paying the extravagant fees of the lawyer & executor, along with unjustifiable bank interest charges.

If you want to find out more about how lawyers and executors mishandle wills, you can read some of my previous reports on this subject, here : Wills - How your final wishes can turn into a final nightmare and of course, not forgetting if you want to read how Borders solicitor Andrew ‘Drew’ Penman & Borders accountant Norman Howitt ripped off my father’s will, you can read more about that HERE, & HERE. Just make sure what these people and their professions did to my family, and the hounding they gave us for trying to put it right, does not happen to you.

Perhaps I should also add that under the much less than perfect rip-off financial system we live in, clients should also remember they may well end up having to sell their own bones & DNA to pay for any required care services, before thinking of their families or beneficiaries. You can thank the various bankers, lawyers, politicians and various other wasters of public funds who remain in power for that one.

Sheriff JA Baird’s opinion from the Scottish Courts Service website is reprinted below, in full. Perhaps in terms of the circumstances of Sheriff Baird’s comments on the ‘surprising twist’ find of an apparently forgotten file note, the name of the law firm should have been published in the court opinion, in the public interest.

Application in Respect of BH

Sheriff J A Baird, Glasgow Sheriff Court 23 December 2010.

Nature of the Application

1. This was an application under the terms of the Adults with Incapacity (Scotland) Act 2000 for the appointment of a lay individual to be welfare Guardian to a lady aged 87, and for a solicitor to be her financial Guardian. The adult is an adult with incapacity as defined by the Act, and is no longer capable of living in the community. She is now resident in a Care Home. She owned her own house, but the need to pay for care costs is such that her house will require to be sold in order to fund the ongoing cost of care.

The Effect of the Sale on an Existing Prospective Beneficiary

2. The adult had made a will in 2003, when she still had capacity, in which she made a specific bequest directing her executors that in the event of her death, they should convey and make over to a named individual the house in which she then resided (or any other house which she might then own and occupy as her principal residence). She still owns the house in which she resided in 2003, but has not now occupied it since January 2010, and is not capable of returning there. She directed that the residue of her estate should be divided equally between two charitable organisations.

3. In two earlier cases, (T Applicant 2005 SLT (Sh Ct) 97 and JG 2009 SLT (Sh Ct) 122) I expressed views about the power of the Court to authorise the alteration of a Will, either by adding a codicil or by re-writing it completely, of an adult who had now lost capacity to make any such alteration. Such action may be required by the effect of intervening circumstances or the need to correct obvious errors. I stressed that before doing so, the Court would need to have clear and unequivocal evidence of the intention of the testator.

4. The effect of the sale of the house in the present case would be to defeat the specific bequest made by the Adult in her Will. Of course, that is a step she could always have taken herself, assuming she retained the capacity to do so, if, for example, she had decided to sell her house and move into care, and so the bequest would only ever have had effect if she had still been living in her own house at the date of her death.

5. When the application was received at this court, it disclosed the provision in the Will and the need to sell the house, but the applicants did not seek to have the Application intimated to the individual named in the bequest. I thought it was appropriate that it should be so intimated and ordered that it be done. The house is valued at £140,000, and the potential loss of that bequest is therefore substantial.

6. At the date of the Hearing, there was produced a letter from the prospective beneficiary, indicating that it was understood that the need to make proper provision for the continuing care was paramount, but it seemed unclear to me whether the individual concerned appreciated the full implications of what was proposed. I was shown the letter which had been sent to that person by the applicants' solicitors, and, with respect, it did not seem to me that it spelled out the potential consequences as clearly as it might have.

7. Accordingly, I continued the Hearing for another letter to be sent to that individual, and for that person to be advised to seek independent legal advice. That was done.

8. The individual did seek independent legal advice and the outcome was a passage of letters between the applicants' solicitors and the solicitors instructed by the potential beneficiary, which letters I was subsequently shown.

9. The initial response by solicitors on behalf of the potential beneficiary was that the application, including the grant of a power to sell the house which was the subject of the bequest, was not opposed, recognising again the need for the adult's future care costs to be fully met.

10. However, the representation was then made that it was clear that what the Adult had intended to do was leave what was effectively the bulk of her estate to the proposed beneficiary. The house represented approximately 70% of the value of the estate, and it was represented that what should happen was that after the house was sold, a codicil to the Will should be executed, altering the terms of the residue clause so that instead of leaving all the residue (which would by then of course include the free proceeds of sale) equally between the two charities, it should instead provide for 70% of whatever remained of the estate at the death of the Adult to pass to their client, the individual who had originally been named in the specific bequest of the house, with the remaining 30% being divided between the two charities.

11. That raised two interesting questions; (1) whether it was clear that that had been the intention of the testator, and (2) more fundamentally, whether the court had any power to do what was proposed, given that the solicitors suggested that the court could "instruct" (which was the word used), the Applicants' solicitors to execute such a codicil, even assuming that it did accurately reflect the testator's wishes. They expressed a hope that the applicant for financial guardianship would agree to proceeding in such a manner.

The Powers of the Court

12. This raises a question as to whether the Court, assuming it decided that some form of alteration to the Will by way of codicil was justified in the circumstances, has the power ex proprio motu to instruct the taking of any such step. In the absence of any detailed argument on the subject, I have to say that I do not regard the court as having any such inherent power.

13. All of the principal sections which give the court powers in the situations provided for by the Act all refer to the need for there to be an application made by a relevant party. Sections 53 (Intervention Orders) and 57 (Guardianship Orders) both begin by referring to the need for an application to be brought by a person claiming a relevant interest. Section 20, which gives the Court powers in relation to the operation of a continuing or welfare power of attorney, similarly begins by referring to the need for there to be an application by a relevant party. I do not see in any of these sections any power given to the Court ex proprio motu which would allow it to order that the Will in question should be altered in the way suggested.

14. If that is correct, then it would mean that the particular matter which was raised by the solicitors for the potential beneficiary could not be ordered to be done ex proprio motu. It would have required an application to that effect by a relevant party, and that means a formal application in the appropriate court process by a person who was a relevant party to it. There was no such application here, and so, even if I had been minded to "direct" the adding of a codicil as desiderated, I had no power, in terms of the specific sections mentioned, to do so.

15. That left open the question of whether the court has the power to do what was suggested in terms of section 3 of the Act. As I have said before in other cases, I do not read that section as allowing the court carte blanche.

16. Again, without having heard argument on the point, I have to say that my inclination is that the provisions of section 3 would not have entitled me to "instruct" the making of a codicil as suggested here. Section 3(1) says that in an application or any other proceedings under the Act (and this was an application under the Act) the sheriff may "make such consequential or ancillary order, provision or direction as he considers appropriate". To my mind, the adjectives "consequential" and "ancillary" must be taken to qualify the nouns "provision" and "direction" in the same way as they obviously qualify the noun "order". Assuming that to be correct, I do not see how the proposed codicil altering the residue clause could be considered to be "consequential" or "ancillary".

17. There is of course a range of specific powers then given to the court by section 3(2), one of which, section 3(2)(c), allows the court to make such further inquiry or call for such further information as appears appropriate and was the one which I used in continuing the case for further information about the position to be adopted by the potential beneficiary. I do not however read any of those further specific powers as allowing me to "instruct" the making of a codicil as suggested here.

Evidence of the Intention of the Testator

18. That left the other question I mentioned above. If there had been clear and unequivocal evidence that the Adult had truly intended the potential beneficiary to benefit in the manner suggested by the solicitors in correspondence, and if the applicants had consented to it, it would still have been possible to authorise the making of a codicil to the effect suggested. As I have said, it was now being represented that the Adult had truly intended to make provision in favour of the proposed beneficiary of a substantial percentage of her estate, albeit it was explicitly accepted that the care costs must now take precedence with the effect of diminishing the estate.

19. The case then took a slightly surprising twist. The applicants' solicitors, who had acted for the Adult when the Will was executed in 2003, looked out their file in connection therewith, and found a file note of the interview which the partner acting had had with the Adult. That note, written in the manuscript of the partner, but taken during interview with the client and clearly reflecting the intention of the Adult, states the identity of the potential beneficiary and then says "House only, not money if house sold". In fact, in the original manuscript version, the word "not" is underlined twice.

20. They sent a copy of that to the solicitors for the proposed beneficiary, who after further consultation with their client, confirmed that their client had always expressed a desire to respect the Adult's wishes, and accepted that these had been made crystal clear in the terms recorded in the file note. The proposal to alter the residue clause was accordingly abandoned. They did point out, with some considerable force, that it would have been helpful if that material had been produced in the first place.

21. I should add that all of the individuals involved here are thoroughly responsible professional persons, all acting from honourable motives.

22. The effect of the content of the file note of course is that there now exists clear and unequivocal evidence that the Adult did not intend to distribute her estate by leaving the potential beneficiary the equivalent of 70% of her estate; rather, she intended that person to inherit her house on her death, and nothing at all if it transpired that she did not own a house at the time of her death. There is therefore no question of authorising any alteration to be made to the terms of the Will.

The Practical Effect

23. There is a lesson to be learned. It is that practitioners who are instructed by a client to prepare a Will ought to make full and clear notes of the instructions given, perhaps ought to canvass alternative destinations in the event of subsequent changes in circumstances, and ought to give serious consideration to retaining all such files for future reference.

Former lawyer jailed for stealing clients £130K returns to run will-writing business as Law Society protects its own will rip-off solicitors

Law Society refused to confirm whether victims of Valerie MacAdam had been repaid. A SOLICITOR who was jailed for three years in 2008 at Edinburgh Sheriff Court after being found guilty of embezzling £130,000 of client funds has returned to Scotland’s legal services marketplace with a will writing business, according to an investigation carried out by the Sunday Mail newspaper.

Valerie Macadam, now Valerie Penny has been identified as running the “wills at home” website, which states : “A new service is available! After a successful career as a lawyer, Valerie Penny lectured in law for several years. She then moved to the traditional Craft Town of West Kilbride six months ago having married local man, David Penny. She has now established a new business that will be of use to the whole community.”

The website goes onto state : “The firm also offers preparation of documents in the comfort of clients own homes or another convenient place of their choosing. This is much more relaxed and personal, but no less professional than the service conventionally provided in an office environment. Clients are ensured not only confidentiality, but also safe keeping of deeds as documents are retained in a secure document safe.”

There is no mention on the wills at home website of Ms Penny's colourful history as a lawyer, nor are clients alerted to her conviction & three year jail sentence, which the Journalonline reported “was reduced from four years for an early guilty plea. Macadam took money from the bank accounts of clients and life savings of others as she handled their wills, stealing from five clients in total over a period of six years. Macadam had been banned from practising as a solicitor in 2004 following a Law Society of Scotland investigation.

Philip Yelland, the Law Society of Scotland’s Director of Regulation for over 20 years. Philip Yelland, the Law Society of Scotland’s director of standards, said: “The Law Society of Scotland acted to protect the firm’s clients and Ms Macadam has not been able to practise as a solicitor in Scotland since 2004. Solicitors are trusted to handle millions of pounds of client funds each year. Honesty and integrity are absolutely paramount within the solicitors' profession. Those who are suspected of stealing from clients will be investigated and, if they are found to be acting dishonestly or fraudulently, strong action will be taken against them, both by the Society and the courts.”

What a lot of rubbish Mr Yelland. You may as well have sent all her clients off to Andrew Penman at Stormonth Darling in Kelso to be fleeced again.

I covered Valerie Macadam’s conviction and side issues relating to solicitors ripping off clients for double fees in an article during late 2008, here : Lawyers stealing from clients to earn 'double fees' while Law Society looks the other way in vast network of legal aid fraud & embezzlement

The report from the Sunday Mail follows, although I feel I should emphasise some points to my own readers. The lawyer quoted in the Sunday Mail’s story, Bruce de Wert, who is an “Honorary Sheriff” and runs a will writing business (Scottwills) along with a divorce business (MyScottishDivorce) states : "When you deal with a solicitor, you will normally find they also offer a will storage service - usually for free. But the difference is solicitors are heavily regulated and, in the event they were to retire or go out of business, the Law Society ensures these wills are properly passed on to another solicitor."

Many solicitors actually charge for holding wills & documents. I know this to be the case as I’ve had fee notes for this service. I have also had numerous readers come to me with examples of similar fee notes, with some solicitors occasionally refusing to hand over documents they are holding for clients until very dubious & usually very high charges and fee demands are paid.

The part about solicitors being heavily regulated is of course irrelevant because as we all know, solicitors are ineffectually regulated by the Law Society of Scotland & Scottish Legal Complaints Commission, and that is why I have seen & reported on hundreds of cases of will fraud by solicitors over many years. If solicitors were so well regulated, I wouldn't be able to write about such cases, and of course, if solicitors were so well regulated, there wouldn't be so many Andrew Penmans out there doing much the same as those featuring in headline after headline after headline.

Personally of course, I don't believe anyone should make tens of thousands of pounds out of a family member passing on their final wishes to their family or whoever they choose to leave their wealth.

After being dragged through the Law Society’s sinister complaints practices, and having a solicitor and an accountant basically put a gun to my family’s head, hound us for years, harass us, follow us, threaten us, make our lives a misery while they both got away with it, I am of course bound to say this, but I say it because I don't want anyone else to go through it, so be careful who you trust your will to, and indeed for that, all your legal interests and remember, there are just as many criminals still inside the Scottish legal profession who will ruin your will & your legal interests, as those outside who might not be telling their clients all they need to hear.

For those readers concerned about their wills and other documents being held by their solicitors, I have written articles which readers might be interested in HERE

The regulation of will writers has entered into law as part of the Scottish Government’s Legal Services (Scotland) Act 2010 (pdf) Chapter Two specifically referring to regulation, and it may come as no surprise to all, the Law Society of Scotland is in the frame to regulate non-lawyer will writers, as I featured earlier, here : Scottish Government plan to regulate non-lawyer 'will writers' may see Law Society regulate all complaints against mishandled wills, legal business

I recently covered the subject of will writers, lawyer & non-lawyer, and their lack of effective regulation, here : R.I.P. OFF : Lack of independent regulation reveals solicitors, accountants & will writers should not be trusted on wills, final wishes & bequests

Now over to the Sunday Mail :

Shamed lawyer who robbed clients out of jail and back in business

Nov 28 2010 Exclusive by Russell Findlay and Lauren Crooks, Sunday Mail

A CROOKED lawyer jailed for stealing money from dead clients is back in business, we can reveal.

Valerie Penny, 54, runs a slick website to lure customers into handing over £80 for wills. She is selling the same legal services she used to steal £130,000 from clients and their estates - a catalogue of dishonesty that landed her in prison.

The struck-off solicitor, who was called Macadam before her marriage, boasts of her "successful career". But she makes no mention of her jail time for robbing clients' cash or her shocking record of professional misconduct.

Last week Sunday Mail investigators caught her back in action touting wills and other legal services.

US-born Penny, who has practised law in Scotland and New York, was jailed for three years in December 2008 for stealing £130,000 from clients, some of whom were dead. She seized control of their finances through "power of attorney", then syphoned their life savings over a six-year period. She specialised in conveyancing and wills at her law firm in Edinburgh's posh Charlotte Square before her crime spree was uncovered.

After being freed from Cornton Vale prison in June, Penny launched Wills at Home from her house in West Kilbride, Ayrshire. She and second husband David, 50, a nuclear power station security guard, sell wills and power of attorney documents through online ads.

Her website states: "After a successful career as a lawyer, Valerie Penny lectured in law for several years. "North Ayrshire is the first area in Scotland to have the benefit of Wills at Home but Valerie plans to extend the service throughout the country quickly."

Last week Penny and her husband met our reporters - posing as a couple - at a Kilmarnock hotel and offered two wills for £120. After making and printing the first will, she said: "Now do you have somewhere fireproof to keep the wills? No, well, we have a safe. We can keep them there if you're happy for us to do that. It's what normally happens."

She handed a copy of one will to our team but forgot to print the second. She promised: "I'll send it to you. Are you wanting to pay cash? If we're holding the deeds, there's a small extra charge of £15 per deed. But if you're paying cash, we can make it £140 instead of £150."

The Scottish Government are set to pass a new law to tackle the unregulated will industry.

Lawyer Bruce de Wert, a wills expert based in Wick, was stunned at our revelations about Penny. He said: "I am distressed to hear a convicted embezzler is offering a will-making and storage service.

"I can't imagine anyone who knew her background would accept her service. Apart from the obvious concerns of dealing with a criminal, I do worry that the wills she has produced may never be found.

"When you deal with a solicitor, you will normally find they also offer a will storage service - usually for free. But the difference is solicitors are heavily regulated and, in the event they were to retire or go out of business, the Law Society ensures these wills are properly passed on to another solicitor."

Penny first appeared in front of the Scottish Solicitors' Discipline Tribunal in 2003, which found her guilty of a catalogue of misconduct but failed to strike her off. Two years later she was finally kicked out of the profession for another long litany of misconduct.

The SSDT found Penny "deliberately and fraudulently" forged a signature on a document relating to a dead client's will and acted in a "dishonest fashion by misleading" another client. They also said she embezzled client funds in a "calculated and devious scheme".

Penny's entry on the LinkedIn website for professionals had claimed she worked for global financial giant Bank of New York Mellon between November 2008 and May this year. But she was behind bars during that time. The dates were later changed to when she did work for the bank - from May to December 2008, when she was fired. A bank spokesman said: "As soon as we discovered her conviction, we terminated her employment."

At Edinburgh Sheriff Court, Penny accused her first husband, lawyer David Macadam, 54, of driving her to embezzlement by his "bullying". He was also rapped for misconduct by the SSDT in 2004. They ordered that he could only work as a lawyer under supervision for a five-year period.

When confronted last week, Penny said: "This will destroy me. The dates on LinkedIn are a mistake." She then told her husband to snatch the will from our reporter's hands.