In a continuing series, the Law Society’s practice advice service offers guidance on a range of issues


Q I have been approached to act in the administration of an estate in which there appear to be no living relatives. What should I do?

A If approached about the administration of an estate in which there are apparently no living relatives, you should immediately contact the Treasury Solicitor, Bona Vacantia Section, One Kemble Street, London WC2B 4TS (tel: 020 7210 3116 or 020 7210 3117). Time should not be spent on searches, nor costs expended, because the Treasury Solicitor is responsible for searching for relatives of the deceased and may not be able to pay solicitors who have incurred expenditure. If the Treasury Solicitor traces relatives, they may be unwilling to reimburse costs in respect of extensive work done before they were found. Please see The Law Society’s Probate Practitioners Handbook, 5th edition, which is available to buy from The Law Society Bookshop (tel: 020 7320 5640). (Please note this is the procedure to be followed if there are no living relatives. If there are beneficiaries who cannot be traced, please see The Probate Practitioners Handbook.)



Q My client has requested a remuneration certificate, and the bill has been paid in full by way of deduction from monies received on account. Is he still entitled to a certificate?

A Yes. If a solicitor deducts his costs from monies held on account and the client objects in writing to the amount of those costs within the ‘prescribed time’ (three months or a lesser time specified by the solicitor, which cannot be less than one month), the solicitor must immediately inform the client in writing of his right to obtain a remuneration certificate or to apply for assessment. The client then has one month in which to ask the solicitor to apply for a remuneration certificate. If a solicitor wishes to speed up the process, he should send the necessary information to the client with the bill. The client then has one month from that time to ask the solicitor to apply for a certificate. See the Solicitors (Non-Contentious Business) Remuneration Order 1994.



Q I have a client who wishes to give her home to her daughter. Does the Law Society have any guidance for solicitors dealing with these types of cases?

A Yes, you may find the booklet Gifts of property: Implications for future liability to pay for long-term care helpful. This can be found on our website – www.lawsociety.org.uk – or obtained from the Practice Advice Service. See contact details below.



Q I am a solicitor and someone requires a document to be sworn before a Commissioner of Oaths. Can the document be sworn before me?

A Yes. Under the Courts and Legal Services Act 1990, the powers conferred on a Commissioner for Oaths by the Commissioners for Oaths Acts 1889 and 1891 are exercisable by every solicitor holding a current practising certificate. Section 113(10) of the 1990 Act gives a practising solicitor the right to use the title ‘Commissioner for Oaths’. Please see the Law Society’s publication Execution of Documents, which is available from the Law Society Bookshop.



Q I am a solicitor with a practising certificate. Does this mean that I am also regarded as a Notary Public?

A No. Admission as a solicitor does not automatically mean that you are a Notary Public. If you wish to qualify as a Notary, please contact the Court of Faculties, Faculty Office, 1 The Sanctuary, Westminster, London SW1P 3JT (tel: 020 7222 5381).



Q In a family matter, with the agreement of my client at the outset, can I charge extra if she is awarded a financial settlement which exceeds her expectations?

A No. This arrangement would constitute a conditional fee agreement which is prohibited in family matters under section 58A of the Courts and Legal Services Act 1990 as substituted by section 27 of the Access to Justice Act 1999.



Q I have been receiving documentation from my local court in respect of a client who terminated his retainer with me a few months ago and decided to proceed as a litigant in person. Why is the court still writing to me?

A Your former client must have failed to file a notice of change under rule 42.2 of the Civil Procedure Rules. The court will continue to write to you until either a notice of change has been submitted or you obtain an order to come off the record under rule 42.3. In future, you may wish to consider ensuring the client signs a notice of acting at the start of the retainer which can then be held on your file until the matter is concluded or the retainer is terminated. This would save the time and expense involved in applying for an order under rule 42.3 (see [1999] Gazette, 22 September, 34).



Q Can a solicitor sign the contract for sale in a conveyancing transaction on behalf of a client?

A The case of Suleman c Shahsavari [1989] 2 All ER 460 confirmed that a solicitor needs his client’s express authority to sign the contract on behalf of the client. Unless the solicitor holds a valid power of attorney, it is recommended that such an authority be obtained from the client in writing, the client previously having been informed of the legal consequences of giving such authority, including that the signature implies authority to proceed to exchange, and exchange creates a binding contract. A solicitor should never sign a contract on behalf of a client without being certain that the client accepts all the terms of the contract. Particular care

should be taken when there are joint purchasers or co-owners involved. It is recommended that express authority is obtained from each party and that the solicitor ensures that each party understands the legal consequences of the authority and accepts the terms of the contract. Failure to obtain authority may render the solicitor liable in damages for breach of warranty of authority. See The Law Society’s Conveyancing Handbook, 13th edition, which is available from the Law Society Bookshop.



Q What is an apostille?

A An apostille is a certificate which authenticates the signature and seal of a person who has administered an oath or declaration. This is issued by the Foreign and Commonwealth Office of a country which has ratified the Hague Convention of 5 October 1961.



This column is compiled by the Law Society’s practice advice service, tel 0870 606 2522. Comments relating to the questions should be sent to Nasrin Master, Practice Advice Service Manager, The Law Society, 113 Chancery Lane, London, WC2A 1PL. The service endeavours to ensure that the information provided is correct but does not accept liability for error or omission. Readers should bear in mind that this publication is intended for information purposes only and should not act on the basis of the information provided without verifying it first.