A dying art?

In the light of an increasing number of complicated cases, Emma Vere-Jones discusses the future of probate with lawyers who are concerned by the lack of new talent coming up through the ranks in this area of law

If death and taxes are the two things you can guarantee in this life, it follows that there will always be a steady supply of work for probate solicitors.In fact, owing to the rising number of complex probate matters, the workload is increasing, says Jan Wright, a solicitor at Carlisle firm Cartmell Shepherd, and a member of the Law Society's probate section's executive committee.As a result, probate practitioners are calling for better resources, better training and more recruits.

A noticeable change in recent months has been the creeping growth of IT.

'I don't think it's a national secret to tell you about the abysmal IT resources,' says Ms Wright.

'Most things are done by hand.'In November, three solicitors - Robert Bradshaw, Sharon Beswick and Philip Griffiths - from Birmingham-based firm Bradshaws established what they say is the first national on-line database for wills and 'living wills', used by adults to state their wishes for future health care if they are ever incapacitated, (see [2001] Gazette, 14 December, 12.)The database allows solicitors' firms to register wills and to search the database for existing wills.

Currently, when a solicitor or a relative is trying to locate a deceased's will, they have to employ a probate researcher to send out letters or place advertisements in what is an expensive and lengthy process.It is hoped that the on-line registry will become the equivalent of the Land Registry and the register of companies.Then last month, the Probate Records Centre opened in Birmingham, replacing storage of probate documents in district registries around the country.Once a request is received from a registry, the centre will scan the will and send it back within an hour.

The possibility of accessing the service via the Internet is also being investigated.Another development on the horizon is the final outcome of the probate business review (PBR).

Launched by the Probate Registry Service two years ago and carried out by external consultants, the review looks at all aspects of work offered by the service.'It could lead to a major shake- up in the area', says Richard Grosberg, partner at midlands firm Nelsons and chairman of the probate section's executive committee.However, that shake-up could be some time away.

The consultation document will be made public later this year, and the recommendations implemented some time after that.Members of the PBR project board are not at liberty to disclose the proposed changes, but one insider says that while some of the recommendations are relatively straightforward, others are 'farcical' and still 'need a lot more work'.Practitioners are the first to admit it is not a rapidly changing practice area.

'It's not such a fast-moving area of law; there's not so much headline news,' says Mr Grosberg.Ironically, he says, one of the changes that has affected probate lawyers in the past 12 months was a snap decision by the government to disallow the photocopying of death certificates.

'It did cause real problems,' agrees Alan Benstock, of Leeds firm The Lister Croft Partnership.

'We received no warning; we just started getting letters from banks and building societies saying they couldn't accept signed copies of death certificates.'It is understood that the rule was brought in to prevent fraud, but whether it actually does or not is another matter, solicitors say.

'We had questions asked in Parliament, but no one could give us instances of fraud being committed with a falsified death certificate,' Mr Benstock says.While this may seem a fairly insignificant gripe, it has meant extra time and money being spent for more original death certificates.

'It's a real pain in the proverbial,' says Mr Grosberg.Another change has been a general move by the courts to tighten up on solicitors' duties, Mr Grosberg says.

Add that to an increasingly litigious society, and you have a situation where solicitors must be extra careful.

'There has been an increase in the willingness of disappointed beneficiaries to seek redress by turning to the legal system,' says Ms Wright, 'and therefore practitioners are having to remember that the work they're doing today could, down the line, possibly be the subject of a court hearing.'To reduce the threat of claims, solicitors must ensure they have good systems and management in place, Mr Benstock urges.

'It has always been the "Oh, we'll leave it to the last minute" job; but now wills have got to be done first.

I'm aware of the most appalling things where wills haven't been properly signed or prepared quickly enough.'Cases such as Esterhuizen v Allied Dunbar in 1998 are making solicitors a lot more wary.

In this case, Mr Justice Longmore said solicitors should offer to oversee execution.

He said clients are entitled to help from their lawyers with the 'far-from-simple' task of executing a will.'It is, in my judgement, not enough just to leave written instructions with the testator.

In ordinary circumstances just to leave written instructions and to do no more will not only be contrary to good practice but also, in my view, negligent.''It was the first high-profile case that said solicitors owed a duty of care when preparing a will,' says Mr Benstock.

'A will is a priority case.

This is what the courts are saying: unless you get a will out in two to three weeks, you're at risk of being negligent.'The Gazette's probate legal update columnist, Professor Lesley King of the College of Law in London, says: 'Solicitors must be careful to take instructions properly, that they are aware of all the assets, and they don't spend too long preparing the wills.'The Capital Taxes Office has also become more stringent in collecting penalties on inheritance tax if an estate has been valued inaccurately, or an asset has been missed, she adds.

The deduction of such penalties from an estate can leave solicitors open to claims by clients.As well as increased litigiousness on the part of clients, the work in this practice area is itself becoming more complex.Frequently, a client may have had two or three marriages and have a much more complex estate, with stocks, shares and other investment vehicles.

'About 60% of deaths result in the administration of estates,' says Mr Benstock.

'Previously there might not have been the need for a grant of probate, but since companies have gone public, and more people have stocks and shares, that has increased.''There is an increased need for probate,' agrees Ms Wright.

'Yet at the same time, within the profession wills are still seen as a simple document that can be done cheaply, when potentially they are very complex.'The perception of the practice area is also causing a headache for probate practitioners.

Getting recruits is difficult.

It is a problem reflected in the changing demographics of probate solicitors, as the influx of newly qualifieds decreases.

'I'm under 35,' says Ms Wright, 'and that definitely puts me in a minority.'Ms King asks: 'In ten or 20 years' time, who is going to be qualified to do this work?' Some maintain there is already a shortage of qualified probate practitioners.

'It's not considered sexy, it's not considered profitable, and you get it in the neck from your colleagues,' says Ms Wright.And there is another significant reason for the drop in numbers: probate is no longer a compulsory part of law students' curriculum.

While there are six or seven lectures which cover the practice area, the subject is not examined.'We've got trainees coming out of some courses and we're lucky if they know what a will is,' Ms Wright adds.As a result, the probate section has been trying to raise the profile of the practice area within the legal community, and particularly among students.So why are such practitioners so passionate about their work, which seems to suffer from an image problem? 'You see some fascinating cases and you get such a wide variety of work,' says Mr Benstock.

'We've had to dispose of herds of goats, massive collections of war memorabilia, charitable donations...

some of the stories my colleagues could tell you.'But until bodies such as the probate section sell themselves and their work to new recruits, it seems such colleagues will be few and far between.Which leads to Mr Benstock's final, if ghoulish, selling point for the practice area: there will never be a shortage of work.

'We're crying out for people,' he says.

Emma Vere-Jones is a freelance journalist

LINKS: www.nationalwillsregistry.co.uk

l For more information on the Law Society's probate section, contact Alisha Knight, tel: 020 7316 5678.