FIONA BAWDON LOOKS AT THE PROBLEMS FACING LAWYERS WHO HAVE TO DECIDE WHETHER A CLIENT IS FIT TO MAKE A WILLWills and probate may be seen as being at the sedate end of the profession's work, lacking the kudos and drama of family, personal injury or criminal work.

But in some cases, nothing could be farther from the truth.Solicitor Peter Raymond tells of being summoned one evening to the hospital bed of a woman who had been badly injured in a car crash.

'I took her instructions and wrote out her will by hand,' he said.

'I asked the doctor to come in to see her and read through the will in his presence.

He asked her some questions until he was sure that she knew what she was doing.

He then witnessed the will.

The woman died a matter of minutes later.'Mr Raymond, a partner at Cripps Harries Hall, is chair of the Law Society's new probate section advisory group which aims to raise standards in this area of law.

In 1993-94, probate accounted for 10% of complaints to the then Solicitors' Complaints Bureau, with delay and poor communication at the top of the list.

The probate section hopes to tackle some of these difficulties by offering a broad range of training.Another area where lawyers might appreciate help is in how to tell whether a client is sufficiently mentally fit to make a will.

This is the most difficult aspect of the job, says Amanda Woolven, a legal executive at north London-based Kaltons and with 20 years will-writing experience.

Mr Raymond agrees it can some times be tricky, particularly with elderly clients who may appear perfectly lucid.

'With experience, you get a feel for whether something is right or not.' If Mr Raymond is concerned about a client's mental state, he may spin out the interview longer than otherwise necessary.

'You find that the person can keep it up for a certain amount of time, and then they start to lose the thread, start repeating themselves.

Sometimes, they can keep going for as long as three-quarters of an hour,' he says.

If in doubt, lawyers should always err on the side of caution and involve a doctor.

This might take the form of the lawyer simply having a chat over the 'telephone with the GP, a full medical report, or asking a doctor to witness the will.

He admits, however, that it is an area which needs sensitive handling.

Not only is the practitioner impugning someone's mental state but -- because of the fees a doctor is likely to charge -- the lawyer is asking them to pay for the privilege.--But Mr Raymond adds: 'No-one has ever walked out on me yet.' The key, he says, is in stressing that it is in the client's interest that the will is rock solid and not open to challenge.Another area which lawyers need to watch is avaricious relatives exerting undue pressure on the person making the will, --which can affect not just the elderly.

Mr Raymond tells of a man who came to make a will.

The client wanted to give his second wife a life interest in his capital and after her death everything would be divided between the children from both his marriages.

The will was duly drafted and sent to him.

Soon after, he reappeared in the office with his new wife in tow.

'It became clear during the course of the meeting that the will wasn't going to stand in that form,' he says.

She leant on him to the extent that he signed it all over to her, this being the only way to satisfy her demands.'In this case, although the husband had clearly been put under pressure, Mr Raymond decided that the client was quite capable of looking after himself.

The client ran his own business and had all his faculties.

Of course, if he had been in his 80s and the new spouse in her 20s, he might have taken a different approach, he adds.Amanda Woolven agrees that the ability to be forthright is an essential part of a will writer's armoury.

'You have to be quite firm and straightforward,' she says.

'If clients come along bringing a family member, I will see them both together for a few minutes and then throw the other one out and explain exactly why.' It is usually relatively easy to ensure privacy in the office, but it can be harder with home visits.Once, when a relative who had left the room as requested was clearly visible in the next room and within earshot, Ms Woolven got up and unceremoniously shut the door, she recalls.

On other occasions, she has had to insist that the client comes to the office for an appointment.The general public's reluctance to make wills -- 'people really believe they'll die if they make one,' says Ms Woolven -- is well documented.

However, successfully persuading them that it will not prove fatal is only half the battle, many clients have huge difficulty deciding what to put in their will.Wills are often repeatedly drafted as clients change their minds about what to do, says Ms Woolven.

For example, one client was hopelessly torn between leaving everything to his partner or to his sister.

A client of Mr Raymond's was quite clear what he wanted, but came back again a week after signing his will saying: 'I got it wrong.

I want to do it again.' Another client who first came to him in the late 1970s was in the habit of changing her will every six to 12 months, depending on who was in and who was out of favour.

After 20 years of subtle pressure from Mr Raymond, her strike rate is now down to every two or three years.WHILE PROBATE SOLICITORS CAN STILL ENJOY THEIR PROTECTED STATUS, THE MARKET IS STILL VERY COMPETITIVE, WRITES TIM WEEKESIt is not known whether probate solicitors are, by and large, supporters of the Labour party.

But they certainly have good reason to be pleased that the new government has put one key reform on the backburner.

That reform would involve the use of powers laid down in the Courts and Legal Services Act 1990 to create a new category of authorised probate practitioner competing directly with solicitors.

Ministers, it is understood, have not had time to consider these powers, nor are they likely to in the near future.

According to the Lord Chancellor's Department, its current workload will fill at least the next 12 months, and probate reform is not on the agenda.

In any case, it is now a long time since the powers came on to the statute book.Officials suggest that even if ministers eventually have time to consider probate and are in favour of using the 1990 Act powers, they would want to consult widely on the way in which the powers should be used.

The Law Society would clearly have a good opportunity at that stage to press its case for a rigorous system of regulation analogous to that under which solicitors already operate.It would appear, then, that solicitors can continue to enjoy their protected status with the probate registry for some time yet.

Peter Raymond, chairman of the Law Society's new probate section set up to guide solicitors in this area, is 'very relieved' that there is a pledge to consult the profession in the event of any proposals to change the probate regulations.Mr Raymond says: 'There are a number of very important matters that need to be taken into account before changing the way probate is regulated.

Stretching from the protection provided to clients by the solicitors' accounts rules through to the many important tax considerations which have to be taken into account, there are a lot of pitfalls into which the inexperienced or unqualified practitioner can fall.' Thus expressed, the high street solicitor has an attractive pitch to make to the consumer who needs a will or who is the beneficiary of an estate.So is the probate solicitor such a hard-pressed species as to need a special section for support? According to Mr Raymond, this is to misunderstand the purpose of the section, which exists not to serve solicitors' interests so much as those of the public.

He says: 'Within the section we are going to be doing the utmost to improve standards, further knowledge and generally improve the service solicitors give for the benefit of the public.'Mr Raymond says this has 'struck a chord' on the high street, with an encouraging 1,800 practitioners signed up for a package of benefits that includes a quarterly newsletter, free seminars and assistance with marketing probate work.

But it is clear probate solicitors are also looking for more general advice on ways to run a probate business.Law Society past President, Tony Girling, says probate solicitors are aware they are perceived as the 'backwoodsmen' of the legal profession, and that many have room for improvement in practice management and the use of technology.

Mr Girling says such changes are essential as the market for probate work is becoming more competitive.He says: 'You only have to look at the increase in the numbers of personal applications to the probate registry to see how much work is now bypassing solicitors.

In part this reflects the growth in DIY estate handling, but it is also evidence that accountants are acting as executors and simply sending their clients off to extract the grant of probate.'But Charles Gordon, a probate practitioner in the home counties firm of Foster Savage & Gordon and a member of the Law Society's land law and succession committee, says probate solicitors must not assume all is 'doom and gloom' in the high street.

He says probate is not a dynamic market, and so it will take a long time for any competition to impinge on solicitors.

Mr Gordon says: 'A clever firm of solicitors will offer to keep any wills it writes.

Since competition for executor work between law firms has not become cut-throat, once you have written a will and hold it for a client, on that client's death the family will as often as not want you to be the executor.' And even if other businesses -- accountancy firms or licensed probate practitioners, for instance, -- start writing wills, it is generally a matter of years if not decades before the clients gained that way die and become a source of the more lucrative estate handling work.This is not to say probate solicitors cannot sharpen up their commercial skills.

Mr Gordon says solicitors should be looking to get a range of work, including tax planning, investment advice and enduring powers of attorney for the elderly, spinning off from their probate practices.

But he says there is little evidence that, for instance, beneficiaries shop around amongst solicitors' firms and other practitioners looking for the best deals on probate work.But according to Mr Girling, even if solicitors manage to hold off competition from outside the legal profession, the overall market is shrinking.

'The number of grants of probate is not going to increase, and with people living longer, estates are smaller.

This means that probate practices have to grab more of the market share in order to be as successful as they were in the past.'If the government ever considers probate reform, it will bring to public attention the question of whether solicitors offer value for money and good service on probate work.

It is a question that solicitors could usefully be asking themselves now.GILL STEELE SETS OUT A SYSTEM FOR SOLICITORS WHO WANT TO GROW THE PROBATE AND SUCCESSION SIDE OF THEIR BUSINESSTo improve the profitability of wills, tax and succession work a firm must aim to:-- Reduce the expense of undertaking the work;-- Increase the value of the service in the eyes of clients so that they are willing to pay more for the service;-- Increase the volume of business;-- Be sure the market place still wants the service;This is a five step approach to achieving these aims.REVIEW -- PRACTITIONERS MUST:-- Consider what is going on in the world at large, for example, demographic factors and economic factors;-- Examine the range of services your firm offers to the private client;-- Identify current and future potential competition from all sources for these services and look at what the competition does differently;-- Assess profitability of the way your firm provides services;-- Decide what resources your firm is prepared to commit to a project: eg, money, time, people (with their particular strengths and weaknesses) and technology;-- Explore what services are often needed but not provided by your firm, eg independent financial advice.

Solicitors are well placed to offer financial services as intermediaries if not in-house.SET ATTAINABLE GOALSConsider what are your firm's objectives:-- To be the first choice for services to the elderly in a geographic area?-- To be a one-stop tax, law and financial advice centre for private clients?-- Or something else?Consider why clients ask a law firm to undertake probate work?-- They do not know how to do it themselves, so they look for expertise;-- They do not have the time or it would not be an effective use of their time.

Cost, speed and accuracy will be important;-- There is a dispute and someone independent is required to deal with it;-- They have no choice -- the testator appointed partners in the firm as executors.

Costs will be watched closely.There are many more reasons, but whichever reason applies will have an effect on how that client perceives the quality of the service firms are providing, whether they will use it again or recommend it to others.PLAN TO ACHIEVE GOALSFirms should develop a successful strategy which:-- Comprises goals that are simple, consistent and long term;-- Displays a profound understanding of the competitive environment;-- Contains an objective review of resources available;-- Be effectively implemented.Draw up an action table of:-- What needs to be done to achieve each goal;-- Who is to take responsibility for each of these actions;-- How much time will be needed or is available to spend on each action;-- The deadline for completion of the action;-- How firms will know that the action has been achieved.A realistic date in the future should be agreed by firms to conduct an evaluation.PUT THE PLAN INTO ACTIONBe ruthless with office procedures.

In order to reduce the cost of delivering the service, it is necessary to:-- Question everything;-- Decide whether there are gaps between what your firm perceives clients want and what they actually get;-- Where possible, develop uniform procedures within the firm.

Retain only those steps in the process which are essential and will deliver a quality service in the way the individual clients will recognise as 'quality'.

Probate lends itself to standardisation.Staff should be trained in the skills needed to help target clients such as the elderly, for example:-- Communicating in plain English;-- Working with the deaf and hard of hearing;-- Working with the blind and partially-sighted;-- Using technology to its utmost.Document the firm's system so it is easier to monitor how effective it is and whether it is being observed by the team.Consider how technology can be harnessed:-- Do not just seek to computerise what is already done;-- Assess whether there is a better way of delivering the service by a computerised method;-- There are good systems for wills, probate, IHT forms, trusts administration, tax returns and compliance;-- Ask why the client should pay for solicitors' time to do something manually when the job is capable of being done at a fraction of the price and more efficiently by computer or a cheaper grade of staff.Make contact with the bodies providing local services to the elderly:-- Provide free advice;-- Join the local committee;-- Discover what they are looking for from the lawyer.In this way the profile of the firm can be raised to undertake work in this field and encourage the referral of work.Market the firm's services by:-- Holding seminars for local groups and clients;-- Writing editorial for publications.Evaluation & ReviewIf firms have not documented what they are tryi ng to achieve and precisely how it is to be achieved, then the chances are the goals will not be achieved.

Firms should periodically examine how they are doing, what has worked and what has not before continuing with the next lot of action planning.

If they do then they are certain to succeed.