Invalid charging clause in a will

[jasdpace@gmail.]

I understand that if a will has be witnessed by a solicitor, then any clause permitting that solicitor to charge for his services is invalidated. In the case of a relative of mine, the solicitor ignored this provision and charged very handsome fees for his probate and work as executor. Before actioning, I'd like to understand whether the are any possible grounds to justify the charging of fees in these circumstances and, if not, what is the appropriate authority to make a complaint.

 

[jpd]

You say that the solicitor charged fees for his probate work but are asking about charging clause in the will - this is confusing. Can you be more explicit

It is normal for a solicitor to be paid for doing probate

 

[jasdpace@gmail.]

Hi JPD,

Where the Solicitor is appointed as the Executor of an Estate, it is normal that there is a clause in the will which permits the solicitor to charge for his work as Executor as well as the associated probate work. In order for this clause to be valid, the solicitor (or certain other people) cannot witness the will. In the case of my relative, the solicitor witnessed the will and therefore rendered the charging clause invalid - yet he proceeded to charge a fee. See link for further info.....

Solicitors Acting as Executors: Entitlement to Fees, Charging Clause and Section 82 of the Succession Act 1965

 

[Clamball]

What outcome are you looking for here? The fees reduced? Someone else to redo the probate if that is even possible?0

If there is a straightforward almost administrative error with signing when someone else should have witnessed it, it can be rectified by applying to the courts to allow the will to be valid on one signature only. If you consider that there is overcharging then complain to the solicitor and then the law society.

You seem to be well up on the legislation so you are not asking a question of law here? What does you relative want?

 

[kalooki]

It might open up the probate process to legal challenge. The witness was not independant.

 

[JimmyB99]

Before actioning, I'd like to understand whether the are any possible grounds to justify the charging of fees in these circumstances

I think the Law Society website summarises it well - the charging clause is simply invalid so the solicitor does not have a right to charge a fee in the circumstances described.

what is the appropriate authority to make a complaint.

The LSRA

 

[jasdpace@gmail.]

Thanks Jimmy,

I spoke with a solicitor today about this. I just wanted to be prepared when I talk to the law-breaking solicitor.

 

[Clamball]

Do you think the law-breaking solicitor will talk to you about probate on a will that impacted your relative. I would not be surprised if they refused to discuss anything about the client work they did for someone else. I am not sure the solicitor broke the law, the link you gave mentions “the general rule”. It does not sound like an offence he could be prosecuted for.

What advice did the solicitor you met today give you? It would be great to hear for someone else who might be in the same position. And it would be great to hear how you get on, I would love if I was proved wrong.