Solicitor who charged €246 for storing a will told to refund it by the LSRA

[Brendan Burgess]

If a donation of €500 must be made then how can it be called a free service

All we ask is that you leave a bequest/donation to the DPSCA in your Will to value of no less than €500.

They don't insist that it must be made.

They offer the service and ask for it.

A particularly hard nosed pup could go in and get a will made and not leave anything to the DSPCA.

I applaud the initiative of charities in encouraging people to make wills and to leave money to charity.

I also applaud the solicitors who, presumably, give their service for free, for this initiative.

Brendan

 

[T McGibney]

I also applaud the solicitors who, presumably, give their service for free, for this initiative.

I guarantee you Brendan that it's not for free. In fact, it's probably their single most lucrative day of the working year.

 

[Up Rovers]

A particularly hard nosed pup could go in and get a will made and not leave anything to the DSPCA.

It would be very interesting to see if you try putting that one to the test and see how you get on, rather you than me.

I also applaud the solicitors who, presumably, give their service for free, for this initiative.

Presumably being the important word here.

As I mention in this other thread, relatives had to pay approx. €200 to have the Will released, from the solicitors who provided the free Will service, through their parents' credit union.

 

[Marsupial]

This subject has been discussed previously here on AAM regarding fees, solicitors and release of Wills.

Interestingly, that thread includes the following comment from MOB who appears to be a solictor:

A will cannot be "held hostage".

A solicitor can make an admin/storage/retrieval charge when retrieving and handing over wills and any other documents.

Now, thanks to the witless precedent created by the LSRA quango, I assume that the bolded statement is no longer true!

 

[Brendan Burgess]

We don't know the full details of the LSRA case.

But if a solicitor tells the person in advance that they are going to charge for storing and retrieving the will, then it's fair enough.

I doubt that this happened in this case.

So describing the LSRA as "witless" is not fair.

Brendan

 

[Brendan Burgess]

You can find the report here

https://www.lsra.ie/wp-content/uploads/2023/04/LSRA-Complaints-Report-1-2023-FINAL.pdf
Here is the decision on this case. Which seems reasonable to me.

Misconduct complaint with public interest issue

Type of Complaint: Misconduct


The complainant was the daughter of a woman who had made a will with the solicitor. As the executor appointed to the will, the complainant asked the solicitor to hand over the will so she could instruct
a different solicitor to handle the administration of the deceased's estate. The solicitor charged the complainant €246 as a storage fee for the will. The solicitor claimed that this was justified on the basis that the original charge of €80 for making the will was heavily discounted in the expectation that the same firm would also be instructed to deal with the administration of the estate. The solicitor said
this had been explained to the complainant’s late mother at the time the will was made. However the solicitor was unable to produce any evidence of that.


Outcome: Complaint Upheld


The solicitor refunded the storage fee to the complainant. However, the LSRA determined that there
was a public interest issue in this complaint and it was referred to the Complaints Committee for further investigation. The Complaints Committee determined that under no circumstances could handing
over the will to the complainant be made conditional on the payment of the storage charges. While a sanction was not imposed, the legal practitioner was given a warning.


Lessons for the Public


You are not obliged to instruct the law firm that drafted a will in order to deal with the administration of the deceased’s estate.


Lessons for Practitioners


The legal fees charged for drafting a will are no different to any other legal costs, and they should be discussed and agreed with the client. All charges relating to the making of a will should be set out in writing and approved by the client.

 

[Right Winger]

"the solicitor had sought to justify the charge on the basis that the original €80 charge for making the will was heavily discounted in the expectation the firm would be administering the estate. The solicitor said this was explained to the deceased, although there was no evidence provided to support the claim."

I suppose that the moral of this shabby saga is always to charge the client full whack for drafting a will at the time it is drawn up, on the basis that their dependants may prove to be untrustworthy and that the quango will always side with the complainant.

I would say the moral of the story is to get written agreement with the deceased-to-be if you expect to be paid out of their estate!

 

[Marsupial]

We don't know the full details of the LSRA case.

But if a solicitor tells the person in advance that they are going to charge for storing and retrieving the will, then it's fair enough.

I doubt that this happened in this case.

So describing the LSRA as "witless" is not fair.

Brendan

Well Brendan, unlike the LSRA and (presumably) you I'm quite prepared to accept the solicitor's claim that he had informed the deceased lady that he had discounted the will on the understanding that he would be asked to execute it.

Furthermore, I regard a fee of €200 (plus VAT) for storing the will securely for we know not how long and the time taken to retrieve it, pop it in an envelope, walk/drive/hop to the local post office to register it, as utterly trivial.

In the circumstances I regard the term witless as being very charitable; indeed my preferred term would be asinine.

But hey! some of us simply love those wonderful quangos, while others regard them as the spawn of the devil!

 

[Brendan Burgess]

If you notify the person in advance that you will be charging them - fine.

But if you use it as a lever to get the business, then it's anti-competitive and wrong.

I also think that there might be a bit more to the story as the guy gave back the money but was escalated to the Complaints Committee.

Or it might be that they are just telling solicitors "Notify people in advance of what the charges will be"

Brendan

 

[T McGibney]

If you notify the person in advance that you will be charging them - fine.

There's an appreciable difference Brendan between storing a deathbed will for 3 months and storing one for 70 years. I'd regard a storage fee as perfectly understandable in the latter example, less so in the former.

But if you use it as a lever to get the business, then it's anti-competitive and wrong.

If it's only charged, or probably more exactly not waived, after the personal representatives have indicated their intention to go elsewhere, it can hardly be fairly described as a lever to get the business.

€200 is also small beer in relation to the median cost of processing an estate.

I also think that there might be a bit more to the story as the guy gave back the money but was escalated to the Complaints Committee.

Quite likely.

Or it might be that they are just telling solicitors "Notify people in advance of what the charges will be"

That too.

 

[MOB]

This seems like serious malpractice to me.

Granted the amount is small. And they reduced a solicitor's fee from €10,246 to €10,000 , I don't think it would qualify as overcharging.

But in this case,
The solicitor wanted to do the administration of the estate.
As he was not given it, he charged for storage.
He refused to give the will until the fee was paid.

It is anti-competitive.

Presumably, if he sent a note to the client in advance that he would charge €246 for storage it would be ok.

The LSRA felt strongly enough to issue a warning.

Brendan

The issue is not the €246 charge. The issue is that a will cannot he held hostage for payment of that charge.

That has always been the law. I have seen that law enforced by solicitors against other solicitors (and have done so myself).

It is not anti-competitive to make an admin charge for producing wills or any other stored documents or records for that matter. Depending on when the will was done, yes this charge should have been outlined in writing - not to the executor or next of kin but to the now-deceased testatrix when she made the will.

This precise issue was dealt with on this forum (and well before the LSRA published this ruling).

Solicitors cost for wills.

https://www.irishtimes.com/business/personal-finance/husband-wants-to-pool-our-assets-must-i-do-so-1.4826674 This is a national newspaper in which the columnist states (to a lady who feels pressurised to agree a will with her current husband) Finally, what happens if you do consent to drawing...

www.askaboutmoney.com

 

[MOB]

Interestingly, that thread includes the following comment from MOB who appears to be a solictor:



Now, thanks to the witless precedent created by the LSRA quango, I assume that the bolded statement is no longer true!

Sorry - didn't see this before posting my own reply. I haven't yet bothered to research this, but I seriously doubt that the admin\retrieval charge has been found improper in and of itself - only the refusal to release the will without payment. I would be very surprised to find otherwise.

 

[Brendan Burgess]

Hi MOB

Thanks for the clarification.

So if the solicitor had released the will and then issued the bill for €246, there would have been no issue?

Brendan

 

[DannyBoyD]

Yet another good reason to support a register of wills.

 

[MOB]

Hi MOB

Thanks for the clarification.

So if the solicitor had released the will and then issued the bill for €246, there would have been no issue?

Brendan

Probably not Brendan. There is still the issue of notifying charges. But failure to notify a charge does not operate as a complete bar to recovering the charge.

If the making of the will was by appointment made a week or two beforehand, it might be the case that the solicitor would have had an obligation to pre-notify charges to the now-deceased testatrix. If it was at short or no notice, pre-notifying charges would not be expected - but the solicitor should have documented the charges at consultation.

Nobody wants a situation in which somebody who wants to make a will is told;

"These here are our charges. Our regulatory cooling off period means we will do nothing for a week. You can get back to us when you have considered these charges"

There is still room for practical good sense, even within the landscape of increased costs imposed by our modern regulatory regime.

 

[Salvadore]

There’s clearly a percentage game in play.

Discount the charge for making a will and X percentage of associated executors will use the same solicitor to assist subsequently. It’s a low cost risk.

The despicable bit is where solicitors seek to effectively “punish” executors for having the audacity to subsequently pursue other options.

 

[JimmyB99]

The issue is not the €246 charge. The issue is that a will cannot he held hostage for payment of that charge.

That has always been the law. I have seen that law enforced by solicitors against other solicitors (and have done so myself).

Fair comment. This is the nub of the issue.

 

[KOW]

For those folk who have a will drawn up with a legal and feel that they would not be happy paying for any further service.
Draw up a new will yourself the same as the previous get it witnessed by a person of your choosing and keep in a safe place yourself.

 

[T McGibney]

The despicable bit is where solicitors seek to effectively “punish” executors for having the audacity to subsequently pursue other options.

Nobody, least of all an executor who won't be paying anything out of their own pocket, can claim to be "punished" by a €200 plus VAT cost.

The truly despicable aspect of the wills business is where a solicitor charges practically nothing for the drawing up of a will and then proceeds to soak bereaved relatives for a high five-figure sum to process it post-mortem.

In one case where I advised a family on the tax aspects, the solicitor charged them €60,000 after they lost both their parents in quick succession.

 

[MOB]

For those folk who have a will drawn up with a legal and feel that they would not be happy paying for any further service.
Draw up a new will yourself the same as the previous get it witnessed by a person of your choosing and keep in a safe place yourself.

That would be an extremely silly way of avoiding using any further services from the solicitor. Why not just tell your solicitor, when making the will, that you would prefer to bring the original with you?

I honestly don't know why this issue exercises people to such an extent. When we make a will, we always offer the client the choice to bring it with them or leave it with us. It's simply not a big conspiracy-plot-scandal thing. At all