Questionable Probate administration/out of time with legal Ombudsman – any advice appreciated

[boo5728]

Hi,

 

I’m not sure that I am posting in the correct forum, but I need some advice on how to proceed with an issue that I am having with the solicitor who acted as administrator on the probate of my late Aunt’s estate and don’t know where else to turn.

 

I have already taken this matter up with the Legal Ombudsman and although they managed to recover a copy of the estate accounts from the solicitor for me, they have ruled that the complaint is “out of time” and therefore any anomalies or queries found within the estate accounts cannot be taken up and pursued through them.

 

At this point I should point out that my Aunt passed away in January 2008, and the solicitor gained the court order of probate for my Aunt’s estate in June 2008. I am in fact pursuing this issue on behalf of my Uncle (who is elderly and unable to make this complaint on his own) as he was the only named residuary beneficiary in my Aunt’s will. The only other beneficiaries being 3 charities who were left £10,000.00 each.

 

My Uncle received his final settlement in October 2008, but he was never given a paper copy of the estate accounts to approve and sign off (he did not question this at the time as being inexperienced in matters of probate he had no idea that it was the Solicitors’ duty to provide him with a copy, or indeed that he had to approve them.)

 

At the time of receiving his final settlement, he was merely called into the Solicitors’ office and was told that the charities had been paid, as had the undertakers and the Solicitors’ fees and was asked to provide his bank details for payment of the residue of the estate around £53,000.00.

 

At the time he felt this amount was slightly lower than he had expected, but assumed the solicitors had acted professionally and did not feel the necessity to complain. It was only in May this year, when he casually mentioned this matter to me and was candid about how much he had received, that I realised there may have been an issue during administration, especially as an estate account had never been seen.

 

I immediately sent a formal complaint to the Solicitors requesting a copy of the estate account and an explanation as to why it had not been supplied to my Uncle at the time of the probate being administered. The Solicitors responded 10 weeks later but not with a copy of the estate accounts (If I’m honest I don’t think the document existed at that point) but instead simply sent a copy of a piece of paper my uncle had signed confirming his final settlement amount and the method in which it was paid.

 

At this point I referred the matter to the Legal Ombudsman. The Ombudsman telephoned me for further information and after I had explained, attempted to fob me off with the excuse that my Uncle’s complaint was out of time with them, as it had to be made within 12 months of probate being granted, however I argued that he had only become aware there was an issue in May this year following a discussion with me, when I advised him what an estate account was and that the Solicitor should have supplied him with one 4 years ago.

 

The lady from the Ombudsman spoke to the Solicitors and advised them to supply us with a copy of the estate accounts within 7 days, they agreed to do this. She then contacted me and advised me of this but said should any anomalies or short falls be found in the estate accounts we could not follow this up with the Ombudsman as it was out of time. Naturally, I immediately appealed this decision, but surprise surprise the appeal was rejected.

 

We received the estate accounts 7 days later and listed on them is an interim disbursement (I believe this a payment that can be made to beneficiaries prior to the final settlement) for £36,000.00. My Uncle would have been the only person the Solicitor was obliged to make an interim disbursement to, however he never received this money and therefore his final settlement was £36K less than it should have been.

 

Unable to pursue this through the Ombudsman, I then forwarded a further complaint to the Solicitor requesting details of when, who to and by which methods the interim disbursements were made and 2 weeks later my uncle received a response back (a copy of which is attached) basically asking for £50 in order for them to supply this information.

 

The advice I need is as follows:

 

1. Should we pay this £50 for the information (personally I feel theSolicitor is charging this fee in order to put as many obstacles in the way of supplying who they made these payments to as it will implicate them as having administered the estate incorrectly)
   
2. Surely even if I pay the £50, they have no intention of supplying me with the true information I need as it will prove they have breached an SRA principal of not having protected client money as an interim payment could only have been made to my Uncle and it wasn’t. (He hasn’t had this money and overlooked it either as I’ve been through all of his bank statements from this time and I can assure you there is no payment of £36K in there), not to mention the fact I can then bring court action against them for professional negligence to recover the loss ?
   
3. If we do pay this money and the solicitor does not supply any information, can I pursue this matter (Just the £50 for the additional information) through the small claims process with the hope the judge would order them to supply the information
   
4. Or would I be better off going straight for a CPR 31.16 pre action disclosure for information at the County Court, as I’ve been advised by a no win no fee solicitor that as long as I can prove who the interim disbursements were paid to, they will then take up the case to recover the £36K
   

Thank you for taking the time to read this and I do appreciate any advice on this matter.

[steampowered]

I doubt the people dealing with this know anything about your father's case. It looks like the person who dealt with your case left the firm.

 

Remember that solicitors have an enormous amount of documents and must store all their files for at least 6 years. There is not enough space in an office so excess files are normally stored off-site with a professional storage company. They will have to pay an external company to retrieve the files. I doubt the firm are looking to make a profit here they just want you to cover the costs of retrieving the file.

 

Personally I would just pay the fee. If you really don't want to do this then another approach would be to issue a DSAR asking for all documents relating to your uncle. This would cap the fee at £10.

 

Then you can think about CPR 31.16. It would be counter-productive to start threatening a fully fledged professional negligence claim until you know a little bit more about what the £36,000 payment was for. If you obtained disclosure under CPR 31.16 you would probably be ordered to pay the solicitors' costs of obtaining the file anyway (not to mention court fees).

Edited December 14, 2012 by steampowered

[Ganymede]

If you want a copy of the file you're better off paying the £50 plus VAT.

 

Be wary with CPR 31.16 applications as you will have to pay the costs of the other side as well as the Court fee which will be considerable more than £50 and take a lot longer!

[slick132]

I'd certainly just pay the fee as requested to get the info asap.

 

I'm not sure a SAR would provide you with the data you need to reconcile the figures involved with your Aunt's Estate.