Modern Law Magazine Issue 15 Probate Supplement

“Where the law becomes more complicated is when families become more global. 1 in 13 British people is going to marry or partner with someone else from within the European Union and others will move to live in America, Canada and Australia�

David Harvey, STEP

PROBATE: THE NEXT GENERATION Modern Law speaks to a diverse range of practitioners and industry bodies, about the challenges associated with modern-day consumers, industry pressure points and the impact of new business models on the sector.

Probate Supplement 2014

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THE EDITOR’S OVERVIEW W

elcome to the latest of Modern Law’s special supplements. At a time when innovation is continuing to transform the legal sector, Private Client, in particular probate and will writing, have not been immune to change. Our lead interview, David Harvey, Chief Executive of the Society for Trust and Estate Practitioners (STEP), outlines how complex modern-day clients are altering the role of the organisation and explains the purpose of the 2021 Worldwide Member Consultation (page 6 onwards). The Head of Private Client at Vardags, Christopher Hall, also told me how their firm has adapted to change by adopting a creative and innovative approach, from page 10.

As is customary with many of our supplements, Modern Law hosted a Roundtable of industry experts in probate, trusts and will writing (to name a few) and put to them an agenda of questions; from how technology has altered the client

experience, to regulation and the potential impact of the removal of CPD (full coverage on pages 23-27). While the sector awaits the outcome of last summer’s consultation on the new draft Non-Contentious Probate Rules, Thomson Reuters Practical Law, Private Client team, outlines a few areas where three major regulatory bodies diverge in their responses (page 17).

I would like to thank everyone who has contributed to this supplement and wish you all happy reading!

If you have any comments about this supplement or would like to make any suggestions for a future edition, drop me a line on 01765 600909 or e-mail me via: charlotte.parkinson@charltongrant.co.uk

Charlotte

Charlotte Parkinson, Group Editor, Modern Law.

CONTENTS 05-14 THE INTERVIEWS

06 Interview with... David Harvey

Charlotte Parkinson, Modern Law, caught up with Chief Executive of the Society for Trust and Estate Practitioners (STEP), to find out how complex modernday clients are altering the role of STEP and why they have made a change in tact regarding growth strategy.

10 Interview with... Christopher Hall

Charlotte Parkinson, Modern Law, spoke to the Head of Private Client at Vardags about creative approaches to succession planning and striking a balance between high volume and high value work amongst the profession.

17 How the Big Three stand on NCPR

While we await the outcome of last summer’s consultation on the new draft Non-Contentious Probate Rules, Practical Law’s Private Client team outlines a few areas where three major regulatory bodies diverge in their responses.

Handling the sale of a property can be a stressful task for anyone involved; Neil Fraser explains how Fraser & Fraser can streamline and manage the process.

23 Probate Roundtable

Modern Law gathered a range of private client, probate, wills and trusts and estates practitioners and asked them to give their take on everything from the rise in contentious probate cases to the effect changes to legislation have had on the legal sector.

28 Charity Showcase

15-31 THE FEATURES

21 Probate problems – Property solutions

Two charities explain why leaving a charity donation as part of your legacy can have a huge impact and change lives.

31 We don’t talk anymore – the changing dynamic

of probate mediation.

Philip Hesketh explains why parties choosing not to speak directly to the other side limits what can be achieved at a mediation.

19 Probate Case Management versus Probate Accounts

Many probate professionals refer to probate software as ‘probate case management’. Gregory van Dyk Watson explains why this is a misunderstanding of the nature of probate software.

Modern Law Magazine Project Director Kate McKittrick kate@charltongrant.co.uk Contact 01765 600909

Group Editor Charlotte Parkinson charlotte.parkinson@charltongrant.co.uk Design Matthew Phillis

ML // Probate Supplement 2014

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The Interviews

05-14

THE INTERVIEWS

05

Interview with... David Harvey

07

Interview with...

DAVID HARVEY Charlotte Parkinson, Modern Law, caught up with Chief Executive of the Society for Trust and Estate Practitioners (STEP), to find out how complex modern-day clients are altering the role of STEP and why they have made a change in tact regarding growth strategy.

Q A

How has STEP as an organisation changed and developed since it was established in 1991?

The biggest characteristic of STEP when it was established was that it was a lonely-hearts club and at that time Private Client work was not at all fashionable, it was a secondary or tertiary activity in a lot of law and accounting firms. An idea that you could have an industry body was extremely radical and initially, STEP was established as a networking group. The biggest change, 23 years later is that everyone now accepts Private Client work as a major part of our world and people are much more prosperous so there is more work to do. It is also now much more usual for people to have international assets. Another key change has been the driving force of education and STEP has gone from being a very English body to the Global body it is today.

Q A

What has been your personal highlight since becoming Chief Executive of STEP in 2001?

The entire process of change; seeing a body change from a networking group to a professional body that is distinct and united by the clients we are focused on. We bring together lawyers, accountants and financial advisers, all to serve private clients in difficult matters of family and there are many different highlights.

One of the highlights was winning a national award for Public Relations for one of our first major lobbying campaigns, which we ran successfully. As an organisation, we also managed to make Gordon Brown make a u-turn when he was the ‘Iron Chancellor’ and we have launched a number of international events and examination papers. It has been a great pleasure and honour to build up the team here and also to watch STEP flourish and grow from a few hundred members to thousands internationally in countries like Canada, Hong Kong and Singapore. When I first

joined STEP, we also produced a journal and this has now progressed to electronic copies and webinars. The biggest highlight is the calibre of people I get the meet, who really are outstanding, whether they are local or big international players. Very few people have to join STEP and very few regulators say it is compulsory, people join because they want to and because they want to be involved, which is a constant highlight.

Q A

Why did your experience as an accountant make you the right person to take on the role?

I have been a recovering Charted Accountant for some twenty years and although my qualification is of relevance, I don’t think that was the reason I got the job, that was down to a combination of factors. I have 11 years experience of public relations and public affairs in the accountancy industry. A large part of my role involved working with small businesses and families and the issues they face technically in tax, management accounting and succession. I therefore had a deep understanding of why the issues STEP deals with matter. I had also run the small business think tank and had experience of a number of working party groups, so I came as a package.

Q A

How does STEP work to support its members in light of increasing pressures within the wider legal market?

The biggest factor is helping members to be as competent and well educated as they can be and showing them that they are better equipped than the practitioner down the road who ‘does a bit of Private Client’. Secondly, we are an advocate for high standards of practice and we see the STEP mark as a badge of competence more than anything else.

‘Very few people have to join STEP and very few regulators say it is compulsory, people join because they want to and because they want to be involved, which is a constant highlight’ ML // Probate Supplement 2014

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Interview with... David Harvey

Q

How has the introduction of ABSs impacted the sector and how do you anticipate the Institute of Chartered Accountants in England and Wales (ICAEW) licensing approval to affect the sector moving forward?

A

We work very happily with ABSs and are a member of a number of discussion groups. We see them as a very positive move forward because they help to level the playing field and encourage the legal side of the industry to learn the business and client engagement skills they don’t always have.

Conversely, it encourages the financial planners and accountants to recognise that they need to be in partnership with the legal side, in exchange for the offer the client can make.

I have seen a very interesting offer recently, where a law firm was recruiting for people with a medical background and training them as paralegals because that combination of skills can help their very vulnerable, elderly clients. I really encourage the work the ICAEW are doing in relation to ABSs.

Q A

What are the main challenges facing STEP and its members at the moment?

The biggest long-term challenge is the sheer complexity of the market, particularly the fact the large sums of money are being passed from generation to generation, mainly in the UK at the moment but this will follow in Asia too. Where the law becomes more complicated is when families become more global. 1 in 13 British people is going to marry or partner with someone else from within the European Union and others will move to live in America, Canada and Australia for example. One of the biggest challenges I have seen in the regional STEP branches is that now everybody has some form of interaction with a client who has some kind of global interest and although this is a challenge, it is also an opportunity. In the short term, the biggest issues are regulation and transparency agendas, the tax man should absolutely always know what someone owes and it is our job to ensure people pay what the owe. Equally, there is a point when ‘everyone has a right to know everything about everyone else’, becomes deeply intrusive and people can face big personal threats when personal data is disclosed. There is also a lot of bureaucracy around managing new laws, such as the Tax Information Exchange and the new OECD automatic information exchange framework.

There is a lot to learn, particularly for small practices and we are there to offer support.

ML // Probate Supplement 2014

David Harvey David Harvey FCA FCCA MCIPR FRSA is Chief Executive of STEP, having joined it as a 6500 member, primarily UK, organisation in 2001; today STEP has 19,000 members across the globe. He is a Board member of the global Family Firms Institute, has sat on and chaired a range of UK government and think tank committees and working parties and won awards for STEP’s campaigning public policy agenda . Previously, he founded and led the global small business programme at ACCA. He qualified as an FCA with Ernst and Young, having read history at Mansfield College Oxford. He is a former President of the Institute of Small Business and Entrepreneurship, the UK network for those involved in small business research, and was an Industrial Fellow at Kingston Business School.

Interview with... David Harvey

‘We are going to see... a much stronger focus on the employer and regulator relationship and we recognise that regulators are very well placed to tell us what our members need to do and learn’

Q A

STEP has just finalised its 2021 Worldwide Member Consultation. What is the purpose of this consultation and what do you hope to achieve?

We are a membership owned society and we have to operate around what our members want. We also have to analyse, through membership and partner discussion, what they are going to want in the future, rather than being driven by the ideas of a few people on the Council at Worldwide Head Office. The aim is to give as many members as possible, the chance to set out what they need to as many partners as possible, to paint their picture of the future. There is now a whole raft of new educational needs and feedback on what we do now, input on political issues and partner engagement has been enormously positive towards developing our 5-6 year program.

Q

What impact do you anticipate the removal of compulsory CPD will have on trusts and estates practitioners? Do you think this will be to the ultimate detriment of clients in the long run, if practitioners do not adopt their own internal training? Will STEP be working to avoid this?

A

Our view is very clear, CPD is mandatory for a TEP and we expect people to be able to demonstrate what they have done. What a Managing Partner requires differs to someone who is in financial planning and also to someone who is a new Associate in a law firm.

We expect people to have a clear idea of what they have learnt, why they learnt it and how it fits in. If firms do that, in or outside of STEP, they will get more value out of their training. Obviously, there will be people who do not work proactively, and we will have to badger these people along the way.

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issues so that at any point, as well as having their formal branch education, members can re-specialise and re-qualify.

We have launched a range of special interest groups and many of the papers will be optional extras for people already sitting their TEP exams. We want to give our members as many options as possible, depending on where they are in the world and the type of work they are likely to do. We currently hold around 700 events around the world, ranging from big conferences to small discussion groups so there is a whole range of ways people can engage with education and furthering their professional development.

Q A

What does the future hold for STEP, do you have plans for further growth?

We have changed how we see the world, although our mission is to support families through generations and succession, we want to retain and recruit for the best people; this might mean a lot or it might mean a few people. We are only elitist in the sense that we want people to aspire to be the best they can be and if they can meet the standard, then we welcome anyone at that level. We are no longer in the market for hitting mammoth growth targets and the future is to improve the experiences of our members, affiliates and associates. One of the greatest future changes to come will be that we will see much less of the word ‘Trusts’, and the terminology will move towards family succession and inheritance in conversations with clients. The other big change we are going to see is a much stronger focus on the employer and regulator relationship and we recognise that regulators are very well placed to tell us what our members need to do and learn. We also want to maintain a good relationship with our employer members and whether they are a small firm, a large firm or even a large private bank, they have useful intelligence as to how their market will develop and what it is we need to do, so those ties are very important. We will carry on being active in public policy because policy makers do not always understand that there is a market of private individuals.

What I would hope to see is a body that is the strongest and most relevant globally, which is seen as a centre of excellence with high standards. We want growth to come from being the best, most relevant and useful for clients.

‘We want growth to come from being the best, most relevant and useful for clients’

Q A

What other education and training options does STEP offer its members?

We are launching a new qualifications framework, the core of which centres around the feedback from our 2021 Consultation, which told us that members want lifelong learning. We have a strong educational offering in many of our branches and members can obtain diplomas, which we want to combine with a range of additional certifications in areas such as mediation, elder client, tax, family business, trust litigation and succession

ML // Probate Supplement 2014

Interview with... Christopher Hall

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Interview with...

CHRISTOPHER HALL Charlotte Parkinson, Modern Law, spoke to the Head of Private Client at Vardags about creative approaches to succession planning and striking a balance between high volume and high value work amongst the profession.

Q A

Vardags deals with cases involving celebrities and members of the royal family, what specific challenges do cases in the public eye, present?

It is exciting to undertake cases that are in the public eye as they are often particularly interesting in their specific complexities and sensitivities. It is essential to be alive to what these types of cases may entail and how the client will want their case to be dealt with. They will usually be handled with the uttermost discretion and anonymity, although this is sometimes not possible when information is leaked. Another, often challenging factor that must be considered is how these cases will be handled by the media.

Sometimes, as opposed to trying to keep details of the case out of the public eye, directly addressing a particular issue can help the case and we also use our extensive media contacts to promote favourable coverage. Over a number of years, we have perfected the art of handling these types of cases in terms of media management.

‘Will writing is an important part of wealth and life planning and it should be approached with integrity and professionalism from the outset... whilst it is up to the consumer to choose the practitioner they use, some regulation is required to offer a layer of protection’

‘People now have to be much more creative with how they approach succession planning, particularly clients based in London and internationally’

Q A

What are the biggest changes that you have witnessed in the Private Client sector, since you started working in it?

There have been some significant changes to trusts and their structure since I started working in the sector 15 years ago. Previously, people used to set up trusts as a means of leaving money to grandchildren, but this changed following a new trust law, introduced in 2006.

People now have to be much more creative with how they approach succession planning, particularly clients based in London and internationally. In the last decade, there has also been a huge increase in international clients working in and buying property in London, which is a significant change.

These changes mean the advice I give now has to be geared towards a wider range of potential issues and has to be tailored around the protection of clients’ individual wealth.

Q A

How have changes to the wider legal sector, particularly over the last year, affected Private Client work?

The cuts to legal aid have not specifically affected contentious probate work (as legal aid was not available for these types of cases in the first place).

In terms of the changes across other parts of the sector, contentious probate is still a matter for lawyers, whereas

ML // Probate Supplement 2014

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Interview with... Christopher Hall

‘We must be careful how we market our services but there are always advantages in new developments in the profession and the crossfertilisation between accountants and lawyers’ this is not necessarily the case for standard probate. We must be careful how we market our services but there are always advantages in new developments in the profession and the cross-fertilisation between accountants and lawyers. We have secured ABS status to take advantage of this and see it very much as an opportunity.

Q A

Why did the firm want to obtain the ABS licence?

We wanted to explore further growth and saw the ABS as a chance to explore a number of synergies across the accounting and legal professions. It also allowed us slightly to re-align our strategic path and facilitated bringing on board a non-lawyer management consultant as a director.

Q

There has been a marked increase in the number of contentious probate cases in recent years; to what do you attribute this rise?

A

In the last ten years, there has been an overarching increase in property values, along with an increased pressure on family finances, particularly following the financial downturn. These factors have combined and resulted in an increased propensity for family conflicts upon the death of a loved one. The change in the structure of traditional families is another contributory factor as people now often remarry and stepchildren may become involved, meaning that dependent relationships become more complicated.

Q A

How can consumers’ best be educated as to the need to make a will?

The key element in the education of clients is to make sure they are aware of the costs benefits of making a will.

The costs of fighting a claim will hugely influence whether the claim is worth pursuing and it is important that clients understand the value in terms of the costs of making a will versus the cost of making a claim. Making a will can also incite significant tax savings as well so it is important clients are aware of this from the outset. At Vardags, we also utilise the soft approach too and think it is important to make our clients aware of alleviating stress for loved ones after they are gone, as well as providing for guardians. Everyone could do with a will; they help avoid unnecessary family heartache and the stress of administering an estate.

Q

How have advances in technology and innovation changed the way practitioners interact with clients for the better and/or worse?

A

We use Skype and other technology to communicate with our clients but technology must be used in the right way. It is important to maintain a flexible approach and if clients cannot come to the office, are based outside of the UK or are travelling, we still need to be able to communicate with them on a personal level. Having said that, it is still important to bring a ‘quill and gown’ approach to any case as private client remains an area

‘It is important that clients understand the value in terms of the costs of making a will versus the cost of making a claim’ ML // Probate Supplement 2014

of law that requires the greatest care and attention. Ultimately, there is no substitute for face-to-face interaction with clients, which is why I enjoy this area of the law.

Q

Do you think will writers should be regulated?

What do you make of the government’s decision not to regulate this area of the profession and what could be the potential impact on consumers? Will this inevitably be revisited in future?

A

Will writing is an important part of wealth and life planning and it should be approached with integrity and professionalism from the outset.

On balance, whilst it is up to the consumer to choose the practitioner they use, some regulation is required to offer a layer of protection.

Lawyers are inherently a regulated profession, given that we have all trained for a number of years, so it could be argued that another layer of regulation is not needed here. However, if regulation is not in place, it may cut costs in the short term but there may be a potentially huge number of challenges to wills in the future and regulation will be a necessary factor in effectively dealing with these. In future, I am sure we will see regulated areas of the profession branching out to offer will writing services and I am sure the government will revisit this area of regulation.

Q

What are the risks of a ‘digital by default’ approach to lasting powers of attorney (LPA)? Does this open the floodgates for fraud in the future?

A

It potentially allows people who are experts at form filling to play the system when it comes to LPAs. However, when we are talking about a person taking control over another person’s property and financial affairs, the greatest care must be taken to ensure that people cannot take

Interview with... Christopher Hall advantage of vulnerable people. There are some known instances where a delay in processing an LPA application has had a detrimental effect so the digital aspect may be helpful in that respect, but some independent verification should be undertaken as part of the process.

Q A

What are your predictions for the future of Private Client work, moving forwards?

Private Client is certainly a very interesting area of the law and although not everybody needs high cost advice on complex matters, there will remain a balance between the firms who take on the high turnover volumes of work and those who take on the more complex, high value work and give clients a high quality and bespoke service. The two types of work require different working and marketing structures to succeed and practitioners need to make a choice as to which side of the fence they are going to sit.

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Christopher Hall Christopher Hall heads up the Private Client practice at Vardags, having formerly led departments at a City law firm and a West End firm and qualified as a Cayman lawyer, after a period of work for an international firm on the Islands. Chris has over fifteen years of experience advising clients both in England and internationally on succession planning and wealth preservation. He has specialist expertise in wills and trusts, probate (including contested probate), Inheritance Act claims and Court of Protection work. He has exceptional experience of complex offshore trust-based tax planning structures and the way in which local jurisdictions handle trusts based in them. He works closely with the Vardags matrimonial team to advise on and set up trusts and on disputed wills in family law cases; primarily divorce and inheritance claims, including the case of Prest v Petrodel, which was ultimately determined in the Supreme Court. Christopher read history at University College, London, and law at the College of Law. In his spare time, he coaches and competes in rowing both offshore (having rowed across the Atlantic for charity) and onshore.

ML // Probate Supplement 2014

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The Features

15-31

THE FEATURES

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The Features

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HOW THE BIG THREE STAND ON NCPR While we await the outcome of last summer’s consultation on the new draft NonContentious Probate Rules, Practical Law’s Private Client team outlines a few areas where three major regulatory bodies diverge in their responses.

T

he new Non-Contentious Probate Rules have been a long time in gestation. Our Practical Law Private Client team has been tracking developments since 2009, when a Working group was formed by the Family Division of the High Court to examine probate practice and procedure (though, there have been calls to modernise the rules since as early as 2003).

Following the publishing of the new draft rules last summer and the closing of the consultation on 29 August, there have been no further public announcements. While we await news of the outcome of this consultation, let us remind ourselves of some of the responses to the proposals from three major regulatory bodies, STEP, Chancery Bar Association and the Family Division of the Law Society, particularly those where they disagree.

concerns that the proposals do not get to the heart of the problem. It suggests that it is in fact the inexperienced staff in registries who have no knowledge of the probate rules that are causing undue delays and inflated costs for Probate Service users, by, for example, requesting unnecessary documentation, particularly where there is a foreign element. It also points out that the lack of knowledge at junior level is putting more pressure on the overstretched expert Registrars.

Removal of the oath The consultation paper proposes that a witness statement verified by a statement of truth should replace the oath and affidavits that applicants have to swear or affirm when applying for a grant. The use of a statement of truth was initially proposed by the review of the Probate Service in 2004 to bring the Probate Service in line with other civil jurisdictions.

‘[STEP] suggests that it is in fact the inexperienced staff in registries who have no knowledge of the probate rules that are causing undue delays and inflated costs for Probate Service users’ Objectives of the new rules In line with the Civil Procedure Rules 1998 (SI 1998/3132) (CPR) and the Family Procedure Rules 2010 (SI 2010/2955) (FPR), the consultation paper proposes that the new probate rules should have an overriding objective to help applicants understand their rights and responsibilities, and the court’s role in issuing grants of representation. It sets out to “enable non-contentious probate matters to be dealt with justly and expeditiously by the registries and courts.”

The Family Division of the Law Society and the Chancery Bar Association are supporting of this objective, although the Chancery Bar Association also stresses the importance of staff in registries dealing with matters expeditiously. STEP refers to the objective as “admirable” but voices real

While STEP and the Family Division of the Law Society support this notion (though both stress the importance of giving sufficient warnings as to the consequences of not giving a truthful statement), the Chancery Bar Association argues against it. In its response to the consultation, published on 14 August 2013, it says that a witness testament would not provide sufficient protection against fraud and that, since the onus would be on the aggrieved person to expend costs in pursuing action against an individual committing fraud, applicants will likely be “aware that the risk of being punished for making a false statement is slim”.

Proposals for caveats Under rule 44 of Non-Contentious Probate Rules 1987 (SI 1987/2024), an individual may give a written notice contending that a grant should not be

issued in a deceased’s estate until the court deals with the reasons for arguing against its issue. The notice is called a caveat. The working group proposes that the term “objection” should replace the term “caveat” and that there should be clear guidance on when to use the procedure for objecting to the issue of a grant. It also proposes that the person objecting should give the reasons for objecting and the reasons should reflect the defenses to a probate action.

The Family Division of the Law Society welcomes the changes to the caveats, agreeing that the change in nomenclature is clearer for lay users. STEP is also in general agreement, although it has stated its concern around how a reason provided to lodge the ‘objection’ will be judged valid. It has also raised concerns that the reasons cited at the ‘objection’ stage should not limit the grounds for proceeding with a probate claim.

The Chancery Bar Association supports the proposal “up to a point”, but one of its concerns is that there is no equivalent of the old warning/ appearance procedure, which, it argues, currently provides a useful way of testing whether a caveator genuinely wishes to pursue his objection to a grant of representation. In practice, issuing a warning often leads to a caveat being removed. Without the requirement to enter an appearance, the Chancery Bar Association says costs are likely to increase in a number of cases which, under the current rules, would have been resolved at this stage.

Practical Law is a legal solution from Thomson Reuters. Find out more at legalsolutions.co.uk Practical Law Legal Update, on the Consultation: practicallaw.com/4-534-7150 Practical Law Legislation Tracker, Probate rules revision: practicallaw. com/7-383-4113#a531531 Practical Law’s team continue to track developments and will be reporting updates through Practical Law’s current awareness service.

ML // Probate Supplement 2014

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The Features

19

PROBATE CASE MANAGEMENT VERSUS PROBATE ACCOUNTS

Many probate professionals refer to probate software as ‘probate case management’. Gregory van Dyk Watson explains why this is a misunderstanding of the nature of probate software.

W

hat is the cause of this misunderstanding?

Most software suppliers to the legal marketplace are understandably unable to replicate the full complexity of estate administration, which is primarily an accounting function. They therefore supply the case management tools that are readily available to them, which they sell as probate case management.

Case management is concerned with workflows, mail merging and task management. It is certainly a useful tool in the day-to-day management of events. It does not however lend itself to managing the finances of the estate.

The reality...

The fundamental question to ask is: how useful is case management without an accounting system based on a professional database from which it can suck financial data? One discerning solicitor likened it to “trying to catch fish without bait”.

The reality is that case management is at best about 20% of the estate administration - the bulk of which is financial accounting.

Law firms who buy ‘probate case management’ are unwittingly selling themselves short. You will still need a tool to log the assets and liabilities of an estate. Many firms use spreadsheets to record the financials of an estate.

Spreadsheets are useful but an inherently high-risk tool, in contrast to a probate specific accounting system.

Spreadsheets are not inherently multiuser. Stuck on the sole computer of the user, they cannot be used on a central server by more than one user at a time without the risk of data being overwritten by one user over another.

‘The reality is that case management is at best about 20% of the estate administration - the bulk of which is financial accounting’ The finer details...

Creating management reports with information using all data from all cases from separate spreadsheets is not feasible. Inadequate management reporting is a significant risk factor for the firm, and is likely to alarm the auditors. The Law Society might look askance at such a practice, and you definitely will not win Lexcel accreditation.

Probate accounting involves a plethora of financial details, such as: • logging the assets and liabilities • separating capital and income • dealing with post death income and accrued income • paying the gas bill and funeral expenses • dealing with post probate adjustments • an easy way to account for an abatement of assets • dealing with capital gains/losses and revaluations • accounting for packaged products such as ISAS and PEPS • listing the market value of equities and their dividends • calculating the cash value to the beneficiary who does not want shares • auto calculating the net or gross tax of equities, gilts and unit trusts • listing the foreign shares and calculating the tax due under the double taxation agreement • constantly recalculating the money due to the residuary beneficiaries.

These accounting functions clearly require a dedicated probate accounting system. By contrast a spreadsheet is a

blunt instrument. Only an experienced practitioner with a depth of knowledge can manage this work in such a manner.

An experienced probate practitioner could even hypothetically manage the work on the back of an envelope. Not, of course, a recommended practice.

An effective solution...

Financial information needs to be held in such a manner that it can easily be understood by any other member of the team. In an efficiently run firm, work needs to be easily delegated to a probate assistant when necessary.

Otherwise, taking on new work is limited, and you will be in deep trouble if you fall ill and require an assistant to pick their way through your spreadsheet.

An effective solution needs both case management and an accounting database, working in harmony with each other. The result is a profitable private client department. A number of probate managers have reported achieving gross profits in excess of 70% for their department as a direct consequence of using the Isokon accounting system combined with an integrated Isokon case management component.

For further information please contact: Gregory van Dyk Watson, Managing Director of Isokon Limited.

Email: gregory@isokon.com or call 020 7482 6555.

Alternatively visit www.isokon.com Isokon was founded by Gregory van Dyk Watson in 1999. The company has invested 44,000 man-hours in development of the product over the last 15 years. The company is currently the leading supplier of software for Probate and Private Client work. It is used by 36% of law firms who do private client work and has more than 2,000 individual users. Isokon is used for the most complex estates, as well as basic estates and is based on an accounting database engine with an integrated Isokon case management component.

ML // Probate Supplement 2014

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‘Before CAP, we were struggling to feed our family. Doorstep lenders were banging on the door every day and I gave them money that I should have spent on food.

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Leaving an eternal legacy

CAP has lifted a lot of the stress now we know they are dealing with our debts. We live on a budget and can afford to eat proper meals. We also decided to follow Jesus, have been baptised and now go to church.’

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The Features

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PROBATE PROBLEMS – PROPERTY SOLUTIONS Handling the sale of a property can be a stressful task for anyone involved; Neil Fraser explains how Fraser & Fraser can streamline and manage the process.

‘With a great deal to think about when managing and releasing these assets, it can be difficult to juggle, finding the time and space to organise the actions needed’ saving you the time and trouble spent searching the market. Our policy cover is immediate and easy to arrange – as a specialist probate cover, it can replace the existing arrangements invalidated by the property remaining vacant, and as the premiums are calculated monthly, there is no calculation fee.

Our cover is tailored to your needs and comes with risk management advice, as we work with you to help manage the risks at the property itself.

T

he largest value in an estate often stems from the home, bringing with it a number of property tasks for probate professionals. With a great deal to think about when managing and releasing these assets, it can be difficult to juggle, finding the time and space to organise the actions needed. We understand it’s tricky, which is why we suggest taking the difficulties out by referring it to us. Our property solutions for all estate administrators could be just the answer you’re looking for.

Probate Valuations Fraser & Fraser can provide you with an accurate report, detailing the valuation of the property at hand, helping you make an informed decision when selling. This process involves at least two local agents giving their expert opinion on price and market conditions, along with the current market valuation and a ‘date of death’ valuation suitable for your submissions to the HMRC. Our report is free of charge, subject to the property being sold through our source.

Empty Property Insurance We are also able to put Empty Property Insurance in place for you,

Whether you have just one property on your hands or are juggling a complex portfolio, Fraser & Fraser can help. For more information and to view our competitive pricing structure, please visit www.fraserandfraser.co.uk, or contact us on 020 7832 1430.

Neil Fraser is Partner at Fraser & Fraser.

Maintenance and Security To prevent any worry over whether the property associated is secure and fit to go, we can arrange clearance and cleaning ahead of viewings, organise lock changes and fit remotely monitored wireless alarm systems if required. This gives you complete peace of mind that the property is safe and secure, maximising the selling potential.

Probate Sales Fraser & Fraser can also help you manage the sale of a property, streamlining the process and speeding it up. We choose estate agents carefully, based on their performance and locality to the property. By coordinating the communication between you and the buyer’s solicitors, their agent and financial adviser, we keep the process moving whilst minimising the risk of the sale falling through.

We are also able to provide Energy Performance Certificates – something all properties sold in the UK require.

Our reports offer suggestions on how the property could be altered to improve the energy and carbon emission rating.

ML // Probate Supplement 2014

“Nursing was my life and the illness meant I became so isolated.”

Shermin.

Thank you all.

Cavell Nurses’ Trust wants no current or former nurse, midwife or healthcare assistant to suffer hardship. Nurses are there for you. We’re here for nurses.

By suggesting Cavell Nurses’ Trust to your clients for a legacy or gift in their will, you’ve made a big difference to the people we care for.

Find out more at www.cavellnursestrust.org Cavell Nurses’ Trust. Registered charity No. 210571 and SCO41453.

The Features

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PROBATE ROUNDTABLE 2014 Modern Law gathered a range of private client, probate, wills and trusts and estates practitioners and asked them to give their take on everything from the rise in contentious probate cases to the effect changes to legislation have had on the legal sector.

Sarah Albury (SA)

Senior Associate

Mishcon de Reya

John Bunker (JB)

Head of Private Client Knowledge Management

Thomas Eggar LLP

Deborah Cain (DC)

LLP Partner

GSFW Solicitors

Helen Hill (HH)

Head of Technical Support

Estate Planners Network

Chris Jeffrey (CJ)

Head of Small Law

Thomson Reuters

Charlotte Parkinson (CP) – Chair

Group Editor

Modern Law Magazine

Kellie Redman (KR)

Private Client Policy Adviser

The Law Society

Sidney Ross (SR)

Barrister

11 Stone Buildings

Kate Selway (KS)

Barrister

Radcliffe Chambers

Claire White (CW)

Head of PLC Private Client

Thomson Reuters

CP: What are the biggest changes to the wills and probate section of the legal market since you started working in it?

DC: This sales focussed approach, which is sometimes utilised by banks and other companies offering probate services when a loved one has passed away, is not always in the best interests of the executors and is seemingly on the increase.

SA: The way in which the banks and utilities companies have handled change has not helped at all. Their staff have not undergone sufficient training to deal with the changing needs of clients, which inadvertently slows the process down. This is incredibly frustrating for practitioners trying to do the best they can for their clients.

‘It is difficult to convince the consumer that we are not just trying to sell to them and we are actually looking out for their best interests; we are not Charlatans’ Sarah Albury, Mishcon de Reya

HH: Absolutely; it seems there is no joined-up thinking

across the board in terms of the way banks and utilities companies deal with matters. Correspondence is often unclear and this confusion is passed on to clients, particularly if they are conducting the matter themselves.

CW: I would suggest that is a bi-product of the fact that there are no longer high street branches and personal relationships between banks, in particular and their clients. Most work is now completed electronically

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The Features

and correspondence is generated automatically.

SA: Perhaps, but they ought to put the resources behind that to ensure that clients receive a seamless service, which is not the case. Training procedures and funding within banks need to be addressed urgently.

JB: One of the big things I have

noticed over 29 years in this sector, conducting Private Client work, is that when I first entered the profession there was very little value put on will writing and everyone thought they could write a will. What has been very good is that organisations such as STEP, Solicitors for the Elderly and to some extent, the Private Client section of the Law Society, have enhanced the value of the skills needed for Private Client work. One of the big issues in the sector is that people see quick solutions as the easy option, as opposed to asking enough questions to get to the right solution for the client, although this has improved. There is a danger now that in the current market some of these advances have been lost.

CP: To what do you attribute the rise in contentious wills and probate cases? Is this of significance to the sector?

DC: Certainly, from my perspective

as a litigator, I have seen a huge rise in contentious probate cases and Inheritance Act claims. This is down to a variety of reasons, such as an increase in property prices and the fact that people are more aware of their rights and more litigious these days.

HH: A change in family dynamics also

has a lot to do with it, people have stepchildren or children from previous marriages, who they might not be as close to and who they don’t leave anything to. Matters are made more complex when these people come out of the woodwork.

KS: The rise in the divorce rate is also

a contributory factor. The cost impact for the clients has been tremendous in contentious cases, at a time in people’s lives when a legal battle is the last thing they want to be worrying about.

SA: People are also now much more willing to question and push back and there appears to be an overarching feeling of entitlement. Another factor in the rise of contentious cases is

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‘Members of the profession who dabble in will writing are a nightmare; why should someone who does conveyancing, think they can write an occasional will? Wills should only be written by people who have the current expertise and experience’ John Bunker, Thomas Eggar LLP that more and more people of older generations are helping younger people buy properties and if that is not documented, it leaves matters open to contention.

KS: The cavalier attitude that some will writers may have with younger clients is very dangerous and there needs to be a change in the thinking that will writing is an easy area to make a quick buck.

DC: When banks and unregulated

SR: I absolutely agree but we must consider the role of the consumer. One of the reasons why will writers fail to take proper instructions is because consumers often do not give them. A fundamental re-think in the education of consumers needs to take place and they have to be informed of the consequences of not making a will. I am continually dealing with both lay clients and solicitors who do not have the relevant experience.

companies prepare wills, it can make them much more open to challenge.

JB: Solicitors shoot themselves in the

foot if they do not adequately prepare.

This was obvious when the results of the LSB Consumer Panel research were published a couple of years ago.

The results showed that solicitors made mistakes, just as will writers did. Members of the profession who dabble in will writing are a nightmare; why should someone who does conveyancing, think they can write an occasional will? Wills should only be written by people who have the current expertise and experience.

DC: But, it is up to the will writer to

ask the relevant questions, it is not up to the client.

DC: This is a factor of the legal market

SR: The trouble is, a lot of the time, they don’t ask them and people are also now more inclined to take legal action to try and remedy a grievance.

CW: It is easier to write a duff will though, because the chances are the clients will never find out, often because they make another will (or more than one) with someone else, so the badly written will is never discovered. That needs to change.

KS: A good will writer will ask the right questions though. The trouble is that by the time a case comes to a Barrister, things have usually come to a pretty pass. I know from advising on trusts and settlements generally that where there has been a good will writer, they will have asked the right questions.

generally, not just wills.

The Features

‘A fundamental re-think in the education of consumers needs to take place and they have to be informed of the consequences of not making a will’ Sidney Ross, 11 Stone Buildings CP: Do you think consumers are aware enough of the importance of having a will and what can the profession/ industry bodies do to increase awareness of this?

JB: The crux of this issue is that most consumers are

seeking a service driven by price because they are not educated as to the need to invest in a quality service.

SR: There is no one size that fits all solution; we do not live in a totalitarian state but education has to start at school. One would think that when contemplating one of the most important financial transactions, some basic information would be useful. I do not think it is the regulators responsibility; it somehow has to be coded into the educational system.

DC: The problem nowadays is that not everybody takes

instructions from clients face-to-face so cannot check whether they have capacity or whether the client knows and approves what they are doing, which is very dangerous and seems to be happening more and more.

KR: The Law Society is currently conducting a campaign

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promoting solicitors and early results have indicated an increase in consumers visiting the Law Society’s Find a Solicitor website. This indicates that consumers are aware of the service solicitor’s offer. We have also launched the Wills and Inheritance Quality Scheme (WIQS), which provides a best practice quality mark that consumers are beginning to recognise. That is positive in that they are aware of services, which can help them select the best professional to use.

It is an uphill battle but we are getting there. We are now looking to move more into consumer education initiatives and holding events to educate consumers’ on topics, such as the consequences of not having a will.

CP: Do you think will writers should be regulated? What do you make of the government’s decision not to regulate this area of the profession and what could be the potential impact on consumers? Should this be revisited in future?

HH: Although the consumer may not be directly aware of

regulation, when the clients do take that step to make a will, regulation will ensure they get a proper service. The consumer does not necessarily know what questions they need to be asking or how their will should be structured; it is down to the will writer to ask the correct questions and make sure they have full instructions.

CW: But consumers do not necessarily want to pay for proper service.

DC: Regulation would take away a lot of the problems.

JB: The reason the government didn’t want to regulate

will writing was the consumer interest and that they didn’t want another layer of bureaucracy but in the process they lost out on two huge things. Firstly, consumer protection is compromised and secondly, they still do not understand the benefits of paying for a service.

‘Although the consumer may not be directly aware of regulation, when the clients do take that step to make a will, regulation will ensure they get a proper service’ Helen Hill, Estate Planners Network ML // Probate Supplement 2014

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The Features

‘There are solicitors who will realise they need to keep up with the law in their field and will make sure they self train, whereas there are some solicitors who will not’ Deborah Cain, GSFW Solicitors

for their best interests; we are not Charlatans. Consumers are also used to the ‘pile it high, sell it cheap’ approach.

SR: They expect a top of the range product for a bottom of the range price. It is not about driving up our standards; the more we do that, the more consumers will move into the unregulated market.

JB: This discussion leads us to the elephant in the room,

which is that not all solicitors are the same. The Law Society, with WIQS, has tried to get this message across.

SR: Regulation is like education, it is a subject in which

CP: CPD is due to be abolished in 2016, what impact could this have in terms of professional standards?

KR: Even recently, the Legal Ombudsman (LeO), conducted

SA: For those of us in large firms, it probably isn’t an issue as we will continue doing internal training regardless. It may, however be more difficult for smaller firms who do not have the infrastructure in place.

there are no votes.

a review of solicitor will writing services and put a call out to the government to regulate the sector and they responded with a resounding, ‘No’. I certainly cannot see it happening any time soon.

JB: When the government made their decision, they said

it was up to the profession to drive up standards, the Law Society brought out the WIQS, STEP its Wills Code and the SRA issued guidance, standards are certainly going up in some ways but not in others.

DC: It entirely depends on the firm, there are solicitors who will realise they need to keep up with the law in their field and will make sure they self train, whereas there are some solicitors who will not.

CP: The ICAEW was granted the ability to license probate ABSs earlier this year, how will a potential increase in accountants moving to offer probate services, affect practitioners and consumers?

SA: If accountants start dealing with the day-to-day

administration of estates, they will look to do it more cheaply than solicitors. Competition can only be a good thing for the consumer and you would expect that accountants would be aware of current tax legislation but to assume that probate is an easy area of work where there will never be any legal content is rather naive. From a business and consumer protection point of view, isn’t this a risk?

KS: That might be part of the attraction to the consumer, that their accountant, who they would typically see more regularly than their solicitor, might be able to offer the tax advice they need.

HH: This is a similar situation as what happened with

Licensed Conveyancers when they became allowed to offer probate services. Extra training was introduced to ensure people were properly qualified.

HH: There are some very good will writing STEP members though, who adhere to the STEP will writing code. There are also will writers who operate under other codes of practice like EPN members but it is the people who slip through every form of monitoring and offer a poor service, that cause the problems.

CW: The other problem with the legal profession educating the consumer is that the profession will look as though it is simply looking out for itself, rather than addressing the consumers’ needs.

SA: It is difficult to convince the consumer that we are not just trying to sell to them and we are actually looking out

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CW: With conveyancing, there is still some legal background though, whereas accountants are starting from scratch in a sense.

DC: I don’t see why accountants couldn’t do some probate.

Some consumers do their own probate if it is straight forward enough and accountants are professionals.

CP: Probate is widely a consumer driven area of legal services but has it become too easy for consumers to take matters into their own hands with ‘DIY’ online services?

SA: The consumer does not know what they do not know, on the one hand, one can see how, for a consumer who is competent at handling paperwork and forms and with a small estate, it may be easy but on the other, it could so easily go wrong.

The Features

‘These big brand offerings have a big focus on technology, process mapping and getting the right people to do the right work at the right level and cost’ Chris Jeffrey, Thomson Reuters DC: In that respect, there is probably a stronger argument

for regulating probate services than there is for will writing so people cannot do it themselves and get it wrong.

SR: Logically, one ought to regulate the consumer.

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JB: The facility to update accounts, keeping beneficiaries up to

date with their inheritance, with case management systems for example, is great. There are so many opportunities to give people better advice from an early stage. Clients do like fixed fees and they do appreciate it when we communicate with them.

CP: What effect has the emergence of brand legal services had on the market?

HH: Because the market is already saturated with providers, they add to consumer confusion. They are another option for them to consider.

KS: That and their sense of cynicism, that a one-stopshop can offer all their life solutions, that all these extras are being offered to maximise profits, rather than offer a bespoke service to consumers.

JB: The potential for clever abuse from people within families here is heightened the more people do it themselves. Equally, there are potentially issues for people who innocently and simply do not understand how to do it properly.

CW: I do not think consumers are that cynical though; brands present an attractive option to consumers because of ease and again, cost.

CP: How have advances in technology and innovation

collaborate with law firms. This is the case at AA Law, which is an ABS that is regulated to provide legal services. These big brand offerings have a big focus on technology, process mapping and getting the right people to do the right work at the right level and cost.

changed the way practitioners interact with clients for the better and/or worse?

SA: I think this is a factor across all areas of professional life, with the advent of e-mail, everyone expects an instant answer. If someone sends an e-mail at 9 o’clock and they have not had a reply by 12 o’clock, they chase for a reply.

It is difficult to manage that in a probate scenario, when dealing with matters that way can add to cost; increasingly, consumers are pushing us towards the fixed fee model.

HH: On the other side of that, there is case management

software which can keep clients updated and which will stop clients coming into the office or e-mailing every day for updates, while ensuring they are still well informed of case progress.

CW: It is important that clients are aware that there are things they can do and information they can provide that will keep costs down; technology certainly helps here.

CJ: Many of the firms handle the legal aspect in house, or

JB: Despite what has happened to the Co-op, the fact they managed to become a Top 100 Law Firm within 4 years must be admired and is great significance to the sector.

Established brands have high street contacts and many people who believe in them. There are so many offerings, it is difficult for consumers to know where to look!

CP: What are the risks of a ‘digital by default’ approach to lasting powers of attorney (LPA)?

JB: If clients don’t have to sign LPAs, that will lead to

disaster and increase fraud. There is absolutely a risk with online applications.

CP: What are your predictions for the future of this section of the legal market moving forwards?

KS: The ageing population will continue to be a key issue for the sector. At the Bar, we see a lot of problems centring around dementia and the circumstances in which wills are prepared for elderly people. These issues are becoming alarmingly frequent, whether it is that problems have not been spotted, competence or capacity issues, right through to fraud. The sector must be aware of these to move forwards.

Thomson Reuters delivers best-of-class legal solutions that help you work smarter. We offer solutions for legal research, knowhow and current awareness such as Sweet & Maxwell, Practical Law, Westlaw UK and Lawtel; as well as solutions for marketing and business development, including FindLaw UK. See a better way forward at legal-solutions.co.uk

Modern Law would like to thank all for attending

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Charity Showcase

WE NEED YOUR HELP Leaving a charity donation as part of your legacy can have a huge impact not only on the charity but can change lives too, as Kathy Freeman explains.

s you will know, legacies are a vital source of income for charities and a great way for people to make a significant lasting impact with their money. Maybe it will surprise you to hear that only 6% of those who regularly support charities have put a charity in their will. That’s why we need your help.

You can play a key part in increasing this figure and boosting charity income by raising awareness of legacies among your clients. As someone who is already committed to helping people make the best decisions when allocating their estate, it makes sense to ask if they’ve considered legacy giving. You have the knowledge and expertise, so they will value your guidance.

CAP clients, Alan and Jeanie.

Choosing which good cause to support can be overwhelming for a client so recommending charities also helps. For those who have a passion to tackle UK poverty, Christians Against Poverty is an ideal choice. CAP helps people who have nowhere else to turn; people here in the UK who are poor and hungry, desperately anxious, lonely and even contemplating suicide.

The service is completely free of charge and available to anyone, regardless of age, gender faith or background. Already, the charity has helped thousands of individuals and families escape from a place of despair to one of hope through their debt counselling service, job clubs and money courses. Debt clients Alan and Jeanie never imagined they’d be in financial trouble until an accident left Alan unable to work. Falling behind with bills and mortgage repayments, they even skipped meals to try to pay them.

Jeanie said, “Before CAP, I felt life wasn’t worth living; there was no light at the end of the tunnel, no solution to pursue. Then I heard about CAP through a friend and after Steve (CAP Debt Coach) came to visit for the first time, I felt like there was hope. CAP has been absolutely marvellous. It’s completely changed my life.”

Kathy Freeman, Public Relations Officer, Christians Against Poverty. If you would like more information about leaving a legacy to Christians Against Poverty call 01274 761980 or email legacies@capuk.org

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Charity Showcase

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MAKING A DIFFERENCE Cavell Nurses’ Trust is the leading charity supporting the UK’s nurses, midwives and healthcare assistants in their time of need.

very year, we help over 1,000 healthcare workers who, through no fault of their own, have found themselves in desperate need and crisis. We provide a listening ear and expert information and advice at their time of need, given by people who understand the unique circumstances they face.

Where it can help and make a real difference, we provide grants for essential items and daily living costs, including food and utility bills.

Last year alone our grants totalled over £400,000.

We also support the future of nursing and midwifery through our Cavell Nurses’ Trust Scholarship Awards that recognise future excellence and leadership in students.

Established in 1917, from public donations made by the general public, in memory of Nurse Edith Cavell, we are her living legacy of caring and learning. British nurse Cavell was nursing in Belgium at the outbreak of WW1 and remained behind enemy lines to nurse troops coming back from the front lines of the conflict. She became involved with the resistance movement and through this network helped well over 200 allied troops to escape occupied Brussels. In August 1915, she was arrested, tried for treason and found guilty. On the 12th October, she was executed at dawn by firing squad for her actions.

Will you help us keep this remarkable legacy alive?

To support the nation’s nurses, midwives and healthcare assistants, we have to raise over half a million pounds each year. Legacies, gifts in wills and in memoriam donations are vital parts of our income, you can support this by discussing Cavell Nurses’ Trust with your clients when they are planning to leave their lasting legacy.

To find out more, please visit: https://www.cavellnursestrust.org/

ML // Probate Supplement 2014

Give Yourself the Advantage

www.charltongrant.co.uk 01765 600909 Publishing | Events | Design | PR | Marketing

The Features

31

WE DON’T TALK ANYMORE – THE CHANGING DYNAMIC OF PROBATE MEDIATION Philip Hesketh explains why parties choosing not to speak directly to the other side limits what can be achieved at a mediation.

I

have noticed a growing tendency in contested probate mediations for the parties not to want to meet and talk to each other directly. Whether this is at the start of the mediation or any other point. Parties spend the whole time in their own private room only communicating with the other side through me. There may be occasions when the legal representatives get together but the people at the centre of the process – the parties – never meet. My belief is that this choice of not speaking directly to the other side limits what can be achieved at a mediation. I do not say it can not result in a settlement, as often enough it does, but it can diminish the quality of the outcome and the experience of the parties going through the procedure.

Probate cases are rarely just about money, and less frequently about the law, interesting and challenging though that is. They involve people with stories, hopes, regrets, fears, values, grief, goals and grievances - perceived or actual. My belief is these people should be front and centre of the mediation process, supported by their legal advisers and the mediator.

Mediation in probate disputes has the potential to help parties achieve many things, only one of which is to settle the dispute in a manner satisfactory to both sides. Other valuable outcomes include clarifying goals, considering and identifying other options, gathering information, hearing and better understanding the perspective of others in the dispute and deciding what is important to them. These outcomes are at risk of being squandered.

An open discussion…

So why this tendency to exclusively private sessions? My experience is that it is usually the legal representative on one or both sides that objects to joint meetings. Some are put off because of “bad” experiences in the past. They may have experienced representatives treating the meeting like a trial opening or witnessed one or other party “getting emotional” with the meeting descending into abusive exchanges. There may be a fear of losing control over what

their client might say. An open discussion with an opposing party is an alien environment for most lawyers – joint settlement meetings rarely involve the lawyers meeting and speaking directly to the other party. Mediators in turn are taught to “reframe” statements that they might consider to be inflammatory to take the heat out of joint discussions.

Expressions of anger, exasperation or frustration are cloaked by the mediator with understatement to contain the discussion. The result? – valuable opportunities to learn what fear lies behind the anger or what sense of weakness causes the frustration are lost to both sides.

I think parties miss the chance of fulfilling a frequently stated need – that of being heard and listened to; the “day in court” opportunity that mediation often boasts. It is not enough for the mediator to sit as proxy for their opponent, no matter how good their listening skills. Parties limit the chances of gaining a better understanding of their opponent’s perspective, understanding which could lead to a change in a party’s demands from a mediation. Using the mediator as a messenger inevitably leads to responses like “yes but what do they say about…”. It is a slow and inefficient method of exchanging information. I am often asked to “make it clear how strongly we feel …” but it is next to impossible to convey the sentiment to other side accurately.

Firm beliefs...

One of the consequences of being in conflict is that parties “demonise” the other side, they think the worst of them. This damages the way parties interact. Mediation has the potential to reverse this process but one of the most harmful effects of not speaking directly is parties’ tendency to interpret moves by the other side as if they are deliberately obstructive or harmful. I hear such phrases as “they’re not mediating”, “they don’t want to settle” or “they think we are fools”. Any mediator questioning this interpretation will sound as if they are supporting the other side.

My aims when mediating a probate dispute are to help the parties interact with clarity and confidence in themselves and with a responsiveness to the other side in the firm belief they are perfectly capable of finding and agreeing upon solutions themselves. Of course other styles can and do produce settlements but mediation has the potential to deliver so much more. I respect parties’ choice about whether or not they meet the other side but expect a difficult and less productive day if they stay in their own rooms.

Philip Hesketh is one of Clerksroom’s Elite Mediators and a member of its specialist panel of Probate, Estates and Trusts Mediators. You can contact Philip at www.clerksroom.com.

ML // Probate Supplement 2014

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