In a continuing series, the Law Society's practice advice service offers guidance on a range of issues
Q. My client died a few days ago. I need to obtain a grant of probate urgently. Can a grant be issued immediately?
A. In general, a grant of probate will not be issued from the probate registry within seven days of the date of death, and a grant of letters of administration will not be issued within 14 days of the date of death. In exceptional cases, a district judge or probate registrar may give leave for the grant to be issued earlier, but the applicant will first have to explain the need for expedition by way of a letter accompanying the application (Non-Contentious Probate Rules 1987, SI 1987/2024, rule 6(2)). See the Law Society's Probate Practitioner's Handbook, fifth edition, available from the Law Society bookshop, tel: 020 7320 5640.
Q. My client has asked for my bill to be assessed. What do I have to do?
A. You should advise him to make his own application. Although you may issue an application to have your own costs assessed, it is inadvisable unless there are unusual circumstances. Unless the client attends the assessment hearing, or the costs judge certifies that there are special circumstances, the court will not make an order for the costs of the assessment proceedings (see section 70(9)(a) and (b) of the Solicitors Act 1974). Also, the order made at the hearing will not include an order for payment of the assessed costs by the client, so that if the client does not pay the bill after the assessment, you will have to commence separate proceedings for payment.
Q. My client is abroad on business and urgently needs to swear an affidavit for use in court proceedings here. Can I send the affidavit to him for swearing abroad?
A. Yes. He can swear it before any person who has authority to administer an oath in that place (see section 3(1) of the Commissioners for Oaths Act 1889). Alternatively, section 6 (as amended) of that Act empowers every British ambassador, envoy, minister, consul and other officials exercising their functions abroad to administer oaths there. See the Law Society's book, Execution of Documents, which is available from the Society's bookshop.
Q. I am a trainee solicitor and wish to administer oaths and take declarations. Can I do this?
A. No. According to practice direction 32 9.1 of the Civil Procedure Rules, only the following people can administer an oath, take an affirmation or take a declaration:
See the Law Society book, Execution of Documents, which is available from the Law Society bookshop.
Q. I am acting for the seller in the sale of a leasehold residential property and the buyer's solicitor has agreed to adopt the national conveyancing protocol. I have forwarded the seller's property Information form and the seller's leasehold information form fully completed to this solicitor but he has now raised a large quantity of additional enquiries, some of which are in standard form, and some of which have been answered by the information already supplied. How should I deal with these extra enquiries?
A. There is no restriction on users of the protocol raising relevant additional enquiries, particularly those arising out of the documents provided with the draft contract. However, a buyer's solicitor who sends a sheet of standard additional enquiries is not adhering to the terms and spirit of the protocol.
The main aim of the protocol is to streamline procedures in domestic conveyancing. Practitioners are urged to raise only those additional enquiries that are needed in each particular transaction or locality and to resist the temptation to ask additional enquiries, especially those relating to the state and condition of the property.
If a solicitor, having agreed to adopt the protocol, departs from its provisions, he should give notice to the solicitor acting for the other party.
For further guidance, see A Guide to the National Conveyancing Protocol, fifth edition, which is available from the Law Society's bookshop.
This column is compiled by the Law Society's practice advice service, tel 0870 606 2522, e-mail: lib-pas@lawsociety.org.uk. Comments relating to the questions should be sent to Practice Advice Service Manager, The Law Society, 113 Chancery Lane, London WC2A 1PL. The service endeavours to ensure that the information provided is correct but does not accept liability for error or omission. Readers should bear in mind that this publication is intended for information purposes only and should not act on the basis of the information provided without verifying it first
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