DIANA BENTLEY ASSESSES THE PROGRESS OF THE LAW SOCIETY'S FIRST MOULD-BREAKING SPECIALIST GROUP, THE PROBATE SECTIONPractising in the field of probate is often a solitary occupation.
Hence the Law Society's selection of this area of law for its first specialist practice groups.
Two years after the birth of the Society's probate section, and one year after its inauguration as a body with an elected executive, it has become a weighty presence and a demonstrable success.Its 2,400 members are said to represent about half of the solicitors practising in this field and the renewals of membership have been high.
'There has been about a 98% renewal rate with the last subscriptions, so members must have recognised the section's value - it's very positive,' says Gerald Newman, the Society's deputy director of communications.Elected after the conference of the probate section last year in Solihull, the section's nine permanent and two co-opted executive members are nothing if not active.
Conferences, seminars, working reports and Web sites are all on the agenda.
'So far we've organised winter seminars about ten overall,' says executive member, John Pears, a partner at Nottingham law firm Warren & Allen.
Such seminars are usually held in the evening at local hotels, attracting 40 to 50 practitioners, and are free to members of the probate section.
Three times a year, the section's flagship - the newsletter P.S., which incorporates case studies and relevant probate topics - is published.
It appears to be hitting its mark.
'It's good to have a condensed version of various developments,' says member Frances Kelly, senior partner at Nottingham law firm Tallents Godfrey & Co.
'The newsletter is very focused and useful.'For longer term reference, a number of spe cial reports have been completed and more are on the way.
Mr Pears is enthusiastic about what has been accomplished so far.
A report from a marketing advisor on how to develop private client services was recently completed and is one with which he is especially pleased.
'This isn't about telling people how to get clients, but how to provide a better service for existing clients,' Mr Pears explains.
He expects the guide to be of real benefit to members.
'It's not a normal stuffy textbook,' he says.
'It tells people how to go about marketing and will be useful for people in firms which can't afford marketing advice.' Several working parties are actively preparing other reports.
One is examining probate practice software and the report - expected to be compete in two to three months - will set out the relative merits of software offered to solicitors for estate administration.The emphasis in the guides is on clarity and practicality, say executive members.
'We're conservative about spending members' money but the guides are a real help which the practitioner should welcome,' notes Mr Pears.
They also act as a catalyst, adds Peter Raymond, section chairman and a partner at Sussex law firm Cripps Harries Hall.
'The guides get people thinking and make them aware of different issues in the field,' he says.Client communication is another area which has been a focal point of activity.
A series of pro forma letters of retainer and advice on how to prepare client newsletters is being prepared by a working group.
'The retainer letters will help practitioners explain in precise terms what their solicitor is doing for them and how they will be charged,' explains Mr Raymond.
'Society is becoming more litigious and getting these things clear will be more important in the future - we want to be ahead of the game.'Another working party will prepare advice to members on the most suitable ways of costing various matters.
Mr Pears says: 'It will bear in mind that solicitors want a reasonable profit but also need to ensure that the client feels that they are getting value for money'.This year, the section will be involved in appraising the success of Make a Will Week.
'No-one has done any research on how effective Make a Will Week is,' Mr Pears remarks.
The section has arranged for members to monitor their clients' reaction to the event.
'If we find that it is ineffective, then we should be looking at how better to spend the Law Society money invested in it,' says Mr Pears.Two Web sites are also being developed.
One, linked to Make a Will Week, will provide information for the public which is necessary for making a will and using a solicitor.
Another, specifically for probate section members, will provide - in addition to copies of P.S.
- a useful outlet for communications, according to Mr Pears.
'Members can put their problems on site and others may answer them and it will help communication between firms,' he says.Members appear to appreciate the section's usefulness.
'Probate lawyers usually lack the ability to meet with other probate lawyers and the section does provide a forum for people to get together and exchange views,' says Deborah Hutchinson of Ashton Bond Gigg, a six-partner law firm in Nottingham.About 50% of her work is probate, with the rest comprising largely inheritance planning and trusts.
A member since the section's inception, she has used its services well, attending the conference last year and local talks.
'Everyone in the section is interested in this field of law so it's valuable,' she says.
'If some members don't han dle probate all the time, they need to meet others who do.
It helps raise your expertise in the field.' The section is good value for money, Ms Hutchinson feels.
'It enables you to network and if you have a question on a particular point you can ring people up and you don't have to wait for a meeting,' she says.Membership fees currently stand at £50 annually.
Mr Pears expects them to remain at this level for the moment.
With many projects lined up for the future, Mr Raymond remains intent on the core goals of the section.
He says: 'As a specialist section, we can focus on probate and allied areas and make sure things are done for the benefit of the practitioner and the public.
If you improve the lot of the practitioner, you improve the lot of the consumer'.PROBATE SOLICITORS MUST ALSO DEAL WITH CLIENTS.
MATT BARNARD ASKS WHETHER THEY CAN COPE WITH THE DEMANDS One of the most common reasons for not making a will is the prospect of having to see a solicitor, an experience which potential clients seem to rank in unpleasantness at somewhere near visiting the dentist.
This is according to market research carried out by Kevin Ludgate, a partner at Huddersfield-based Sugdens Solicitors, reported in the March issue of the journal of the Law Society's probate section.Mr Ludgate says he was shocked to make that discovery.
'To me it was just another appointment, but to the client it took courage,' he writes.
Contemplating one's own death is never a pleasant experience, and making a will means that a client has formally to confront the fact that he or she is going to die.
The taboo surrounding death is so strong, in fact, that 70% of the population has not made a will.Probate solicitors must also deal with clients in particularly traumatic situations: clients who are terminally ill, families of someone who has committed suicide or been killed in an accident.
In such circumstances, people find that dealing with the legal consequences of a death becomes even more difficult.
According the Samaritans, bereavement by suicide often leads to suicidal feelings, meaning clients can be in an extremely fragile and vulnerable state.Given the nature of the clients that probate lawyers come into contact with, it would seem important that they receive proper training in how to deal with people in extreme emotional states.
Unfortunately, they get little training or support, as John Pears, a partner at Nottingham firm Warren & Allen and a member of the executive committee of the Law Society's probate section, admits.
He comments: 'I think this is an area that we're fairly deficient in at the moment.
I am not aware of any training which teaches lawyers how to cope with clients on an emotional basis'.Probate lawyers could usefully take a leaf out of the book of the Solicitors Family Law Association (SFLA).
Right at the beginning of its code of conduct is the statement: 'you should encourage your client to see the advantages to the family of a constructive and non-confrontational approach as a way of resolving differences.
You should make sure that your client understands that the best interests of the child should be put first'.In contrast, the code of conduct of the Society of Trust and Estate Practitioners (STEP) has no mention of any emotional aspect of members' work.
The SFLA does not just stop at its code of conduct, it also organises regular seminars and workshops to help train its members to cope with the difficult family situations which they have to confront.Louise Spitz, a partner at Manches & Co and media co-ordinator for the SFLA, exp lains that its courses cover a range of issues including when to involve professional help, when to refer people to counselling, and keeping the boundaries between professional expertise and a duty to support a client generally.These are aspects that probate lawyers are aware of, but it is entirely down to the individual or the firm to make judgements about what is appropriate.
Philippa Blake-Roberts is the chairman of STEP, and a partner at City firm Taylor Joynson Garrett.
She says of the solicitors working in the firm: 'I should think every one of them has had a client across the table where they have wanted to cry themselves'.However, although Ms Blake-Roberts agrees there is a lack of training, she argues that formal guidance is not particularly helpful.
'I'm not a great believer in codes and rules.
The more rules you have the more likely you are to follow them and not think laterally,' she says.
'I'd rather that everybody who is in this practice has it drummed into them that this is an area that goes wrong.' This is not a philosophy which is shared by Ms Spitz, who argues that the code of conduct is an ideal which helps focus solicitors' minds.It is also difficult for experienced and skillful practitioners necessarily to be aware of common sense techniques for dealing with emotional clients.
Ms Blake-Roberts recalls a situation that she was told in passing: 'Somebody was telling me the other day that their father had died and they went off to see the solicitor who had been acting for her father all his life.
In walks mother and grieving daughter, and he didn't so much say he was sorry.
Not a word about the passing of the man, and that to me is elementary.
How do you teach that?'Although the circumstances are not clear, Ms Blake-Roberts may not be aware of the difficulty some people have in dealing with a subject which is by its nature awkward, and how much the solicitor's own attitude may affect behaviour.
The SFLA maintains there can be similar problems for family lawyers talking about sexual issues, and it ran a seminar last year to explain how a solicitor's background affects an ability to discuss those issues with a client.The other serious issue facing probate lawyers is their own welfare.
Dealing with clients in emotional states, some of whom are traumatised, can itself be stressful.
Some solicitors are lucky enough to be part of a large firm with a supportive network of colleagues, but many probate lawyers work in small firms or are sole practitioners.
They are particularly in danger of being isolated, and perhaps for them more than anyone else it is important to receive proper training.
As Ms Blake-Roberts says, 'it's an area that goes wrong'.
The question is, are solicitors ready for when it does?Top tips for listeningThe Samaritans has produced a list of ten tips for being a good listener:-- Give it time.
Be prepared to listen if a client wants to talk about difficult feelings.
Do not be tempted to deny your client the chance to talk, or think that these emotions are being discussed in inappropriate circumstances.
Try to avoid the stiff upper lip approach.-- Remember that crises do not wait for appointments.
Your client could be overcome by grief at any time, be patient and calm about this.-- Do not make assumptions when listening to your client.
Let them explain their emotions.-- Do not interrupt or impatiently urge a client to 'spit it out'.-- Leave your prejudices at the door.
Do not be judgmental or opinionated.-- Do not jump in with advice, but ask open questions.-- Stay calm and softly spoken at all times.-- If you have promised to keep a confidence, take pains to avoid breaking it.-- Trust your instincts.
Do not be afraid to ask, 'are you feeling suicidal?'.
Bereavement by suicide often leads to suicidal feelings.
Sometimes it can be a huge relief to acknowledge that life has become unbearable.
From this point of view your client might be able to continue talking until more hope is found.-- If you feel out of your depth, help your client find professional help.
Suggest telephoning The Samaritans; tel: 0345 90 90 90.
If appropriate the Samaritans will contact someone referred to them.(A bereavement information pack for those bereaved through suicide or sudden death is available.
It was put together by the Samaritans and the Royal College of Psychiatrists, and costs £5 from the Royal College of Psychiatrists; tel: 0171 235 2351.
Help the Aged works with a number of solicitors and can be contacted at: Head Office, Help the Aged, St James's Walk, Clerkenwell Green, London EC1R 0BE; tel: 0171 253 0253.)NICHOLAS MURRAY FINDS OUT WHAT PROBATE PRACTITIONERS THINK ABOUT THE RECENT DEBATE ON PROFESSIONAL INDEMNITYProbate practitioners will have watched keenly the debate earlier this month at the Law Society's Council meeting on whether to retain the mutual professional indemnity fund.
As solicitors working mainly in small firms probate practitioners are often the target of adverse remarks from City firms claiming that a mutual fund is a forced subsidy of the incompetent.
However, on the invidious league table of claims to the Solicitors Indemnity Fund (SIF), probate lawyers are a long way from the top.Last year, trust and probate claims on the SIF were only 7.59% by volume and 8.2% by value of the total claimed from the fund.
This contrasts with 36% for residential conveyancing.
But the concerns that surfaced in the Council debate about the costs of professional indemnity insurance are just as much alive among wills and trusts specialists.A typical practitioner is Clive Margrave-Jones of Margraves in the mid-Wales spa town of Llandrindod Wells.
As a wills specialist with a good record - as befits the author of textbooks on the subject - he would be considered a good insurance risk and thus might expect to cut a better deal on the open insurance market.
He is by no means eager to cut loose from the SIF and does not think that most of his probate specialist colleagues in the local law society are either.The largest number of claims in the area of probate relates to the preparation and execution of wills, in particular in cases where the responsibility of ensuring that the client has both the capacity and the intention to make a will has been overlooked.
Almost as many claims are triggered by the provision of wrong advice or action being taken in relation to tax matters or concerning the distribution of estates.The most common cause of claims in respect of tax is the failure to execute a deed of variation within two years under s.142 (1) of the Inheritance Tax Act 1984 and to make an election to the Inland Revenue within six months from execution to obtain the benefit of inheritance tax relief under s.142 (2).
A common reason for a claim is that a distribution has been made without verifying the inheritance tax, capital gains tax and penalty interest payable, with the result that beneficiaries are overpaid.
Delay in the realisation of assets, errors in the management of trusts, and the missing of critical dates are other common sources of claims.Richard Bark-Jones, a partner at Morecroft Urquhart in Live rpool and chairman of the Law Society's wills and equity committee, shares Mr Margrave-Jones's perception that there is no significant local groundswell in favour of change - something, however, that many of the contributors to the Council's debate seemed eager to contest.
'I don't get a feeling in the profession at the grassroots that they actually want to change.
My view is that the SIF needs to become more sophisticated as it proceeds.
Each year it's accumulating more information and can presumably draw more useful conclusions as to banding, excesses, loading particular claims-prone firms, and so on.'The SIF itself is robust in its own defence and is naturally delighted by the decision to retain a compulsory mutual professional indemnity fund.
Sharon Bolton, head of communications at the SIF, says she is pleased that the message about a mutual fund being the profession's best option has got home.
She answers those who may be tempted by the prospect of cheaper premiums by saying that currently, in a soft insurance market, cheaper quotes could conceivably be dangled by insurers in the short term.
'But the market can't offer a guarantee.' In a harder market, premiums could suddenly start to rise and a chill wind could blow.
By contrast: 'We are here to support the profession'.She acknowledges that the fund is facing two potentially contradictory criticisms: it is not taking a tough enough line with persistently poor practitioners whose errors push up premiums for the rest, and that it is making contributions so high that firms could be put out of business.
It is hard to imagine a private insurer not charging more - or even refusing to insure - a high-risk persistent claimant and besides, the fund has made considerable progress in tackling this issue head on by its system of risk-banding and claims loading.
Its new contributions system is intended to reflect the claims experience of firms.
Because of the lower claims record of probate practitioners, contributions are virtually halved for that band of work.The SIF now argues that firms are getting the security that a mutual fund offers combined with a more sophisticated system of assessing premiums that should answer the complaints about the burdens of carrying the bad practitioners.DEBORAH ROTHFIELD DISCOVERS WHAT PROBATE SOLICITORS AROUND THE COUNTRY WILL BE DOING DURING MAKE A WILL WEEKSolicitors Make a Will Week, which will run from 22-28 March 1999, was launched by the Law Society in 1991 to increase public awareness about the dangers of dying intestate.
Until 1998 it took place annually - a year was skipped in order to move the event to the spring.
This year, the week returns in force to inform the public that making a will is an integral part of financial planning and to highlight the importance of using a solicitor when making a will.This year, a Web site has been launched that contains information about how to make a will, solicitors who can help and why and when a will needs to be updated.
The site can be viewed at http://www.make-a-will.org.uk.Law Society spokesman Gerald Newman says: 'Thinking about a will can be daunting.
Latest surveys show that one in three adults now have Internet access and there couldn't be a more painless way to get help.
With our on-line information service, there is no excuse for potential clients to put matters off any longer'.In the north west the Make a Will Week campaign is funded this year by subscriptions from individual firms wishing to participate in the will campaign run by the Law Society's regional office.According to Da vid Sharples, regional secretary of the north west region's law society, almost 200 solicitors have signed up so far.
Each participating firm contributes £47.
Similar campaigns will be run by the Law Society's other regional offices.Mr Sharples says: 'This will campaign demonstrates the real benefits of having a regional office of the Law Society to c-ordinate local activity.
We are able to manage a multi-media publicity exercise involving a budget of almost £10,000.
The result will benefit not only the firms themselves but also the whole profession in the north-west region.' The north-west campaign includes:-- independent local radio advertising;-- features on 'Make a Will Week' on BBC local radio;-- a freephone telephone information service;-- the distribution of will information packs to the public; and-- the distribution of 150,000 leaflets via 450 public libraries and information centres.There are also contributions and support from local charities and a free will service sponsored by The Cancer Research Campaign and a permanent public information helpline; tel: 01772 201 600.A high profile theme week to publicise Make a Will Week will take place across the north west using local commercial radio stations.The campaign will be run by Emma Bailie, producer at Red Rose Action - the campaign division of Lancashire radio station, Red Rose Radio - who will liaise with the Law Society and other interested parties.
The editorial content of the campaign will be overseen by the Law Society with professional guidance from CSV Media.
CSV Media is the broadcasting wing of national charity, Community Service Volunteers.The permanent public information helpline will focus on raising public awareness of the need to use a solicitor in will making.
There will also be an off-air phone-in with solicitors taking calls and dealing confidentially with individual enquiries.On-air services, provided by the north-west regional office, include the production of pre-recorded interviews/vox pops, presenter voice-overs and booking features into programming schedules.Off-air services include telephone provisions such as the use of regional helplines.
This entails taking listeners' calls, providing callers' names and addresses to the Law Society, the distribution of information packs, feedback and evaluation, the operation of off-air phone-ins and linkage with late-night chat shows and news departments.In the north west, local radio stations will feature a different theme each day:-- Monday - charitable bequests to education;-- Tuesday - The Law Society Make a Will Week;-- Wednesday - Cancer Research Campaign - Free Will Scheme;-- Thursday - Age Concern;-- Friday - The north west hospices movement.A press conference about Make a Will Week is scheduled for the European Schools Funding Conference at Lancaster University on 22 March.
Radio Lancashire and local newspapers are invited to attend.A leaflet campaign will involve the distribution of 150,000 leaflets to libraries and advice centres throughout the north west.
Charities and firms participating in the north west regional campaign will be able to take advantage of the Cancer Research Campaign (CRC) voucher scheme.CRC will permit firms to reclaim up to five vouchers enabling them to make a will at no cost to the client.Solicitors will be reimbursed £50 plus VAT for a simple single will, or £80 plus VAT for an interlocking pair of wills.
The CRC will produce 3,000 leaflets dedicated to the regional Make a Will Week themes for distribution to telephone callers.N ewspapers involved in the north-west campaign include the Regional Independent Newspapers Group, which owns most of the major newspapers in the region, will co-ordinate an advertorial campaign in 18 newspapers covering the whole region.Elizabeth Dyer, of the Law Society's south-west regional office, says there has been a positive response to the regional offices campaign from more than 200 solicitors.
Ian Croft, of the Law Society's Yorkshire and north-east regional office, says: 'Our Solicitors' Make a Will Week Campaign has been a two-pronged approach, targeting regional radio stations and regional daily newspapers.
Commercial and BBC radio stations have been contacted to run relevant programmes or bulletins during the campaign week.'In addition, we have offered the possibility of inviting a local solicitor, specialising in wills, to take part in a radio phone in.
Contact has been made with regional dailies inviting them to run articles on the importance of making a will using a solicitor.'HEDLEY MARTEN EXAMINES THE CASE LAW SURROUNDING THE GROWING ISSUE OF CLIENTS WITH ALZHEIMER'S DISEASEOn 6 July 1870 the old Court of Queen's Bench - only subsequently to be subsumed in a new unified High Court, by the Judicature Act 1873 - handed down its judgment in Banks v Goodfellow (1870) LR 5 QB 549.
Most probate practitioners can reel off the famous passage on testamentary capacity expressed in the case much as children can recite their favourite nursery rhyme:'It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.'It is tempting, although some may say it is immaterial, to remind oneself of the world in that year.
Gladstone's first government was barely up and running, David Livingstone was still lost in darkest Africa, Germany as we know it did not exist, though some noticed a twinkle in the eye of Bismarck.However, what is totally material is that medical knowledge of diseases of the mind, let alone judicial knowledge, was at that time almost non-existent.
Like Africa, the subject as yet remained uncharted territory.
Had someone in court that day uttered the word 'Alzheimer', all of the judges would have looked up in blank incomprehension.
Indeed, nearly another four decades were to pass before in 1907 Alois Alzheimer first diagnosed and described the disease which bears his name.Yet even today, more than 90 years later, it is quite apparent that judicial knowledge of the essential nature of this widespread affliction remains negligible, and this in turn threatens the proper administration of justice.In the nearly 130 years since 1870 the average human lifespan has increased substantially.
But the cruel result of this is now all too clear to see.
Then, people died of a range of physical diseases and ailments; rarely did they outlive their minds.
Today the figures are alarming.
Statistics provided by the Alzheimer's Disease Society indicate that at January 1999 the number of people in the UK now suffering from dementia - of which Alzheimer's disease is the commone st form - is now almost 750,000.
It is estimated that by the year 2040 there will be 1.2 million people aged older than 65 suffering from dementia.
The prevalence of dementia in the population as a whole, stated as a modern demographic statistic, is now such that 1 in 50 in the age group 65 to 70 is afflicted; rising to 1 in 20 in the age group 70 to 80, and rising again to 1 in 5 in the age group 80+.The central facts about Alzheimer's disease are that it is progressive, that it is irreversible, and that it is physical.
Clinically, it consists of the accumulation in the brain of neurofibrillary tangles and plaques of beta ameloid protein with an associated deficiency in the neurotransmitter acetylcholine.
The tangles and plaques damage the nerve cells and impair the normal function of the brain which ceases to be able to relay the normal signals between brain cells.
The clinical symptoms of Alzheimer's disease can be clearly observed and diagnosed by a qualified medical specialist, such as a psycho-geriatrician.
Early symptoms are typically a progressive deficiency in the ability to learn and retain new information, subtle changes in conversational ability, language disturbances and disorientation.
With progression, symptoms are loss of inhibitions and sense of appropriate behaviour, and uncharacteristically irrational and irresponsible behaviour.
In the advanced stages there is a general disintegration of the personality, resulting finally in death.
Currently there is no cure.Only once in a lifetime does a person execute a document which disposes of their entire assets.
A will may hence be viewed as a uniquely important document, the certain validity of which should in principle be, one may reasonably think, beyond the shadow of a doubt.What results does the Banks v Goodfellow test produce in this brave new world? Let us consider a recent case, that of Mrs Halley (Ewing v Bennett Court of Appeal, 25 February, 1998).
Some 11 months prior to the execution of her purported will, Mrs Halley, then aged about 80, had gone to stay with one of her daughters for Christmas.
She took with her at least £6,000 in cash in an old brown zip up bag, which she carelessly left lying around.
This behaviour was irrational and out of character, and showed that her sense of the value of money had was disturbed.
Some six months prior to the execution of her will she had complained to her GP of memory loss and he had formed the view that she was suffering from senile dementia.
Instructions for her will were taken by a solicitor during two short interviews a few weeks before it was actually executed.
He noticed when taking instructions that Mrs Halley was much deteriorated and that her memory was poor.
He was concerned that the instructions given would cause dissention between her daughters.
He nevertheless did not take any step to consult her doctor concerning her mental capacity.
Two weeks after the execution of her will, a GP - but not her own doctor - appointed by the Department of Social Security to assess her for attendance allowance purposes, confirmed after examination that her short-term memory was poor, that she was not fully mentally competent and was deteriorating both mentally and physically, and that she was in what he called 'the early stages' of senile dementia.Five weeks after the execution of her will was the family Christmas visit, and during that stay Mrs Halley exhibited typical symptoms of senile dementia, including confabulation, paranoia, disorientation, failure of short-term memory, inability to recognise members of her fami ly, a deterioration in personal hygiene, and socially inappropriate behaviour.
This included giving an adult grandson of hers - then aged 30 - 25 pence in an envelope as a Christmas present.
A medical expert witness who had never seen or examined her admitted that such symptoms were characteristic of a later stage of Alzheimer's disease.Less than two months after the execution of her will, during an examination by a psychiatric nurse, Mrs Halley could not remember where her daughter lived, even though she had just been staying with her, was unable to tell the day, the date or the year, and referred to an event as having happened a few years ago which had in fact happened 52 years previously.
Three months later she was admitted to hospital and thereafter doctors and nursing staff recorded other symptoms of senile dementia, kept her under surveillance, and considered her senile dementia to be so clear that they decided that a CT scan was pointless.Did Mrs Halley have testamentary capacity to make her will? In that case the Court of Appeal saw no reason to revise the decision of Mr Justice Rimer who, having correctly recited Banks v Goodfellow, and correctly stated that the onus of proof of Mrs Halley's testamentary capacity was on those seeking to uphold the will, was content to rely principally on the evidence of the solicitor in finding in the teeth of all this evidence, that she indeed had full testamentary capacity.The question must be asked whether judges, with their negligible medical knowledge, are equipped to make such medico-legal decisions.
Even if there is expert medical evidence adduced, is a judge qualified to evaluate such evidence? Where there is a conflict of expert medical evidence, the court will, in my experience, only too often prefer the expert evidence of a specialist who has never seen the subject at all but only considered the available medical notes, over the general practitioner who has personally observed the whole medical history of the subject.
A psycho-geriatrician or gerontologist can produce graphs and statistics which neither counsel nor judge are equipped to evaluate.
In essence, the judge is required to make a complex medical decision on the basis of no medical training whatsoever and no medical knowledge beyond what he may pick up in the course of hearing such medical evidence as may be called.The truth is that both the principle and the practice are inadequate to the task.
Neither provide a clear and reliable test that those involved in the preparation of wills can follow.
Similarly, no clear and reliable test exists in the preparation of enduring powers of attorney.
Where a scalpel is now needed, the law currently provides only a blunt old kitchen knife.
However, litigation in this area is inexorably on the increase, fuelled first by more people leaving more wealth, and secondly by the ever increasing numbers of Alzheimer's disease victims.It may be that a modern decision, preferably of the House of Lords, is required, to take account of the vast increase in medical knowledge since Banks v Goodfellow, and to provide clarification of the test for testamentary capacity and other much-needed guidance to the profession.
It may be that some new statutory provision in a new Mental Health Act is the only satisfactory answer.It should, in fairness to our own legal system, be noted that the civil codes of most European states are no more satisfactory.
The French Code Civil, based on the Code Napoleon - introduced in 1804 - simply says that to make a valid will 'il faut tre sain d'esprit' (Article 901).
The Swiss Code Civil, introduced in 1907 and also based on the Code Napoleon, has the simple test 'capable de discernement' (Article 467).
This similarly leaves it for the judge to make a medical decision on the evidence, although there is under both codes a strong presumption in favour of capacity: une trhs grand vraisemblance excluant tout doute serieux suffit.As probate practitioners know, in 1995 the British Medical Association and The Law Society published a report entitled 'Assessment of mental capacity: guidance for doctors and lawyers' based on the work of a joint working party.
The report responds to a perceived need for practical guidance for practitioners.
It assumes that the proper response by a solicitor when asked to act for a client with senile dementia, the so-called 'golden rule', is to contact that client's GP for assessment of the client's capacity.
I do not think that it can safely be assumed, in the event of challenge, that such a procedure would be sufficient to settle the issue.
Obviously, it is better than nothing; and there may be personal difficulties in practice in the way of bringing in more specialist medical opinion at that point.
In reality this report is merely a sign-post in a stormy sea.In this sea of uncertainty various brave little 'standard forms' currently float about.
For example, the Court of Protection has at least two such forms in regular use : its 'medical certificate for the Official Solicitor to the Supreme Court' and its standard medical certificate, in by no means similar forms to each other.
Entirely practical, one may say.
But neither, in the event of mental capacity being put actively in issue, would stand up to serious challenge.There is some blue sky on the horizon.
Since 1995 there has been in draft a Bill to make new provision in relation to mentally incapacitated persons.
The draft carefully defines the concept of a person without mental capacity.
There is clearly scope here for a clear new standard test for testamentary capacity which would consign Banks v Goodfellow to history.Meanwhile, in the present unsatisfactory state of the law, one is entitled to draw two practical conclusions.
First, in the case of clients in the 80+ category, the prudent practitioner should assume, until satisfied to the contrary, that the client may not be of sound disposing mind.
Secondly, if capacity becomes disputed, lawyers should put their trust in the court to get the right answer.MARKETING TO AN AUDIENCE by KIM TASSO1.
Be clear about the target audience, writes Kim Tasso.
Is it young mothers who need to address one more issue associated with their new responsibilities? or wealthy professional people who want to develop a long-term relationship with a law firm for all their private legal needs? or intermediaries who are often asked questions about wills or computer experts looking for a fixed price and e-commerce solution? By clearly identifying who you are trying to reach it will be easier to reach them through the appropriate medium and easier to target your message.
A good starting point is to analyse existing clients and the source of the work you receive.2.
Consider the real needs of that target audience.
Stop thinking about your need to win more will writing work.
Think instead from the clients' point of view.
Think about not just why or how they want to produce a will but how they want to interact with your firm.
Are there any particular needs or issues associated with those you are targeting that match with your firm's expertise? Some examples might be cohabiting cou ples, second families, families with aging relatives, clients with their own businesses and clients with overseas assets.3.
Set realistic targets.
It is difficult to measure the success of your marketing if you have not identified what you hope to achieve at the outset.
Furthermore, setting some specific targets will help you focus on the most appropriate method for achieving them.
4.
Select the most appropriate means of marketing to reach your audience.
Too often, firms will erroneously use just one weapon from the marketing armoury.
There are lots of different types of marketing tools, each designed to fulfill a different task (see below): The best method of effective promotion is to combine the most appropriate elements into an integrated campaign that lasts for several months.
For example, mail a leaflet to a number of organisations and offer a follow-up talk or visit.
Then make the follow-up calls and visits.
After a short period send some other material - perhaps a reprint of an article you have written for a local newspaper.
Alternatively, make copies of leaflets or explanatory packs available at key locations and then run some advertisements alerting people to the availability of the materials.
Similarly, advertisements might mention an information pack that is available or the times of your firm's 'open evenings'.
Some solicitors have made effective use of radio advertising to promote wills.
Many local radio stations can provide a package that includes script writing, production and air time.
Providing the advertisement is specific, firms have reported good responses using this medium when trying to reach a large and diverse audience.
Indirect methods(Most suitable for reaching private individuals)AdvertisingSigns/postersMedia relationsSponsorshipLiterature (left on display)Web sitesWord of mouthDirect methods (Most suitable for reaching organisations)NetworkingSellingTendersPresentationsLiterature (mailed)HospitalitySeminars/briefingsTelemarketing 5.
Ensure you are able to respond to and measure enquiries.
It is important to extend marketing to other members of the firm.
Leaflets and documents can be given to fellow solicitors to pass on to clients at appropriate times - this is especially relevant to those who work on other private client matters.
You can also 'piggyback' on their marketing initiatives by, for example, including some material about wills in their client mailings or newsletters.
Switchboard staff, receptionists and others in the front line need to be aware of any campaigning being run so they can ensure calls are handled properly and keep a log of how many calls are generated by the different types of marketing you use.
Then effectiveness can be measured and future campaigns can be improved.WILL MARKETING: CASE STUDY ONE Licensed will writers are more effective at marketing than many solicitors' firms.
As a young mother wandered through a shopping centre recently, a pleasant and smartly dressed woman bent over to admire her baby daughter.
Behind the woman was an exhibition display stand with the words 'Will Writing services'.
After a few words were exchanged about the child, she asked the mother: 'Are you interested in will writing services?'.
The mother explained that she had a will but probably needed to update it as her daughter had since been born.
She said also she was rather busy.'No problem,' said the woman offering the will writing service as she handed over a small information leaflet.
She sympathised with the problem of having a busy life and commented that her service provided a visit to the home or office.
The mother was intrigued and gave her home details.
She received in return a carbon copy of the simple form she had completed at the stand which showed, at the top of the page, the set fee for a single person's or married couple's will.
It was a reasonable price.
The woman said someone would telephone to make an appointment.
The mother said: 'Of course, the cost is so low because you do not have a real solicitor involved'.
The woman smiled again and explained that although the people who collected the information and prepared the first version were not solicitors, every will was reviewed by a qualified solicitor before being finalised.Two weeks later the mother received a short and professional letter thanking her for her interest and informing her of the name of the person who would call her to arrange an appointment over the next few days.
Two days later she took a pleasant telephone call.
It was not pushy.
She explained that she had since updated her will through her solicitor and would not require the services of the will writers.
The caller was polite and pleasant and thanked her for her time, emphasising that should she need assistance in the future on any will-related matter she should feel free to call.
The mother was left with an impression of an organisation that was polite, professional, easy to deal with, organised, an expert in its subject and pleasant.These are attributes typically associated with a professional firm of solicitors.
Yet, this is the face of the competition for all wills and probate solicitors.
On the few occasions when I have seen solicitors attempting to 'sell their wares' in shopping centres in a similar way they have come across as uncomfortable with the situation and aloof to those they meet.
They have also been let down by an inability to follow through enquiries in a timely and systematic way and as not always being flexible enough to offer home or office visits and a guaranteed fixed price.WILL MARKETING: CASE STUDY TWO Solicitor Kevin Ludgate, of Sugdens in Huddersfield, has produced a short video called 'Making a will - Explained' which comes complete with a glossary of key terms such as executor and guardian in the video case cover.
He has also produced a short colour flier that he posts to promote the video.
The video is rated 18 with the explanatory statement: 'Essential viewing for all adults in England and Wales!'.
The video explains simply why people need a will and the likely contents through some realistic examples - a young couple, a middle aged couple and an older single woman.
The feedback he has received has been excellent and he is providing the leaflets and video to intermediaries - building societies and accountants.Mr Ludgate's rationale for this exercise was that he had found from research that although people were interested in learning more about wills, they were put off by the prospect of meeting a solicitor and the possible cost that might be incurred.
A video that they could watch in their own homes at their leisure - the promotional flier says that the video is shorter than the average soap opera episode - would overcome both potential problems.
Mr Ludgate also considered that if a potential client spends 30 minutes watching a video - rather than asking questions for an hour on general background and common issues - it would make the solicitor's life easier too.WILL MARKETING CASE STUDY THREE On the Internet there are thousands of Web sites from lawyers offering will-related services.
Admittedl y, clients have to be persistent and adept with the search engines to find will-related advice on a site offered by a local law firm, but the information is there for those who prefer to seek information this way.
The site of London firm Kaye Tesler & Co contains not only good information about the law and legal processes, but also a questionnaire - covering executors, guardians, burial/cremation wishes, money and object gifts and additional requests - which potential clients complete to generate a simple will (there are lots of caveats saying that 'complex' estates will need a more in-depth approach).
This is available for a set sum of £40+VAT.
Clients can submit their credit card details over the Internet and receive a completed will in the post, by fax or by e-mail.
WILL MARKETING: CASE STUDY FOUR A small practice in the West Country places a range of inexpensively produced but attractive leaflets on all its services in dispensers at a local theatre.
A wills leaflet states that the firm has members of the Society of Trust and Estate Practitioners and that it also offers an investment management service.
This is an example of integrated marketing - where the firm's sponsorship of a popular local arts venue provides:-- an excellent opportunity to entertain clients and intermediaries in a location where there is a clear link to the firm;-- publicity and awareness-raising from the strong branding of the firm in the material supporting the sponsorship;-- advertising in event programmes; and-- marketing materials on display in a location where members of the target audience - affluent people of a slightly older generation - will see them.
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