Legal Opinion of Thomas Dumont KC
As a solicitor or legal professional, you understand the importance of ensuring that your clients’ wishes are carried out after their passing.
What is a Legal Opinion?
A legal opinion is a written statement from a qualified lawyer or expert that provides guidance on a specific legal issue or question. It is a formal and authoritative document that outlines the lawyer’s interpretation of the law and their opinion on the matter at hand. In the case of The National Will Register, our legal opinion provides a comprehensive analysis of the risks and implications of not registering a will, and the potential liabilities for professionals who fail to advise their clients on this matter.
Thomas Dumont KC
Thomas Dumont KC is one of the most in-demand barristers for private client matters in the UK.
Any solicitor who fails to carry out a will search, when instructed to obtain a grant of probate of letters of administration in a deceased’s estate, is at extremely serious risk of being found negligent.
The importance of will search
The Legal Opinion highlights the importance of will searches in ensuring that a testator’s wishes are carried out after their passing. As stated by Dumont, “Any solicitor who fails to carry out a will search, when instructed to obtain a grant of probate of letters of administration in a deceased’s estate, is at extremely serious risk of being found negligent, should a will later emerge which the search would have revealed.”
- A will search is essential to avoid a finding of negligence, as it can reveal a later will that may affect the estate’s administration.
- The risk of not carrying out a will search is foreseeable, and the search is simple and cheap.
- The Law Society’s Probate Handbook and Tolley’s Administration of Estates provide guidance on the use of a will search with The National Will Register.
The risks of not registering a will
Liability for negligence
A solicitor who does not offer their client the option of registering the will may be liable to be found negligent
Losses to the estate
Failing to register a will can result in losses to the estate itself, including extra tax liabilities, extra costs involved in administering the estate under two different documents or regimes, loss in capital value of the estate, and loss in income to the estate.
Losses to beneficiaries
Failing to register a will can also result in losses to the beneficiaries, including extra costs associated with the fact that the first probate must be revoked and a second probate carried out.
“In my view, it is extremely probable that a solicitor who does not offer his client the option of registering the will will be liable to be found negligent.”
The duty to respond to a will search
Our legal opinion also emphasises the importance of responding to a will search. As Dumont states, “Any firm registered as the holder of a will undoubtedly accepts the obligation to respond to a register search. That is implicit in the fact that the will was registered with The National Will Register.”
The opinion notes that this duty is not just limited to firms that have registered a will, but also to solicitors who hold a will, regardless of whether it has been registered or not.
The consequences of failing to register a will or respond to a search can be severe. As Dumont notes, “The loss which may be recoverable under the duty to register and to respond to a request falls into two categories: losses to the estate itself, and losses to the beneficiaries.”
These losses can include extra tax liabilities, extra costs involved in administering the estate under two different documents or regimes, loss in capital value of the estate, and loss in income to the estate. In addition, the opinion notes that professional executors who have acted in an estate where the grant under which they were acting is later revoked will be liable to repay all fees charged by them to the estate.