I am dealing with the administration of an intestate estate where I have established that surviving parents are the beneficiaries under the Intestacy Rules. I have been instructed by the deceased’s mother, and she is adamant that no steps be taken to try locate the deceased’s father who left the family in the 1970s and has not been heard from since. I have no evidence he has predeceased or if he is still alive. The only thing I know is that he was residing in Germany at the time he left the family.
I have informed the deceased’s mother of her duty as Administrator to administer the estate in accordance with the Intestacy Rules and to locate missing beneficiaries. She refuses to instruct a tracing agent and has confirmed in writing she wishes to administer the estate against my advice at her own risk.
As a professional, can I proceed with the estate administration under these instructions?
I do not believe that failing to search for a potential beneficiary is a crime but please do correct me if I am wrong.
I have spoken to the SRA Ethics Helpline and their concern was in relation to the principle that solicitors should act with integrity; and whether this would be breached if no steps are taken to ensure the father is alive or not. Full advise has been given to the Administrator and it is their instructions not to take any further steps, but I am unclear if this is sufficient for this purpose. It doesn’t feel like there is going to be a clear answer!
This is very unsatisfactory! I have read the exchanges with interest. I must say that, unlike you, I do believe that failing to search for a potential beneficiary is a crime. I am, in equal measure, surprised and disappointed at the SRA’s attitude, but this is, of course, not a matter primarily for them but for the police.
Is this not also a breach of the Anti Money-Laundering Regulations?
Or rather, I should say, would it not be a breach by you IF you participated in the client’s course of action. If I were in your shoes I’d be running from this case with all speed. Reporting the client would be a separate issue and I believe still appropriate.
I was unsure how to proceed in this situation as I have never dealt with it before and as such was asking for some advice in order to improve my knowledge. I wanted to discuss the position and ‘sound out’ my queries.
I was unaware that not searching for potential beneficiaries was a criminal offence and did ask to be corrected if I was wrong. I have since found a case this morning where an executor was found guilty of theft for not distributing the estate in accordance with a Will. I had never come across this case before. This is a situation, however, where the executor knew there were beneficiaries to distribute to and did not. The Administrator in my situation has no such knowledge but does not want to take steps to find out the position.
Regardless, I understand your comments about running from this case with all speed. I just need to be able to explain this decision to the Administrator/my client.
If you cannot persuade the Administratrix to instruct you to carry out your retainer in assisting her to perform HER legal duties you must refuse to act. If what she needs to do and why is explained to her with written clarity and she still persists I cannot believe you would wish to act for her whatever may be the niceties of your potential exposure to a criminal offence or professional censure. My motto was “if it starts bad, it gets worse”. The official practice bargepole was very long indeed. For most of my career I was free to simply decide alone whether I would act. My early time in the sausage factory preceded AML and the SRA but these days the latter enjoy pursuing those at the coal face even if they are well down the chain of command so personal self-preservation must figure in your dilemma. If H was the deceased and she the beneficiary the means of finding him might suddenly materialise!
I am not a criminal law expert but my experience extends to tax offences of a criminal nature. I doubt that your acting for her and deliberately ignoring the husband is a substantive criminal act by you, though it might be by her and you might be complicit. I doubt it is a primary AML offence assuming the estate does not comprise criminal property but if she proceeds to ignore H with or without your help it might become such. If she does not repent and allow you to do the necessary advertising and searches on her behalf you should consider a SAR and not tip her off. A senior ex-constabulary person of my acquaintance tells me that the NCA “bag” these up in their thousands for shredding/deletion so you are unlikely to be further involved. Under the MLR 2017 your business relationship would be with her as THE “beneficial owner” under Reg 6(6) and not H (unlike a beneficiary of a trust) and there is the defence of due diligence and reasonable steps.
If you did act for her and she ignored H she would commit devastavit and if H/his PRs/beneficiaries sued her/PRs and could not recover they might target you. The PI moguls might not be impressed and it would all possibly end up costing a large multiple of the fee on offer. Bargepole Rebecca!
Rebecca, what an unfortunate position to find yourself in.
Without going into the level of technical detail so expertly put forward by Jack and Julian, our approach would probably involve the following principles
(i) By swearing an oath or statement of trust the adminstratrix has basically given undertakings to the court to administer the estate in accordance with the law. Refusing to trace any other beneficiaries is in effect depriving them of their entitlement, a direct breach of the undertaking given to the court. If you continue to act, knowing that is her intention, it brings her actions within the field of contempt, as well as the criminality of deliberately depriving others of property to which they are entitled (which I think was the definition of theft as drilled into us in the '80s at law school!). Whilst Jack is undoubtedly correct in stating the likelihood of there being any criminal prosecution is remote, the risk as far as you are concerned is s to the question of integrity and prejudicing the reputation of the profession in the eyes of the public. You could also be accused of aiding and abetting such action.
(ii) By continuing to administer the estate whilst knowing that your client is intending to commit fundamental and serious breaches of trust, you are exposing yourself to serious risk if she distributes the estate and the disaffected beneficiaries discover the breach. They are likely to come after you and your firm and your insurers. Your insurers may well take the view that you are being reckless rather than negligent and might try to resist liability on that basis.
As we have all seen over the past couple of years, the SRA have become increasingly obsessed with the concept of integrity and have intruded into the personal lives of solicitors who have ‘misbehaved’ outside of work. The question of honour and integrity on one’s personal life is being factored into one’s working life and actions outside of work have been brought within the remit of the SDT. The course of action you are being asked to follow could create a massive question mark over your integrity. Balancing your duty to act in accordance with your client instructions with your duties to ensure your client honours their obligation to the court and the estate puts you in a very difficult situation.
We would say your higher duty is to ensure your client is not in contempt of court and does not expose herself to criminal proceedings. You also have a duty to your firm and its insurers and for that reason we would probably refuse to act. There is one possible easy solution involving some buck-passing. You should report it to your HOLP/COLP and MLRO and ask for their opinion on how to proceed. In this case the SRA have already given you a steer - act on that!
Rather than just informing the client that you cannot act for her anymore, I wonder if it might be better to explain to her the difficulties her intended course is creating and that unless she accepts the need to try and trace the father (using a reputable tracing agent), or evidence his death, you are bound to withdraw your services. I am not sure if you can also tell her that you may need to report her, or if that would be “tipping off” and a step too far.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I agree some form of explanation will need to be provided - I hope that this may also be one final attempt to persuade the Administrator to carry out their duty properly.