Frequently asked questions

I am a trainee solicitor and wish to administer oaths and take declarations. Can I do this?

No. Only the following people can administer an oath, take an affirmation or take a declaration:

Commissioners for Oaths;
solicitors (holding a current practising certificate);
barristers;
notaries public;
licensed conveyancers;
Fellows of the Institute of Legal Executives (if they pay a full subscription to the Institute; but not retired Fellows);
Certain officials of the Supreme Court;
Circuit judges or district judges;
Justices of the peace;
Certain officials of any county court appointed by the judge of that court for the purpose; and
Official or deputy official receivers

Please see the Law Society publication 'Execution of Documents' 2nd ed. which is available from the Law Society's online bookshop at www.lawsociety.org.uk/bookshop

I understand that the Money Laundering Regulations 2007 refer to 'customer due diligence.' What is this?

Regulation 5 says that customer due diligence comprises:

• Identifying the client and verifying their identity on the basis of documents, data or information obtained from a reliable and independent source.
• Identifying where there is a beneficial owner who is not the customer, the beneficial owner and taking adequate measures, on a risk sensitive basis, to verify his identity so that you are satisfied that you know who the beneficial owner is. This includes understanding the ownership and control structure of a legal person, trust or similar arrangement.
• Obtaining information on the purpose and intended nature of the business relationship.

Identification of a client or a beneficial owner is simply being told or coming to know a client's identifying details, such as their name and address. Verification is obtaining some evidence which supports this claim of identity.

For further information and definition of beneficial owner, please refer to Chapter 4 of The Law Society's Anti-money laundering practice note October 2011 at www.lawsociety.org.uk/practicenotes

I am a solicitor employed by a local authority. Am I an ‘independent legal professional’ as defined by the Money Laundering Regulations 2007?

No. An 'independent legal professional' includes a solicitor working in a firm or a sole practitioner who by way of business provides legal or notarial services to other persons. It does not include solicitors employed by a public authority or working in-house. (For further information see the Law Society's practice note on Anti-money laundering at www.lawsociety.org.uk/practicenotes).

Can a bill of costs include unpaid disbursements?

Yes, but only if the unpaid disbursements are described in the bill as not yet paid. The deficiency can lead to difficulties to these items if they are challenged on a later assessment. One solution in such an instance would be to ask the costs judge for an adjournment, apply to the court for leave to withdraw the entire bill and redeliver it (but there is a risk that you may be ordered to pay all the costs thrown away) and deliver a fresh bill, Solicitors act 1974, s67. It should be noted that in Tearle & Co v Sherring (29 Oct 1993, unreported, QBD), Wright J held that where a solicitor has acted in good faith but has inadvertently omitted to describe the disbursements as unpaid, the court not only had the power to give him leave to withdraw his bill and deliver another one, to save costs it could in an appropriate case give leave to amend his bill by adding the words 'unpaid'. However, you should err on the side of caution and describe unpaid disbursements as 'unpaid' in the bill.

I understand that in order to apply for a debt relief order on behalf of my client, I must qualify as an intermediary. I contacted the Solicitors Regulation Authority but they informed me that they are not registered as a competent authority. Where can I apply to become an intermediary?

Six organisations have been given interim approval to act as competent authorities. The Solicitors Regulation Authority is not registered as a competent authority so holding a practising certificate is not sufficient to act as an intermediary.

Five of these organisations will only consider applications from their own employees or volunteers.

However, members of the Institute of Money Advisers (IMA) can apply for approved intermediary status. Membership is open to those who provide free money advice, including legal aid solicitors and solicitors who carry out pro bono debt advice.

You can apply to become a member of the IMA via their website:
www.i-m-a.org.uk/membership.html

Details of all competent authorities can be found on the Insolvency Service website:
www.insolvency.gov.uk/insolvencyprofessionandlegislation/DebtRelief.htm

For more information, please see the Law Society's practice note on debt relief available at www.lawsociety.org.uk/practicenotes

My client has asked me to send bills to him by email. Can I do this?

Yes, s69(2C) Solicitors Act 1974 (as amended by the Legal Services Act 2007) provides that a bill is properly delivered if it is delivered through an electronic communications network and the client has indicated his willingness to accept delivery of a bill in the form and manner used. The bill should be signed either by the solicitor or on his behalf by an employee authorised by the solicitor to sign the bill. The bill can be signed with an electronic signature.

For more information, please see the booklet produced by the Law Society's Practice Advice Service called 'Non-contentious costs'.

How does the Law Society calculate its interest rate for late completion?

The Law Society interest rate is 4% above the base rate for the time being of Barclays Bank Plc. At the time of going to press, the base rate is 0.5% so the Law Society rate is currently 4.5%. The rate is published weekly in the Law Society Gazette's 'In Practice' page and monthly in the 'Data Page'.

Our firm has just merged and some of our old will files have gone astray. What issues should I consider?

Loss of a file may amount to inadequate professional service or negligence where deeds are lost, so you may need to contact your professional indemnity insurer to record the loss. You should consider contacting the client to discuss what remedial action can be taken, if any, where original papers such as wills have been lost. If a claim arises in relation to lost papers, the courts will weigh the available evidence to assess your part in the matter. For further information see the Law Society's practice note on file retention at www.lawsociety.org.uk/practicenotes

I have just received instructions from the widow of a former client to obtain a grant of probate. The deceased had assets in this country but had been domiciled abroad for many years. Will it be necessary for me to obtain a grant in England?

Yes, if the deceased died domiciled outside England and Wales, but left assets in England and Wales (unless the Colonial Probates Act 1892 applies, or the deceased was domiciled in Scotland or Northern Ireland), it will be necessary to obtain a grant in England and Wales: see Non-Contentious Probate Rules 1987 Rule 30. For further guidance see the Law Society's Probate Practitioner's Handbook, 6th Edition, this publication may be purchased from our online bookshop at www.lawsociety.org.uk/bookshop.

I note that a significant change has been made to the conditions relating to insurance under the new 5th edition of the Standard Conditions of Sale (SCS). Under clause 5.1.1, the risk now passes to the buyer on exchange of contracts rather than on completion. Why has this change been made?

Revisions have been made to bring the Standard Conditions in line with current law and practice with the aim of reducing the need for special conditions. The changes are intended to achieve a balance between the interests of the buyer and seller.

The explanatory notes to the 5th edition of the SCS say significant changes have been made to the conditions relating to risk and insurance. The principal effect is that the risk position is reversed (from that in the fourth edition of the SCS) and the buyer bears the risk from exchange. The previous edition of the SCS left the risk with the seller until completion and, in practice, special conditions were frequently included to make the buyer bear the risk from exchange.

However, even though the buyer now takes the risk from exchange (meaning he still has to complete if the property is destroyed between exchange and completion), the seller may still have an obligation to insure the property between exchange and completion by virtue of condition 5.1.2. Under this condition, the seller is obliged to insure if the contract specifically provides for this or if the property is leasehold and the seller (whether as landlord or as tenant) is obliged to insure under the terms of the lease. For further information, see p45 of the Law Society's Conveyancing Protocol (2011) which is available to purchase from the Law Society's online bookshop.

Can I reproduce the Transaction forms on a word processor?

It is in the interest of both the solicitor and his client that uniformity of presentation should be maintained where forms form part of the TransAction scheme.

The forms are Law Society copyright but may be reproduced by a solicitor on a word processor in a version which resembles the printed form as closely as possible. No additions, deletions, adaptations or alterations of the text of the printed version must be made. Additionally, each word-processed copy must bear in a prominent position the following phrase 'This form is part of the Law Society's TransAction scheme' in order to indicate to a person who read the form that the document is a genuine reproduction of a protocol form.

This guarantees to one solicitor that the other solicitor has not departed from the approved wording of the form.

I have been instructed to prepare a will on behalf of a client who is adamant that she does not want to make any provision for her daughter. I am concerned that the daughter may have a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA). What should I do?

If you fear a claim under the IPFDA but your client does not wish to make provision for the potential claimant, she should be encouraged to leave a memorandum with the will explaining why no provision was made, unless your client’s reasons for making no provision are unreasonable, in which case the memorandum could do more harm than good.

There appears to be a trend in IPFDA actions towards the introduction of parallel claims - proprietary estoppel, declarations as to beneficial interests, mutual will obligations, claims based on a contractual relationship with the deceased - to bolster inheritance claims. Such claims are based on a combination of the deceased's intentions and of fact. The claim will only be made after the deceased's death. Often there are no independent witnesses so the surviving claimant is free to give their version of the deceased's intentions, unchallenged.

With this in mind, it may well be appropriate for a detailed attendance note of the initial instructions to be copied to the client with the draft will. The client should be asked to confirm the attendance note details are correct when confirming instructions to engross the will. The attendance note should be kept, as with any memorandum, with the will. At least then there is an accurate record of the testator's intention.

Please see the Law Society's Probate Practitioner's Handbook 6th Edition, this publication may be purchased from our online bookshop at www.lawsociety.org.uk/bookshop.