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Certainty the National Will Register Reducing ‘risk’ for the Wills & Probate profession & protecting the public
‘Protecting the Client, the Will and the Probate’
Will Registration Will Search Will Management
CPD Accredited Webinar
Welcome to Certainty
• Your presenter today is Adrian Flower – I will provide you with all the information you need
• Thousands of Legal Professionals have received this CPD Accredited module
• The Q&As are all kept anonymous
• Course feedback has been positive – “highly informative and practical”
• Look out for other Certainty training courses and complimentary Certainty Expert
Webinars
• A recording of this webinar is available on request
Certainty in a Nutshell
Better risk management for the firm and client
Better income, revenue and profit for the firm
Better protection from emerging claims risk
Better client loyalty and fee earning activity
Better administrative efficiencies and gains
Quick Facts
• Certainty is used by over 4,500 solicitor members
• 1000 Law Firms are full subscribers of Certainty
• Approaching 5 million Wills are now allocated to the register
• Certainty Will Search finds registered and unregistered Wills
• Certainty is preventing claims each and every day for law firms and
their clients
• Certainty is much more than a Wills register and delivers many benefits
Referenced, Endorsed and Recommended
Practice notes,
guidance notes,
referenced in
literature by
Exclusive affiliation
agreements and
endorsements
Recommended to
the consumer by
Exclusively used by
The Treasury
Solicitor
Charities
What do the leading Probate texts say?
Law Society’s ‘Probate Practitioners Handbook’ 16.22 MISSING WILLS (Page 273) It can be difficult to discover whether there is a will and, if so, where it is located. PRs run the risk of distributing an estate on the basis of an intestacy when there is, in
fact, a will. It is possible to register the location of a will with the Certainty National Will Register
(www.certainty.co.uk). A registered will can then be located by a search of the register.
Where a will has not been registered, it is possible to use a different form of Certainty
search. This issues a missing will notification to solicitors in the areas where the testator
was most likely to have made his or her will, i.e. where he or she worked or lived.
Tolley’s Administration of Estates B4.3 MISSING WILL A search can be made of the Certainty National Will Register (www.certainty.co.uk).
Certainty is a company, which maintains a register in which anyone can register the location
of their will on payment of a fee. It is also possible to activate a search for a will, again on
payment of a fee, and if the search produces a positive result, details of the solicitor, lawyer
or STEP member holding the will are made available to the applicant. Note that Certainty
does not hold the will (unlike the depository under section 126 – see B4.2) and on
registration takes only limited information about the will, such as the date, where it was
made and the names of the executors and witnesses.
Thomas Dumont Legal Opinion
• T.J.B Dumont, Radcliffe
Chambers
Wills and probate professionals now have a very strong and protective
Opinion from probably one of the most influential voices in the Wills and
Probate sector. T.J.B Dumont (Radcliffe Chambers) explains how Certainty
Will Search and Registration reduce the risk of negligence claims.
This 'Opinion' clearly sets out how Wills and Probate practitioners can be
negligent and liable for potentially substantial damages for failure to 'register'
and 'search' for a Will with Certainty the National Will Register. The Opinion
clearly demonstrates that those who do, have a far greater degree of
protection.
It will be clear, from what I say below, that solicitors
(and other will writers or probate practitioners) are at
serious risk of being found negligent, and potentially
paying out substantial damages, for not offering the
client the option of registering the Will with Certainty,
and for not making, or responding to, a Certainty
search. Any solicitor who fails to carry out a Certainty
search, when instructed to obtain a grant of
probate or 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.
The full opinion is available on request
Certainty helps you lower your risk profile in the eyes of the insurance
underwriter. Example questions have appeared as follows:
AON PII Proposal Form - 13 Nature of work – Wills and Probate
• In respect of Probate matters do you use ‘Certainty Will search’ prior to distributing
the estate to help ascertain that you are proceding with the latest Will? Yes No
If no, how do you undertake these searches?
• Do you hold any Wills where the testator may have died and the Will you drafted Yes No
has not been discovered by the beneficiaries/executors or administered?
• Do you hold Wills which may have been superseded by a newer Will drafted and
held by another firm which could lead to the possibility of you administering a
revoked Will? Yes No
90% of Professional Insurance Indemnity Providers
Wills and Probate is another area of work that provides both frequency and severity
of claims, including the following information will help Insurers and could lower the
premium for this type of work:
Does your firm undertake Will Writing? If so, do you use ’Certainty’ – the National
Will Register – to register the wills you have created?
In respect of Probate matters do you use:
‘Certainty Will search’ prior to distributing the estate to help ascertain that you are
proceeding with the latest Will. If you do not use Certainty what methods does your
firm use?
Yes No
Yes No
Some important statistics
What is the Size of the Problem
575,000 people die in the UK
each year -
1500 a day.*
90.2% of people aged 18 - 44
do not know which solicitor their parents
used to write a Will.***
300,000+ People die every year intestate where a Will can’t be found or was
presumed never written.***
98% of solicitors hold Wills
where the person has died and the Will has not been administered.****
With 300,000 intestacies p.a it is now proven that in many cases the copy Will is not being found
whilst the original is stored safely in a law firm’s ‘Will-Bank’ - somewhere!
*Office for National Statistics 2009 ** Will Aid Survey 2010 *** Office for National Statistics 2009 **** Certainty Survey 2009
the problem = the risk
Your Willbank contains Wills where
the testator has died or produced a
later Will without your knowledge
You may distribute an estate without
knowing if a later Will or Will exists!
Your Willbank and its clients may be
static and unproductive with
diminishing client loyalty
the solution = sound risk management
Certainty Will Registration
Ensures that a Will can be found in
the future, the Client’s wishes being
upheld and you stand a better
chance of winning the probate
Certainty Will Search
Helps prevent an incorrect
distribution through checking the
register and performing a national
search for unregistered Wills.
Certainty TOUCH
A Willbank management system with
integrated marketing capabilities
helps strengthen client loyalty
Certainty Protects You – 3 Key Services
3 Essential Services
Will Search
• Understand why Probate and Estate Administration is safer with Certainty Will
Search
• Learn how to do a Will Search
Will Registration
• Understand why registration makes legal and commercial sense
• Learn how to register a Will
‘TOUCH’ – Will Management System
• Understand why the Certainty TOUCH Will management &
marketing system is indispensable to your business
• Familiarise yourself with your Certainty member account and
understand the benefits of Certainty membership
A fast-track training course so that you can immediately use Certainty’s 3 key services:
The History of Will Search
Q. In what circumstance would a solicitor not search for a Will?
A search for a Will should always be made unless there are exceptional circumstances, for example,
concrete evidence that the deceased did not make a Will, such as a suicide note saying as much or
evidence of an oral Will made by a serviceman on active duty - s.10 Wills Act 1837.
Q. So why haven’t probate professionals searched historically?
Prior to Certainty, they were in a difficult position. The absence of a rigorous Will search system had made it
impractical to carry out a fast, comprehensive and effective search.
Research confirms that probate professionals felt that searching for a Will was;
• cumbersome
• time consuming
• expensive and a problematic process
Wrongful intestacy and uncertainty as to whether the last Will was distributed without accountability.
The challenge was to provide the solution to a historic problem which affects both the public and the
profession, ultimately probate specialists have never been held accountable for such actions as there had
never been a product to disprove intestacy, therefore it has been allowed to go unnoticed.
Would you;
Q. Buy a house without performing a Land Registry Search?
Q. Buy a used car without an HPI check?
You
Avoid
Negligence
claims
Improve your
risk profile with
insurers
Gives your
COLP comfort
Your client
Helps find
lost/untraced
Wills/demonstrates
a rigorous Will
search process
was undertaken
Protects (no
Will, later Will)
Certainty Will Search – why
Effective Low Cost Confidential Recommended
Best Practice
Approaching 5
million Wills
registrations
allocated within
the system
Searches for
‘Registered’
Wills and those
that have not
been registered
using a
Certainty
REACH search
Searches against
both Certainty
members, non-
member firms and
non-solicitors across
the UK
Recommended,
referenced and insurance
approved
Allowable
disbursement
of the estate
ranging from
£33 - £90 + vat
dependent
upon type of
search
Certainty never
discloses the
existence of a
Will
A ‘Searcher’s’
details are
passed to the
‘holder’ of the
Will – NEVER
vice versa
Used by: Referenced
in leading
legal texts Legal
Profession
Members
of the
Public
Treasury
Solicitor
Financial
Organisations, Banks,
Insurance companies,
Charities
Why?
Certainty Will Search – the first step
Does a Will or later Will does exist?
Ascertain entitled beneficiaries
Identify value and secure assets
Pay IHT if due
Apply for Grant of Representation or reseal Grant (if needed)
Receive Grant of Representation
Gather in Assets
Pay any debts
Distribute estate to beneficiaries
Suddenly a Will appears
here which affects the
way the estate should
have been distributed!
Will Search first – endeavour to ascertain if the deceased died intestate or testate or that you have the last Will
This could and does happen. Whether it does or does not,
a Certainty Will search provides proof that you
undertook an accredited process and
therefore helps protect you should an
issues arise after distribution.
Solicitor distributing the estate of an
ex-serviceman known to have been
based in 3 locations in the UK
“I am really seeking proof that I have
endeavored to ‘search’ for a Will,
please can you process a Will search
for...”
RESULT - No Will discovered,
solicitor receives report for file
confirming steps were taken to
search for a Will
Below are daily occurrences where Certainty Will Search finds Wills presumed the last or never
written!
Solicitor instigates a Certainty Will
Search - believed the deceased died
intestate but wanted proof of search
on record.
“The estate of Miss S**** J** S******
has been referred to us as it is
believed that the deceased died
intestate.”
Certainty Will Search – Case Studies
RESULT - The Certainty Will search
finds the Will – confirms deceased
died testate
Dear Sirs,
Re: S**** J** S****** (Deceased)
Thank you for your e-mail of 19th
December.
We confirm that Miss S****** was a client
of this Firm, and we completed a Will for
her on 16th October 2008. She left all her
Estate to Charitable Organizations.
We look forward to hearing from you.
Yours faithfully,
A major high street bank told client to
distribute the estate on an assumed
intestacy basis. Client was not happy
with advice and used a Certainty Will
Search
RESULT - Two Wills were found
with solicitors in Exeter – client did
not die intestate
Solicitor (non Certainty member)
holding a 2004 Will and a solicitor
(Certainty member) holding a later
Will dated 2008.
Solicitor's client knew their mother had
made a Will but just did not know
where.
Solicitor checked the Certainty
register and two geographical
locations in case the Will had not
been registered.
RESULT - Registered Will found
Certainty Will Search – best practice and protection
“You’re the family solicitor –
you’d know if there was a Will
wouldn’t you?”
What about
my duties to the
potential
beneficiaries?
Why does my client
NOT want to
search?
I’m at risk – the fact
you’re my client is
irrelevant
Are there any charity
donations on
bank statements?
Has a Will been
accidentally or
maliciously destroyed?
What makes family
believe
there is no Will?
I’m the family solicitor…
did she have wishes she
didn’t want me or her
family to know?
She may have used a
different solicitor if so…
‘Father’ lived in Birmingham
Worked in Coventry
Retired to Oxford
3 Towns – 3 Wills!!!
x Son said he left no Will & no papers found
Solicitor placed a Certainty Will search
x Client loved making Wills but did not tell new firm
or old firm that had done so
Certainty Will search found the 3 ‘latest’ Wills
Result – Correct Will went to probate
x Wrongful distribution on intestacy basis
x Danger old Will would have gone to probate
x Negligence claim from disgruntled beneficiary
x Testator’s last wishes not upheld
In reality, this is what can and does happen
What actually happened What could have happened
To be safe, when should I Will Search? ALWAYS
Intestacy? Probate – Will? Exceptional
circumstances?
Risk A will may exist and be found after distribution A later Will may be located after distribution
Risk Legal Ombudsman (LeO)
"As the Legal Ombudsman we understand that the primary
duty of the lawyer is to the Will and the executors; we
nevertheless expect lawyers to recognise that they have
some duty of care towards the beneficiaries, and at least
provide some level of information and service to them.”
Gill Steel:
“Can you seriously say that you are not in breach of a duty of
care if the estate is distributed and costs incurred on the basis
of intestacy when there was in fact a Will; or, in testate cases,
a later Will, you just did not find it?”
Thomas Dumont:
“Many solicitors already carry out a Certainty search as a
matter of routine, particularly if there appears to be an
instestacy.”
“It is therefore crucially important to the estate administration
that the solicitor should, on the client’s behalf, take all
reasonable steps to establish whether the client actually has the
last Will, or whether there is an intestacy.”
Certainty Will Searchers:
“As a profession we should not be administering an estate on
the assumption a Will was not written and without checks. ..If a
client is not sure whether a Will was written or not then
Certainty Will Search is a no brainer.”
Legal Ombudsman (LeO)
"As the Legal Ombudsman we understand that
the primary duty of the lawyer is to the Will and
the executors; we nevertheless expect lawyers
to recognise that they have some duty of care
towards the beneficiaries, and at least provide
some level of information and service to them.”
Gill Steel: “Can you seriously say that you are not in
breach of a duty of care if the estate is distributed
and costs incurred on the basis of instestacy when
there was in fact a Will; or, in testate cases, a later
Will, you just did not find it?”
Thomas Dumont: “There may be borderline cases
where the Will is a recent one, and the testator
well-known to the firm of solicitors. But even there,
it is notorious how often the elderly change their
Wills in the last years, and use new solicitors to do
so.”
Solicitor:
“It’s no longer feasible to administer an estate as
an intestacy just because a Will isn’t present. I
cannot presume that one was never written.”
Wills Act 1837 –
such as a suicide
note saying as much
or evidence of an
oral Will made by a
serviceman on active
duty
Deathbed Will
• How many of
these have you
had?
Solution Protection for you & your client - Certainty provides a
demonstrable process that everything that can be done, has been
done.
Above all else testamentary freedom is preserved
Protection for you & your client - Certainty
provides a demonstrable process that everything that
can be done, has been done.
Testamentary freedom is preserved
No need
Certainty Will Search – 3 types of Will search
A ‘Register’ Will Search, performs a search of the Certainty National Will Register (registered Wills) £33+vat
Certainty ‘Register’ Will Search
1
REACH checks for Wills that have not been registered by connecting all firms that undertake Will writing. REACH system sends out an alert to solicitors in the areas in which the deceased was most likely to have made their Will ie where they have lived and worked (unregistered Wills) £71+vat
Certainty ‘REACH’ Will Search 2
All searches maintain client confidentiality and are Basel Convention Compliant. Proof of death must be provided to the solicitor prior to the existence of a Will being disclosed.
A Certainty Will Search Cover performs a Register search, a REACH Will search and places a notice on the Certainty Missing Will Register £90+vat
Certainty ‘Combined ’ Will Search 3
How do you Search for a Will?
Log into your
membership account
at
www.certainty.co.uk
“Solicitor Login”
Click
“For Solicitors”
Will Registration - Let’s move onto Will Registration
You and your client
• Why you should advise your clients to register their Will
The Issues
• What if a later Will is not registered? Will Search Combined
• Client mentality = once registered - will always register
Business benefits
• Boomerang or stick Probate?
•Client is less likely to write a Will elsewhere because it is registered with you
How to..
• Practical demonstrations of how to register a Will
• How the unique Certainty Will Registration Certificate works for you and your client
• The “Missing Wills Noticeboard” and how it can bring in new business and revenue
•One Will is registered with Certainty every two seconds at peak times
•Approaching 5 million Wills are allocated to the system
We have a dedicated CPD accredited online training seminar on Will Registration - you can register at the end of this session
Will Registration – business benefit, returning probate work
Is the future probate work from the Wills you draft more of a ‘stick’ or a ‘boomerang’?
If a Will is not registered you may
not be found by the beneficiaries as
the writer and holder of the Will -
therefore you may not receive the
opportunity to win the probate work.
A registered Will is one which the
beneficiaries can locate through a
search giving you the opportunity to
win the probate and removing the
chance that someone else deals
with it as an intestacy matter.
An ‘unregistered’ Will
Write the Will and hope to
receive the future probate work
A ‘registered’ Will
Taking steps to ensure the
future probate work returns
When a search takes place the searcher’s details are passed to the holder of the
Will to authenticate, i.e. sight of Death Certificate, searcher has genuine interest
Business
Benefits
Stops any
disconnect
between you
and your
clients and
strengthens
client loyalty
Extends value
of your Will
package
You can incorporate the value of
each registration into your Will
writing package (integrate a small
admin fee if you wish). This makes
Certainty AT LEAST cost-neutral,
whilst locking down the full lifetime
value of your client
91% of a law firm’s clients register
their Wills when asked
You can register your existing
Willbank free of charge.
Certainty members report that on
average 22% of existing clients
asked to rewrite their Will when
they were told that their Will had
been registered or if they were
asked if they wanted to register
their current Will
New Existing
Will Registration – Why?
Reduce risks
presented by lost
or untraced Wills
Avoid Risk of
Negligence
Claims
Confidential
and Secure
Registration
upholds client
confidentiality
Certainty never discloses
the existence of a Will.
A ‘Searcher’s’ details are
passed to the ‘holder’ of
the Will – NEVER vice
versa
Quick & Simple
Process
It takes around 90
seconds to register a Will.
When a Will is registered
a Will Registration
Certificate is produced
that can, if wished be
emailed to the client.
User friendly process –
only client’s name,
address and date of Will
are required although you
can chose to add
additional information in
the fields provided.
Good for the
Client
Preserves
testamentary freedom
Peace of mind that the
Will and the holder of it
can be located in the
future
Protects against fraud
through malicious
destruction of a Will
and claims that a Will
was never made
Why?
Why should I advise my clients to register their Will? Protection
Avoid a negligence claim – Thomas Dumont
• “It will be clear, from what I say below, that solicitors (and other will writers or probate practitioners) are at serious risk of
being found negligent, and potentially paying out substantial damages, for not offering the client the option of registering the
Will with Certainty, and for not making, or responding to, a Certainty search.”
Specifically on Will Registration – Thomas Dumont
• “Registration with Certainty ensures that the Will has the greatest chance of being admitted to probate, and therefore the
greatest chance that the gifts set out in it will reach the testator’s heirs.”
• “..the argument that giving advice about registration with Certainty is a part of the standard duty of care of a
competent will-practitioner is a relatively easy one to make.”
What about historic Wills? – Thomas Dumont – Certainty has been in existence since 2008!
“...a solicitor is in a much more difficult position in relation to more recent, unregistered Wills. Wills, that is, which were made
after Certainty achieved wide-spread publicity through the legal profession..solicitors may now hold Wills in respect of which
they were negligent in not advising the client consider registration. The issue is not simply one which needs to be confronted
in relation to Wills yet to be made.
Solicitors should therefore carefully consider the risks involved in not registering Wills created in the past 3-5 years. There
must be a very serious risk that – at least in relation to the more recent of them, and possibly in relation to them all – a court
would find the firm negligent for failing to advise the client about registration, when the Wills were made.”
Good for you – good for your client
• Your Client’s Will is found and you secure the probate work.
• 98% of solicitors agree their Willbanks contain documents where the testator is deceased or moved away.
• There are nearly 5 million Wills within the system – current growth indicates this figure will rise to around 6 million during
2015.
Referred to in The Law Society’s ‘Probate Practitioners Handbook’ 6th Edition & 'Tolley’s Administration of Estates’
• “If there is no registration with Certainty and the last Will is not found following death so
the incorrect Will is proved it will be very difficult in practice to argue that the failure to
give advice about the simple and cheap act of registration was not a negligent
omission.”
• “The duty to advise about registration is owed directly to the testator and through the
testator to the testator’s estate. On the basis of White v Jones a duty is also owed to
the beneficiaries.”
Gill Steel – LawSkills
Gill Steel, LawSkills – Will Registration - Commentary on the Opinion
Summary – Not registering a Will – is it worth the risk?
Avoiding negligence
“..the argument that giving advice about registration with Certainty is a part of the standard duty of care
of a competent will-practitioner is a relatively easy one to make.”
Alan Blok, Principal Mulcare Jenkins Solicitors – “Certainty has been of great benefit, not only for
the search facility that is offered, but also because clients who make Wills with us are almost
unanimously in favour of a centralised Will registration scheme, and are more inclined to leave their
original Wills with us, as there is less risk of the Will not being found by close relatives when it is
needed. We also feel we are more likely to get the opportunity to work with the next of kin in connection
with the administration of the estate, and further spin-off work”
Naomi Pinder, Quality Solicitors Jackson and Canter – “When we make a client’s Will, registering it
with Certainty provides an added safeguard against the risk of its loss. We also store the original
ourselves against the risk that a family member might find it, realise they were excluded – and destroy it.
Has that happened? Nothing I could prove, but I have suspected it over the years. I have had calls from
desperate people asking “Have you got the Will?”
Good for you Good for the client
Your firm gets the probate work Client’s wishes carried out and peace of mind
Legal professionalism & competitive edge PDF Certificate provided
22% of a law firm’s clients ask to rewrite or review their
Will when offered a free Will Registration
Avoid family disputes
98% of solicitors agree their Willbank contains
documents where the testator is deceased or deceased
or moved away.
Avoid costly probate litigation
Remove the risk of lost, misplaced or destroyed copy Wills
Remove the risk of family member fogetting where the Will is
Remove the risk of house moves and life changes disconnecting you from your clients
Remove the risk of firm closures, interventions and mergers disconnecting you from your clients
If the Will is registered it will be found!
67% of family members say they wouldn’t know where to find a parent’s Will
Protection against fraud
91% of clients will register their Wills when advised by their solicitor
How do you Register a Will?
Log into your
membership account
at
www.certainty.co.uk
“Solicitor Login”
Click
“For Solicitors”
Will Registration – Certificate of Registration
Most Members report clients
appreciate this optional form
It confirms their instructions have been completed
They can give copies to Executors
Members report referrals from
Executors
TOUCH – The true lifetime value of a client
We will look at:
How easy it is to use a proven system that is already adopted by thousands of
Solicitors in the UK.
• Your new TOUCH Will management system with integrated marketing
and how it can deliver new business for you
• Re-igniting relationships with existing Will Clients by offering free Will
Registration
• How to effectively combat increasing competition from outside the
profession
• View the suite of useful precedent letters included and ready for
immediate use
Just so you know…
We have a dedicated CPD accredited training seminar on TOUCH
You can register at the end of this session
TOUCH Will Management & Marketing
• Understand why Will Search is essential for you and your Clients
• Understand how Will Search services are offered and how to access them
• Understand the different types of searches and how to do them
• Mitigate the risk of a Will – or a more recent Will - coming to light after estate distribution is complete
and avoid a negligence claim
• Understand why Will Search Processes help your firm to improve your Risk Profile with your
Professional Indemnity Insurers
Training outcomes
Today you have completed your ‘Certainty in a nutshell’ Training.
Will Search
• Register a Will
• Understand why our Members register their Clients’ Wills
• See how your Clients and your Firm benefit from Will Registration
• Understand the importance of the “Will Registration Certificate” and the “Missing Wills Noticeboard”
Will Registration
• Make the most of TOUCH Client management system which is included in your Certainty
Subscription
• Re-ignite relationships with existing Will Clients by offering free Will Registration
• Understand how to effectively combat increasing competition from outside the profession
• Understand how to benefit from the suite of precedent letters included ready for immediate
use
• Discover how to quickly communicate with your clients about relevant and targeted topics
• See how easy it is to use a proven system that is already adopted by thousands of Solicitors
in the UK
TOUCH
Next steps....
• Make Certainty Will Registration and Will Search part of your file opening checklist/protocol
• Make Certainty Will Registration and Will Search part of your compliance checklist/protocol
• Include Certainty’s Will Search and Will Registration services in your client care letter
• Start registering your historic Wills – it is free to register these
• Check your Certainty list of users is up to date (have you included users from ALL of your
offices/branches?)
• Have all of your team attended this “Certainty in a Nutshell” webinar?
• E.g. Many of our Member firms offer this training to their Managing Partner and COLP
• Have you and your colleagues registered for further training?
• Are you making the most of your Certainty membership?
• Include Certainty Services in your marketing/advertising initiatives – for example, update your
website, write to clients and tell them they can register their Will for free
• Follow us on social media – twitter and linkedIn
Thank you for your time and joining the seminar today.
Please email any questions you may have to info@certainty.co.uk
If I or my team can be of any further assistance please do not hesitate to
contact me or call me on 0845 408 0404
NB If you need to Will search or need advice on a particular matter
that you are dealing with please do not hesitate to call me or the Will
search team on the number above
Dates for your Diary for your next training
• Book your training through your account “Support >
Training Videos > Training On Demand”
Getting started...
• In your Certainty Account to Start a Search: “Wills >
Missing Will Search”
CPD and feedback.
Shout if you need help
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