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