LSRA complaint - executor reserving rights

[Confused2022]

My question relates to a complaint to the LSRA with regards to excessive costs and inadequate service provided by a solicitor in relation to the administration of an estate. In this case there were 2 executors, one a different solicitor at the same law practice as the defendant/ the solicitor who adminstered the estate and the second a beneficiary, child of the deceased. The beneficiary was advised by the law practice to reserve their rights as they resided abroad .

The rebuttal from the solicitor/defendant in relation to the complaint is that as the executor reserved their rights they are not legally entitled to complain as they are not a client of the solicitor. How should this claim be rebutted by the complainant? UK law under Scheme Rule 2.8(c) confirms that where the complainant is a beneficiary, they can complain about services provided to an estate, does this apply under Irish law?

 

[Noddyb]

I am a coexecutor. The solicitor repeatedly demanded in writing I swear a false ca24. He even went so far as to threaten me with legal action unless I swore the false oath. He also provided contradictory advice. I complained to the LSRA with evidence. Lsra sided with solicitor who provided LSRA with inaccurate, incomplete and misleading replies with no evidence that did not address the complaints. Solicitor then imposed a 815k lien for (failed) probate. If you read the LSRA Act part six you will note the Act contains no provision requiring the solicitor to address the complaints. LSRA confirmed this in writing to me. Also, if you read s209 of the Act, the LSRA enjoy and employ absolute impunity. They are accountable to no one. A violation of the Constitution. If you read their "quality charter " you will note at 2.5 pages it is shorter than a Noddy book. Lat week solicitor, still facilitated by the lsra increased his lien to 1.6m. Just because. LSRA = zero accountability = zero credibility.

 

[Article43]

The LSR Act 2015 (or their website) has all the details about who can submit a complaint.

A complaint for both inadequate services and misconduct was submitted to the LSRA in 2020 concerning a solicitor dealing with the administration of an intestate estate - the solicitor was engaged by one beneficiary who we will call the administrator.

The LSRA deemed the complaint inadmissible, as the complainant/s was not a client of the solicitor. The administrator did not sign the complaint.

This practice by the LSRA is widespread as noted by this journalist report.

://m.independent.ie/news/watchdog-hit-with-flood-of-complaints-about-wills/40913296.html

To cut a long story short, after many many weeks of research and investigation, the LSRA is incorrectly turning away certain beneficiaries of an estate - meaning any beneficiary who did not engage the solicitor, as the LSRA deems this beneficiary as not being a client of the solicitor.

The LSRA rely on case law based on a section 68 letter, where it was ruled by the court that the solicitor was not under any duty to provide a section 68 letter to anyone but the person who engaged him, meaning that the solicitor does not have to send a section 68 letter to the beneficiaries who did not engage him.

However, in the same court case, the court goes on to mention that this does mean that a solicitor does not have a duty of care to other beneficiaries for any other issues that may arise!

To get back to cutting it short - this issue with the LSRA incorrectly turning away certain beneficiaries is still ongoing, and if you think that you might be one such beneficiary, then feel free to post here.

There may well be a court case about this issue in the very near future, but of course when dealing with legal issues, something than should only take a month or so, can easily take years!

 

[Tinaop]

@Article43 - thanks for this interesting information. The situation I came across is that the deceased hired a solicitor to be their Executor and the Executor delegated to her family member also a solicitor within her practice to act on her behalf. The beneficiaries don't know the solicitors who have entire control over the estate and are not following the Will. Probably might also something LSRA would reject if the deceased is the client of the solicitor

 

[Article43]

If the deceased only had the solicitor named in the will as the executor, and no family member, then unfortunately the solicitor, or the firm he works for, have the power to administer the will without contacting any of the beneficiaries until the residue of the estate is ready to be distributed - the beneficiaries can complain after 1 year (the executor's year) if nothing is being done.

The solicitor has a duty of care to all the beneficiaries of the estate, and if they do not carry out their duties as per the law, then the solicitor can be sued by the beneficiaries.

In order to determine if the solicitor has done anything wrong, the estate accounts need to be checked, as they provide information in relation to the administration of the estate.

If the estate accounts are not forthcoming from the solicitor, then a beneficiary can request a copy of the probate, and a copy of the Inland Revenue Affidavit from the probate office - the Affidavit will show all assets and liabilities (expenses). The probate office will want to see proof that the beneficiary is mentioned in the will.

One needs to check everything before accusing a solicitor of wrong doing, but if something is done incorrectly it is usually very obvious, or usually discovered with a small amount of investigation. Very few solicitors will make a mistake or knowingly do something wrong, as the ramifications are very serious for the solicitor, but it does happen - just look at the LSRA complaints data for solicitors that are sanctioned every year.

In summary, don't accuse anyone of wrong doing unless you have all the facts to back up your accusations, especially a solicitor - it also helps to know a bit about what law relates to your issue.

Side note - unfortunately you won't see everything about the administration (letters to financial institutions, other communications, etc) of the estate in the Affidavit, but if the matter goes to a civil action, then the complete administration file can be obtained from the solicitor thru what is called the discovery process. The complete file can reveal information that might not help a solicitor's case, but as the solicitors's insurance company steps in once a civil action is issued against a solicitor, the solicitor has no option but to hand over the file, even if the solicitor knows some of the information might not be good for him/her (also by law the solicitor has to provide information that he/she knows won't help their case) hence why so few solicitors take a chance, but some do!

 

[Tinaop]

Has anyone had experience with making a formal complaint to the LSRA for an solicitor acting as an executor. The woman has effectively disappeared i.e. doesn't respond and has not distributed the estate nor provideded any account statement.

 

[Article43]

Do you mean the woman who disappeared is the sole executor and also the solicitor?

 

[Tinaop]

@Article43 exactly. The sole exeuctor is a solicitor. The LSRA have wrote that the executor-solicitor will charge from the residuary for responding to a complaint to the LSRA. Does anyone have any experiences of making a complaint about a solciitor to the LSRA as a beneficiary who never hired the solicitor

 

[HappyLuck]

Hi, My understanding is a beneficiary cannot refer a complaint to LSRA, as the beneficiary did not hire the solicitor, only the executor can hire a solicitor and thus the only person that can make a complaint to LSRA about the solicitor.
If the complaint is 'misconduct' you might need legal advice but if it is excessive fees or inadequate professional service, you will have to exhaust their own internal complaint system first.

 

[Article43]

There is currently an invitation from the LSRA to the Justice Department to consider if the current LSRA legislation needs to be changed to include a definition of "client", as outlined in the Solicitors ( Amendment Act) 1994

"client” includes the personal representative of a client and any person on whose behalf the person who gave instructions was acting in relation to any matter in which a solicitor or his firm had been instructed; and includes a beneficiary to an estate under a will, intestacy or trust;"

Of course, the Dept. of Justice are dragging their you know what, and unless it is pushed by questions in the Dail, it will probably take a very long time, or never happen.

The LSRA is incorrectly turning away complaints from certain benefiaciries, and they know it, as their current Head of Complaints, Investigations and Resolutions Department, was a former employee of the Law Society, and headed up the complaints section.

Previously, the Law Society allowed such complaints, and the LSRA are fully aware of this

 

[Tinaop]

@HappyLuck - Beneficiaries can definitely make a complaint to the LSRA but there are so many complaints by beneficiaries about solicitors who act as executors. The issue is when e.g. a solicitors office is family run - and the executor solicitor is related to the solicitor administrator who they delegate to this creates an obvious bias so one could be complaining about e.g. a father/son both solicitors working on the beneficiary case. The Executor (father) is still ultimately responsible and cannot delegate the fiduciary responsibility to the administrator (son) family member. The problem usually arises that the administrator starts fiddling with the numbers so complaining to the father about the son (example scenario) is hellish. The LSRA are clear that each individual solicitor must have a separate complaint submitted even if at the same family practice. The LSRA encourage to document everything methodically that you tried your utmost to resolve. The Executor father stays out and ignores the beneficiary to give the impression he has delegated the fiduciary duty away...