Freedom of Probate (Hansard, 5 February 1985)

§ Mr. Ken Weetch (Ipswich)

I beg to move, That leave be given to bring in a Bill to amend the Solicitors Act 1974, as it applies to England and Wales, to enable approved trust corporations to apply for grants of representation to the estates of deceased persons in certain non-contentious cases without the intervention of a solicitor. The Bill is a simple and limited measure, but it has important and beneficial implications. It seeks to bring about a simplification of, and improvement in, the procedures for obtaining grants of representation, the most important of which relates to applications for probate. Essentially, the main purpose of the Bill is to amend section 23 of the Solicitors Act 1974 in a way that will eliminate a restrictive practice which at present has statutory authority.

Every year thousands of people wish their wills to be executed by trust corporations. Usually, these are departments of banks and insurance companies which specialise in executor and trustee work. Many of these institutions are household names in the business and commercial world. When they act on instructions as executors or administrators, it can be said that they have generations of experience, expertise and specialist knowledge, and financial probity which is beyond doubt.

Unfortunately, when acting as executors or administrators under a will, trust corporations are obstructed by two restrictive practices which have statutory authority—the Non-Contentious Probate Rules 1954 and section 23 of that haven of restrictive practices, the Solicitors Act 1974.

In simple terms, trust corporations in thousands of cases do all the time-consuming and complex work involved in executing a will. For example, they can construct a balance of assets and liabilities, undertake all correspondence, make allocations to beneficiaries and settle most complex tax matters. In a sentence, they can do all the real work. The only thing that they are not allowed to do is to prepare the application form, which is a simple exercise. They are prevented from posting the application to the probate registry to be dealt with, which is an exercise even more simple than the first. Although this is one of the simplest tasks of all, and is straightforward clerical work once the details have been supplied, according to section 23 of the Solicitors Act the work must be completed, and the application made, by a solicitor. The solicitor's task is confined to copying information provided and posting the application.

752 All that is totally needless and indefensible. It is also expensive. If officials of the trust departments could make simple applications themselves, in an average case the consumer would be saved between £100 and £150. This would happen time and time again. The unnecessary framework of correspondence could be avoided, time could be saved and beneficiaries could receive more quickly what was due to them.

The Bill recommends nothing that is new in principle. The ground has already been well researched and explored from consumer and legal angles. The whole matter was investigated by the Royal Commission on legal services. Recommendation 19.3 reads: Trust corporations should be permitted, in non-contentious cases, to apply for grants of probate without retaining a solicitor for the purpose. Substantially the same recommendation was made by the National Consumer Council in its report on banking services and the consumer. I refer the House to section 11 of the report on executor and trustee services.

In recent years professional services have been brought under critical scrutiny by many people, including the present Government, and not before time. Some of the worst restrictive practices are within the framework of professional organisations in one form or another. The Bill continues this process of scrutiny. If the measure becomes operative, it will make dealing with probate matters in the circumstances that I have described cheaper, more cost-effective and quicker. The Bill promotes legitimate competition for the consumer.

Although the Bill represents a limited reform, it breaks an undesirable monopoly and a restrictive practice. It is the first step along the way to reform and improvement in a complex part of consumer affairs. I commend the Bill to the House.