Mrs. Sybil Gordon (Hansard, 21 January 1986)

§ Mr. Jim Lester (Broxtowe)

I am pleased to have the opportunity at a comparatively reasonable hour to refer to the constituency case of Mrs. Sybil Gordon and the advice she received from the Nottingham probate office. This is one of those cases on which a Member feels so strongly that he continues—this is the fifth time I have applied for an Adjournment debate since 5 November—to press for a hearing in this ultimate Chamber, the House of Commons. I welcome this Adjournment debate because this matter needs to be settled. It covers events that have taken place since 1982. I have made at least three attempts in correspondence with the Lord Chancellor, in addition to Mrs. Gordon's efforts, to solve this problem.

Mrs. Gordon's experience is by any standards a real tragedy in that her son Malcolm David Cameron Gordon and her grandson, Gerald David Gordon, aged seven, died together in a road accident in June 1982. Her son, who had been divorced and had not remarried, died intestate along with his only dependant. At this time, Mrs. Gordon needed help and support during what we would all recognise was, by any standards, a dreadful tragedy.

Luckily, a friend of the family, a retired auditor, Mr. Harold Lipman, helped to sort out the legal position regarding Mrs. Gordon's son's estate, especially in terms of paying his funeral expenses and debts. Mr. Lipman has proved a valuable witness to the course of events which he described in a letter to me dated 30 May 1985 in response to the first refusal that I had from the Lord Chancellor to consider this case, based on the fact that the Nottingham probate office does not give legal advice. The probate office not only gave her advice up until the last contact with the Ipswich probate office, who gave Mrs. Gordon's daughter-in-law the correct advice two years later, but continued to maintain its original position that she could not make a formal application for settlement of her son's estate, when in fact this was the correct legal position. As Mr. Lipman stated in his letter, the basis for Mrs. Gordon's complaint against the probate office is that she made a claim in 1982 to the Nottingham probate registry for the purpose of taking out letters of administration to settle her son's estate. It is clear that the advice she was given at the time was that she was not allowed to do so. She was told that only her grandson's mother could do this and that the estate had nothing to do with her.

Mr. Lipman states that Mrs. Gordon, whom he had known for many years as a retired teacher, had made an accurate statement to the probate office of the circumstances when she asked permission to take out letters of administration on her son's estate. He confirms that, within a week or so of Matthew's death, he spoke to the Nottingham probate registry describing all the relevant circumstances. The lady to whom he spoke informed him that Georgina, the son's former wife, would inherit the estate via her small son, Joe, and that she was the person who needed to register the letters of administration. He says that she was definite about that.

Some time later, Mrs. Gordon was understandably distressed because the estate was still not being administered and the undertakers were asking for payment 282 of the funeral expenses which she had guaranteed. Mr. Lipman, as a neutral person, spoke to the Nottingham probate registry. He spoke to the same lady who, he said, was quite short with him, saying that the estate had nothing whatever to do with Matthew's mother. It concerned only the ex-wife through her young son. This corroborates the correspondence that I have had from Mrs. Gordon. I have deliberately referred to Mr. Lipman's letter because I believe that he was a neutral observer.

In 1984 when, Mr. Lipman went with Mrs. Gordon to the probate office, two years after her son's death, the official who had dealt with the application said that the lady who had given the advice had left the probate office to be a senior registrar in Manchester. She was therefore still known and traceable.

The basis of the Lord Chancellor's rejection of Mrs. Gordon's claim of harassment, difficulty and distress has been that the registry staff has no responsibility to give legal advice. The registry staff may say, "It is not our business to give legal advice. We should advise you to go to a solicitor. We can give you guidance on how to register a complaint." That is reasonable. It is clear that, in this case, from the beginning, the probate registry staff told Mrs. Gordon and Mr. Lipman that there was no question of Mrs. Gordon being able to register the letters of administration.

Over a period of two years, Mrs. Gordon suffered considerable distress because her relationship with her former daughter-in-law deteriorated. The former daughter-in-law's solicitor notified Mrs. Gordon that he was trying to get the superannuation available to her via the young boy and that settlement of the estate would depend on whether the ex-wife gave the nod. The solicitor told Mrs. Gordon in no uncertain terms that she had no claim on the estate.

I must point out that Mrs. Gordon was seeking no claim on the estate in a material sense; she was merely distressed that her son's estate was not being cleared according to the law and concerned about whether his debts were being properly paid. Subsequently, the former daughter-in-law changed her solicitor. The new solicitor applied on her behalf to the Ipswich probate office for the letters of administration.

He was given what has subsequently turned out to be the correct advice which was that the ex-wife had no claim on the estate because the grandson was under 18 years of age and the only person who could settle the sad matter was the mother.

When Mr. Lipman and Mrs. Gordon returned to the Nottingham probate office, the staff confirmed that they remembered the case. When Mrs. Gordon told them the advice she had been given by the Ipswich probate office, they refused to believe it. It was finally left that the Nottingham probate office would ring the Ipswich probate office to corroborate the correct legal advice. That was two years after the event. Immediately after that they invited Mrs. Gordon and Mr. Lipman to come to the Probate Office and take out letters of administration to settle the difficult and sad matter. Mrs. Gordon had faced two years of misery in finalising her son's estate.

It is clear that after two years people have forgotten the advice they were given and it is difficult to trace those who gave the advice. However, I submit that there are not many cases submitted to probate of such gravity, where a person loses both her son and grandson in a road accident. It is clear from Mr. Lipman's evidence of the approaches that 283 he made that when Mrs. Gordon approached the Nottingham probate office she was given clear advice that she had no claim on the estate and she was not encouraged or allowed to register her case which eventually proved just and legitimate.

Having suffered the long period of distress and difficulty and having lost the relationship with her ex daughter-in-law, Mrs. Gordon feels aggrieved. If she had been given the correct advice, or even no advice at all and told that it was not the role of the probate office to advise or suggest any course of action and that she should consult a legal adviser who was knowledgeable in complicated matters of probate law, the matter may have been settled more easily. That was not the case. I am satisfied that all the correspondence I have seen and the events I have described to the House are accurate.

There may be a secondary case that Mrs. Gordon did consult a solicitor in Beeston who gave her the same sort of advice as the probate office. Therefore, it was not unreasonable for Mrs. Gordon to proceed with energy to finalise the problem when on two occasions at the Nottingham probate office, on one occasion from a solicitor and under pressure from her ex-daughter-in-law's solicitor, she was given the wrong advice. I am convinced that if she had been told to seek advice from a legal adviser or if the probate office had taken the trouble to consult its own legal records, as the Ipswich probate office did, the subsequent trouble and distress would have been avoided.

I understand why people who are not qualified—that certainly covers the probate office — should not give legal advice in such cases. As I understand the principle established by the case of Hedley Byrne and Company Limited versus Heller and Partners Limited, it is not unreasonable, when officials or officers are seen to have special knowledge of the law, and are seen by laymen to be in that position, to expect them to understand that the advice they give is likely to be accepted and that they should be held responsible for it. I submit to my hon. and learned Friend that this case is clearly within that principle. It seems to be beyond doubt that the Nottingham probate registry was not advising Mrs. Gordon on how to complete the necessary forms. Instead, it was advising her on her legal position as it saw it. That continued for over two years until it verified by telephone the alternative legal advice that was given by the Ipswich office.

I contend that it would be reasonable for the Lord Chancellor to accept that in addition to the grave tragedy of losing both a son and a grandson, which few of us can envisage, Mrs. Gordon suffered sadness and distress, and unnecessary distress, over two years in the settlement of her son's estate.

In this case there have been at least three applications to the Lord Chancellor and much correspondence to him as well as this Adjournment debate. Against that background, I ask my right hon. and learned Friend whether the case could not be reopened and considered in the light of the circumstances that I have spelt out to the House, with a satisfactory solution arrived at for Mrs. Gordon in view of the great sadness and distress which she has, in my view, suffered unnecessarily.

§ The Solicitor-General (Sir Patrick Mayhew)

My hon. Friend the Member for Broxtowe (Mr. Lester) has brought to the attention of the House a complaint made by his constituent, Mrs. Gordon, which concerns the staff of 284 Nottingham probate sub-registry. My hon. Friend, as all who know him would expect, has shown great assiduity in furthering the cause of his constituent and her desire that her grievance should be considered further and should find redress.

The matter comes within the departmental responsibility of my right hon. and noble Friend the Lord Chancellor and I, accordingly, have been asked to respond on his behalf. My hon. Friend has outlined the sad circumstances and events which befell members of Mrs. Gordon's family in June 1982. It is impossible to hear of them without great sympathy for Mrs. Gordon on that account.

Mrs. Gordon's son died intestate and his estate therefore devolved in accordance with the rules relating to intestacy, which are set out in section 46 of the Administration of Estates Act 1925. Her son had been married and had one seven-year-old son, but was divorced in May 1979. That meant that his former wife could not have inherited his estate directly. At the time of his death he had not remarried. Mr. Gordon's only child died in the same terrible accident in which he himself perished.

For the child to inherit his father's estate, he would have had to have survived his father until he reached his 18th birthday, or have married before attaining that age. As the little boy was only seven when he died, Mrs. Gordon was by law the only person who was entitled to inherit her son's estate. She was, therefore, the only person who was entitled to obtain a grant of letters of administration to his estate.

After the tragic death of her son and grandson in 1982, Mrs. Gordon was helped by a Mr. Lipman. As my hon. Friend has said, Mr. Lipman is a professional man. He is a retired auditor and a friend of the family. He telephoned solicitors in Mansfield and was told that Mrs. Gordon's son's estate would pass to his former wife via their son, Joel.

That advice was based on the assumption that the so-called law of commorientes—that is, persons who died apparently simultaneously with one another—applied in this case. That law, as now contained in section 184 of the Law of Property Act 1925, concerns the situation in which two or more persons die on the same occasion in circumstances in which it is not possible to ascertain who died first, as in a fatal car accident. In cases in which this doctrine applies, the persons who have died are deemed to have died in order of seniority—that is, the oldest first and the youngest last.

The law of commorientes, however, was irrelevant in the circumstances of the deaths of Mrs. Gordon's son and grandson because at the time of his death Mrs. Gordon's grandson was only seven years old and therefore could not have inherited his father's estate at all. The estate therefore could not pass via the little boy to his mother. If the solicitors' advice was as stated, it was therefore misleading. Mrs. Gordon was the only person entitled to her son's estate.

Mr. Lipman subsequently telephoned the Nottingham probate registry and he says that he was told that Mr. Gordon's former wife was the only person entitled to his estate. Mrs. Gordon then contacted the solicitors and was advised to make an appointment at the Nottingham registry. It is not possible now to establish exactly what was said to Mrs. Gordon by the registry staff or what information she supplied to them. It is clear, however, that 285 after her attendance at the registry Mrs. Gordon believed that her former daughter-in-law was the only person entitled to her son's estate.

Some time after she visited the probate registry, Mrs. Gordon was again told by solicitors that she was not entitled to benefit from her son's estate. She has stated in a letter that she did not attend the probate registry to obtain legal advice. It is therefore reasonable to assume that it was because of the advice given to her by solicitors that she refrained thereafter from making a formal application in 1982.

Mrs. Gordon eventually obtained a grant of letters of administration in June 1984. The basis of her complaint is that she has suffered by reason of her acceptance of advice that she says was given to her by the staff of Nottingham probate registry.

As my hon. Friend fairly acknowledges, the staff of district probate registries are not solicitors but civil servants employed by the Lord Chancellor's Department. They may advise members of the public on the procedure relating to grants of probate or letters of administration, but they must not give legal advice and they are not qualified to do so—that is the function of solicitors or barristers. Not only is it not the responsibility of registry staff to give legal advice, as my hon. Friend has said, but they are instructed that they are not to do so and it is therefore their duty not to do so.

Owing to the passage of time, it has not been possible to establish clearly what was said by the staff of the 286 probate registry to Mrs. Gordon or even what information she gave to them about the personal circumstances of her son at the time of the accident. It is clear, however—and it is only fair to acknowledge this—that there is no reason to doubt the good faith either of Mrs. Gordon or of Mr. Lipman. Mrs. Gordon may well have been left under the impression that one or other of them—either she or Mr. Lipman — had been given well-intentioned but wrong advice which confirmed the advice that she had been given by two firms of solicitors.

The Lord Chancellor is not and cannot in the circumstances be convinced that the registry staff exceeded their duties and, therefore, he cannot accept liability in this matter. Nevertheless, he is willing to instruct his officials to consider the complaint once again. If Mrs. Gordon is willing to discuss the matter with them, arrangements will be made for those officials to consider her complaint afresh with a view to reaching a solution which would be satisfactory to her.

I am grateful to my hon. Friend for having raised the matter. I know that he has tried to do so on at least a couple of occasions, and I hope that the suggestion that I have made, on the authority of the Lord Chancellor, will satisfy him and will demonstrate to Mrs. Gordon that her Member of Parliament has effectively brought the matter before the House of Commons, and that that has led to a further inquiry into her understandable grievance.