Possible Negligence by Executor Solicitor

thegreenone

50_Hertz said:

I know she's very worried. I have a contact in the village where the house is located. He has photographs / CCTV of her there helping to clear debris and throwing sodden plasterboard sheets into a skip. Not the behaviour of a solicitor who's comfortable with their actions. 

Definitely not the actions of a solicitor.  Is the footage dated?

As above, when I phoned my late Mum's insurance co. I was told exactly the same:  drain it or keep the heating on.  It was winter and I needed to empty the flat so I opted to keep it on.  If I understood that, as an Executor, then the Solicitor should have too in their role as Executor.  It's not rocket science. 

Good luck.

50_Hertz

doodling said:

Hi,

If you have taken legal advice then there isn't much more any of us can add but I am slightly confused as to why the existence and terms of any insurance have any relevance to the solicitors liability.

Either the solicitor has taken reasonable precautions against burst pipes or they haven't.  If they have taken reasonable precautions then they are not liable, if they haven't then they are negligent.  Whether or not an insurance policy is in place feels like a complete red herring.

Your action would be to sue the solicitor for £55k on the basis that they didn't take reasonable steps to protect the assets in their care  The success of the case would depend on the reasonability of the actions taken by the solicitor.  None of that is anything to do with any insurance.

The only reason why anyone would be interested in the insurance is if they have decided that the terms of that insurance somehow determine what steps are reasonable - that doesn't feel right to me.  If insurers are determined to be the arbiters of reasonable steps then the details of any similar insurance policy would do, not the specific one in this case.

I suppose that the solicitor could claim that they didn't know that they had to protect the pipes from freezing and therefore the case should rest on the information provided to them by their insurers but personally I think that stretches credulity.

I think the insurance Ts & Cs are pivotal. She has sent a letter to me saying the reason that the estate must pay is because the insurers "do not cover a leak from a source water supply." I think that bit is true, most don't. However, there is almost certainly a requirement for the water supply to be turned off and the system drained between October and April. The senior partner in the firm let this slip in a meeting. As soon as I asked the question, "why wasn't it shut off" they all but threw me out the door and accused me of looking for someone to blame for an "accident". 

My logic is, if the water was shut off and the system drained, there can be no water leak. If there is no water leak, there can be no damage. The solicitor is refusing to cooperate, so I can't get hold of those Ts & Cs, which are needed to demonstrate potential negligence. As a person putting themselves out as a professional executor, there is a higher expectation on the to be aware of and to adhere to the Ts & Cs than there would be on you or I.

I have been advised that it could cost up to £9000 to obtain a court order demanding that she hands over the insurance information. She won't even tell me the name of the insurance company and certainly won't show me the letter from the insurers setting out the full reasons for rejecting the claim. I know damn well she's screwed up, but it's so hard to get hold of the information needed to demonstrate the fact.

50_Hertz

BooJewels said:

50_Hertz said:

[Snip]
I know she's very worried. I have a contact in the village where the house is located. He has photographs / CCTV of her there helping to clear debris and throwing sodden plasterboard sheets into a skip. Not the behaviour of a solicitor who's comfortable with their actions. I'm trying my best to stress her and I think it's working. I'll move on an attempt to obtain the insurance when the time is right. At the moment she's taking the rope and hanging herself quite nicely.

That has to be one of the most bizarre things I've heard of any solicitor doing in the execution of an estate.  I've sold 2 Estate properties recently and getting them to even lift a finger was a constant battle - we thought they must live in an alternate version of the space time continuum.  They had a whole different understanding of words like expediency and urgency.

I hope she's not billing the estate for her time spent lobbing wet plasterboard at solicitors hourly rates.

Quite unbelievably, she has stated an intent to bill the estate for her time clearing up the mess she has made of things. She clearly thinks it's ok to profit from her own potential incompetence. She was only there clearing up because she's worried. 

50_Hertz

BooJewels said:

@doodling - I fully get the insurance aspect and believe I've posted earlier in the thread about it - might even have pasted the wording from mine.  In the 2 estate properties I've cleared and sold (and my sister has an empty property she's currently selling with the same terms), it was a condition/endorsement of unoccupied property insurance that either the water was drained from systems or that the heating was left on with a specified minimum temperature on the thermostat. There were other details about leaving internal doors and loft hatches open to allow warm air to circulate. They both also required the property to be checked weekly and a log kept of such visits.

So either the solicitor didn't advise the incumbent insurers that the property was unoccupied, or they didn't meet the terms for such a property.  Accidents can always happen - but the measures I outlined above would either mitigate the likelihood or ensure it was discovered before as much damage had occurred. 

As an executor has a duty to protect the estate's assets, then insuring the property and meeting the terms of such a policy is their responsibility.  Presumably that's why the insurers have refused to pay the claim, as the terms of the policy weren't met.

Perfectly put. That's it in the proverbial nut-shell. 

She knows the insurance Ts & Cs are going to sink he and that's why she is refusing to cooperate.

Interesting point about visiting frequency. All policies of this type that I have been able to download require a visit at least once every 7 days. I can prove from Met Office data  and CCTV that it wasn't visited for a period of 16 days prior to the water leak being discovered. She has lied about a visit being made in the middle of the 16 day period, but when I told her that the Met office data and the CCTV suggests that's not true, she put the phone down on me. I wasn't rude, I just stated the facts in an even tone.

I'm hopeful that I'll win this, but it's very messy. Causing as much professional damage to the solicitor as possible has become more important to me than the money. I feel l have to do this for my friend.

50_Hertz

Grumpy_chap said:

50_Hertz said:

The estate consists of the house and other assets such as investments and personal items. The Will states that the house is to be sold, all other assets liquidated and added to the proceeds of the house sale and then distributed. 

I am the only beneficiary.

I have approached 3 firms of lawyers. The first stage is to obtain the insurance information so that an assessment of any potential negligence by the solicitor can be made. The cost of this is circa £9000. If negligence is identified, and litigation against the solicitor is initiated, the eventual cost could easily exceed the loss to the estate and there is no guarantee of recovering those costs, even if successful. My judgement at this stage is that this route isn't viable.

I am currently pursuing an alternative method of extracting the insurance information. If that works, I'm confident that I will have evidence of negligence and maybe the wilful fostering of a misconception. I'm sure she has lied to me in a letter regarding the insurers reasons for rejecting the claim. It just doesn't add up and it's likely this is the reason she is fighting so hard to stop me seeing the insurance policy and Ts&Cs. I guess it could potentially be career ending if it all comes out.

I know she's very worried. I have a contact in the village where the house is located. He has photographs / CCTV of her there helping to clear debris and throwing sodden plasterboard sheets into a skip. Not the behaviour of a solicitor who's comfortable with their actions. I'm trying my best to stress her and I think it's working. I'll move on an attempt to obtain the insurance when the time is right. At the moment she's taking the rope and hanging herself quite nicely.

If you inherit the full value of the Estate, then the £55k is a loss to the amount that you will inherit.

It may be prudent to keep your own counsel for now and let the Solicitor / Executor get on with the job of winding up and distributing the Estate.  Any conversation, indication of challenge etc now will only likely add delay and costs to the Solicitor's fees which will all be deducted from the Estate.

Once you have the proceeds distributed as per the Will in your account, you can then assess whether there are (demonstrable) grounds for a claim with plausible chances of success.

Out of interest, if this is a relatively simple Estate with sole beneficiary, why is there a Solicitor acting as Executor?  Was the Firm of Solicitors stipulated in the Will?  
Typically, with such a simple distribution, the sole beneficiary would also be the Executor.

My deceased friend's Will names the firm of solicitors as the executors. I have an email from him telling me what he'd done and how he thought it would save me expense and time. That really upsets me because I didn't realise what power the solicitor has if they screw up in this way. I could have advised him if I was a bit more savvy at the time. Put crudely, they can use the corpses of our family and friends as shields to protect themselves from fair and proper scrutiny. He'd have despised that.

It's certainly a cautionary tale that more people should be aware of.

50_Hertz

thegreenone said:

50_Hertz said:

I know she's very worried. I have a contact in the village where the house is located. He has photographs / CCTV of her there helping to clear debris and throwing sodden plasterboard sheets into a skip. Not the behaviour of a solicitor who's comfortable with their actions. 

Definitely not the actions of a solicitor.  Is the footage dated?

As above, when I phoned my late Mum's insurance co. I was told exactly the same:  drain it or keep the heating on.  It was winter and I needed to empty the flat so I opted to keep it on.  If I understood that, as an Executor, then the Solicitor should have too in their role as Executor.  It's not rocket science. 

Good luck.

Yes, I have it. There is a date on the CCTV. The neighbour who system it came from is a little nervous because he shouldn't capture footage outside his property. I'll respect that and don't want to drop him in the smelly stuff. 

doodling

Hi,

50_Hertz said:

doodling said:

Hi,

If you have taken legal advice then there isn't much more any of us can add but I am slightly confused as to why the existence and terms of any insurance have any relevance to the solicitors liability.

Either the solicitor has taken reasonable precautions against burst pipes or they haven't.  If they have taken reasonable precautions then they are not liable, if they haven't then they are negligent.  Whether or not an insurance policy is in place feels like a complete red herring.

Your action would be to sue the solicitor for £55k on the basis that they didn't take reasonable steps to protect the assets in their care  The success of the case would depend on the reasonability of the actions taken by the solicitor.  None of that is anything to do with any insurance.

The only reason why anyone would be interested in the insurance is if they have decided that the terms of that insurance somehow determine what steps are reasonable - that doesn't feel right to me.  If insurers are determined to be the arbiters of reasonable steps then the details of any similar insurance policy would do, not the specific one in this case.

I suppose that the solicitor could claim that they didn't know that they had to protect the pipes from freezing and therefore the case should rest on the information provided to them by their insurers but personally I think that stretches credulity.

I think the insurance Ts & Cs are pivotal. She has sent a letter to me saying the reason that the estate must pay is because the insurers "do not cover a leak from a source water supply." I think that bit is true, most don't. However, there is almost certainly a requirement for the water supply to be turned off and the system drained between October and April. The senior partner in the firm let this slip in a meeting. As soon as I asked the question, "why wasn't it shut off" they all but threw me out the door and accused me of looking for someone to blame for an "accident". 

My logic is, if the water was shut off and the system drained, there can be no water leak. If there is no water leak, there can be no damage. The solicitor is refusing to cooperate, so I can't get hold of those Ts & Cs, which are needed to demonstrate potential negligence. As a person putting themselves out as a professional executor, there is a higher expectation on the to be aware of and to adhere to the Ts & Cs than there would be on you or I.

I have been advised that it could cost up to £9000 to obtain a court order demanding that she hands over the insurance information. She won't even tell me the name of the insurance company and certainly won't show me the letter from the insurers setting out the full reasons for rejecting the claim. I know damn well she's screwed up, but it's so hard to get hold of the information needed to demonstrate the fact.

You've had legal advice so I can t add much but for what it is worth I remain of the opinion that the insurance aspect is a red herring.

The solicitor was responsible for looking after the property (I assume there is no uncertainty about that?).  Would the hypothetical person on the Clapham Omnibus think it reasonable to take measures to protect against freezing of pipes in an unoccupied house in cold weather?  If the answer is yes then the solicitor is liable, if the answer is no then they are not.  The presence of insurance and its terms are not relevant.

If this was an unforeseeable event like arson or vandalism then I would agree that the solicitor would be expected to insure against it and if they didn't then they would be liable to the same extent as an insurer would have been had a reasonably standard policy been purchased.

I think in this case the loss was foreseeable and therefore this case is about the existence of negligence, irrespective of the insurance.

tooldle

I think the insurance Ts & Cs are pivotal. She has sent a letter to me saying the reason that the estate must pay is because the insurers "do not cover a leak from a source water supply." I think that bit is true, most don't. However, there is almost certainly a requirement for the water supply to be turned off and the system drained between October and April. The senior partner in the firm let this slip in a meeting. As soon as I asked the question, "why wasn't it shut off" they all but threw me out the door and accused me of looking for someone to blame for an "

So, the supply pipe failed? Is there a scenario for this particular property where supply pipe failure can flood the property, despite internal systems being drained? 

Editing to add, I’m asking as the insurance have declined the claim stating the failure is not covered rather than, t&cs of policy have been breached.