Certainty in a Nutshell

1

Will Registration

Will Search

Will Management

CPD Accredited Webinar

• Your presenter today is Adrian Flower who 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

WELCOME

Certainty In A Nutshell

Quick Facts

• Certainty is used by over 4,500 solicitor

members

• 1,000 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

Certainty In A Nutshell

22% Of law firms’ clients ask to

rewrite or review their Will

when offered a free Will

Registration

91% Of law firms’ clients

register their Wills when

asked

83% Of law firms felt at risk when

distributing an estate on an

intestate basis or using an

old Will

90% Of PII providers say using

Certainty improves a law

firm’s risk profile and could

lead to better premiums

Better risk management for

the firm and client

Better income, revenue and

profit for the firm

Better client loyalty and fee

earning activity

Better administrative

efficiencies and gains

Better protection

from emerging

claims risk

Referenced, Endorsed and Recommended

Charities

Exclusively used by

The Treasury Solicitor

Recommended to the

consumer by

Exclusive affiliation

agreements and

endorsements

Practice notes,

guidance notes,

referenced in

literature by

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.”

What do the leading Probate texts say?

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

Thomas Dumont Legal Opinion

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 proceeding with the latest Will?

If no, how do you undertake these searches?

• Do you hold any Wills where the testator may have died and the Will you drafted

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?

Wills and Probate is another area of work that provides both frequency and severity of

claims. 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

90% of Professional Indemnity Insurance Providers

Yes No

Yes No

Yes No

575,000 people die in the UK each

year – 1,500 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

Some Important Statistics

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

Will Search

• Understand why Probate and Estate Administration is safer with

Certainty Will Search

• Learn how to do a Will Search

A fast-track training course so that you can immediately use Certainty’s 3 key services:

3 Essential Services

‘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

Will Registration • Understand why registration makes legal and

commercial sense

• Learn how to register a Will

Certainty

Will Search

1

2

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?

The History of Will Search

Certainty Will Search – Why?

Why?

Effective

Approaching 5

million Will

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

Confidential

Certainty never

discloses the

existence of a

Will

A ‘Searcher’s’

details are

passed to the

‘holder’ of the

Will – NEVER

vice versa

Recommended

Best Practice

Used by: Referenced

in leading

legal texts Legal

Profession

Members of

the Public

Treasury

Solicitor

Financial

Organisations,

Banks,

Insurance

companies,

Charities

Low Cost

Allowable

disbursement

of the estate

ranging from

£33 - £90 + vat

dependent

upon type of

search

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

Protection

(no Will, later Will)

Remember –

any relative can

search for a

Will!

Does a Will or later Will 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

issues arise after distribution.

Certainty Will Search – the first step

Below are daily occurrences where Certainty Will Search finds Wills presumed the last or never written!

Certainty Will Search – Case Studies

Certainty Will Search – Case Studies

Certainty Will Search – Case Studies

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

endeavoured 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

Certainty Will Search – best practice and protection

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…

Has a Will been

accidentally or

maliciously destroyed?

What about

my duties to the

potential

beneficiaries?

I’m at risk – the fact

you’re my client is

irrelevant

Are there any charity

donations on

bank statements?

What makes family

believe

there is no Will?

Why does my client

NOT want to

search?

“We’re a close family –

I’m sure he would have

told me where it was”

“I don’t want to

spend more than I

have to”

‘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 he 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

What actually happened What could have happened

In reality, this is what can and does happen

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 intestacy.”

“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 intestacy 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

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

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

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.

Certainty Will Search – 3 types of Will search

Log into your

membership account

at

www.certainty.co.uk

“Solicitor Login”

Click

“For Solicitors”

How do you Search for a Will?

Will Registration

We have a dedicated CPD accredited online training seminar on Will Registration - you can register at the end of this session

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

A ‘registered’ Will

Taking steps to ensure the

future probate work returns

Is the future probate work from the Wills you draft more of a ‘stick’ or a ‘boomerang’?

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

Will Registration – business benefit, returning probate work

An ‘unregistered’ Will

Write the Will and hope to

receive the future probate

work

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.

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.”

Why should I advise my clients to register their Will? Protection

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’

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

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?

Will Registration – Why?

Reduce risks

presented by lost

or untraced Wills

Avoid Risk of

Negligence

Claims

Protection

(no Will, later Will)

Gill Steel – LawSkills

Gill Steel, LawSkills – Will Registration

- Commentary on the Opinion

“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.”

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.” – Thomas

Dumont

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?”

Summary – Not registering a Will – is it worth the risk?

Summary – Not registering a Will – is it worth the risk?

Log into your

membership account

at

www.certainty.co.uk

“Solicitor Login”

Click

“For Solicitors”

How do you Register a Will?

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

Will Registration – Certificate of Registration

Certainty TOUCH

35

Just so you know… We have a dedicated CPD accredited training seminar on TOUCH

You can register at the end of this session

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

TOUCH Will Management & Marketing

Easy to

manage

Protects the lifetime value

of historic & new clients

Allows you to cross-sell /

market – LPA, updating Wills

& firm’s other services

Managing Partner votes

you ‘introducer of the

month’

Unlocks the

potential of your

Willbank

Drives revenue and

retention

Reminds clients you exist

In-built marketing power to

manage, profile &

communicate with clients

Today you have completed your ‘Certainty in a nutshell’ Training.

• 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

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

Training outcomes

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

Shout if you need help

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.