The Gazette 1972

Officials of Local Authorities and Land Registry Work

In Plunkett v O'Dwycr reported in the Society's Gazette, July 1951, page 22, a decision of Circuit Judge Barra O Briain at Limerick, it was held that an auctioneer who drew a tenancy agreement, receiving no specific fee other than his general commission for making the letting acted contrary to Section 3 of the Conveyancers (Ireland) Act, 1864, as acting for or in expectation of fee, gain or reward. On the basis of these decisions it would appear that where an official of a local authority paid by salary does work which is prohibited by Section 58 he acts for or in expectation of fee, gain or reward if the prepara- tion of the document is part of the duties assigned to him. The Council decided that in any case which is brought to their attention or where the lodgment of such documents in the Land Registry is carried out with- out a solicitor letters should be written to the local authorities concerned. Secretaries of Bar Associations and members of the Society are asked to bring to the attention of the Society any instances of the kind of which they are aware. Court. However, the Report then toys with the almost equally restrictive idea of requiring all wills to be wit- nessed by the English equivalent of a notary. The suggestion is that the notarial witnessing of wills could be carried out by Commissioners for Oaths and special 'Wills Officers' attached to registries of births, deaths and marriages, who would not advise about the will but would, by witnessing it, 'certify that it was in order and capable of execution'. After discussing some obvious objections to this proposal, such as the difficulty of executing wills in emergencies and the confusion it would cause in the public mind, the Report shrinks from recommending its immediate introduction on a com- pulsory basis and suggests instead that it should be introduced as an optional alternative method of execu- tings wills for a trial period, with a view to its eventual introduction on a compulsory basis if the experiment proves successful. The avowed object of the proposal is indirectly to lead testators to take legal advice before executing their wills, with the subsidiary objects of avoiding problems of formal invalidity and providing a more effective barrier against undue influence. We have considerable doubts about this proposal. In the first place, even if compulsory notarial attentation would achieve all these objects (which we greatly doubt —the immediate result of it would surely be a large increase in the number of totally invalid wills), little purpose would be served by its introduction as an optional alternative. This would not be comparable at ail with a compulsory requirement and if it were intro- duced for a trial period it is not clear what exactly 166

Members have raised the question of the lodgment of vesting orders by local authority officials in the Land Registry under Section 90 of the Housing Act, 1966. Section 58 of the Solicitors Act, 1954, applies to the drawing or preparation of a document relating to real or personal estate or any legal proceedings and the making of an application or the lodgment of the docu- ment for registration under the Registration of Title Act. An unqualified person who does such an act is liable to a penalty. An act done by a public officer in the courre of his duty is exempted from the provisions of the section. It has been held in England ( Beeston and Stapleford Urban District Council v Smith) that the term "public officer" in the corresponding Section 43 (3) (a) of the English Solicitors Act, 1932, was limited to an officer paid out of central funds and did not extend to an officer of a local authority. In Pacey v Atkinson (1950 1 KB 539) it was held that a rent and debt collector not legally qualified who was employed on a commission basis by landlords and creditors to collect money due to them and who brought proceed- ings in the County Court without any specific fee other than his general commission was in breach of the statute. Home-Made Wills The Justice Report on Home-Made Wills (published by Charles Knight and Co., and obtainable from Justice, 12 Crane Court, Fleet Street, EC4, price 20p), contains an interesting discussion of the problems which arise where wills are made without legal advice. About a quarter of all wills admitted to probate are home-made. The number which are wholly invalid for want of due execution seems very small. The Report estimates the failure rate of home-made wills at about one in 500. The problems, therefore, lie more in defec- tive or incomplete drafting than in total invalidity. It is difficult to know what proportion of home-made wills are seriously defective, but the general impression is that they quite often cause difficulty. The Report men- tions most of the commoner defects, such as alterations made after execution, gifts to witnesses, failure to dis- pose of residue and various other ineffective dispositions, whether caused by inherent inaccuracy or ambiguity or by falling foul of rules of construction. Another matter which the Report mentions is undue influence, and it alleges that this is a fairly serious problem, particularly among elderly people, and is commoner in the case of homemade wills than where the will is drafted by a solicitor. The Report suggests that the only comprehensive solution to the problem of home-made wills is to forb : d them. It seems odd to call this a solution, but, however that may be, the Report rightly rejects it, both because it is politically unaceptable and on the principle that a man should be free to draft his own will just as he can do his own conveyancing or argue his own case in