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Officials of Local Authorities and Land
Registry Work
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.
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.
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
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
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