Life after Smee & Ford

 

Smee & Ford provide a subscription service to charities, notifying them of the details of legacies left to them in the wills of people who have died.  All in all, the charities receive very useful information, helping them to budget and forecast future income.

Naturally, for Smee & Ford to provide this service they have to be able to see all the wills for which probate is granted. That’s a lot of wills. When probate is granted, a will becomes a public document, so anyone can look at them, but to look at them all is a task on an industrial scale. You need an efficient means of accessing them. And that is where the arrangement with HMCTS comes in.

Seems like a valuable service – charities certainly think so – so why is it stopping?

We haven’t been told. Not really. The announcement that its time was up was essentially just the bare fact, adding merely that HMCTS had concluded that the arrangement wasn’t consistent with its legal duties.

That told us next to nothing, so we have been digging a little deeper. Looking at the meeting minutes of a working group of the legacy notification service we learned that “HMCTS reflected the legal position relating to the current arrangements”, which didn’t noticeably add to our understanding.

So we sent a Freedom of Information request to HMCTS. We asked five specific questions:

1. Please specify the legal duties being referred to.

2. Please explain in what respects the arrangement is inconsistent with those duties.

3. Is it the intention of HMCTS that a new arrangement by which a notification service can be provided will be put out to tender?

4. If so, have the attributes of a new service provider been defined?

5. Alternatively, is it the intention of HMCTS to manage the notification service itself?

What we got in reply was, technically, an answer to those questions. Not a very full one, but it was at least a response. See what you think.

1. Please specify the legal duties being referred to.

“The relevant legislation (Non-Contentious Probate Fees Order 2004 as amended) specifies a fee of at least £10 for each grant of probate (copy) received.”

2. Please explain in what respects the arrangement is inconsistent with those duties.

“The payment arrangement with Smee & Ford was inconsistent with the Order.”

The response went on to say, as an answer to questions 3 to 5, that “HMCTS have not finalised the future arrangements for the notification service so are unable to comment on intentions at this stage.”

What are we supposed to make of all that?

We now know a little more. Not much, but something important: Smee & Ford’s arrangement did not involve them paying £10 for each copy of a grant of probate.

The department’s legal obligations in response to a FOI request would have required them to list any other legal duties that the arrangement defeated. So, we can further deduce that it is only the payment arrangement that was the problem. But we were not told what the arrangement was, or how it was inconsistent.

In the absence of enough concrete information to draw a conclusion, the natural tendency of the blogger is to speculate. That could lead us in a number of directions:

One could be that Smee & Ford were actually paying too much for copies of the grants of probate. Well, I suppose it’s possible…

Another could be that the arrangement was a flat fee for an indeterminate number of grants. Perhaps there was no correlation between the fee and the quantity of documents. That’s quite plausible.

A third is that the payment for supply of grants was below the statutory rate. Of course there is such a thing as economy of scale, but the legislation doesn’t mention that.

The last of those is my favourite option. But if my reading is awry, I welcome correction from anyone in a position to say what the arrangement was, and how it fell foul of the Order.

There are two questions here. First, how were the legal duties of the department contravened in such a way that the arrangement with Smee & Ford was summarily terminated? And secondly, what is the reason for the reluctance to explain openly?

The working group to examine the future provision of a notification service continues to meet and work, but we aren’t yet being told on what. Commercial sensitivity is being cited as reason for drawing a veil over discussions and plans. There is something in that – so far as the future is concerned – but that doesn’t justify the reticence regarding what’s gone before.

Besides, if we were told explicitly what has gone wrong up to now, we might have a bit more faith in what comes next…

 

 

Simon Hetherington is Director of Content for Bequeathed

Simon is a law graduate and was the publisher of Halsbury’s Laws of England and the Encyclopaedia of Forms and Precedents for 27 years. He’s also an affiliate of STEP.