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How a £90 will by Barclays lost half my house
Barclays is contesting the claim.
But, in an interesting twist, Telegraph Money can reveal that when the complaint was previously assessed by the Financial Ombudsman Service (FOS), the bank was found at fault. The Ombudsman ordered Barclays to pay "a fair and reasonable settlement".
Unusually, Barclays decided to ignore the Financial Ombudsman's recommendation.
The matter has now gone to the High Court.
Court documents detail how in 2007 Ebenezer Aregbesola used Barclays' £90 will-writing service to create a will dealing with his various assets including homes overseas and in London. His will instructed half of the London home to be given to his daughter, Tinuola Aregbesola, on his death.
The property was owned jointly by Mr Aregbesola and his wife – who was not Tinuola's mother. Because of the joint ownership, on Mr Aregbesola's death in early 2014, the property went wholly to his wife – in contravention of the wishes spelt out in the will.
In order for the will's conditions to have been fulfilled, Barclays should have severed the joint tenancy agreement, the court document alleges. This would have enabled half of the property's value to pass as instructed to his daughter. Because this severance process – which the Ombudsman describes as "a simple formality" – was neglected, the joint tenant, Mr Aregbesola's widow, is legally entitled to the whole property which she can now bequeath as she pleases.
The case highlights the danger of popular, cheap "DIY" wills which are often too simplistic to reflect accurately their owner's wishes.
In summing up the case the Ombudsman concluded: "The half-share in the property in London cannot be gifted to Miss Aregbesola in accordance with the late Mr Aregbesola’s wishes.
"There is no subsequent right for this to be contested with the co-owner in a court of law. Had the bank referred Mr Aregbesola’s will instruction form to its solicitors I am aware [the solicitors would] issue the notice of severance as a matter of good practise.
"In order to resolve the complaint we would usually ask the bank to put the consumer back in the position they would have been had the correct steps had been taken in the first instance.
"Unfortunately, the share in the property in Balham is incapable of being gifted now. Therefore, I would ask Barclays to come up with a settlement that would fairly and reasonably resolve the complaint – taking into consideration the value of the property and the intended gift."
But once it received this recommendation Barclays shifted position. It said that since its will-writing division was not regulated, it would not have to adhere to the Ombudsman's findings. The Ombudsman accepted this was technically correct.
Change rules on wills, government urged
Around 180,000 wills are written by non-lawyers every year, and are exempt from the complaints handling body.
But a report by the Legal Ombudsman has called on the government to open up their services to those using non-regulated providers.
A Ministry of Justice spokesperson said more could be done but more regulation was not necessarily the answer.
'Room for improvement'
A spokesperson said: "When people write a will it is extremely important for them to have peace of mind that their affairs will be dealt with how they want them to be."That is why we have agreed with the Legal Services Board that there is room for improvement in this area.
"However we are not convinced that regulation is the best way forward - we believe other options should be explored first, including better guidance for professionals and making better use of existing consumer information and protection."
The Legal Ombudsman's report claimed that wills and probate were the third highest source of received complaints, and that the market was "suffering from a number of quality issues".
It concluded that "all consumers of wills and probate service providers should have access to redress".
The Ombudsman helped resolve more than a thousand wills and probate related complaints last year.
'Ripped off''
Excessive costs, delays and a failure to follow instructions were some of the common problems faced.But the independent body is only allowed to take on wills drawn up by regulated service providers.
It said that a lack of regulatory oversight meant that customers could be left with no options if they were "ripped off by the service provider".
Chief Legal Ombudsman Adam Sampson said: "Wills can be prepared by anyone in principle. For people on a budget, this creates headaches about the standard of service one could reasonably expect.
"It also means some people will have access to help if things go wrong, while others won't.
"We want the government to at least consider a voluntary ombudsman scheme into which service providers can opt themselves. Provision already exists for the Lord Chancellor to make this happen."
Claims for mishandling a deceased estate rose three-fold in 2013, with 368 claims lodged in 2013 compared with 107 in the previous 12 months, according to figures from the Chancery Division.
Last year, Justice Secretary and Lord Chancellor Chris Grayling rejected the advice of the Legal Services Board to make will writing a reserved legal activity.
Article source: http://www.bbc.co.uk/news/uk-29634380
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