Barclays is being sued by Tinuola Aregbesola, the daughter of the late Ebenezer Aregbesola, who claims that a botched will by the bank deprived her of a stake in her late father’s London home.
The complaint, which was previously upheld by the Financial Ombudsman Service (FOS), has now reached the High Court, after Barclays ignored the FOS’ recommendation to pay “a fair and reasonable settlement”.
The details of the case are that in 2007, Mr Aregbesola used Barclays’ £90 will-writing service. In his will he provided that half of his London home, which he owned jointly with Tinuola’s step-mother, should be given to his daughter upon his death. The property was held as joint tenants, meaning that the tenancy required severance in order to enable Mr Aregbesola to bequeath his share.
The Court documents allege that Barclays failed to sever the joint tenancy agreement, which the Ombudsman described as “a simple formality” that the bank failed to carry out.
As the joint tenancy remained, Mr Aregbesola could not legally pass a share to his daughter upon his death, meaning that his widow legally inherited the whole property in contravention of his wishes. Mr Aregbesola’s widow can now gift in her own will to whomever she 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 practice… 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.”
Upon receiving this recommendation, Barclays 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. In an emailed statement, Barclays told the Telegraph: “The matters raised are the subject of ongoing legal proceedings. It would not be appropriate to comment on the specific points raised. We note that the Financial Ombudsman Service issued its latest decision in relation to the complaint raised by Ms Aregbesola on 19 February 2015. The Financial Ombudsman Service concluded that the matter was outside of the scope of its service.”
Speaking to Today’s Wills and Probate, Sonita Hayward, professional negligence solicitor at Bolt Burdon and Kemp, said:
“There is a real lacuna in the law due to the fact that will writing companies are not currently regulated. This is not something that many consumers are aware of, and is particularly concerning when well-known institutions such as Barclays offer such a service. Fees to prepare a will in this situation are often incredibly low because these organisations aim to profit from the fees generated by administering the estate as executor, after the testator’s death.
“The provision of will writing services has become increasingly attractive to practitioners who are looking to avoid the costs associated with insurance, practising certificate fees, training requirements and red tape. Consumers will no doubt continue to find the lower prices (made possible by virtue of the lack of regulation) attractive compared to solicitors offering the same service.
“However, as consumer awareness of the lack of regulation increases, it is inevitable that many will think twice before making a decision about who to instruct, particularly when cases such as that of Miss Aregbesola come to light. Most people prepare a will to ensure that their loved ones are provided for after their death. If they fear that this will not be possible, or that their loved ones will have no remedy in the event of something going awry, it stands to reason that they will seek to instruct a firm that provides the best possible protection for them in the event that something goes wrong.
“Instructing a solicitor to prepare a will does give consumers a route to redress in the event that something goes wrong. Solicitors must have a minimum level of insurance (currently £2 million per annum) in place in order to practice and there must be run-off cover in place for 6 years once a practice ceases to operate. This level of protection is likely to surpass any level of cover provided by a will writing company, unless they voluntarily choose to insure their business on similar terms.
“In Miss Aregbesola’s case, had her father’s will been prepared by a competent firm of solicitors, the notice of severance of the joint tenancy (which is described by the Financial Ombudsman as a ‘simple formality’) would have been severed as a matter of good practice and therefore the gift would have succeeded. This sort of press will not further the cause of will writing companies unless there is some form of mandatory regulation put in place. Barclays have clearly not helped themselves by agreeing to the Financial Ombudsman Service considering the complaint, before then rejecting their authority to make a decision on the unregulated will writing arm of their business once it was clearly in Miss Aregbesola’s favour.
“I have successfully acted on behalf of clients where a solicitor’s failure to sever a joint tenancy has led to problems with the intended terms of distribution of an estate, resulting in payment of damages to my clients to compensate them for their losses. Without Defendant solicitors having insurance in place, it is difficult to know whether such claims would have been feasible, as this would depend wholly on the firm’s asset position (or in the case of a partnership, the partners’ asset position). Given the increasing value of property, particularly in London, the loss of a half share of property will undoubtedly run into hundreds of thousands of pounds — not something which can be comfortably absorbed by most businesses without insurance cover to support them.
“Awareness of these types of claims arise at what is already a very distressing time for families and cause them great additional emotional strain. There are strict time limits for bringing these claims and disappointed beneficiaries should seek advice as soon as possible if they think there is a problem which will prevent them receiving their intended inheritance.”
What do you think? Does this case highlight the need for better regulation in the wills industry or are unregulated will writers getting a bad name from other cheap and DIY will providers?
