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16 May 2019 | Comment | Article by Roman Kubiak TEP

Roman Kubiak gives an update on the new legacy bequest notification service

On 10 May 2019, Ed Owen, director of communications for Her Majesty Court’s and Tribunal Service (“HMCTS”), gave an update on the new legacy bequest notification service at the Institute of Legacy Management annual conference.

During the update, Ed Owen recognised the importance of a good notification system for charities as well as how engaged the sector had been. As the Smee & Ford contract notice period expires at the end of July 2019, two central issues emerged: the interim transition service and the long term permanent service.

In the short term, HMCTS has recognised the need to maintain continuity, given the vital importance the Smee & Ford notification service provides to charities and the third sector. It is anticipated that an interim service will closely mirror the information provided under the existing provision, but it was made clear that this is not a viable long-term solution, given HMCTS’s need to conform to its legal obligations.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

Speculation continues to abound as to why notice was abruptly provided to the Smee & Ford contract in January 2019. Despite this, no further details emerged during Ed Owen’s update although HMCTS has previously said that the arrangement was “not consistent” with its legal duties. Many believe that the reasons are down to one or more of the following:

  1. the notification process may breach the General Date Protection Regulation 2016/679, the regulation on data protection and privacy for individuals within the EU and EEA, more commonly known as GDPR. It is difficult to determine quite why that is a reason when the information is all in the public domain in any event;
  2. issues over possible breaches of competition and markets laws;
  3. concerns over the contract or between HMCTS and Smee & Ford which may have been in breach of European laws; and
  4. finally, the cost which Smee & Ford were paying to purchase the wills was deemed too low when compared to the cost for the public to purchase individual wills, despite the fact that Smee & Ford purchased wills in considerable bulk.

In the long term, it was hinted that the new service would be different from the existing paid for regime and that its creation would be shaped by the needs of the whole sector. It is anticipated that a detailed update on the permanent arrangement will be provided by the end of this year.

Either way, it is clear that the existing paid for service will come to an end. Charities still do not know what information will be provided under the proposed interim and long-term services.

To the surprise of the conference, no firm details were provided, but it is anticipated that the working group will be provided with a comprehensive update next month. The charitable sector will no doubt be waiting with keen anticipation. Minutes of the next working group meeting will be uploaded here, along with the March meeting notes.

While the transition between notification services is unlikely to deprive charities of the ultimate receipt of their legacies, it is likely to impact acutely upon their ability to forecast future income accurately and therefore effectively plan their future operations and strategies. It is therefore imperative that HMCTS engage and take on board all of the sector’s concerns and, crucially, their needs.

Update as of 5 July 2019

Roman Kubiak and Vlad Macdonald-Munteanu recently recorded a charities podcast on the update about the bequest notification service from Smee & Ford. Tune in to the podcast to find out more.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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