Law Society of Scotland - The Journal Online

Journal
Genealogy
April 2003 Volume 48 No 4 46
contingency fees in the sense that a
litigator might understand the term.
We are, after all, dealing with
beneficiaries’ entitlements here,
rather than pursuers’ claims.
Imagine that a genealogist
approaches you with news of your
entitlement to share in an estate,
which he will reveal in exchange for
a “contingency fee”. He has taken no
risk at all in terms of establishing
your entitlement – his only risk is
that you will not sign his fee
agreement. Probably, you will sign
and he will be paid. However, your
entitlement arises from the will, or
the intestacy rules – and the only
reason the genealogist has found
you is because of it.
On the other hand, a true
contingency fee (or at least
something that looks more like one)
might obtain were I to bring an
action against an estate. In such a
case, I might agree with my solicitor
that her fee should be deducted
from my award, if any. The merit of
my claim would be reflected in the
outcome of the litigation, as would
the fee.
Interestingly, it seems that the
“contingency fee” approach to costs
of tracing beneficiaries is falling out
of favour with practitioners. This is
perhaps not startling, given the
litigation in overseas jurisdictions in
which such agreements have been
found to be unenforceable*.
Conclusion
In any event, practitioners might
consider asking themselves: should
they instruct researchers to locate
missing beneficiaries on a footing
which accurately reflects the time,
resources and expertise needed to
resolve the matter, or should they
leave it as a matter for negotiation
between the genealogist and the
located heirs? In either case, the
estate will be reduced by the extent
of the costs. The result of adopting
the “contingency fee” approach,
however, will very often be a greater
cost to the estate and significantly
reduced net shares in it being
distributed to the found
beneficiaries.
Nicholas Beetham LLB is
Relationship Manager – Trusts and
Estates at Title Research. He has
written and lectured extensively
on the subject of missing
beneficiaries and the
apportionment of costs of finding
them or insuring against their
independent emergence. Title
Research is authorised as an
external CPD provider by the
Society of Trust and Estate
Practitioners.
*Further reading:“The heir-locator’s
lost inheritance” [1997] MLR 60:02;
Rees v De Bernady [1896] 2 Ch 437;
McElroy v Flynn [1991] ILRM 294;
Fraser v Buckle [1996] ILRM 34;
Evans v Westcombe [1999] 2 All
ER 777.