Swearing once in a blue moon
By
Swearing an executor's oath is a more complicated process than it first appears, writes Russell Conway
I did a swear the other day, which is rare since affidavits were virtually abolished, and as litigants now simply sign statements of truth, the old-fashioned oath is indeed a once in a blue moon type of experience.
This was an executor’s oath, with a will attached. Nothing tricky, all very straightforward.
One thing I have always noticed with swears, however, is that the participants are rather wary of the lawyer. What’s he going to charge me? Will there be hidden extras? How much ID will I have to produce and what other documentation will be required? How difficult an experience is this going to be? After all, most people have never sworn an oath before in their lives. This customer was no exception.
As he came into the office I invited him to take a seat. ‘I prefer to stand,’ he replied. After some negotiation he agreed to sit. I think he may have been working on the basis that I would charge more if he sat down.
Politely I asked to see his ID. He fished out a bus pass and a bank card. I asked if he had a driving licence or a passport. Oddly he had both. We then had to go through that most embarrassing of experiences, which is checking the passport photo with the actual person sitting in front of you. This has to be done tactfully and quickly. Fortunately in this case there was a clear resemblance.
Problems have cropped up in the past when the photo simply bears no resemblance and you have to take the nuclear option of simply saying no to the swear. Sadly people’s appearances do change. Hair styles alter, beards come and go, and some of us do get older. It’s never easy challenging ID.
Having got over that hurdle we came to the oath itself. ‘Have you read this through?’ I enquired. ‘God no, I leave all that legal stuff to the lawyers,’ the customer responded. I pointed out that it might be a good idea if he did read the document as it appeared to relate to an estate worth quite a few bob and perhaps it would be a good idea to get it right.
‘Okay, if you insist,’ said the customer, who proceeded to take all of ten minutes to read the document through.
We then came to the magic moment: swearing the oath. ‘Would you like to swear on the Bible,’ I enquired. ‘What would you advise?’ came the reply. After a theological discussion lasting some further minutes we decided to affirm. My signature and stamp were placed on the documents and the will duly marked.
‘Is that it?’ said the client. ‘Surely there is a lot more to it?’ I said: ‘That is indeed that.’ All that remained was the small matter of the £5 swear fee and £2 exhibit fee. ‘But I was told it would only be £5,’ he said forcefully.
Negotiation took place, reference was made to the Solicitors Act 1974, and I explained in detail how the charge of £7 was comprised. I also mentioned that for a piece of business that had already taken some 20 minutes, he had done rather well. Perhaps we should have a declaration of truth for the executors in the future?
Leaving the office, the client looked at Cosmo, my Labrador, and said, rather cheekily: ‘There’s no reason your dog could not be trained to do that – I could have paid him in dog biscuits.’I politely wished him good day.
Russell Conway is senior partner at Oliver Fisher