An alarming trend has been steadily growing within the Private Client legal sector, so called ‘Will writers’ and ‘Do-It-Yourself’ Wills have been saturating the market leaving people feeling ultimately confused.
‘Do-It-Yourself’ Will writing kits can be purchased form online retailers and local high street shops for as little as £20.00. A Will is one of the biggest and most important financial planning steps you will take, given this, why are so many people choosing to leave management of their Wills either in their own hands or in the hands of often unqualified and completely unregulated Will writers?
How a shoddy will could cost you your inheritance
The consequences of failure to instruct Solicitors when drawing up complex legal documents was something the family of Ebenezer Aregbesola discovered to their peril. In 2007 Ebenezer engaged a banks Will writing service for the sum of £90.00 to write him a Will. In the Will Ebenezer wanted to leave his share of his London home to his daughter Tinuola. The only problem was that the house was held as joint tenants with Tinuola’s stepmother – a problem because under property law it meant that the house would pass automatically to Tinuola’s stepmother regardless of the terms of the Will.
Ebenezer passed away in 2014 and it came to light that the joint tenancy for the property had never been severed. The process of severing the tenancy would have ensured that the house was held as tenants in common between Ebenezer and his wife and his share would have been capable of being gifted. As this had not been done or advised upon by the bank’s will writing service, when Ebenezer died, his half of the property automatically passed to his wife under her right of survivorship.
As the aspect and importance of severing the joint tenancy was something that the bank’s service had failed to advise on, subsequently it meant that Tinoula was unable to make a claim upon the estate. Instead Tinuola’s only possible remedy was to seek redress from the bank’s service directly. Tinuola made a complaint which was assessed by the Financial Ombudsman Service, the Ombudsman found that the bank were at fault due to the failure to properly advise on the gift and made a recommendation that the bank should compensate Tinuola. This recommendation was ignored by the bank because in their opinion Will writing was ‘not a regulated activity’. This is a clear cut example of how a ‘simple’ £90.00 Will ended up costing a Daughter half of her share in a property and meant that Ebenezer’s intentions that he wished to place within the Will were ultimately not met.
If Ebenezer had received professional legal advice, he would have known that, along with his will, he needed to draw up a Deed of Severance, converting the co-ownership of the house. If Ebenezer had held the house as a tenant in common, his share of the house would have been eligible to pass, and Tinuola would have received her inheritance.
The problem was not due to the drafting of the Will itself – the bank had followed its client’s instructions – but was rather a failure of the bank to investigate and understand the client’s circumstances which ultimately impacted on how effective the Will was.
Will Writers
Many people who are fearful of costs choose to go to Will writers instead of Solicitors – for many it can seem like a good middle ground between a DIY Will and instructing a Solicitor. Despite the fact that a Will writer will often market themselves using buzzwords such as ‘legal services’ or ‘professional legal advisors’ Will writers may not be qualified solicitors. Due to a lack of regulation within the Will writing industry anyone can call themselves a Will writer and there are no qualifications or training required. Whereas a qualified private client solicitor has undertaken a minimum of six years highly regulated and intense legal training prior to qualification.
Will writers also offer their clients a lack of protection as they operate under an unregulated and unlicensed body, meaning that should anything go wrong there is very little opportunity to raise proper complaint. Solicitors, however, are regulated by the Law Society as well as The Solicitors Regulation Authority (SRA) who have power to be able to look into the conduct of firms and fee earners to ensure that all aspects of client care have been considered and proper checks have been carried out for each client. Solicitors also must have adequate insurance to protect their clients, whereas Will writers do not.
Whilst Will writers often undercut Solicitors on price they can often take a sales like approach and try to upsell their clients more “expensive products” such as Asset Protection Trusts or other lifetime trusts.
Sometimes these trusts and the advice given is not appropriate for the client’s individual situation and in one reported incident of malpractice a married couple believed that they had valid Wills containing a provision whereby each of them were left with life insurances written into trust. Upon the death of the husband it was found that the trust provision within the Will was invalid and that this failure ended up costing his widow thousands of pounds worth of inheritance tax. When the widow contacted the Will writing agency seeking redress for the negligent malpractice, she was told that the Will had been prepared by a franchisee of the company and they did not hold a forwarding address for them.
Whilst also not being appropriate for the client the unnecessary trusts and provisions can also be costly, both from the perspective of potential litigation in probate claims on the estate from disgruntled beneficiaries but also upfront costs. Some Will writers have been known to charge upwards of £2,000.00 – £5,000.00 to set up Trusts for which there is no guarantee that the trusts have been set up properly or are appropriate enough to ensure that the client’s wishes will ultimately be achieved.
Solicitors have a duty of care to their clients to provide them with the proper and appropriate legal advice to protect them, and are prohibited by strict regulations from mis-advising clients in order to generate higher fees. The penalty of doing so could result in a guilty Solicitor being struck off the roll of Solicitors and heavily fined.
The Society of Trust and Estate Practitioners (STEP) conducted a survey of its UK members, they asked the members what examples of malpractice they had encountered when dealing with Will writers. Two thirds of respondents reported coming across hidden fees that were not outlined in the stated price for the Will. In addition to this, 63 per cent of members reported that they have had direct experience of cases where Will-writing companies have gone out of business and disappeared with their clients’ Wills.
The Citizens Advice Bureau also backs a more professional led approach to Will drafting. They acknowledge that whilst you can go down the DIY or Will writer route it is advisable to use a Solicitor.
Other DIY Will Drafting Pitfalls
Poor Wording
In some instances poor wording has even led to couples accidentally disinheriting their children. If an error is made with the wording of the Will, no matter how tiny, the Will may be invalid or not have the consequences for which it was intended.
If the Will is deemed to be not valid then the rules of intestacy will apply. This may potentially lead to your assets being passed to people who you did not want to receive them. This is particularly important when dealing with estates where couples are co-habiting as under the intestacy rules only a spouse or civil partner will receive a share of the deceased’s estate.
Witnesses
Often DIY Wills are incorrectly witnessed and signed, this again leaves the Will being invalid. A simple mistake such as the will not being witnessed by enough people, or being witnessed by a beneficiary ultimately leads to the Will being invalid, or the beneficiary prevented from inheriting as intended. The presence of a Solicitor’s guidance when signing the Will ensures that these simple mistakes are avoided.
Expert Advice
Writing a cheap DIY Will does not always allow for changes in circumstances, in particular if you get married or have additional children after you have signed your DIY Will. Whereas a Solicitor will be able to give well-rounded advice and prepare a flexible Will that takes into account possible common changes of circumstance. This is beneficial as it saves time as you only need one Will as opposed to numerous DIY Wills that are not fit for your circumstances.
Else Solicitors have been looking at alternative ways to save clients’ money on the costs of drafting Wills. Some clients would like to save money by doing the Will themselves but have some security by knowing that a legal professional has checked over the contents. This services comes at a significantly lower cost than having a legal professional drafting Wills on your behalf but still provides some protection and peace of mind that your Will will stand up when it needs to.
If you would like to discuss your future planning needs please email our Head of Wills and Probate kathryn.caple@elselaw.co.uk or call the office on 01283 526 200.