Sloppy Wills and Short-Changed Estates

Wednesday 2 May 2012

There was a lot of commotion in last week’s business news pages, regarding calls for tighter regulation of will making and the administration of estates. The dedicated Probate Department here at Blacks is all for increased consumer protection in this complex area of law, but this is not a new revelation.

For a number of years The Law Society has campaigned for a review of the will making profession, with a view to ensuring that all will-writers are regulated. In 2006 the Government called for voluntary regulation, but this was never implemented. At present will-writing is not a regulated activity and so those consumers who do not visit a solicitor to make their will, are left totally unprotected. Independent will-writers do not have to have any training or insurance to begin providing their services.

In July 2011, The Law Society’s CEO said that until all will-writers are regulated, ‘anyone seeking advice on wills should go to a solicitor to ensure that the will is done properly. Solicitors will provide excellent advice and will be able to advise on complex financial issues such as inheritance tax and trusts planning Solicitors are all trained and consumers can have confidence in them’.

The Legal Services Board (LSB), the independent body who oversees the regulation of the legal profession in England and Wales, showed its support for The Law Society’s campaign back in 2010 when it asked the Legal Services Consumer Panel to collect evidence and provide advice on consumer’s experiences of the profession.

After considering the rather worrying verdict of the Consumer Panel, on 14^th July 2011 the LSB announced the start of a statutory investigation into increasing consumer protection for those intending to use will making services. It seems that the numerous reports published last week have simply confirmed the LSB’s almost foregone conclusion, that will-writing must become a regulated activity.

Turning to the effects on the consumer of a lack of regulation, The Law Society points out that will-writing is unlike any other area of law, in that most substantive mistakes, other than grammatical errors, are left undiscovered until after the client has passed away.

Obviously this is the point where the client’s will becomes most vital and mistakes cannot then be rectified. If the will was made with a will-writer, as already mentioned, they are unlikely to have any insurance and are presently unregulated. This can leave the persons responsible for administering the deceased’s estate, often bereaved family members, in quite a predicament, facing uncertainty and considerable extra costs.

The LSB has found a long list of problems with the services provided to consumers. The words ‘sloppiness’, ‘simple errors’ ‘poor communication’, ‘fraud’ and ‘mis-selling’ feature in almost every report in last week’s news. It has been said by the LSB, that some will-writing services are, ‘Just plain rubbish. They are getting names wrong, getting amounts wrong – the wrong details entirely’. This apparently results from some providers’ simply copying and pasting documents, omitting important amendments.

At Blacks we have experienced at least two very recent instances, where wills made by will-writers or even homemade wills have caused trouble for the deceased’s bereaved family members. In one case a homemade will that was far from water-tight, left significant ambiguities to contend with. In another case a will that had been made by a will-writer service, although being correctly made and witnessed, had not actually been signed! Thus the deceased technically died intestate.

Senior figures at the LSB have commented that it should still be acceptable for people with very simple estates to be able to write their own wills, using do-it-yourself guides. Clearly, this leaves scope for ambiguity to remain in the creation of wills and also requires the term, ‘very simple estates’ to be defined.

Despite some uncertainty about the specifics of future regulation and indeed the future of homemade wills, the important thing is that the industry will receive better regulation in the near future.

As a final thought for anyone intending to make a will, here is The Law Society’s answer to the LSB’s question, “What makes a good provider of will-writing services?”
‘A good provider of will writing services:     

• Has strong legal knowledge and experience and therefore provides sound advice to their client;
• Understands the client’s financial and personal affairs and is able to provide properly tailored advice;
• Ensures that the client understands the advice provided to them;
• Will deliver a document that addresses the needs and personal circumstances of the consumer and achieves what the consumer wants;
• Has in place adequate insurance to cover any mistakes which may occur;
• Has consumer protections in place, such as being subject to a code of conduct, and providing access to a compensation fund, a complaint process and being subject to minimum training and updating requirements and disciplinary mechanisms;
• Only takes on a matter that is within their expertise and experience;
• Ensures that a good client relationship is established and the client feels comfortable to raise any concerns or questions they may have;
• Has in place a mechanism to maintain business continuity to ensure that wills and old files are stored safely and are protected if the business closes; and
• Considers issues such as testamentary competency and whether undue pressure has been brought to bear on the intending testator.’

Should you wish to make a will, please do not hesitate to contact Wills & Probate team at Blacks on 0113 207 0000.