Where There is a Will, There is a Way

A review of recent problems in relation to wills, succession and inheritance

In recent years a number of concerning trends have developed in the area of wills and probate. In this article we will consider the latest figures on estate planning in England and Wales. We will also look at the impact untrained and unregulated will writers are having on this area of legal practice.

Will and Estate Planning

The people of England and Wales are surprisingly complacent about the importance of making a will. A recent survey revealed that only 41 percent of the adult population have an up-to-date will. In addition, about one-third of people who responded to the survey said they had no intention of ever making a will. Fiona Woolf, former president of the Law Society, neatly summed up the importance of making a will:

Writing a will is one of the most important financial and personal decisions for people to make…. if you care about what happens to your property and assets after you die, you must make a will. Without a will, the State decides who inherits your estate, so your friends, relatives and favourite charities may get nothing.

Simply relying on the State is not recommended, as the law of intestacy has remained substantially the same since 1925. A clear indication that the law in this area is not entirely effective is the current review by the Law Commission for England and Wales. A consultation paper should be published in November 2009, but it is unlikely that a draft bill would be ready before 2012.

So it seems that there is a clear need for the public to be educated about the importance of making a will. There is, then, the question of who should be providing education and advice in this area. Clearly a solicitor who is trained, insured, supervised and regulated by the Law Society would be more than capable of doing this work. Less certain is whether the expanding ranks of unregulated will writers would be able to give reliable ‘expert’ advice in this area.

Unregulated Will Writers – Dossier of Despair

You may be surprised to learn that you do not have to study or have an in-depth understanding of the laws regarding wills and probate in order to be a will writer. In fact, you can buy a franchise kit and start tomorrow. The basic principles of writing a will are straightforward enough, but often the type of advice a client needs goes beyond what can be learnt from a kit. A good understanding of tax law, a strong sense of ethics and an efficient office system are all very important, if the job is to be done properly. While campaigning for the regulation of will writers, the Law Society published Dossier of Despair to illustrate some of the risks for clients. The following are amongst the worst examples:

Case one – I came across a will writer in Milton Keynes who operated from his house, drafting wills which he then stored in boxes in his loft. He charged clients £200 to store their wills for them (most solicitors firms do this for free in fireproof strong rooms). He then moved house but didn’t tell anyone, so we had to employ a tracing agent to track him down and retrieve a will when someone died.

Case two – A will writer was stopping young mums with pushchairs and saying, ‘If you die without making a will, your children will go into care’. (This is not true.) He scared so many of them that they made wills with him on his laptop in the nearby shopping centre.

Case three – Another example involves a client who was sold a funeral plan for £1,000 – and then the will writer disappeared with the money.

I would hope that these examples are the exception rather than the rule, but I have yet to see a properly drawn will by a will writer. Most seem to grab clauses at random from somewhere and throw them together in a haphazard manner. Without the proper level of training, regulation and backup, it is much more likely that a will writer might be tempted to make a quick buck. As with so many things in life, the saying ‘You get what you pay for’ applies. In our next article on the subject of wills and probate, we will discuss the startling rise in disputes over wills and estates.