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Wills and probate solicitor, Toni Sinclair looks at the risks people take when they choose to deal with an unregulated Will writer, rather than a reputable solicitor
Despite being an important legal activity, the business of Will writing is completely unrestricted. Anyone can set up in business to provide a Will writing service – even if they have no formal legal qualifications or training. Yet given the social, familial and financial dynamics of our modern society it is probably more crucial than ever that people make a properly executed Will that is relevant to their particular circumstances and reflects their wishes by making provision for their loved ones after their death. The consequences of having an inappropriate, invalid or incorrectly drafted Will by someone who was incompetent can be very serious indeed, not least because problems may only come to light following your death but are likely to impact hugely on your chosen beneficiaries. In extreme cases, beneficiaries have lost out altogether due to the incompetence of the Will writer.
There are certain legal formalities which must be observed when making a Will. In particular it must expressly state that it is your last Will, it must be dated and it must be signed by you in the presence of two witnesses. From a technical point of view, the Will should deal with the appointment of executors and, if appropriate, the appointment of guardians. Wills must also deal with the disposal of the entire estate and give the executors all the powers they will need to deal with the administration of the estate.
A Solicitor who specialises in advising Clients about Wills and who has the legal knowledge and expertise, will always ensure that the Will is tailored to the individual Client’s needs and circumstances. They will spend time exploring the Client’s financial and personal affairs, asking the right questions to identify potential problems and scenarios that may not have been immediately obvious to the Client. They are experienced in exploring all the options available to the Client and addressing these issues with a view to producing a Will that is not unnecessarily complex and that best achieves the Client’s desired outcome.
There are major advantages in instructing an experienced Solicitor to draft your Will for you. Apart from the legal knowledge that they will possess, there is a whole raft of consumer protection if something goes wrong with a Will drafted by a Solicitor that comes with it. In particular every Solicitor is regulated by their professional governing body, the Solicitors Regulation Authority. The Solicitor has a professional duty to adhere to a strict code of professional conduct which in itself provides the Client with a great deal of consumer protection. Failing that there is a complaints procedure, professional indemnity insurance and a compensation fund to fall back on.
“… the reality of the situation is
that once the client is
hooked and sitting comfortably,
the final price turns out
to be much higher.”
Many Will writers by contrast do not possess the requisite level of legal knowledge and expertise, let alone offer the client the same protections that come with instructing a Solicitor. There is no compulsory code of conduct and no professional body to govern them. They are not obliged to have indemnity insurance and there is no compensation fund. They are also completely unregulated.
A number of serious problems have been reported concerning the activities of unregulated Will writers. This has led to mounting concern about some Will writing companies in relation to the quality of their Will writing service and their poor sales practices. It has also led to pressure from the media, consumer groups and the legal profession for regulation.
Unregulated Will writing companies are well known for attracting clients by cold calling them and offering to visit them in their own home. They will often sell themselves on the basis that they offer a much cheaper service than their professional competitors. It is this bait tactic which enables them to get a foot in the door. However, the reality of the situation is that once the client is hooked and sitting comfortably, the final price for making their Will turns out to be much higher. Will writers seek to increase their fees by selling lucrative ‘additional ‘ services such as storing the Will or services that are unnecessary, such as pre paid estate administration services.
There are reported cases of Will writing services giving initial cheap quotes for Wills, but then charging clients significantly more for inserting unnecessary features into the Wills. There are other reported cases of Clients being charged thousands of pounds for trusts to protect against care home fees even in situations where quite plainly this kind of trust was not suitable for the Client concerned, such as a situation where the client lives alone.
“Clients have been led to believe that
they were paying for the administration
of the estate but in fact the service
is limited to just obtaining a Grant
of Probate or nothing more than some
simple initial advice.”
The Wills storage problems experienced by Clients of unregulated Will writers fall into two categories – insecure storage practices and insolvency. There are reported incidents of certain Will writing companies charging high costs for storing Wills which are payable on a monthly basis – a service that Slee Blackwell Solicitors offer to our Clients completely free of charge. Consequently whilst Clients may have bought themselves a cheap Will they could end up paying thousands of pounds for its storage. One particular Will writing company offered to store Clients’ Wills at the National Wills Depository at Somerset House. No such place exists and the reality was that the Wills were being stored in a barn in a Somerset village! Other examples include Wills being found in wardrobes, attics, sheds and dumped in a field! There have been issues where Will writers who have stored Wills have gone out of business and Clients’ Wills have been lost. Where this is discovered during the lifetime of the Client, there is the extra expense and inconvenience of making a new Will and where fees are paid in advance for the storage of the Will this money has been completely wasted and lost. It can be even more problematic though post-death if the executors are unable to trace the Will.
Solicitors, on the other hand, have a Code of Conduct which includes rules about the safekeeping of Clients’ documents. Furthermore the closure of a Solicitor’s practice is subject to specific requirements relating to the safekeeping of Clients’ documents.
Another sharp practice offered by many within the unregulated Will writing industry is to sell the Client a pre-paid probate and estate administration service at the same time as making the Will. Traditionally, the costs of the administration of the estate come out of the estate itself after death, so there is no reason for a Client to be concerned about taking the pre-paid route. But pressure -selling tactics can be used to persuade Clients that if they pay now, their chosen beneficiaries will receive a greater inheritance. Typically Clients are persuaded to pay the cost upfront by regular instalments out of their bank account over a fixed period which often also includes them signing up to a consumer credit agreement. In addition the agreement may provide that post death a percentage of the estate is payable. As a result of these practices, the costs of administering the estate normally end up being significantly higher than if the estate had borne the costs of the administration in the usual way, with the executors being free to appoint professionals of their choice to deal with the administration. More worrying are the instances where he services the Client thought they were buying are never provided. Clients have been led to believe that they were paying for the administration of the estate but in fact the service is limited to just obtaining a Grant of Probate or nothing more than some simple initial advice. As with the storage of Wills there is also the risk that if the service provider goes out of business or becomes insolvent resulting in the pre-paid fees being lost. In short, Clients can end up paying enormous sums for services they do not need or do not even receive.
“Only last month a Will writer was
imprisoned for fraud because he
wrongly advised a number of his
Clients that fictitious changes in
the law invalidated their Wills,
necessitating the making of a new
Will for which he charged a fee.”
Will writing provides opportunities for the unscrupulous to commit fraud. Cases have been reported where Clients have paid in advance for the making of a Will which has never been delivered or have handed over credit card details only to find monies have been removed from their account without their authority. Fraudsters have sought to name themselves as beneficiaries or as executors in order to control the assets of the Client post death, giving them the opportunity to steal from the estate. Essentially, there is nothing to stop a criminal setting up in business as a Will writer. Of course there are good and bad, as in all walks of life, but why take the risk? Dealing with a reputable solicitor will give you the peace of mind of knowing that your affairs are in safe hands and that in the unlikely event of something going wrong there are mechanisms in place to ensure that you don’t lose out.
Only last month a Will writer was imprisoned for fraud because he wrongly advised a number of his Clients that fictitious changes in the law invalidated their Wills, necessitating the making of a new Will for which he charged a fee. By the time the local Council’s Trading Standards Department brought a prosecution, this particular rogue trader had been thought to have defrauded up to 130 Clients. At the same time, the fraudster operated a Will storage business promoting the storage of Clients’ important documents in a secure facility in London. The reality was that the Wills were found stored in the airing cupboard of his house!
There has been a longstanding debate about whether Will writing services should be regulated. Parliament last considered the issue during the passage of the Legal Services Act, but accepted the view of Ministers that there was insufficient evidence of consumer detriment to justify it. However, the mood is now changing as horror stories emerge. The Scottish Parliament has already decided in favour of regulation. Let’s hope our Parliament will have the sense to follow suit and re-consider its position so that consumers have the protection they deserve and are provided with a quality service by providers competing on a level playing field.