One in five wills contains a serious error, says Legal Services Board.
All those offering will-writing and estate administration
services should be regulated, the Legal Services Board has recommended. The LSB
was set up to regulate lawyers in England and Wales. Its goal is to modernise
the provision of legal services by putting consumers at the heart of the legal
system, and it has released a proposal calling for regulation in the area of
wills and estate administration. The LSB has recently switched its focus from
looking at entry requirements to become
a solicitor, to looking into the actual risks of lawyers’ activities and
improving their regulation.
In 2011, the Legal Ombudsman called on the Government to act
in protecting consumers against unregulated firms working in will writing. He
stated that 13 per cent of all complaints brought to him involved problems in
this area.
Many people would rather not think about what happens when
they are no longer around. Often it is assumed that the estate will be split
between next of kin, but legal rules which dictate what happens to someone’s
property after death are complex, and the affairs of the deceased may not be as
simple as first anticipated. Considering the importance of decisions made in a
will, and the emotionally sensitive nature of administration of an estate, it
is surprising that this area of law remains unregulated. Without sufficient
checks, there is no way in which to prevent dishonest action when given full
control to dealing with a deceased person’s estate. Without regulation, there
is no guaranteed scheme for compensating those who are subject to fraud or
costly mistakes due to poorly written wills.
The most staggering part of the research published by the
LSB is that one in five wills drafted by a “professional” contained mistakes. The
LSB also found systemic problems of sloppiness, simple errors and poor
communication in solicitors and will-writing companies. Wills that would have
failed to deliver what the testator wanted, or containing unclear clauses that
would lead to difficulties administering the estate were widespread. A small number of these wills were so poorly
crafted that they were found not to be legally valid, meaning that the rules of
intestacy would be applied as if no will had been written. Although correcting
the mistakes by way of variations is possible it could be costly.
The LSB has proposed regulation in order to address problems
such as the quality and safekeeping of wills, unethical sales practices and
fraud, and the safekeeping of consumer’s money. It also plans to include a
redress procedure to ensure that consumers are protected, regardless of who
delivered the service, should things go wrong, making it impossible for
unscrupulous providers to avoid regulation. Regulation will not stop mistakes
from occurring; many of the errors were made by already regulated
professionals; but they will provide a system of protection, comfort and
redress for anyone who doesn’t want to draft their own will.
