How Healthy Is Your Will?

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.

By Judy Benmayer of HighStreetLawyer.com