When it comes to vulnerable members of society, protecting them is key. This summer, the Competition and Markets Authority (CMA) launched an investigation looking at potential law breaking in will writing, particularly from unregulated providers. Unfortunately, the problems these wills (referred to in this article as unregulated wills) leave behind are often not known until years later, as Nicola Weldon, Partner and Head of Wills, Trusts and Probate, knows only too well.
Of all the scandals of the last two decades, one is only now rearing its head. For years, UK adults have been encouraged to write a will to ensure their final wishes are known and laid out clearly. But with many options, and the internet, open to them, it seems qualified lawyers aren't the only people who have been helping to draw them up.
"The rise in unregulated will writers really is a problem," said Nicola Weldon. "These people boast they are cheaper, faster and, on the face of it, genuine and legitimate. So why wouldn't vulnerable people who need a will use them? While the industry has been aware of their operations for a while, the consequences of using them is only now coming to light as people who have used their services are now passing away. It can only be then that their arrangements are unravelled and problems identified Because while unregulated will writers look like a good idea in the short term, some are offering advice that is actually detrimental to their client and their family."
One misplaced piece of advice Ms Weldon is seeing time and again is for the person making the will to be advised to put their house in a trust to avoid inheritance tax. However, there are rules which mean that these types of arrangements often fail to work. Much of the time it seems these arrangements are also being sold as a way for people to avoid paying care home fees. Ms Weldon explained how such arrangements can be classed as deliberate deprivation of assets and can leave families having to fund their loved one's care fees and paying up to thousands of pounds after they die to try and amend. Another issue is an unregulated will holding surprises to those who think they may be inheriting. An example of a case Ms Weldon has been acting on includes a will barring a child from inheriting anything from an estate. Two years later, the problem has still not been resolved and has left the estate in limbo.
Ms Weldon said: "You only have to search on the internet to see adverts promising you a will in as little as 30 seconds and for only £20. There is this misconception that not only do they cost you less money, but they have the same level of experience and training as a lawyer, which of course they don't. This not only means your will may be invalid, but they also don't have the same duty of care as a regulated lawyer which can lead to clients being oversold documents that they simply don't need.
Experienced lawyers have extensive legal knowledge and expertise so that they can prepare a will tailored exactly to the client's needs and circumstances. This would include spending time ascertaining the client's financial and personal affairs as well as advising on any potential problems that may arise. For example, if we have a vulnerable elderly person wanting to make a will, we ensure they are supported to put forward their actual wishes. If there is any possibility of the person not having the capacity to make a will or they are being put under undue pressure from others looking to gain, we have the experience and knowledge to deal with these situations and can arrange for capacity assessments to be carried out where necessary. Steps like these are really important to ensure that a will is upheld in the event of a claim against an estate.
"Unregulated will writers are also not as cheap as they seem. With lawyers, you are given a fee to complete the work and, at Ellisons, we never charge for holding the will. This is common practice across most law firms. Often you will find something like this is an add on to the price charged by an unregulated provider. On top of that, law firms are required to have professional indemnity insurance, which protects the client if something goes wrong and, in the event that a law firm goes out of business, all documents are passed to a successor practice. When an unregulated will writer goes out of business, the documents held by them can seemingly vanish into thin air."
For Ms Weldon, a Dementia Friend at Ellisons who volunteers at Dementia Cafés regularly, people are being taken advantage of. With an estimated 60% of UK adults still not having a will, ensuring they have the right advice is more important than ever.
She said: "My advice would always be to do your research. Make sure your will writer has the right qualifications and insurance and always look at recommendations to see what others are saying about them.
"Distrust is also a huge factor. Firms who hold a Lexcel accreditation are audited externally to ensure the clients are protected, whereas unregulated will writers aren't. Make sure you are using a reliable and trustworthy individual to write and hold your will. An up-front cost should include everything, if you are later being charged for other things, such as holding your will, it is a definite red flag."
Ms Weldon added: "The CMA is rightly looking at this situation to see what can be done to protect people. Unfortunately, for many it is too late."
30 million adults in Britain do not have a Will (oratto.co.uk)
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