Making sure your Will is a legally safe document
Everyone knows that having a Will in place is vitally important. But a Will is a Will whether it's drawn up by a solicitor or a Will writing company….Isn't it?
Actually, the answer is no. Qualified lawyers are overseen by the Legal Services Board (LSB) and if something goes wrong, complaints can be dealt with by the Legal Ombudsman for England and Wales.
If you use an unregulated Will writing company, either on-line or face to face, or do your own Will using an off-the-shelf kit, the Legal Ombudsman has no power to intervene.
What's more, many unregulated Will companies are uninsured so if a Will is disputed because of inaccuracies, then the chances of getting any legal compensation are slim.
So, what's their appeal then?
Although solicitors still prepare two thirds of Wills, unregulated Will writing companies now account for around 12 per cent of the market, about the same as those who use off-the-shelf Will kits.
Unregulated services can also prepare Lasting Power of Attorney applications and set up things like protective property trusts.
They are usually cheaper than solicitors and although unregulated, you can take steps to protect yourself to some extent by making sure that the service belongs to either one of the following:
- The Society of Will Writers
- The Institute of Professional Will Writers
Members of these organisations must regularly update their training, be insured to cover legal costs if your will is challenged - financial experts recommend you choose a company with at least £2 million of professional indemnity cover giving you a better chance of compensation if things go wrong - and follow a code of practice approved by the Trading Standards Institute.
Calls for regulation
Despite calls by the LSB to make Will writing subject to regulation, after finding 'comprehensive evidence' that consumers purchasing Wills from unregulated firms received poor service resulting in financial loss, practical issues and emotional harm, the government decided against it.
Typical mistakes included:
- Problems with the witnessing of the will - there need to be two independent witnesses who will not be beneficiaries of the Will and they need to actually see the testator sign the Will
- Vague wording when it comes to specific legacies - wording needs to be careful so it is not open to different interpretations
- Problems with the description of beneficiaries and assets - for example, the testator wants to leave her Ming vase to her niece but if she has two Ming vases, or two nieces, the wording may not be clear enough. And if the gift is not described accurately enough, it could be contested.
Wards Solicitors' lawyers have seen for themselves the anguish badly written Wills can cause.
- "One of my clients was sold an asset protection trust and Will for £2700.The company said the cooling off period didn't apply because it was a bespoke service. Sadly, the Will referred to the property which they had already purported to write into trust. The client did attempt to cancel within the 14 days but was left with no option but the small claims court or trading standards. She is terminally ill and could not face it."
- "A client instructed a Will writing company to prepare a Lasting Power of Attorney (LPA) and paid a £500 deposit. When she heard nothing and inquired, the company said it was chasing the Office of the Public Guardian (OPG), which registers LPAs, but claimed the OPG wouldn't respond to them. When the client rang the OPG herself she was told they had never received any paperwork regarding her LPA. The company refused to refund the deposit due to the cooling off period timescale having elapsed. I tried to get the client to speak to our litigation department to see if there is anything we can do to help (she is not a wealthy lady) but she said she is so fed up that just wants to forget about the whole horrid affair and cut her losses. Made me so angry. Next time I see her I'm going to try and encourage her again to contact the Citizens Advice Bureau and Trading Standards."