Making a Will allows you to specify where your assets should go on your death. You can provide for loved ones and in doing so, show that you care. Additionally, Wills can cover matters such as charitable gifts, guardianship for minor children, care for pets and whether the testator wants to be buried or cremated.
In the absence of a Will, the outcome of intestacy rules is unlikely to be satisfactory for the majority, particularly for more complex family structures.
Further, intestacy does not make provision for cohabitees and it is undesirable that the only recourse for this group is long-winded negotiation with the Deceased’s family which may lead to a stressful, expensive and potentially unsuccessful high court claim.
Choosing a Will writing professional
It may come as a surprise to learn that Will writing is not a ‘reserved activity’ and therefore, anyone can write a Will for you. No special qualifications are needed – in fact, you can start your own Will writing company today and start writing others’ Wills for them!
Unsurprisingly there are many ‘Will writing services’ trading today, with no guarantee that they have a single qualified lawyer working for them.
Steve Lodge and Sam McFaul at Money Saving Expert say:
“Confusingly, while will-writing itself is unregulated, because solicitors ARE regulated professionals, if you use them you ARE covered by a range of potentially valuable protections. With other (non-lawyer) will-writing services, you do NOT have the same safeguards, and with a DIY will essentially you are on your own. So we want to make it clear that who writes your will matters: the protections can vary hugely and problems may not come to light until after you are dead, which could be many years later.”
Some organisations such as the Money Advice Service say you can protect yourself by using a member of a professional body. There are two main ones in the UK: the Society of Will Writers and the Institute of Professional Will Writers. However, a quick glance over their membership requirements will tell you that you can be a member of the SWW with a qualification that is a equivalent to a single A-Level; and the same applies to the IPP.* Would you trust someone with an A-level to write your Will?
In our view, these requirements simply don’t reflect the same standards that we hold our lawyers to. Membership alone does not guarantee knowledge and experience comparable to a qualified Solicitor, Chartered Legal Executive or TEP (Full STEP member).
Further, if things go wrong, clients won’t necessarily be able to complain to the Legal Ombudsman or any of the other regulators if they rely on membership of the SWW or IPWW alone. Whilst the SWW and IPWW have a complaints service, they have no real equivalent power to say, the Legal Ombudsman, SRA, CILEX or STEP. By contrast, a qualified lawyer such as a Solicitor or Chartered Legal Executive must abide by a strict professional Code of Conduct and can be sanctioned both by the Ombudsman and by their respective Regulators.
* i.e. a single CILEX Level 3 qualification which is equivalent to an A Level.
Online Wills services
There are also plenty of online services offering Will writing, some of which claim to use solicitor-prepared templates. They are cheap and quick, so it is not surprising that they are also popular.
Unfortunately a quick questionnaire on an online website does not replace the sort of interview a solicitor will give. It is simply impossible to write a comprehensive set of questions that will cover every single circumstance and then produce a tailored Will at the end. For example, many online services recommend Mirror Wills which in our view, are just not suitable for the vast majority of couples.
Further, using an online service means there is no evidence that you had the mental capacity to make a Will, nor that the Will properly reflects your wishes. Unsurprisingly, it is far easier to challenge a Will made with a simple questionnaire than it is to challenge one made face-to-face with a solicitor!
In addition, even if the service states that the Will is checked by a qualified person afterwards, that person cannot properly check the document suits your circumstances because there is no interview or notes to compare to! You may think that the generated document reflects your wishes, but you wouldn’t know if there was a better way because you have no solicitor guiding you.
Further, the term ‘qualified person’ used by a lot of online services is very loose. We contacted several of the most popular services and none could guarantee that their ‘qualified person’ would in fact be a solicitor.
Choose a service managed by a regulated lawyer
There has never been a better reason to use a solicitor or regulated lawyer-managed service to make a Will than now. Estates are growing in size as property prices soar and people live longer. This makes contesting a Will a more lucrative endeavour, and cases like Ilott have publicised the possibility of doing so. Families are more complex in structure than ever, increasing the likelihood that someone misses out where a standard Mirror Will is made. Dementia is a growing problem and symptoms can present an opportunity to challenge for lack of testamentary capacity. On the other hand, a solicitor’s notes can help to demonstrate that the client fully appreciated what they were doing when they made their various testamentary dispositions.
In light of the growing number of contested probate claims, Will writers are under increasing pressure to keep up to date with the latest cases in this area. Doing so will allow them to adapt their advice and practice to minimise the likelihood of a claim being made in respect of their clients’ estates. This protects both the best interests of the client and at the same time, reduces the likelihood of a professional negligence claim against the solicitor who prepared the Will. Choosing a legal services provider to draft your Will with experience of contested wills claims can help ensure that your Will writer has adequate understanding of issues that might arise in the future.
Will writing also overlaps several other areas of law including property, tax and family. To be an effective private client lawyer in these increasingly litigious times, a knowledge of those overlapping areas has become essential. Again, choosing a firm whose lawyers have a broader knowledge than the simple equivalent of an A-level can help ensure the advice you receive is contextual, taking full account of all of your circumstances.
April King’s team of lawyers is led by Paul King, a full member of the Society of Trusts and Estates Practitioners (STEP). STEP is the global professional association for practitioners who specialise in family inheritance and succession planning. Full STEP members like Paul are internationally recognised as experts in their field, with proven qualifications and experience.