David Heath – Solicitor & Partner at Ringrose Law
Writing a will is a straightforward exercise? Law Society research has found that homemade wills are frequently poorly drafted and often fail to achieve the desired results. If a will fails then the intestacy rules will apply, sometimes with undesirable consequences. It is as if you hadn’t made a will at all and your property could pass to people you would not want to benefit.
Is just homemade wills the problem?
It is not however just homemade wills which can be a problem. Sometimes wills drafted by unregulated will-writers can be equally disastrous. Such will-writers often advertise in local newspapers and hold themselves out as being both proficient and professional. Typically, they advertise their services as being value for money with wills for very low prices, perhaps £20 or so.
In practice, charges are usually much, much greater than this. Such will-writers often charge more for each clause added and, of course, will then suggest that many extra clauses are needed. They will often charge for storing the will, make inappropriate use of trusts and these purportedly are to save tax or allegedly to protect assets from the local authority should you have to go into care. Although trusts can be of great benefit when used correctly some unscrupulous will-writers use them as a way of inflating their fees.
A recent example of this which a colleague of mine came across, showed one of these experts placing a ninety year old widow’s home into a family trust to avoid care home fees. This took the ‘expert’ over 18 months to complete and when the widow passes away it was found that an area of land had not been put within the trust and it transpired that it had never been explained to the deceased widow that the transfer to the trust could have been overturned by a local authority as the transaction would if she had gone in to care possibly, at the age of 90, been considered to have been undertaken with the sole intention to deprive the local authority of assets! Another time an elderly couple in their 90’s were ‘talked’ into transferring their house into a family trust, however they didn’t have any family to protect, luckily in this case the couple saw sense before the transaction was completed and sought our help and unsurprisingly the ‘experts’ would not return to our clients the money they had paid to them!
Who can operate as a will-writer?
Unfortunately anyone in England and Wales can operate as a will-writer. They are not required to hold any formal qualifications or insurance. Many of those calling themselves will writers may have purchased a franchise to do so and are free to prepare wills without any training or insurance protection.
Seeing a Solicitor
It is extremely important to talk to a qualified solicitor who can make sure that the will is expressed in a way that is legally watertight. A solicitor will also be able to advise on complex financial issues such as inheritance tax and trusts planning. Solicitors are all trained and regulated. They are required to have adequate insurance to protect the public. If nothing else, you should check with a solicitor that the fees you have been quoted are reasonable – you may well be surprised by the answer. I have seen vulnerable people fleeced of thousands of pounds for trusts that purport to ‘guarantee’ that assets will be protected from care home fees, when it is clear that such guarantees are worthless. By the time the person realises their mistake, the will-writer will have liquidated the business and there will be no recompense.
Please talk to a solicitor before committing yourself to a salesman!