Daniel’s article was published in FTAdviser, 13 September 2023, and can be found here.
Recent case shows DIY wills can often prove a false economy
DIY wills can, superficially, seem an attractive idea, particularly where an individual’s assets are relatively straightforward. The use of pro forma will templates found on the internet can seem a useful option for those wanting to prepare straightforward wills for regular estates.
Similarly, the use of unregulated will writers — that is, those without formal legal qualifications — are seen by some as a more convenient and cheaper option than instructing a solicitor to prepare a will. There are, however, several pitfalls to both approaches.
The recent case of Henrietta Ingram and Anor v Simon Timothy Abraham and Anor has highlighted the problems that can arise from the formation of DIY wills, where lawyers are not involved in the drafting process.
In Ingram, a mother’s will was disputed by her children, as it was thought not to align with her expressed wishes. Much of the case focused on two different documents drafted in 2008 and 2019. The 2019 document was made using a will template kit found online, and was drafted with the assistance of the mother’s brother, who was later found to have misled his sister to such an extent that the will was deemed invalid by the court.
The 2019 will was prepared without any professional guidance. The will failed to carry out the deceased person’s intentions due to a lack of the required formalities, and because of what the judge hearing the case described as misunderstandings by the late mother. Expensive (and avoidable) litigation followed, and the 2019 document was held to be invalid and the earlier 2008 will was admitted to probate.
Why solicitors should be involved
No such problems should have arisen if a competent solicitor had been instructed to prepare the will. More generally, the case raises several important reasons why a solicitor should be involved in preparing wills.
Using a solicitor ensures that clients are advised on all of the following aspects in the will preparation process:
- choosing who will be responsible for administering the estate — “executors”;
- ensuring that assets will pass to the intended recipients;
- providing for different beneficiaries in blended family situations — that is, where there is a second marriage and children from a previous relationship. In these circumstances, the use of a trust within a will can be invaluable by, for example, giving a second spouse a life interest in the estate — that is, a right to the income during their lifetime, which includes the right to occupy the family home — while protecting the capital for the children of the first marriage;
- making the most suitable provision for minor, dependent or vulnerable beneficiaries, such as by leaving assets on trust for their benefit;
- setting out whom you would like to take care of any minor children, by including a guardianship clause;
- mitigating the possibility of disputes arising after death; and
- ensuring that all relevant tax-planning considerations and tax reliefs are considered in the structure of the will.
It is very unlikely that most laypersons would consider all of the above factors when preparing a DIY will.
Another reason for involving a solicitor arises because of changes to the law in the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order, which allows wills to be witnessed by “videoconferencing or other visual transmission”.
While these provisions were helpful in allowing testators to make wills during the pandemic, when normal witnessing procedures could not be followed, the remote-witnessing process can lead to a number of pitfalls if the correct procedure is not followed to the letter. Such issues could then lead to potential challenges by beneficiaries in the future.
To minimise the risk of such challenges, solicitors will always advise clients on the necessary safeguards and procedure to be used when witnessing wills remotely, to mitigate the risk of future challenges.
Concerns also arise in the sphere of unregulated — that is, non-solicitor — will writers. This year, the Competition and Markets Authority launched a review into unregulated legal services, following concerns that some providers are failing to comply with consumer protection law.
The use of unregulated will writers with no legal qualifications, no overarching professional code of conduct and, sometimes, no insurance can result in customers being misled and overcharged.
In some cases, customers are required to instruct solicitors subsequently to correct documents prepared by unregulated will writers, when mistakes are ultimately discovered. In other words, the use of an unregulated will writer in preparing a will can be a costly mistake.
The CMA also noted that consumers can be misled through opaque advertisements offering a very low initial fee, but which fail to mention that final costs can increase significantly.
Unregulated will-writing companies can include potentially unfair contract terms, such as the exclusion of liability, the omission of cancellation rights, and the automatic appointment of the will-writing firm as executor, enabling that company to charge often significant sums for administering an estate.
Maintaining suitable insurance
In response to the CMA’s review, Law Society president Lubna Shuja noted: “When writing a will, we would encourage consumers to use a solicitors’ firm … people who use a solicitor receive support from a specialist legal professional who is regulated and insured.”
Solicitors are required to maintain suitable professional indemnity insurance, which can protect clients/beneficiaries if mistakes are made. Unregulated advisers may not always have such insurance in place, meaning that disappointed beneficiaries could be left without any redress if things do go wrong.
It is crucial for clients to feel confident that their will is going to have the effect they intend it to on their death.
While the cost of instructing a solicitor in preparing a will may seem prohibitive to some, cases such as Ingram demonstrate that DIY wills can often prove a false economy and should be avoided. Equally, the CMA’s concerns over unregulated will writers should give sufficient pause for thought for anyone intending to choose an unregulated will writer over a solicitor.