A market intelligence company recently published its annual addition of the report providing a review of the UK Wills, Probate, and Trusts market. The survey evidenced that just only 40% of consumers had a Will, and that a further 21% had stated that they would make a Will in the next few months.
The proportion of consumers using solicitors to draft their Will was 49%, and 19% of consumers used Will writers. Further, around 13% of consumers prepared their own Will using search engines to gain access to online precedents.
The CMA has issued guidance to consumers to assist when buying Will writing services. Although 4 out of 10 consumers believe that all Will writers are regulated the CMA guide confirms that there are in fact no restrictions in the law as to Will writing.
The consequences of a badly drafted Will can be dire. In the case of Tedford as there were “genuine difficulties” as to the construction, or meaning, of the Will the Executor was required to make an application to the court to resolve the difficulties. The Judge held that the proceedings had been properly brought by the Executor, as the Executor was unable to safely distribute the Estate without the protection of a court order. The Judge also observed that the family had fallen out over the meaning of the Will.
The parties identified a number of clauses in the Will, and many “genuine questions of interpretation”. The Judge held that the Will was “drafted badly”, and expressed the following view:
“This dispute has no doubt caused at least some of the parties untold anguish, substantial expense, and delay, and destroyed family relationships. The evidence suggests that the Will was prepared by an apparently unqualified person holding himself out as a Will writer, perhaps for money. This case demonstrates the perils of trying to save expenses by using the services of unqualified persons to write Wills.”
On reviewing the Will in dispute the Judge noted that certain “standard form” clauses, parts of clauses, and words had been used. However, the use of the wording was in ways “… which portray a limited understanding of their meaning and function, and of the underlying body of law in relation to which, when used properly, are formed. They may well have been cut and pasted from some other documents or precedents, perhaps rather old ones, and then amended.”
The Judge then arrived as his conclusions, and did not consider the Will or any part of it to be meaningless. The decision was no doubt contrary to the position of some of the Beneficiaries resulting in some of them receiving not as much as they may have hoped.
The CMA guide emphasises that anyone can write a Will in the UK. However, the CMA also stressed the importance of fully understanding the options, and differences, when making a choice. Instructing a regulated professional, such as a Firm of solicitors, may be more expensive but the Will writer is required to meet standards, training, and qualifications.
The case referred to above is a reminder that the drafting of a Will is not necessarily straightforward, and does require specialist knowledge and experience. A badly drafted Will can have the opposite effect to the intentions of the testator and lead to a dispute. Further, without a Will, an estate will be distributed in accordance with the Intestacy Rules, which might not reflect your wishes.
