The Court of Protection recently ruled that two Lasting Powers of Attorney (LPAs) made by an elderly lady had to be cancelled because an more…
Who should prepare my Will?
Most people would decline car insurance from a provider with a notoriously low percentage of claims pay-outs and awful customer service ratings, even if the package on offer is the cheapest and could save the customer hundreds of pounds each year.
The majority would rather pay (much) higher premiums for the assurance that the vehicle will have maximum coverage value and thus relieving them of any sudden and severe financial liability. After all, it’s about insuring against a potential loss, not simply ’having‘ insurance because you have to.
So why do most of those in the UK who actually have Wills prepared draft it themselves or, marginally better, commission an insufficiently qualified Will writer for the sake of saving some money on a one-off payment? It’s as if ’having‘ a Will is more important than ensuring that it’ll operate as it should.
Can I write a Will without a solicitor?
There are thousands of unregulated Will writers, most without even a law degree or any form of recognised will-writing qualification, yet many practise after as little as a two-day course offered by a guild of sorts. They are then endorsed by that guild which promotes the facade of regulation.
The preparation of Wills for profit is not a ’reserved legal activity’ (i.e. one which may only be carried out by lawyers, solicitors or barristers) but it is without question a legal service. After all, it requires knowledge of the relevant legislation, understanding of the case law that applies, and application of the provisions that govern the laws of Wills and succession. Having a ‘pretty good’ knowledge of Wills may suffice for the unregulated Will writer in only the most basic of cases.
If your Will writer does not have the legal background, how can they identify with certainty (considering all litigious, tax and legal implications) all the potential pitfalls in your case and provide the best legal advice available? We would therefore advocate the use of regulated legal professionals for all legal services, including Will writing.
What does ‘regulated’ actually mean?
Even unregulated Will writers would agree that Will writing is a ‘legal activity’. The Legal Services Board oversees and approves all legal regulators in the United Kingdom in terms of the Legal Services Act 2007.
The following are the only approved regulators applicable to legal services in England and Wales:
- The Law Society and the Solicitors Regulation Authority (which regulate all qualified solicitors, solicitors’ firms and to some extent qualified lawyers)
- The Bar Council (for barristers)
- The Chartered Institute of Legal Executive Lawyers (CILEx)
- The Council for Licensed Conveyancers
- The Chartered Institute of Patent Attorneys
- The Chartered Institute of Trade Mark Attorneys
- The Association of Cost Lawyers
- The Master of Faculties (for notaries public under the Notaries Society)
For the purpose of Will writing, one can safely add the badge of quality provided by the industry and an internationally recognised STEP (formerly TEP) qualification. Academic and professional qualification is required in order to be regulated by any of the regulators overseen by the Legal Services Board.
No independent Will writing associations, societies or guilds are recognised as regulators of legal services by the Legal Services Board.
In other words, there is no true standard of quality, measure of training or guarantee of legal knowledge with an unregulated Will writer.
What are the benefits of using a regulated Will writer?
- Qualifications, knowledge and experience – you wouldn’t trust a medical diagnosis by a carpenter with a first-aid certificate. So when it comes to your Will, find someone who knows the law, the relevant precedents, holds an academic qualification in the law, and is regulated or employed by a regulated firm, i.e. SRA, CILEx and/or STEP.
- Peer review – in a law firm, very few legal documents, including Wills, leave the door without an experienced lawyer or solicitor colleague having reviewed the client’s instructions against the draft Will. This limits the chance of error, or that crucial legal advice has been omitted before the final Will is signed.
- Recourse – you may save money by attempting the Will yourself, or in your one-off payment to an unregulated Will writer, however, by using a regulated writer, you or your beneficiaries have recourse to the Ombudsman if it all goes ’pear-shaped’. An unregulated writer is not obliged to have insurance and there are few guarantees that their guild will provide satisfactory remedy if the advice and product received is insufficient.
- Longevity – Barcan+Kirby are the custodians of all Wills prepared by ourselves and our predecessor firms going back as far as the 1970s. If a solicitor’s firm closes without a successor, all documents (including Wills) are stored by the SRA. If you were to discover that your writer had moved on and no Will could be found, there are no comebacks – you no longer have a Will.
- Ongoing costs – no solicitor should charge its clients to store their documents, yet many independent and unregulated Will writers charge annual fees for storing Wills – some as much as £30 per year. You may have paid less with them but will your final Will be safely stored and, if so, how long before that storage cost becomes unreasonably excessive? At Barcan+Kirby, we store our clients’ Wills and deeds with a secure storage facility at no cost to the client.
- Range of expertise – law firms often offer multiple services with a wide range of expertise. Barcan+Kirby’s Will writers have colleagues on hand with varying expertise and strengths to ensure clients get the best overall advice, service and ultimately the best possible watertight Will. A legally trained writer is more likely to have the skillset to spot the need for another department’s input and area of expertise (conveyancing, family and commercial law come to mind).
- Complexities – if someone is not proficient in the relevant statutes and case precedents relating to Wills and succession, and has never had any practical experience of probate administration and/or the effects of Will writing malpractice, they are unlikely to be aware of the danger of what they don’t know. Stay clear. Especially if any of the below apply to you:
- You own a large estate, more than one property, or assets abroad;
- You have children from a previous relationship;
- You’re considering getting married, are separated or going through a divorce;
- You are considering transferring property to others in the belief that this will avoid debt or tax;
- You want to grant a share in your property to another;
- You cohabit with your partner (whether or not you intend to marry);
- You’re concerned about eventual care fees;
- You wish to leave significant portions of your estate to persons other than your spouse or you wish to leave significant portions of your estate directly to your minor grandchildren; and/or
- You potentially have a vulnerable or wayward beneficiary.
Always take specialist advice from a firm of solicitors. In the words of one Norman (Sailor Jerry) Collins, “good work ain’t cheap, cheap work ain’t good”. Don’t take chances with your estate planning for the sake of saving a few pounds.
You can also click here to request an estimate for our Will writing services.