Wills are not just for those who have a great deal of assets and property. Everyone should have a will stating what they would like to do with their possessions after they die. If a person dies without a will, the law decides how those possessions should be distributed, regardless of what the deceased would have wanted.
However, there is more to writing a valid will than meets the eye. Under section 9 of the Wills Act 1837, formalities must be followed for a will to be valid. Apart from the requirement that a will must be in writing, it must be signed by the person making it (known as the testator) and in the presence of two independent witnesses. There are also restrictions on who those witnesses can be. Failure to observe formalities may render a will invalid so it is very important that you seek advice on writing your will.
To make sure you do not end up with an invalid will, finding someone to write it for you makes good sense. However, the will writing market is currently unregulated and therefore it can be a minefield making sure you have appointed the best person to do this for you. Generally, there are two types of will writers available to the consumer; a regulated professional such as a solicitor, or an unregulated will writer.
Most consumers are unaware that the rules as they currently stand allow a person with no prior knowledge or training in writing wills to advertise themselves as a will writer and charge customers for writing their wills. It is therefore very important that a customer establishes which kind of will writer they are dealing with, and what the cost of the service being offered will be before they proceed with their instructions.
Unfortunately, there are many instances of unregulated will writers charging more than five times what a qualified solicitor would have charged and at the same time not giving the rounded advice. In these cases, they often quote low fees to get consumers through the door, subsequently adding on extortionate charges for additional items as they go, such as including the tax implications of the will, which a qualified solicitor would have provided as part of the service.
There are, of course, some will writers out there who can draft a suitable will, but there are also many who, through poor drafting or poor understanding of the law, create more problems than they solve, leaving the testator’s estate vulnerable to disputes or even rendering the will invalid.
Many will writers also charge an annual fee to hold a will for their customer; if they are unregulated and the company closes, they have no legal obligation to return or hold on to these documents, something that can be quite an unfortunate surprise to many consumers. For regulated solicitors firms, the Solicitors Regulation Authority governs how firms hold customers legal documents and will take over the documents in the event of a closure, to make sure they are still available to the testator or their Executors.
Due to the continuing concerns and complaints about the unregulated will writing sector in recent years, The Competition & Markets Authority (CMA) has issued guidance to consumers setting out what they should consider when purchasing a will writing service.
The CMA advises that you should obtain evidence of the will writer’s qualifications, training and experience and check whether they have professional indemnity insurance as well as a complaints handling procedure, so that you know what options are open to you or your beneficiaries if things go wrong.
A key point is to confirm what the will writer’s charges are upfront and to carefully check the small print. They can contain hidden charges or put unfair limits on damages they must pay you if they have been negligent in their advice to you. Another point to check is whether they state that they do not provide legal services, despite having told you that they have legal experts checking your will.
Also beware of additional services offered alongside making a will, which are not necessary for the validity of your will. For example, offering to be appointed as an executor of the will and charging for this service; this is unnecessary as you can choose a relative or good friend to be the executor for free. Some will writing services also offer will storage, will update subscriptions or complex estate planning services. They are also not necessary for a will to be valid. If your estate is not simple, it is highly recommended that you take advice about your estate planning from an experienced and regulated provider such as a solicitor.
In conclusion, our advice is to do your research and don’t be afraid to speak to a solicitor. We recommend that you shop around before you decide to use an unregulated will writing service and remember that if you have signed up to a will writing service online, you have a 14-day cooling period to change your mind and obtain a full refund.
For further information on will writing please contact our Wills, Trusts & Estates Department on 01242 801748 or find out more information at https://www.franksmithandco.com/services/private-client/