The decision not to regulate wills is a negligence time bomb, says Stephen Hill - partner and professional negligence lawyer at Bolt Burdon Kemp...
The Government’s decision to ignore the advice of the Legal Services Board (LSB) and allow will writing to continue without regulation is a negligence time bomb, which will rob beneficiaries of their inheritance.
The LSB recommended that will writing becomes a regulated activity under the terms of the Legal Services Act 2007 earlier this year in a bid to protect consumers and increase competition in the market. This recommendation was based on research completed by the LSB last year, which revealed that one in five wills contain mistakes.
Consumers who use online will writers or off-the-shelf will kits are in danger of leaving their loved ones a faulty will and a financial mess to sort out. Loved ones may be left without their inheritance and without any means of redress because the will writer does not have any professional indemnity insurance.
There is a serious amount of incompetence among will writers, which is causing all sorts of problems when people die. In some cases, six-figure estates have to be treated as intestate simply because the will provided is invalid or legacies end up with the wrong beneficiaries if it is badly worded. Not only can this cause a great deal of heartache and uncertainty for family members at a difficult time, it is difficult to cure defects with a will. More often than not, beneficiaries who have lost out on their inheritance are unable to seek compensation because the will writer has no professional indemnity insurance cover.
There are many myths about will writing that can lead consumers to believe that it is not necessary to use the services of a qualified solicitor. For example, people often wrongly believe that as long as their will is written in their own hand, dated and stored in a place where it can easily be found, then it will be adhered to in the event of their death. Others believe that there is no need for a will between husband and wife because their spouse would automatically benefit in the event of their death. The truth is that some complex rules apply and it is important that professional advice is sought.
For example, a common mistake arises when bequeathing a specific property to a family member. The will might state that the owner wants to leave their house to a named individual but if they move home after they make the will, then, if the will is not drafted in the right way, that legacy will fail and the beneficiary will end up with nothing. If the will writer concerned was not a qualified solicitor, they may not have professional indemnity insurance cover and so the beneficiary may find that the property is left to the wrong person and there is virtually nothing they can do about it.
Even if a qualified solicitor was used to write the will, some negligence claims could be thwarted by the ‘long stop rule’, which means there is only a limited time in which to bring a claim.
The Limitation Act states that a potential claimant usually has a maximum of 15 years in which to bring a claim and in the case of will writing, negligence is usually discovered after the maker of the will has died, which may be too late. For this reason, we would advise consumers to review their wills at least every 15 years.