23 January 2010
Did you know that anyone can set themselves up as a will writer?
Armed with the forms from an easily downloadable online information pack, any individual can claim the necessary experience and knowledge to help you sign your worldly goods away.
A quick search on the Internet reveals plenty of offers 'We do it all for you, no forms' or 'Write your will in minutes' are just two examples.
Little surprise then, that the flip side of this burgeoning industry is an increase in the number of wills now being challenged in court – often a combination of poorly written or badly thought out documents and more solicitors who are prepared to take cases on as a no win no fee exercise.
Craig Williams, senior associate in the B P Collins' wills, trusts and probate team, says she and her colleagues have seen an increase in the number of wills now being challenged and is concerned that families will lose out as people fail to make careful provision for their loved ones.
"Some will writers have become a real issue because they are not adequately insured or qualified and therefore they are not aware of the legislative nuances that are part of making a will," she said. "As a legal firm, we spend a great deal of time and training in the law to ensure our clients get the most up-to-date and comprehensive legal advice available, and we believe that is essential when people are making arrangements for their family's financial future.
"In the past, society as a whole tended to be less litigious, but now there is a real expectation of inheritance, more people want a slice of the cake or to see others excluded, and they are prepared to go to court to get it."
When a will is challenged, the first step is often the arrival of a Larke and Nugus letter from the solicitor acting for the challenger. This asks for details of the circumstances of the will preparation, for example, with the intention of establishing whether any duress could have been employed.
Craig describes this as a "fishing exercise" and says it is often used as a deciding factor in whether or not to proceed with a court case. Where a qualified solicitor has drawn up a will, detailed notes of the meeting would have been retained and easily produced.
With online will writing fees starting from as little as £50 however, it's unlikely that such information would have been kept, potentially already putting the challenger in a stronger position.
Figures show that around half of wills which are challenged simply go no further, but in roughly 30% of cases some form of settlement will be made and a further 20% make it as far as the courtroom – emphasising the benefits of getting the right advice from an expert.
This is especially true for individuals who have higher levels of savings and investments, where they own property – either at home or overseas – and pensions. It may be there are complicated matrimonial and family relationships to take into account, inheritance tax implications may need to be considered and, for larger estates, it may be necessary to discuss setting up a Trust for future generations.
"These examples show that there is no substitute for talking to a professionally qualified solicitor or will writer. It's very often the case that you don't know what you need and what your options are until someone is able to explain it to you," Craig continued.
"Making your will is an important exercise, make sure you do it properly and that the ones you want to benefit are safely and securely looked after." Some families succeed in challenging a will, as these examples demonstrate:
The former head of Worcestershire will writing firm SPS was struck off at a Solicitors Disciplinary Tribunal hearing last November. Stephen Share set up SPS in 2007, employing sales representatives in supermarkets to get new business. Charging £39 per will, the firm grew rapidly to become one of the biggest in England with some 10,000 clients, but in 2008 the Law Society took over his practice and suspended him after allegations that SPS had unfairly charged clients up to £3,000 in advance for wills and probate work. Share was also ordered to pay £24,000 costs.
In the case of Kostic v Chaplin in 2007, Mr Kostic's family disputed his will on the grounds of his mental capacity after he left his entire estate, worth some £8.2 million to the Conservative Party. They eventually succeeded, but it cost £900,000.
Yorkshire woman Christine Gill succeeded in contesting her parents' will after they left their £2.34 million estate to the RSPCA. At the High Court in Leeds, Judge James Allen QC, said in his judgement that her mother had been "coerced" by her husband into making a will that was contrary to her wishes. The case continues as the RSPCA has said it will appeal.
For expert advice on making a will, please contact the private client practice group at B P Collins on 01753 279030, complete the online enquiry form or email your enquiry to privateclient@bpcollins.co.uk. |
