The good, the bad and the costly

Your will: the document that has the effect of directing all of your worldly goods upon your death to your chosen beneficiaries. During your lifetime, you can change your wishes and will as often as you like, as long as you are over the age of 18 and have the mental capacity to do so, with the final (valid) version coming into effect on death and taking precedence over all prior documents you might have drafted.

It might have been signed on the date of your death or several decades before. It might consist of some scribbles on the back of a beer mat, or it might be a complicated series of legal structures running over dozens of pages. It could have been prepared by you, in your own words, cribbed from precedents taken from the internet, or drafted by a professional will writer or solicitor.

In all cases, as long as it adheres to the Wills Act 1837, then it is a valid document. However it was prepared, it must be in writing, signed by you (or by another in your presence and at your direction) and witnessed by two witnesses, who must not be beneficiaries or married to beneficiaries.

The succession laws in England and Wales, subject to any legal action taken under the Inheritance (provision for family and dependents) Act 1975 (IHTA 1975), allow for extensive testamentary freedom with regard to the gifting of assets upon an individual's death. This means that in your will, you can leave your assets to whomever you choose, in whatever amounts or percentages
you wish.

How much should we give?

Modern property prices, coupled with the financial pressures on the younger generations, mean that family wills can be crucial in terms of who they benefit and who they do not. Most beneficiaries named in wills are receiving the largest cash pay-out of their lives. Inevitably, most will disputes arise when a disappointed beneficiary takes action to gain a share, or greater share, of the estate.

The contents of the will do not just determine who gets what, but also the amount of inheritance tax payable on death. While inheritance tax only applies to certain estates (currently those over £325,000) and limited mitigation can be achieved in a will, a badly drafted will can certainly bring about a worse inheritance tax position than was necessary.

Needless to say, 'beer mat' will drafters aside, most individuals take will drafting very seriously, especially as they become older.

Since the final (validly executed) will trumps all prior documents, there is an increasing possibility that a 'last will' will be signed by an elderly, vulnerable, suggestible individual, or one whose mental capacity to make a will at all is dubious. In such cases, special care must be taken by advisers when preparing the will and ensuring its correct execution.

With all this in mind, it is no wonder that will drafting is a very important undertaking, and careful consideration should be applied when giving instructions for, and signing, a will.

Loose foundations

In view of this, it is perhaps surprising that will writing is not a regulated area of law. It was not included as a reserved legal activity in the Legal Services Act 2007. This means that anyone can draft a will for someone else and charge a fee for doing so. No qualifications, experience or insurance are required.

In a 2011 paper on the need for regulation of will drafting, the Law Society of England and Wales gave a number of damning examples of instances where people had been let down by poor will preparation. They cited issues such as:

• Inadequate or wrong advice regarding execution, leading to an invalid will;

• Wills that specified how the beneficiaries were to hold the assets (i.e. absolutely or as beneficiaries under a trust);

• Inadequate storage of wills, leading to wills becoming lost (or, in one case, found in a rubbish dump);

• Grossly inflated storage charges (most solicitors, incidentally, will hold a will for free);

• Pressure being exerted on the testator to include the will drafter as an executor and even cases where money was taken up front to administer the estate;

• Advertising cheap wills but then ramping up excessive fees for drafting and storage; and

• Mismanagement of estate money by unregulated professional executors.

Many of these actions were taken by will writers who were uninsured and there was little recourse for the disappointed family members. In a debate on will regulation in Westminster Hall in February 2008, former MP Lorely Burt stated: 'Will writing has become a happy hunting ground for the incompetent, the dishonest and the fly-by-night operator.'

However many incidents of poor will drafting can be attributed to solicitors and professional will writers. The Solicitors Regulation Authority (SRA) carried out a shadow shopping exercise of 41 wills drafted by solicitors. Of the 41, nine failed in terms of quality, with some of them failing to carry out the testator's wishes, some instances of inconsistency and illegality existing in all nine failures.

High street banks are not immune from criticism when dabbling in this area, as a recent complaint by Tinuola Aregbesola illustrates. She claims that Barclays Bank's failure to sever the joint tenancy of her father's property when preparing his will (for which it charged £90) meant that it did not pass his half share in the house to her.

As a joint tenant when he died, the property could not have passed by his will but instead by the doctrine of survivorship to the surviving joint owner. This was an elementary error, but one that can be overlooked if the expertise is not present.

With these incidences common in will writing today, who does the man on the street turn to when he wants a will drafted? How does he know he is receiving correct advice, that his wishes are being followed and that he's paying the right price and not being taken advantage of?

Matters are not helped by the fact that the problems frequently only emerge after the person's death, when it is too late to amend the will.

Solutions are no easier to come by, especially as a recommendation by the Legal Services Board to include will writing as a reserved legal activity was rebuffed by the Lord Chancellor in May 2013, on the grounds that there was insufficient evidence that statutory regulation was necessary.

So, how can voluntary regulation protect individuals when drafting a will? Since the Lord Chancellor's decision in 2013, the key professional organisations that contain will writers as members have been very active in promoting their codes or quality schemes. The Institute of Professional Will Writers and The Society of Will Writers both have codes of practice which they request that their members adhere to. The Law Society has published its Wills and Inheritance Quality Scheme (WIQS) and the SRA has released ethics guidance for practitioners
drafting wills.

This has been matched by the Society of Trust and Estate Practitioners (STEP) which, in April 2014, released its Code for Will Preparation in England and Wales. This Code must be adhered to by all members or colleagues of members. Some of the topics it deals with include how to present costs to the client, ethical business practices expected of STEP members, capacity issues and conflicts of interest. These themes are similar in the other professional organisations listed above, and form the bedrock of good and clear will writing.

It is hard to tell how stringently these codes are adhered to in practice, but if members of these organisations fail to follow them, they can be sanctioned or possibly ejected from their professional body, with disastrous personal consequences.

Further cause for concern?

If the public's appetite for drafting a will has been dampened by the lack of will regulation and the sharp practices this encourages, the recent consultation on deeds of variation and the case of Illot v Mitson and others [2015] EWCA CIV 797 will not have made the situation any better.

Deeds of variation are currently subject to a government consultation, examining whether they should be allowable, at least for tax purposes. This could cause problems for will drafting because if their effectiveness were removed, then the ability to use them to cheaply rectify or clarify uncertainty in a poorly drafted will would no longer be available.

The Court of Appeal decision in Ilott v Mitson - a claim under the Inheritance (provision for family and dependents) Act 1975 - has generated somewhat exaggerated press commentary, implying the effective death of testamentary freedom and of wills. Certainly, it is a good story: Heather Ilott, an adult only child, successfully challenged her exclusion from her estranged mother's will, who had left her entire estate to various charities.

In addition to the will, the mother had left a letter of wishes explaining her reasons which were, in effect, that Heather had left home at the age of 17 and married a man of whom her mother disapproved.

The reality is that adult children have been able to challenge non-provision in their parents' wills since the provision for family act came into force, and this case has not changed the law, merely provided some clarification on the calculation of any financial award that is made.

In all claims under the act, including those made by adult children, the court must first consider whether, objectively, the will makes reasonable provision for the applicant. A parent is not legally obliged to provide for any adult children by will, so no provision may well be reasonable. Then, if the court decides that it did not, it will consider what provision to make. In dealing with both questions, the court must weigh the facts using a list of factors set out in the act.

These include the financial resources and needs of the applicant, of any other applicant and of other beneficiaries, any obligations and responsibilities the deceased had to the applicant and any beneficiary, any mental or physical disability of the applicant, or any beneficiary and the size of the estate.

In all claims other than those brought by a spouse, the court can only provide for the income maintenance of the applicant, not re-write the will to provide a capital windfall. Paradoxically, the capital award to Mrs Ilott was expressly to allow her to buy her home free of mortgage, thus reducing her outgoings and allowing her to meet the maintenance threshold.

The court considered the deceased's wishes but said that parliament had 'entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only… [T]hat limitation strikes the balance with the testamentary wishes of the deceased, whose estate is used for the purposes of making an award, at least in this case where there is no other claimant apart from the Charities.'

The crucial factor was that Mrs Ilott was living on benefits and very modestly. It remains the case that a healthy adult child who is able to work to support a reasonable standard of living (whether they do so or not) has very little chance of successfully challenging a will excluding him or her.

This decision, like many under the act, resulted from the exercise of discretion and should be examined on its own facts. It has not changed the law, although the publicity may well increase the number of such claims presenting themselves in solicitors' offices for a while.

There is no doubt that will writing and estate planning is currently under much scrutiny, with a high proportion of wealth in the hands of the older generations. So what steps should people take to make sure their will is prepared and executed correctly and that their wishes are followed?

The list below should provide a firm starting point.

• Most importantly, do not be put off making a will because of negative press stories. A will is a crucial document and provides clarity and structure to the difficult situation following a death.

• Too often, you get what you pay for. Do not make a decision on who drafts your will based solely on cost.

• All solicitors must practise with adequate indemnity insurance and should provide you with evidence of this, upon request. If the decision is to use a will writer rather than a solicitor, then make sure they have insurance and ask for evidence.

• Ask family and friends who they have used. Trusted recommendations from personal experience often work best.

• If the instructed will drafter is a member of any of the professional bodies listed above, print off their Code of Practice and make sure they stick to it during the drafting process.

• Ensure you get a clear indication of fees. It is now very common to find fixed fees for will drafting.

• Do not be afraid to complain to a professional body if the will drafter's work is not following the Code or is of poor quality. This is the only way that poor practitioners will be removed from the system. If the will drafter is a solicitor, you can complain to the Legal Ombudsman.

• If you want to exclude an adult child from receiving an inheritance, the best advice remains to explain the reasons clearly in the will or letter of wishes and perhaps (unlike the deceased in Ilott) try to foster some relationship with the charities being benefitted and express an interest in their subject matter, such as to allow the will to be explicable on a basis other than capriciousness or revenge.

• Keep a copy of the will in a safe place or agree to store the will with the drafter. Look around to compare storage fees to make sure those quoted are not excessive. 

John Melville-Smith (right) is a member of the dispute resolution team at Seddons and James Ward
is a partner and head of private
client services at the firm