Brian Bacon considers the reasons behind the increase in statutory wills

As the saying goes, variety is the spice of life and, professionally speaking, this is what I enjoy about Court of Protection work. No two cases are the same and, often, encompass a broad range of work.

It is statutory wills that have recently been getting me thinking, as we appear to be dealing with an increasing number of these applications. In particular, we have been involved in a number of cases, both acting for applicants and respondents, where P has never previously made a will.

Wide spread

Perhaps it is just coincidence, but it does seem that these cases are increasingly complicated. The difficulties range from strained family relations, the nature of the estate or simply that P’s estate would, without a will, be shared between a number of people entitled to benefit under the rules of intestacy.

For example, last year I dealt with a statutory will application where I represented 18 respondents, all of whom were distant relatives of P (first cousins, first cousins once removed) widely spread around the globe; emails and correspondence were exchanged between here, the US and Australia.

I have just submitted an application on behalf of an elderly client, for whom we act under a registered EPA, where there are over seventy potential respondents. The maternal family tree alone spread from one side of my office to the other.

Although P does not have capacity, he was previously able to express the thought that people he had never met inheriting from his estate did not sit well with him at all. Before we even started, we had to spend not an insignificant amount of money with genealogists, in order to simply address who would be adversely affected by the application.

My concern with these applications, apart from risking becoming rather unpopular with my secretary and those at the official solicitors’ office, is over the level of costs. We do have to think of the best interests of our clients, and I do struggle with the level of fees that can be involved in these cases.

Rising costs

I would estimate that costs in a straightforward, uncontested application settled on the papers (where there are only a small number of respondents) could amount to between £7,000 and £8,000. This would include our professional fees, the official solicitor’s fees, application fee, costs draftsman fees, and VAT.

However, in the more complex cases such as those I have mentioned above, costs can be very significant.

Our assessed costs for acting on behalf of the aforementioned 18 respondents were around £20,000. That case was settled by consent, without a hearing. I imagine that by the time the other parties’ costs were added in, the fees came to over double that, if not nearer £50,000.

Where cases go to a hearing, parties will increasingly instruct counsel; the applicant must prepare trial bundles and the solicitors or their counsel will need to prepare and exchange skeleton arguments ahead of the main hearing. It is not uncommon to find that with only two protagonists, the official solicitor and a deputy (who may be taking a neutral role) a hearing will involve four sets of lawyers, whose costs will be paid from the estate. We have seen contested cases where the total costs have been well over £100,000.

It is a sad fact that in many of these cases, major difficulties could have been avoided had P been advised at some point to make a will.

Even if a statutory will is subsequently needed, the potential difficulties and costs are much reduced. First, there is a clear record of what their wishes and intentions were at some point in the past, noted in a validly executed testamentary document. If they had instructed a solicitor to advise, the file notes and correspondence would outline their reasoning for the terms of their will. Second, you would not be waiting to see how many relatives entitled on intestacy, might object to the proposed statutory will.

Right to representation

However questionable their claims might be (the idea of coming in to money certainly arouses the antennae of the long-lost relatives of ‘great aunt who...?’), those adversely affected all have a right in law to be represented, and to test the evidence of the applicant.

Indeed, in some cases there may be merit in the argument; in the matter with 18 respondents, P had expressed delight at the idea of distant relatives receiving an unexpected windfall. But whatever the case, this of course costs P money.

We all have a responsibility to ensure that our clients are advised to think about wills. It is a trite statistic that two-thirds of us have not made a will. Yet this has been the same for years, and does not appear to be changing.

I dread to think what the dear old gentleman mentioned earlier, with seventy potential beneficiaries of his £1m estate, would think if he knew how much it is going to cost to make a will for him now, or sort out his estate if nothing was done.

This was an intelligent man, a schoolteacher, who must at some point have come in to contact with a professional who could have ensured he gave thought to these matters. It may have cost him £400. It could easily now cost a hundred times that. Of course, there can be reasons why people don’t make wills, but I think so often it is just a little bit of encouragement that is needed.

Whatever area of law we work in, we all have a duty ensure that our clients consider making a will. Much better this than a costly statutory will application or intestacy.

Brian Bacon is a  partner at Thomson Snell & Passmore