Open and shut: national wills register

There are an estimated 12m wills held by law firms alone in the UK, but countless are possibly worthless as the testator has been incorrectly thought to be intestate because a will could not be found.

Solicitors and practitioners agree that a will is often the most important document a member of the public will ever possess, but there is always a danger of it being lost.

There is an option to store wills at Somerset House, but this is rarely used because it requires the testator to place the original in London, and the law firm loses control of the document. This is well intentioned, but can fail to meet the needs of the client and the law firm.

Life changes

So, law firms have had little option to ?do anything other than write wills, store the original and give the client a copy ?or a letter which needs to be found at the time of death to trace the holder of the original.

However, this represents risk, as a copy will can be accidentally lost, misplaced or destroyed, rendering the original untraced.

A copy will can also cause family disputes, be forged or intentionally destroyed if found by someone unhappy with the contents. Invariably, over time, people who have been told where the will is stored simply forget it, compounded by house moves and other life changes, that could disconnect clients from the organisation entrusted with the safekeeping of the original will.

For many years, the legal profession had called for a solution to address the risk associated with lost, misplaced, destroyed or fraudulent wills.

A centralised register of wills is a more practical and flexible option in comparison to the restrictive nature of a repository. The need for a wills register is obvious, the notion that simply storing a will in a repository somewhere is quite impractical and doesn’t fully accommodate the will writer and client requirement. In essence, if someone wrote a will, then a will register needs to provide a system whereby the location of a will could be quickly and easily identified upon death. However, what happens between the point of writing a will or subsequent wills and death needed to be factored in also.

There have been numerous past attempts to achieve this, but they were fundamentally flawed due to over simplification of the requirements. Indeed, before we launched our national will register, we had to undertake a two-year research and development phase in order to come up with an ?all-encompassing solution.

We consulted with the profession and the public to gain an in-depth understanding of requirements and scrutinised the logistics, legal requirements, usability factors and technology. A solution to what was quite a complex model took time develop. Importantly, we needed to provide a solution for what had historically occurred, not just how to prevent it ?from occurring in the future.

For example, a register needed ?to be able to provide a search facility for archived wills that were not yet registered, and not just those that ?were registered.

In 2008 we launched the national will register to set out to resolve all ?the associated issues of tagging and tracing a will.

Consumer focus

Understanding the public ‘consumer’ was most revealing. The consumer believed that when they died, the person distributing the estate could push a button to locate the will. In the main, they were unaware that a system to achieve this did not already exist.

The fact remained that, to ensure the estate was administered in accordance with the will, the testator had to declare (usually to family) where their will was and then keep it in a ‘safe place’ for possibly decades.

For the consumer, this very personal document needed a greater degree of security and privacy. Therefore, it didn’t come as any great surprise that 77 per cent of people in a consumer survey were in favour of a voluntary will register. Interestingly, they were not in favour of a governmental organisation holding their will.

The results of a recent survey corroborates this problem: 98 per cent of law firms confirm that their willbank contains wills where the testator is ?now deceased, but the executors/beneficiaries had not been in touch with them and the will remained undiscovered and not administered.

Hardly surprising when you take into account that 67 per cent of people, when surveyed, stated that they had no knowledge of who wrote their parents’ wills or where they are located.

Firm promise

Law firms also recognise the importance of having a national register for wills, with some lawyers even going so far to say that failure to check the register for a missing will would amount to professional negligence.

The large number of law firm mergers that have taken place over the last 15 years or so has contributed to the problem that lawyers face. Having a letter or form that says “will at Bloggs & Co” does not take into account the consolidation that has occurred in the legal industry in the last couple of decades, and that is likely to continue in the years to come.

Clients get upset to learn that the firm that executed their will no longer exists. It is as if they feel their will no longer exists, that such an important document was destroyed in a bonfire, which of course is not the case.

Will registration assists law firms in receiving the probate work from the wills they write and, importantly, also allows the will to be found. Registration is an important safeguard and many law firms now register most of the wills they write. Firms still hold the will, the system that we have developed simply registers it, which means that confidentiality is ?not a concern.

Clients also understand that the existence of their will can only be declared to the beneficiaries and executors when they have died. Will registration builds brand loyalty and cements a law firm’s relationship with the client. Additionally, this process also re-ignites the client, producing spin-off work such as will reviews and creates the opportunity to promote other services such as LPAs.