Where there's a will...

Your will is one of the most important documents you will ?ever sign. Media coverage of the court battles that ensue when drafting mistakes are made regularly brings the consequences of a poorly made will to the public’s attention. Yet, time and time again, people are lured into using ‘cheap £100 wills’.

Wills are the aspect of a private client lawyer’s work that, in my opinion, is the most undervalued – not only by clients but also by fellow professionals, including other solicitors. I have lost count of the number of times I have been asked, ‘How much?’, quickly followed by: ‘But the shop on my high street sells wills for £100.’

Drafting errors

A recent case against Barclays highlights the problems that can arise. Mr Aregbesola used Barclays’s will-writing service to make a will leaving his half-share in his London home to his daughter. But the home was owned as joint tenants with his wife, and Barclays failed to sever the joint tenancy when drafting the will. This meant that his half-share of the property could not pass under his will, but instead must pass by the rule of survivorship to his wife, who is not his daughter’s mother. ?The daughter lost out on what should have been her inheritance. Asking, and checking, whether a property ?is owned as joint tenants or tenants in common is most advisers’ first question when dealing with the succession ?of property. 

It is just as important to check whether an estate is to pass only to children or grandchildren living at the time the will is made, or also to any born at a later date. Simply listing the current beneficiaries by name will exclude any born in the future, which may not be consistent with the testator’s wishes. That said, it is not always as easy as writing ‘my children’. Does the testator want any step-children to be included? ?If so, an express statement to that effect needs to be added. 

Other common mistakes include failing to take account of how inheritance tax is to be paid when there are exempt and non-exempt beneficiaries, and poorly drafted cross-accruer clauses that raise more questions than they answer about how an estate should be distributed when a beneficiary predeceases the testator.

These are just some of the mistakes that can occur when ?the will is being prepared. ?I have written before about the difficulties encountered when arranging for documents to be correctly signed by clients, and wills are particularly tricky. Not only is the procedure unfamiliar to most – two witnesses are needed, and, please, no one leave the room to make a cup of tea before everyone has signed – but the will is then scrutinised by the Probate Registry when the grant is applied for. 

Legal fees

Even if the hurdles around drafting and signing a will are successfully navigated, you are still not home and dry. Lost originals, marks left by paperclips, funeral wishes or letters of wishes attached to the will, and later amendments made to the will have all caused no end of problems when proving wills, so much so that whole chapters are devoted to the topic in books written by leading authorities.

Any one of these problems, and heaven forbid that more than one problem arises, can leave an estate or beneficiaries facing thousands of pounds in legal fees to rectify the will or satisfy the Probate Registry ?that the will is valid. 

A well-drafted will prepared by a solicitor with the time and resources to consider all of the issues can pay for itself many times over. And if mistakes are still made, the testator can have the peace of mind that solicitors are regulated and members of the public are protected by solicitors’ mandatory insurance and the Law Society’s compensation fund. 

As Aregbesola’s daughter found out, the same is not true for will writers. The Financial Ombudsman Service concluded that Barclays should reach a settlement with her: Barclays’s response was that their will-writing division was not regulated, and they did not have to adhere to the ombudsman’s findings. SJ

Kate Johnson is a solicitor at Wedlake Bell @WedlakeBell www.wedlakebell.com

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