Tara McInnes: The ramifications of unregulated will-writing

Charities can miss out on insurance money when legacies in wills that have been drafted with these firms fall through, so they should support the Lord Chancellor's call for regulation, writes the legal expert

Tara McInnes
Tara McInnes

Anyone who has access to a computer cannot have failed to see the increase in the number of will-writing companies that are advertising to get their share of the will-writing market. Their prices often undercut the legal firms, and they offer various schemes and rewards to entice the nervous will-writer.

There is no doubt that some of these organisations are more than experienced within this area and possibly offer good value for money. I am probably also biased because I practise for a law firm with a very good inheritance protection team. However, a great deal of adverse publicity surrounds these non-regulated organisations.

In 2010, the Legal Services Board began a consultation on whether all will-writing should be regulated. The Institute of Legacy Management was one of 40 relevant organisations that responded to the consultation, and its submission said will-writing should be regulated. The Lord Chancellor did not agree, however.

More recently, in 2014, the Legal Ombudsman, in his first annual report, said that tens of thousands of people might have bought defective wills through unregulated will-writing organisations. The ombudsman was concerned that, though he has been in office only since late in 2013, he had been contacted by 38,155 people. Thirteen per cent of these cases related to complaints about will-writing.

A major problem appears to be that people who use unregulated will-writers have nowhere to turn for redress if something goes wrong. Sometimes they are not insured, which means that anyone who loses out because a will has been drafted negligently has no way of recovering the loss. 

What ramifications does this have for charities? The consultation raised major concerns for charities because it sought to regulate both will-writing and estate administration. Many legacy officers and managers would have been affected by any decision about the regulation of estate administration, because charities often perform the administration process in-house.

In terms of the actual writing of the wills, it is hard to say what impact this will have because charitable organisations do not tend to participate in the preparation of wills. Nevertheless, charities do frequently receive legacies from wills. Some charities base their annual income on the receipt of these legacies, so anything that can affect and possibly negate the receipt of these legacies has to be of concern to them.

Charities should also be concerned by the lack of a requirement for these will-writing organisations to be insured. In my experience as a dispute resolution solicitor specialising in contested probate, I often come across wills that have been incorrectly drafted, which often result in charities losing
out on much-needed legacies. Such charities are often compensated by the professional liability insurers of the drafter of the will. This is not ideal, but it does mean charities that have missed out on legacies through no fault of their own can at least obtain financial redress through the professional indemnity insurers.

It therefore makes sense for charities to support the regulation of will-writing at the very least. It remains to be seen whether the Lord Chancellor will alter his previously held view that this is not necessary. I hope the Legal Ombudsman's recent findings will increase the pressure for this urgent regulation.

Tara McInnes is an associate in the dispute resolution team at Gardner Leader solicitors

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