Rachel Rothwell’s first-hand experience of why the law should require wills in England and Wales to be registered.
Last year I had first-hand experience of why wills in England and Wales should have to be registered.
Without revealing too much personal detail, I found myself in a situation where I needed to find a will – but I did not have any related documents, and I had no idea who had drawn it up.
Initially I assumed that, because a will is such an important legal document, when one is made, it must be registered somewhere. But I soon found out that – unlike in many other countries – in the UK, that is not the case. So I had to start looking for it.
The first step in my search was to check the will registers run by commercial organisations, which I did, with no luck. Although it is possible to have a will registered, as this is not compulsory, relatively few solicitors actually seem to advise their clients to do it – perhaps because this is a price-sensitive market, and registration adds extra expense for the client.
Then I tried law firms that I knew the deceased had had contact with: the firm that converted his property from joint names into his sole name; and the firm that dealt with a family inheritance he had previously received. Both of these firms were very helpful, but they hadn’t drawn up a will for him.
Then I thought about the firm that acted on the deceased’s house purchase years ago – perhaps he had returned to them for a will. But I didn’t know which firm that was. I applied through the Land Registry and paid a fee to obtain a copy of a form showing the name of the conveyancing solicitors.
That firm had since closed down, but after contacting the administrators, I learned that the will files had all been transferred to another practice. I got in touch with the partner at this firm. Having followed the trail this far, I was hoping to be rewarded with a happy outcome. But no, the partner didn’t have the will – although he checked his database straight away for me.
With all my possible leads having turned out to be dead ends, I had to resort to writing to local law firms. The problem was that the deceased had lived in the centre of Manchester, which, after London, probably has the highest concentration of law firms in the country.
I decided that emails might get ignored in a busy solicitors’ office, and a good old-fashioned letter would be best. I typed various Manchester postcodes into the Law Society’s Find a Solicitor database to capture the addresses of as many firms as I could, and I wrote individually to 80 firms or more. I felt firms were more likely to check their strong rooms if the request came from an individual, rather than a commercial company conducting a will search.
I had a huge response to my letters. It was a real credit to the profession how many firms took the time to respond to me, and I would say the same about most of the will-writing firms that I also contacted. Some firms even called me up to say that they had not found the will, but they wished me luck with my search. Everyone wanted to help, but no one had the will.
Just occasionally I did encounter a slightly infuriating situation. A couple of law firms wrote back to me to say that they would not be able to check to see whether or not they were holding the will, until I sent them a certified copy of the death certificate. Clearly I only had a few certified copies, which cannot be photocopied.
So I was glad that only a handful of firms adopted such a stringent approach - or I would never have been able to check as many firms as I did. None of those firms that requested the death certificate turned out to be holding the will, or had ever acted for the deceased, and so it seemed to me that they did not owe any duty of confidentiality that would require them to see the death certificate before responding. I doubt they had considered how difficult that makes it to find a will if you need to contact a large number of firms.
Despite the strong response rate, there were inevitably a good number of firms that never did reply to me, and a surprising number where my letters were returned because the firm was no longer at that address. There will also have been many firms that I didn’t find.
I could not be sure whether the deceased had used a solicitor or a will-writer. Some time ago he had made a previous will that had been done by a will-writer based in a neighbouring county, who had visited his home. This particular will-writer did not hold the will I was looking for, but I was conscious that the deceased may have used the same type of firm again, potentially from a wide geographical radius.
Unfortunately, I could see no way of finding out what will-writing firms like this were in operation at the relevant time, and what had happened to them – or more importantly, to their files (I recalled an old Gazette story about one will-writer dumping its wills on the pavement, and that didn’t give me much comfort).
In the end, I simply did not have enough time to devote to continuing the search, and ultimately the matter was resolved without ever finding the will. But I still find it hard to understand why wills do not have to be registered. Surely this must change?
Earlier this year, the government rejected the Legal Services Board’s plans to regulate the activity of will-writing. But even the LSB had not proposed compulsory will registration - a gaping omission, in my view.
We no longer live in an era where, if you wanted to find a will, you could assume that it was being held by the local solicitor. These days, a will may have been completed by any firm or will-writer in the country, over the telephone or online, or it may have been done through one of the thousands of DIY will kits being sold each year. If – in just one example – a testator dies in a house fire which also destroys their documents, how will their relatives know where to find a copy of the will?
We do not have forced heirship rules in England and Wales. As long as they are of sound mind, people are free to leave their estate to whomever they choose – be it the adult child who looked after them most in their old age, their glamorous new girlfriend, or their favourite cat charity. But a law that grants them such freedom should also do more to ensure that once made, the will expressing their last wishes can always be found.
Rachel Rothwell is editor of Litigation Funding magazine