Private client: pitfalls of using will-writing companies

It took me seven years to qualify as a solicitor, and many more gaining further relevant qualifications and experience. If only I had realised there is a much simpler route. According to the ‘work for us’ section on the website of one will-writing company, you can be up and running as an estate planning consultant in weeks or even days, and you don’t need any experience.

The reason I was looking at this company’s website was that I had just had (another) confused elderly person call in to the office to check documents he had in his possession and confirm that everything is in order - as we offer a free half-hour consultation. He thought the will-writing company he had been using had told him to get a local solicitor to deal with something, but was not sure what that was. He brought the deeds to his property, his late wife’s grant of probate and a new will of his own. He told me that his house was in a ‘property protection trust’, set up in an earlier will, and that he had just arranged with this company to have the trust ‘extended’. He had been dealing with two ‘different’ companies who operate under the umbrella of a large group.

What had happened was that in 2005 he and his wife had used the company to sever the joint tenancy of the property and draw up mirror wills providing each other with a life interest in the first to die’s half of the property. So far so good. This is fairly standard stuff and something I might advise: to ‘ringfence’ half the value of the property from a variety of future events such as remarriage or limiting the liability for care home fees of the survivor. The whole point of severing the joint tenancy though is to enable each co-owner to leave their ‘half’ of the property via their will to someone other than the surviving spouse (usually the children) but provide the surviving spouse with a right to remain in the property.

Unfortunately, the hapless will-writer, having created a life interest for the surviving spouse, had also managed to leave him his deceased’s wife’s half-share by simply leaving it to residue (to go to husband) not to the children.

In 2011 - two months before she died and while seriously ill - the wife decided that she wanted to be cremated not buried as she had previously stated in her will. Clearly recognising a further opportunity, the will-writing company advised her she needed a new will – with everything else the same. The husband could not remember the cost of this as his wife was dying at the time. Needless to say, whoever reviewed the will at this point did not spot the previous error, but copied it into the new will. The only reason to do a new will at this point should have been to correct the previous error, not to change funeral arrangements.

Incidentally, at neither point was any attempt made to look at the other assets of the estate (all in the husband’s name) and advise in respect of those.

The gentleman clearly did not understand what had been arranged and was convinced that the whole house was in some kind of trust and immune from any future claim for care fees.

When his wife died, he contacted the will-writing company to inform it of her death. It advised him that he now needed to ‘extend the property protection trust’ – he actually showed me a letter telling him that was what was happening, as most of this work seems to be done by post. What the company in fact did was draw up a new will for him (unnecessary because the first will also provided for second death), and referred him to a sister company which sent a death certificate and RX1 to the Land Registry, leaving him as the sole proprietor with two restrictions on the register. For this he thinks he paid somewhere in the region of £900.

I have encountered a similar situation previously with wills drawn up by another will-writing company which has since ceased trading. There was a right of occupation to the wife, but the property was also left to her via residue. In that case I advised the surviving spouse to enter into a deed of variation providing a right of occupation for herself over her late husband’s half, but holding it on trust for her children - and hope that works if she subsequently does need to go into a care home. This is not guaranteed - the local authority may argue this was a gift from the widow and cry ‘deprivation of assets’. It is, though, an attempt to reinstate what were clearly the testator’s wishes - frustrated by poor drafting - but there could still be an argument ahead. Even this, though, is not an option in the latest case, as it is now over two years since the wife died and therefore too late. When the husband dies the whole house (or what is left) will fall into his estate and be a potential target for any care fees paid by the local authority on his behalf.

I have also recently come across a case where an 83-year-old man in poor health, with no spouse and no children, and an estate of circa £1m, was advised by a will-writing company to put his house into a ‘property protection trust’ at a cost of over £3,000 - quite why escapes me, but in any event he died before the paperwork was finalised.

The fact is that some of these companies provide shoddy advice at exorbitant charges. I explained to the gentleman who came in today that, as a small regional high street firm, for us to sever the joint tenancy, provide mirror wills with either a right of occupation or life interest, and advise him and his wife generally about their estate would have cost around £350 plus VAT. He would have been dealt with personally by a qualified solicitor. He visibly paled; he thought solicitors would be more expensive, which is a myth promoted by greedy companies seeing vulnerable old people as another business opportunity. It also turned out that the reason he had been told to go to a local solicitor was to store his documents with them; this is a service we provide free of charge. He had refused to pay the annual fee of more than £40 that the will-writing company charge to store a will.

It has been decided that will-writing is not going to be regulated, and while regulation may not solve all problems in this area, it would be a step in the right direction in preventing what appears to be becoming a ‘free for all’ in exploiting an ageing population’s fears.

The Law Society needs to start promoting the use of local qualified specialist lawyers in this area and highlighting the pitfalls of using the remote services of firms with dubious credentials. Urge people to ask what qualifications and experience their adviser has, and to phone around local solicitors for a price comparison – they might find they are pleasantly surprised with a professional service for a lower cost.

Marie Granby is a solicitor at QualitySolicitors David Roberts & Co, Wirral, and a member of the Law Society Private Client Section