A Will is often low on an individual’s list of priorities. Life is so hectic and discussing what should happen to your assets after you die is the last thing you may feel like doing. And when you do decide it is time to put in place a Will, it may be tempting to shop around to get the cheapest deal, or even to prepare a DIY Will.
There is no doubt that a professionally drafted Will may be more expensive, but by instructing a specialist solicitor (ideally a STEP member who has particular expertise and the necessary qualifications in Will drafting), you can rest assured that your assets will be dealt with as you wish on death and there will be no hidden surprises!
A RECENT CASE
The importance of this can be seen in a recent case, which was reported in the news recently. It involves a bank which has found itself embroiled in a Court case resulting from its drafting of a Will, which was allegedly drafted in a way which did not reflect the true intentions of the testator.
The daughter of the testator is claiming that the bank drafted her father’s Will incorrectly, and, by doing so, deprived her of a share in her father’s main asset – his valuable London property. The cost of a Will service with the bank was £90.
By way of summary, the testator’s Will included a clause which gave half of his property to his daughter on his death. The property was owned jointly by the testator and his wife (who was the daughter’s step-mother). As the property was owned as joint tenants and not tenants in common, the property passed to his wife on death by survivorship, regardless of what was said in the Will.
In order for the relevant clause in the Will to have taken effect, the testator should have been advised to sever the joint tenancy. This would have enabled half of the property’s value to pass to the testator’s daughter as was intended under the Will.
Court proceedings have now been issued by the daughter and it will be interesting to see the outcome of the case. What is of particular note is that prior to Court proceedings being issued, the daughter’s complaint was previously assessed by the Financial Ombudsman Service and it was initially held that the bank was at fault. The Ombudsman ordered the bank to pay “a fair and reasonable settlement” to the daughter.
The bank decided to ignore the Financial Ombudsman’s recommendation on the basis that its Will-writing division was not regulated, and would therefore not have to adhere to the Ombudsman’s findings. Technically, this is correct.
This case highlights the issues with making a low-cost Will and not using an experienced Will writing solicitor. Cheap Wills do not always reflect the person’s wishes. It demonstrates how low-cost Wills are likely to be a very false economy in the long run. Challenging a Will can be a very costly process.
The increase in second marriages, coupled with the rising value of property (particularly in London) means that it is vital that a Will reflects the instructions given at the outset.
If further advice is required, please contact Rachel Diedrich in the Contentious Probate team at Druces LLP.
This note is not intended to be legal advice. It is guidance only.