I am writing this blog in response to an article entitled “solicitors are not as good at writing wills as they assume” as published in the Law Society Gazette.
The article referred to the recent research project undertaken by the Legal Services Consumer Panel which took on a panel of experts, including solicitors, to assess a sample of 101 wills. Primarily the Legal Services Consumer Panel was researching whether will writers should be regulated. The experts judging the wills had no idea whether the wills had been drafted by solicitors, will writers or the person themselves.
The panel found that one in four of the wills did not meet the required standard and more than one in three was scored as either poor or very poor. The article refers to the fact that the worrying aspect for the profession is that just as many of the failed wills were drawn up by solicitors as by will writers. The problems in reference to simple wills, and to quote the report itself were as follows:
1. Key problems where the will was not legally valid or did not meet the client’s stated requirements, were: inadequate treatment of the client’s needs; the client’s request not being met; potentially illegal actions; inconsistent or contradictory language; insufficient detail and poor presentation.
2. Key problems relating to poor advice include: cutting and pasting of precedents; unnecessary complexity; and use of outdated terminology.
The report adds that the evidence suggests a need to raise standards across the market as the quality of wills prepared by solicitors is disappointing.
As a solicitor who specialises in private client law, and the drafting of wills, I do not find the results of the panel findings a surprise, but do consider the results a disappointment to my profession. My reasoning for this is that lawyers generally specialise in one area of law and the days of a traditional ‘family lawyer’ that did all aspects of legal work for clients and their families are over and, in my opinion so they should be.
The law is specialised and each area of law is vastly different. There is no margin for error and therefore lawyers have to specialise in one area of law and are expected to know that area and be able to advise on it clearly to clients at a very high standard.
I feel that this report highlights the fact that private client law, and in particular advising on wills, is a specialism. I have seen in practice lawyers that specialise in other areas that have dabbled in attempting to draft a will on behalf of their clients and unfortunately get it wrong. This has serious consequences to the family, and the lawyer concerned.
Advising and drafting in relation to taking instructions for a will is not just about the client getting a legal and valid document to effectively deal with his or her estate on their death, it is about spending the time with the client and obtaining a full fact find of their personal situation and that of their family. It is about being able to identify issues in respect of their wishes and their family circumstances and advising them correctly. It is about spotting wider issues such as contentious matters, mitigating tax and assisting them with estate planning. These are complex issues of law and need to be dealt with by a specialist.
I believe the panel’s findings reflect the fact that there are lawyers dabbling in an area of law that they should not be doing due to the specialist knowledge that is required.
My advice to any person considering making a will is to obtain specialist advice. As lawyers we have to obtain a certain level of training each year and private client lawyers in particular will attend courses on will drafting and are up to date with drafting techniques. You can also look for accreditation such as STEP members (Society of Estate and Trust Practitioners) and Solicitors for the Elderly (SFE), as in order to gain membership to these organisations lawyers are expected to pass examinations and have to obtain a certain standard within the specialism of private client law and retain that standard throughout membership. I am both a member of STEP and an associate member of SFE.
It must also be remembered that lawyers are regulated. Should a solicitor make a mistake in the preparation of a will, compensation would be available if the client suffers a loss. The profession enforces standards of service and ethics and a solicitor who fails to adhere to these standards can be banned from practising as a solicitor. Not all will writers are regulated and as such clients do not have recourse against them should their wills not accurately reflect their wishes, or even worse, not be valid.
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