English Will Drafting Not Up To Scratch?

A survey conducted in England and Wales suggests that approximately 25 per cent of wills drafted by solicitors in that jurisdiction are of poor quality, thus leaving them open to challenge.

The research, undertaken by the Solicitors Regulation Authority (SRA), together with the Legal Services Board (LSB), Legal Services Consumer Panel (LSCP) and Office of Fair Trading (OFT), happened as a result of concerns that with the will writing market in England and Wales being largely unregulated, many unsuitable and ineffective wills were being drafted.

In England and Wales, wills can be drafted by solicitors, specialist will writers, banks, affiliate groups or by self-completion using online services or writing packs. It is only wills that are drafted by solicitors and financial services providers that are subject to regulation.

Perhaps surprisingly, the SRA research exercise, which involved researchers shadowing real clients looking for will-writing services, found that 9 of the 41 wills drafted by solicitors were sub-standard. The reasons for this included:

• Inadequacy – where the content of the will does not account for an estate fully, fails to make adequate provision or neglects to take certain outcomes in to consideration. It also includes wills which are legally invalid;
• Requirements – where the client's requests have not been met (as specified in the testator questionnaire) through omission or conflicting specification;
• Legality – where the actions specified in the will are potentially illegal;
• Inconsistency – where the language, logic and/or content of the will is contradictory;
• Detail – where items, people and requests are described in insufficient detail; and
• Presentation – where the language and format of the document is lacking.

The concerning discovery prompted the Solicitors Regulation Authority (SRA) in England to draft and publish guidance for solicitors who draft wills, with the aim being to to remind them of their responsibility to achieve the right outcomes for their respective clients.

The SRA guidance states: "The results of the research give rise to concern about the standard of drafting of wills by some solicitors. For this reason we consider it helpful to introduce guidance reminding regulated persons of the relevant professional duties and signposting to guidance outlining best practice."

Further, the SRA guidance also suggests solicitors drafting wills follow three principles. These are to:

• act in the best interests of each client;
• provide a proper standard of service to clients;
• behave in a way that maintains the trust the public places in you and in the provision of legal services

Whilst will writing remains largely unregulated in England and Wales, the Scottish Parliament are in the the process of making all will-writing subject to regulation.

Despite calls for England & Wales to follow suit, most notably from the Legal Services Board (LSB), the Government has no plans to implement the change. Last year, current Lord Chancellor, Chris Grayling rejected a recommendation from the LSB that will writing should be regulated, saying: "To ensure that the costs/burdens of increased regulation are not imposed unnecessarily, further efforts should be made to see if [other] measures can be made more effective before resorting to reservation."

This blog, which focuses on the troubles in relation to will drafting in England, together with our recently published blogs on Hollywood legend Mickey Rooney's will - which is being disputed - emphasizes the importance of obtaining the right advice from the right people – no matter the location. In New South Wales, Szabo & Associates is a name you can trust.

Get Your Will Drafted Properly in New South Wales, Australia

Szabo & Associates have the knowledge and experience to ensure your will is drafted in line with your needs and circumstances. We'll work with you until you are happy, so why not call Szabo & Associates today on 02 9281 5088 or click here to book an appointment. Alternatively, please complete the contact form on the right-hand side of this page.