The most perfectly drafted will becomes invalid, and therefore worthless, if it is improperly executed. A recent case illustrated the vital importance of following the correct procedures when executing a will. It also raises wider questions about the quality of some unregulated will writing services in the UK today.
An unregulated will drafting business, Legal Love Letters, was instructed to draft a new will by Dr Rosemary Hill, a retired doctor. This was done just days before she died. Her new will gave bequests to charities, including Médecins Sans Frontières and the RNLI.
Unfortunately, however, the will was later deemed invalid as only one witness was actually present when Dr Hill signed the will at her home. The second person “witnessed” the will after it was brought back to the office. As a result, Dr Hill’s estate was distributed according to an earlier will, and the charities which lost out on her bequests are now taking legal action against Legal Love Letters.
Examples of poorly drafted or wrongly executed wills have become all too common in recent years. Dr Hill is just one of many testators who have been let down by the unregulated will drafting sector. Last year, the Competition and Markets Authority (CMA) published a significant report into providers of unregulated legal services, including unregulated will drafting services. This report was prompted by a litany of complaints from consumers.
The CMA’s final guidance, published in October 2024, noted that, “In the context of unregulated will writing, online divorce, and pre-paid probate services, failures to comply with consumer protection law are particularly likely to give rise to significant consumer harm.”
Of all the unregulated legal services commonly sought by consumers, will writing is perhaps the one which presents the greatest risk to people. Wills typically involve the disposal of the entirety of a person’s wealth and they may contain vital provision for children or other loved ones. Moreover, as mistakes normally only become apparent during probate, the testator will often not be alive to correct them.
It is remarkable that so many people avoid using qualified lawyers to draft one of the most important legal documents they will ever sign. What’s more, solicitors do not typically charge particularly high fees for will drafting, albeit they are higher than most will drafters. Those higher fees are due to the high level of training and regulation that Solicitors are subject to. Yet the consequences of a poorly drafted or invalid will can be truly dire.
It can result in serious emotional turmoil for the testator’s loved ones, and it could cause bitter, long-lasting family conflict and protracted litigation. A poorly drafted will can also have seriously adverse tax implications. Choosing a cheap will writing service instead of a fully qualified and knowledgeable legal expert is perhaps exemplary of the phrase, “penny wise, pound foolish.” A small saving now could result in massive financial losses later, if the service provider proves unequal to the task.
Perhaps the worst consequences of using a poor quality service is where a testator’s will is deemed invalid due to procedural failings. This means that the will is rendered completely invalid. Getting the procedural basics right should be the very least a consumer can expect from someone holding themselves out to be a will drafter. The cavalier approach to witnessing wills shown in Dr Hill’s case, if commonplace in the unregulated legal services industry, could imply that there may be vast numbers of invalid wills in being.
Given the serious consequences of poor will drafting, will drafters should be held to a high standard and should be accountable for their mistakes. That should be the case whether those drafting wills are solicitors (who have received years of training and are regulated by the Solicitors Regulation Authority) or those who are unregulated.
Consumers must carefully consider whether a small saving now is worth the risk to their entire estate. The CMA guidance to unregulated legal services providers itself makes clear the fundamental issues which consumers face. It states that, “Consumers purchase unregulated legal services to address very specific and often sensitive needs. In many cases, these will be one-off purchases. Consumers are unlikely to have wide experience of the services in question, and may be at a disadvantage relative to providers of those services in detecting shortfalls in quality. For many consumers, an unregulated legal service provider will be an alternative to more traditional vendors, such as solicitors’ firms.”
Therefore, the CMA is saying that it knows consumers will typically be unable to assess the quality of the unregulated legal services provided as regards very important matters. What’s more, in the case of will-writing, any errors will typically not be identified until that person is dead – often decades after the will was written. By that time, the company which provided the will writing services may no longer even exist and it will be too late to correct the errors made.
The possibility of consumer redress and seeking damages for negligence is mentioned in the CMA report. But an important question arises: how can a consumer seek redress if they are dead? It will be left to those left behind who are often grieving at the time.
In reality, damages are not always an adequate remedy in such cases, since damages cannot undo the reality that a person’s last wishes may not be carried out. Nor can damages undo the emotional impact on loved ones left behind if they suffer confusion or conflict due to negligence in preparing or executing a will. Nor can we be certain that it will even be practically possible to claim damages, especially if the will drafting company no longer exists.
Given these realities, there are cogent reasons to argue that will writing should be designated as a reserved legal service in law. This does not necessarily mean that will writing should only be the preserve of the solicitors’ profession, which is something that the CMA may well regard as being monopolistic and anti-competitive. However, concerns about free markets would not preclude a licensing system being established, which would help to ensure that the people who are professionally writing wills in the UK actually know what they are doing, and they are doing it properly.
Such a licensing system could also help protect testators and their families, ensuring that adequate run-off insurance provisions are in place to protect families longer term – even after an unregulated will writing company has been wound up. Solicitors are already required to have adequate run-off insurance.
It is remarkable that the Legal Services Act 2007 made conveyancing a reserved legal service, by designating it as a “reserved instrument activity”, while will writing was left unregulated. After all, a will typically directs the disposal of real property, as well as other assets.
For now, it is for consumers to make their own decisions when it comes to drafting as important a document as a will. People are free to choose between a completely unregulated provider on the one hand, and a qualified solicitor with a law degree, tax qualifications and years of experience of wills and probate, on the other. It is to be hoped that unfortunate cases such as that of Dr Hill will prompt more people to choose wisely.
Cathryn Culverhouse, Partner at DMH Stallard
