The dangers of a poorly drafted Will

It is very tempting to use just one institution for all of your estate and financial planning needs. On the face of it, it makes perfect sense to not have to instruct several different people to make sure your money is as protected as it can be and that it eventually passes to your intended loved ones.

Many companies that offer Will & Estate Planning services are not regulated by any legal services authority. This means they cannot be held to account for poorly drafted Wills and/or bad advice other than through the civil litigation process.

You do not need formal qualifications to draft a Will or give estate planning advice.

Financial advisors are regulated by the Financial Conduct Authority but financial advice is not the same thing as legal advice. Any financial institution that has an additional Will service may be provided by someone without legal qualifications.

Regrettably, the problems of poor legal advice are usually only spotted after someone has died and sometimes it is too late to make changes to rectify it. A solicitor is usually instructed to fix the problems it has caused.  

Below are some of the main issues that arise from a poorly drafted Will.

1. The Will is Incorrectly Executed.

If the Will has not been executed correctly then it is invalid. This means that it will be as if the Will never existed. The government rules of intestacy could apply (or an older, usually undesirable, Will) and your property will pass to your closest living relatives. This can have negative tax consequences and your assets could be passing to unintended beneficiaries.

2. The Will is Unclear or Poorly Drafted.

This can lead to confusion after death for those that have to administer the estate as well as potential for argument amongst beneficiaries. Your executors would likely have to instruct a solicitor and/ or go to Court to rectify this. Ambiguous Will cause severe delays in administering the estate and your estate is likely to incur additional Court and/ or legal costs as a result.    

3. Overuse of Codicils.

Too many codicils accompany a Will.

A codicil can be a useful device if you have a very simple change to make to your Will and you do not want to execute a new one. Executing more than one can cause confusion as you are required to refer to each and every document to determine who is receiving what, when and how.

The more documents that accompany the Will, the more risk there is that a document is lost. This, in turn, then risks the deceased’s wishes not being carried out or could cause arguments amongst beneficiaries

It may be advisable to simply execute a new Will.

4. The Will is Overly Complex.

There are many companies that charge large sums of money for a Will that is not only poorly drafted and confusing, but unnecessarily complicated. A common example of this is the inclusion of a Trust where one is not required.  

Trust Wills are sometimes the correct type of Will for a client, but not all of the time. Legal advice should be sought if you are considering including a Trust in your Will.

I have seen several examples of Wills that contain Trusts that were not needed to obtain the outcome the deceased desired. Trusts can be complex and the costs of creating it, registering it and managing it can be high.

There are several ways to bring a Trust to an end. A common way after death is for the Trustees (the person appointed to manage the Trust) to execute a document appointing out the capital held within the Trust in full, to effectively end the Trust. Please note that this may not be permitted within some Trusts.

The Trustees are likely to pay additional legal fees for a Deed to end a Trust that was not needed to begin with.

Furthermore, if the Trust has not been wound-up within two years of the date of death, it must be registered with HMRC. Expediency is key when dealing with Trusts in Wills.

I have seen examples of clients being charged over £10,000 for Trust Wills and Estate Planning advice from companies not legally qualified to give it.

Please consider speaking to a regulated legal advisor before creating your Will as it could save you and your loved one’s time, money, and anxiety later on.

We are regulated by the solicitors regulation authority https://www.sra.org.uk/

If you require any advice in relation to any of the information outlined above, please telephone or email our Inheritance Protection team on 02392 660261 or Info@biscoes-law.co.uk