A guide to helping clients make out a will

Linda Cummins, head of wills at solicitor firm Goldsmith Williams, explains how to avoid mistakes when helping a client with a will.

In recent months wills have rarely been out of the financial press, with the issue of regulation at the fore.

In July a report by the Legal Services Panel highlighted the ‘shocking’ examples of bad practice across many wills providers, rendering many documents invalid.

So, how can advisers ensure they are not making fundamental mistakes when appointing will writers for clients, or undertaking their own will drafting?

Best and worst practice

Be aware of the risks of bad will writing. Knowing what is best practice, and more importantly what is the worst, will stand advisers in good stead. As a solicitor, I have seen some appalling examples of badly drawn wills, such as those with no appointed executor, wills that haven’t been signed or witnessed, and wills that contain contradictory clauses or would be impossible to carry out.

Rectifying a badly drawn will is a very expensive process and if the badly drawn will has been made by an external supplier but provided by an IFA, it can prove costly to the IFA’s reputation.

A will should be properly drafted, clearly reflect a client’s wishes and be legally compliant and enforceable. Clients that appoint will writers do so in good faith and should rightly expect that the will they are paying for will stand up to legal scrutiny.

This isn’t always the case – especially as will writing is not a regulated industry.
The process of getting a will right starts at the appointment stage. IFAs should take the time to explore every aspect of the client’s portfolio and be clear on what they want to achieve from the will, before selecting the most appropriate party to prepare it, whether in-house or a specialist provider.

If IFAs choose to work with external writers, it is crucial to work with a reputable provider. Although a will does not have to be written by a solicitor, many people choose to work with law firms to ensure the document is legally sound, particularly when affairs and assets are not straightforward.

Benefit of regulation

One of the benefits of using a solicitor is that the margin for error is reduced as the provision of legal services by solicitors is so heavily regulated.

Solicitors are governed by the Solicitors Regulation Authority (SRA) and are required to have professional indemnity insurance. Law firms must also have robust complaints and compensation procedures, which at the very least will provide clients with peace of mind knowing there is an avenue for redress and accountability.

When using a solicitor, IFAs can be confident they are working with practitioners that have a broader sense of knowledge and understanding across other areas of law, how a will sits in the client’s wider portfolio, whether it affects property or other assets. This wider legal perspective will help to ensure that each aspect of the will best meets the client’s aims and wishes.

Lawyers also have to undertake continuing CPD training, keep up-to-date with changes in the law and legal practice which guarantees quality of work. IFAs should look at any existing relationships they have with solicitors, for example in relation to property work, and see if wills is another area for referrals and the subsequent commission they can receive.