This week’s technical article is less about new knowledge and more about sharing a learning with a particular case which has recently come to my attention from another Will writer.

The clients’ instructions

The meeting with the clients concerned took place several years ago. They were a married couple. Both clients had children from previous marriages and there were no children between the two of them. In a classic case of the client leading the legal adviser, the clients insisted that:

1. On first death, the house “will pass to the survivor”, but everything else was to pass to their own respective children equally.
2. The clients had stressed that the house was owned “jointly” and that the survivor will then own it when one of them died. The Will writer took the clients at their word.
3. There was a discussion about separating out their respective financial interests in the house and protecting the share of the first to die, so that the survivor could not redirect the entire property away from what would be their respective stepchildren. However, that was dismissed out of hand by the clients.

When the assumptions unravelled

Fast forward to about a month ago when this story surfaced. Mr Smith has now died, and within what was reported as being a couple of days of him dying, his children contacted the Will writer demanding to know what their inheritance will be.

On review of the file – which amounted to little more than a semi-completed instruction form – the children were to inherit the residue, as expected. However, Mrs Smith also contacted the Will writer, in a state of anxiety, extremely concerned that her stepchildren were making noises that they wanted their inheritance. She wanted the reassurance that they wouldn’t inherit any of the house and could not “kick her out”.

It was then that the Will writer decided to carry out a Land Registry check of the client’s house.

So, not only are the children of Mr Smith going to inherit the (fairly substantial) residue, but the estate also includes the deceased’s beneficial interest in the house. In other words, the surviving Mrs Smith has no protection to prevent the children from forcing a sale to realise their inheritance.

The story takes a darker turn – the children of Mr Smith have no loyalty, and some animosity towards their stepmother. And, whilst the story is still developing, it appears the children may well force a sale.

And to complete the picture, it transpired the Will writer habitually appoints his company as professional executors, even without the full agreement of the clients. Sure enough, in the Will of Mr Smith, they are executors alongside Mrs Smith.

Needless to say, there has been a very difficult conversation between the executors as to the destination of the beneficial interest of the house and the implications for Mrs Smith.

The lessons for Will writers

There are several learnings which it doesn’t hurt to remind us about.

If clients intend to leave all their estate to each other, they should nominate the same second death residuary beneficiaries, and trust the survivor to retain their own Will: it does not matter how the two of them own the house. If the first to die owns the house, it passes via the Will to the survivor. If the house is owned as joint tenants, it passes via survivorship anyway. If the house is owned as tenants in common, the share of the first to die passes to the survivor via the Will.

Checking property ownership

Carrying out a check on the ownership of any property is a straightforward procedure, through HM Land Registry.

If the property is unregistered (i.e. a check on the Land Registry does not reveal an entry for the property) then it is advisable to check the deeds. However, it’s important to stress that unless you have specific competency in land law, it’s always advisable for the client to obtain assurance from a recognised expert regarding property ownership.

Even better would be for the client to apply for a voluntary first registration of the house, so proof of title lies with the Land Registry rather than the deeds (which can be lost, damaged, or contain errors). It’s also another service you could offer your clients.

Advice must come before the product

Speaking with the Will writer, it quickly became apparent they had no understanding of what a life interest trust was nor how it worked. It was also apparent that they had taken a different tack to advising their clients – they were wholly focussed on selling a product for a fixed fee. The conversation around protecting the house merely amounted to an attempt to upsell to the clients. It was effectively a case of shoe-horning a client’s circumstances into a product which they could sell.

And the final issue – whilst it must be stressed it’s not known one way or another for sure, it’s probable that the Will writer has no professional indemnity insurance aimed specifically for private client professionals.

But it’s a salutary lesson that, in the absence of full regulation, self–regulatory organisations must exist to perform the vital role of protecting from and educating the consumer about unscrupulous, insufficiently trained Will writers. Examples such as this should strengthen the case for the regulation of Will writing.