Two Critical Risks for Will Writers – Are You Protected?

The items below are all equally important. Each should be read and digested carefully.

1. Property Ownership and Life Interest Trusts

Recently there have been quite a few questions on the IPW tech support e-mail regarding life interest trusts and the effect of them on the death of the first to die. The questions raised are very important issues and, as such, I felt it was necessary to highlight and draw these to your attention in the hope that these issues will not affect you and cause problems for your clients in the future.

Land Registry Check

Before I visit any client, as many of you will know, I always take the trouble to do a Land Registry check on their property. The Land Registry check can tell you quite a few things about the clients and their circumstances before you even meet with them.

a) ALIASES: It can give you an indication of any aliases and other names that the clients have and it would be necessary to include in the will. If you know your client as John Smith but the Land Registry describes him as John Robert Smith, if the will does not describe the testator as John Robert Smith there is a high chance that the grant of probate will issue in the name of John Smith only. If that happens then the grant of probate may not be sufficient to sell or transfer the property on death. It may be necessary to apply for an amended grant of probate.

b) HOW THE PROPERTY IS OWNED: The land registry can tell you if the property is held in the sole name of the client or in joint names. If it is held in joint names, it will be held as either a joint tenancy or a tenancy in common.

If the property is held as a joint tenancy it means that each owner owns 100% of the property so if one of the owners dies the surviving owner still owns 100% of it. So, the one that died cannot pass their share of the property through their Will to anyone else.

A tenancy in common means that each owner owns their own individual share which passes through their Will when they die.

The land registry check will tell you how the property is owned. If the property is held as a tenancy in common there will be a Form A restriction on the title which will say:

"No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."

Whilst there are many restrictions that can be placed on a title, if the wording of the restriction does not match the wording above EXACTLY then it is not a restriction that denotes a tenancy in common. So, if there is a restriction on the title it cannot automatically be assumed that it is held as a tenancy in common so the wording of the restriction is extremely important.

If there is no restriction that contains the above wording, then you can assume that the property is held as a joint tenancy as detailed above and automatically passes to the other party by survivorship.

Severing the Tenancy

Advising your client to create a life interest in a property is usually done when you have a couple who are concerned about:

1. the survivor of them remarrying and their share of the property potentially passing to the survivor's new spouse/civil partner or children; OR
2. their individual share of the house being used to pay for the survivor's care fees.

The usual scenario is that a couple will approach you and they may be concerned about the survivor of them needing long term care or re-marrying. Their concern is to ensure that when they die, whilst their spouse has the right to continue to live in the property for the rest of their life, they do not have control over its ultimate destination on their death and it will not be available for the survivor's new spouse/children or in any care fee assessment.

Assuming the property is jointly owned between the two parties, it is vital that the property is held as a tenancy in common in order for the life interest trust to work effectively. Failure to ensure that the property is held as a tenancy in common will mean that the property will pass by survivorship to the co-owner(s) and will not fall into the life interest trust.

If the land registry check reveals that the property is held as joint tenants, it will be necessary to "sever" the joint tenancy and convert it to a tenancy in common. Our clients should then be guided through the process of severing the tenancy. This process is covered on the 3-day Willwriting in Practice Course and the Advising the Elderly course.

Consequently, if you fail to ensure that the property is held as a tenancy in common so that the deceased's share of the property is capable of passing through their Will and into the Life Interest Trust, the trust will fail. However, this situation can be rectified by doing a post death severance which is done by way of a deed of variation within 2 years of the death of the testator. Please remember that deeds of variation are reserved activities and therefore can only be done by a suitably regulated person such as a solicitor. There are many IPW members who are solicitors that can complete these for you. Please contact the office for details if required.

Gift Over on Death of Life Tenant

Another issue that I have seen is whereby a life interest trust has been created and instead of the interest in the deceased's share of the property passing directly to the children or the other remaindermen on second death, it passes into the residue. Many of these clauses direct the residue to the surviving spouse who is also the life tenant.

You may believe that this gift to the surviving spouse will not take effect because the surviving spouse would be dead by the time the property trust ends. However, the survivorship clause in most cases says that the surviving spouse will get the residue provided they survive the deceased and sometimes it may say provided they survive by a fixed number of days, the most common time span being 30 days.

So, imagine you have a life interest trust which says my wife can continue to live in the house until she dies and then:

"When the Occupant has ceased to live in the House my Trustees shall hold it as part of my residuary estate."

The residuary estate passes as follows:

"My Trustees shall pay my residuary estate to my wife if she survives me by thirty days but if this gift fails the following provisions of my Will shall apply."

So assuming that the wife has enjoyed a life interest in the property for many years, it is evident that she has survived the 30 days which means that the property now falls into her estate making the effect of the life interest trust void. This means that should the husband and wife have been in previous relationships and have different "remaindermen" it is possible that the share of the house of the first to die will pass to the family of the second to die and the first to die's family will lose out.

I would draw your attention to Parkers (11th Edition). The two most commonly used precedents are 11.8 (Life Interest Trust) and 11.9 (Right of occupation). Both of those precedents refer the drafter to footnote number 2 which is detailed at the end of clause 11.8 to help the drafter to determine the "gift over". It says "It is assumed that the life tenant is not also a beneficiary under the residuary estate. If, however, they are this provision can be amended"

So, whilst the precedent in Parkers does say that the property shall form part of the residue estate at the end of the trust, that clause should be read in conjunction with footnote 2 and amended as appropriate.

Whilst this situation can be resolved by way of a deed of variation within two years of death, making an application under section 21 of the Administration of Justice Act 1982 may also be appropriate because that allows a will to be rectified by the court if it appears that the will does not reflect the intentions of the testator.

However, it is better in my view to avoid having to do a rectification and to create a will that ensures that the share of the house that belongs to the first to die does in fact pass unhindered to their intended beneficiary on the death of the life tenant. This is achieved in one of two ways:

1. A specific gift over to the children or other named remainder men should be made. For example:
   "Subject as above the Property Trustees shall hold the capital and income of the Property for my daughter Alison subject to her being alive at the end of the trust."
2. Another way of doing it is as follows:
   "Subject as above the Property Trustees shall hold the capital and income of the Trust Fund in accordance with the provisions following Clause 7 as if the survival condition contained in that clause had failed."
   In this case, Clause 7 will be the clause of residue to the surviving spouse but as you can see the wording above allows the trustees to "jump over" clause 7 so that the provisions of the next clause take effect. The next clause gives the residue to the children or to the family of the first to die and will save it from going back into the estate of the second to die.

2. Probate Applications: Why Unregulated Professionals Should Not Complete or Submit Forms

Applying for a Grant of Probate is a reserved legal activity in England and Wales. While the process may appear administrative, it involves formal legal steps, interpretation of wills, and statutory obligations.

Unregulated professionals — including IPW members — must exercise caution: assisting clients directly with probate application forms or submitting them via the online Personal Application Service (PAS) can create serious legal, regulatory, and professional risk, even if no fee is charged. A key risk is that if something goes wrong, the adviser may be personally liable, as they do not have professional indemnity insurance to cover errors.

1. Probate Applications Are a Reserved Legal Activity

Under the Legal Services Act 2007, certain legal activities are reserved to authorised persons. Applying for a Grant of Probate involves preparing and submitting documents to the court. Only solicitors, licensed conveyancers, or other regulated professionals may carry out these acts.

2. Risk of Unauthorised Practice

Non-regulated individuals assisting with probate forms risk:

• Criminal liability in some circumstances
• Civil claims if errors result in financial loss
• Damage to personal and professional reputation

Importantly, unregulated professionals do not have professional indemnity insurance that covers probate work. If an error occurs, the client will often come back for redress, and the adviser may face personal liability for rectification costs or compensation — even if no fee was charged for the service.

3. Errors and Misinterpretation Are Common

Probate applications require accurate completion of:

• Form PA1P or PA1A (or online equivalents)
• Forms of renunciation (PA15)
• Forms of Power of Attorney (PA11 or PA12)
• Forms of Power Reserved

Mistakes can lead to:

• Delays or requisitions from the Probate Registry
• Invalid or incomplete grants
• Financial loss to the estate or beneficiaries

An unregulated adviser cannot rely on insurance to mitigate liability, making personal exposure very real.

4. Online Personal Application Service (PAS) Risks

The PAS system may appear straightforward. However:

• Applicants make legal declarations regarding assets, executors, and the validity of the will
• Submitting on behalf of a client may constitute unauthorised practice of law
• Any error, misstatement, or incomplete filing may result in personal liability, since unregulated professionals are not insured to rectify mistakes

Simply put, PAS does not remove the legal responsibility for accuracy.

5. Professional and Ethical Considerations

IPW members and other unregulated professionals must:

• Stay within their authorised scope — completing or submitting probate forms is outside it
• Recognise that clients may assume the adviser is responsible and protected if something goes wrong
• Document all advice, instructions, and referrals carefully

Failure to maintain these boundaries exposes advisers to personal liability and professional criticism.

6. Safe Alternatives

Unregulated advisers can add value without overstepping boundaries. Whilst the process of administering the estate is not regulated and many IPW members carry out this process (myself included), in order to extract the Grant of Representation members should be proceeding as follows:

Referral to regulated probate practitioners

• Solicitors, licensed conveyancers, or probate specialists
• Clearly record referral in the client file
• Never completing or submitting forms

These approaches allow the adviser to assist clients safely without risking personal liability.

File notes documenting advice, referrals, and client understanding are essential to mitigate these risks.

Conclusion: Probate Applications

Even well-intentioned professionals — including IPW members — must not complete or submit probate application forms themselves, whether or not they charge for the service. Probate applications are a reserved legal activity, and unregulated involvement exposes both client and adviser to avoidable legal, financial, and professional risk.

Members should therefore:

• Advise only within their authorised scope
• Refer clients to regulated practitioners for probate applications
• Document all advice, instructions, and referrals

Clear boundaries protect both the client and the adviser.

Final Thoughts

As I have stated throughout, whilst some of these issues can be resolved by a Deed of Variation or an application for Rectification, it is my view that it is much better to have not drafted the incorrect Will at all. Similarly, when it comes to probate, prevention is far better than cure. By staying within your authorised scope, referring work appropriately, and documenting everything, you protect both your clients and yourself.