Compared to buying a house, taking out a pension or entering the National Lottery, making a will ranks a poor last on the list of priorities for most people.
More than half the population has not made a will and will therefore die intestate. Their property will be administered under the so-called intestacy rules which are widely thought to be unsatisfactory – a situation which will not be dramatically improved by the forthcoming Law Reform (Succession) Act.
In this country at least, death is no longer something people come into contact with in everyday life so the idea of making a will prompts unpleasant thoughts of mortality. Consequently, many people choose to leave it to one side.
For solicitors, the consequences are a serious cause for concern. In order to encourage clients to make wills the price of the will-writing service is kept artificially low. Typical charges are less than £50 for a simple will and around £75 for husband and wife wills. Even in simple cases it will be hard to take instructions, produce an engrossment, attend to the formalities of execution and so on in less than one chargeable hour. To do a thorough job must surely require several hours.
Given the national average hourly fee of £101 (The Times, 9 October 1995), in most cases writing wills is a loss-making exercise.
And the process is not straightforward; it is not simply a matter of pressing the appropriate precedent button.
Once it becomes apparent that the client is divorced or separated, that there are children from a previous liaison, that the client does not like the in-laws, the “simple” will has disappeared.
The average will may be a cut-price job, but for the solicitor who actually draws up the document the consequences of making a mistake can be serious given that he will owe a duty of care not only to the clients but also to the intended beneficiaries.
Poor drafting, a failure to explain the archaic “will signing ceremony” (bearing some resemblance to the traditional English tea-drinking ceremony), even a delay in implementing instructions can be grounds for a negligence action (see generally White v Jones (1995) 1 All ER 691).
Take a couple of examples. First, the client states that he jointly owns his house, but whether he is a beneficial joint tenant or a tenant in common is a mystery to him.
Accordingly, the title will need to be inspected and, if necessary, any beneficial joint tenancy severed.
This is not particularly difficult work but it is time consuming and, if not done properly, it is capable of grounding a negligence action (see Kecskmeti v Rubens Rabin & Co (1992), TLR 31 December 1992).
Second, the client announces that he wants a straightforward will to divide all his estate between his wife and his son. In this instance, if his estate is within the inheritance tax chargeable net (not uncommon if he owns a house of any reasonable value), the solicitor will need to explain re Benham (1995) STC 210 to an increasingly incredulous client.
For many solicitors the will is little more than a loss-leader which is produced for clients who may at some time in the future instruct the firm on other more lucrative matters.
In other cases the carrot will be the hope of being instructed in the administration of an estate. But that may not happen and to try to ensure appointment as executor is hardly best practice.
Perhaps the public gets the service it deserves – there are cowboys who produce inferior products at bargain basement prices. In some cases an application of the intestacy rules will probably be more satisfactory, in others intestacy will be the result in any event.
All of which prompts the thought that Make a Will Week should not just raise the public's consciousness of the need to make a will, but also its awareness that there is an appropriate charge that will be incurred and should be paid.