The UK probate system to open to abuse. That’s because it relies on a somewhat old-fashioned assumption that people will do the right thing. This may have worked when little old ladies watched the world pass by through lace curtains.
Nowadays of course these social controls have given way to disruptive urban living. As a result, the probate system is open to abuse while the new electronic policy may even open the door wider. This is because not all due processes require official sanction even by bots.
Anybody Can Prepare a Will on Behalf of a Third Party
There are no restrictions on the preparation of a will other than two witnesses must countersign the testator’s signature. Beyond that, anybody can help a person leaving a legacy. This assistant could be a lawyer, an honest advisor, a person with a vested interested, or even a dishonest person. Moreover these may not fully understand the legal consequences of their advice.
Anybody May Act as An Administrator
Obtaining a legal grant of probate may only be done by a duly authorized person. However beyond that anybody may take it on themselves to administer a deceased estate.
Even where this is done under authority of a probate, roles and responsibilities are not tightly defined. The person with the probate may double-up as executor or beneficiary. They could also be an independent third party of course. These differences may have a bearing on the decisions they take.
Would Appointing a Solicitor Resolve this State of Affairs?
Legal Ombudsman says yes, provided the solicitor does not exploit the testator’s knowledge to their advantage. For example, they should not convince the client that appointing a solicitor as their executor was “essential or indeed the norm”.
Solicitors for their part claim the trend towards lay executors has contributed to the “three-fold increase in court claims for mishandling a deceased’s estate”. However official records do not disclose the split between solicitors and lay executors in these cases according to Legal Ombudsman.
An Alarming Trend in the Quality of Will-Writing
Legal Ombudsman cites a survey of 101 wills by the Legal Services Consumer Panel. They found “a quarter of wills prepared by both solicitors and will-writers were deemed poor quality.” This opens the possibility of managing will-writers better.
The debate concerning whether to regulate has been dragging on for a while with little proactive action by government. Bemoaning this, former Legal Services Board CEO Chris Kerry told Legal Ombudsman:
“This does represent a missed opportunity to both raise standards and to foster confidence in a more innovative and competitive market,” in the Board’s view.
The Case for Managing Will-Writing Better
Legal Ombudsman concludes their report by referring to a You.Gov survey that suggested “while the unregulated market for probate and estate administration is small, a third of the will-writing market is served by unregulated will-writers.
“We believe that all consumers of will-writing and probate service providers should have access to redress. This can only be achieved if regulators, representative bodies, and government work together to find a solution to the problems caused by an unregulated legal sector.”