Anyone can prepare a will, can’t they?

Sunday, 01 December 2013
Martyn Frost punctures a common misconception - a tendency to underestimate wills as an active and changing area of law, as well as the challenges that these changes pose.

Colleagues working in other areas of the legal profession have a tendency to underestimate wills as an active and changing area of law, as well as the challenges that these changes pose. This is why today we still find the approach that anyone can ‘do wills’.

A quick survey of reported cases in the Wills and Trusts Law Reports in 2013 shows continuing problems with testamentary capacity, knowledge and approval, delays in will preparation, undue influence, domicile, attestation, rectification, portions, forgery, donatio mortis causa and Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) claims. Some of these made it to the Court of Appeal, and one execution and rectification matter has struggled all the way to the Supreme Court (no hearing yet). And reported cases are very much the tip of the wills litigation iceberg.

To this can be added new Acts amending presumption of death, some trust accounting issues (which impinge on will preparation), a bill currently in Parliament that will, if passed, reform the Administration of Estates Act 1925, Trustee Act 1925 and I(PFD)A 1975, and new Non-Contentious Probate Rules that are on the way. For once, major tax reform hasn’t affected this area, but it will; the threat never really goes away and, like bad English summers, it will return. While not every year has quite this much in terms of statute (but fairly major statutory changes have been common in recent years), there are plenty of reported issues that need to be assimilated into practice each year.

To me it is inconceivable that we can now enter this area without adequate training and at the same time understand that this is a changing market

Further, the Court of Appeal in Ilott v Mitson ([2011] EWCA Civ 346) referred to I(PFD)A 1975 decisions being made by judges in the light of their ‘awareness and experience of society and social issues, and their own considered view of how such matters ought fairly to be decided in the society in which we live’. That immediately made me think of how much the structure of UK society has changed since the I(PFD)A 1975 entered force (and of the changes since I started work in 1968).

Society’s rate of change appears to be increasing, such that it is now difficult to talk of a typical family unit – something that was possible when I started work. Changes in domestic structures and relationships pose practical problems for will advice. Other areas where changes will affect the will advisor are:

  • Wealth holding (e.g. the role of women in society has changed radically in the past 40 years; one effect has been greater personal wealth).
  • Mobility of population across borders (such that a sound working knowledge of domicile is needed and cross-border issues come into play much more).
  • Greater life expectancy and a switch to commercial care in old age, as opposed to care within the family.

This all points to a conclusion that change is constant and requires both comprehensive initial qualifications and ongoing professional development. To me it is inconceivable that we can now enter this area without adequate training and at the same time understand that this is a changing market with changing demands. Having a good standard of knowledge through formal training helps, and STEP has a qualification that demonstrates this to peers, prospective employers, clients and – who knows? – maybe even a future regulator in this area. The STEP Advanced Certificate in Will Preparation is about to move into its fourth year and so far has helped a wide range of people involved in will preparation. Those wanting a formal qualification have not exclusively been the young. Experienced practitioners have wanted the qualification to validate their knowledge or to differentiate them from their peers. Some have been nearer to retirement than first employment, and they have my admiration for wanting to undertake the work.

The Gold Standard

The 2014 intake of the STEP Advanced Certificate in Will Preparation (England and Wales) closes on 17 February. This qualification enables will draftsmen to demonstrate their competence in all aspects of will preparation. Courses are being held in London, Manchester and Bristol.

The Certificate was launched in 2011 and has been developed at the level of the STEP Diploma, the gold standard in trusts and estates education. From mid-2014 graduates will be able to credit their Advanced Certificate in Will Preparation towards a full STEP Diploma. For more information, visit www.step.org/step-advanced-certificate-will-preparation-england-and-wales

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Martyn Frost

Martyn Frost TEP is Director of Trenfield Trust & Estate Consulting LTD and a tutor for the STEP Advanced Certificate in Will Preparation.

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