Falling short - When writing a will is not enough
March 2011
by Dan Godsall
According to the latest statistics from the Office for National Statistics, 492,2071 people in England and Wales die each year. Of these, 295,324 or roughly 60%2 die intestate, prolonging the process of settling estates and adding further strain to the bereaved.
The laws of intestacy provide solicitors with the legal framework for the fair distribution of an intestate estate. However, the law can't ensure that the final distribution of an estate accords with the wishes of the deceased. And there appears to be reasonable anecdotal evidence to suggest that honouring the last wishes of our loved ones is indeed an important consideration because it enables us to have 'closure'.
The story of Guinness World Record-holder and international Memory Grandmaster, David Thomas, among whose prodigious achievements is recalling Pi to 22,500 digits, is not uncommon. In June 2010 David's grandmother died intestate. He and his family were able to sort out her estate, but they still needed a will for his grandfather - with whom the family had lost touch some years earlier - in order to settle one element of his grandmother's legacy. David said that finding his grandfather's will was: "Never about the money. We wanted to be able to draw a line in the sand."
Of course, wills can also be very much about money. Based on the average value of an estate of £90,0003 poor 'will management' could mean that each year a substantial amount in legacies may be at risk of being wrongly distributed.
Write it down
Solving this problem needs to start with people writing wills. However, despite concerted campaigns by successive governments - as well as the help and guidance offered by organsiations such as Remember a Charity, WillAid, AgeUK and CAB - the majority of people remain reluctant to take any practical steps to prepare for their demise.
On 14 January this year BBC2 aired the first episode of a new six-part series entitled Can't take it with you. According to the programme 70%4 of us will die without a will. Presented by veteran business leader, Sir Gerry Robinson, the programme aims to cajole participants into thinking about their legacies and taking action by writing a legally-binding will. The fact that preparing a will is seen as a suitable subject for prime-time, mainstream TV (the programme is aired at 9.00pm on Friday evenings) says a lot about the scale of the issue facing the UK in relation to inefficient 'will management'.
Now, find it
It is to be hoped that with this level of exposure the issue of will-writing may start to gain traction. But writing a will is only the first step, which could be wasted if, ultimately, the will can't be found when it's needed.
Typically, once a will has been written it will be retained for safekeeping by the firm of solicitors who drafted it. This system has been in place for centuries. When generations of one family stayed rooted to a single small area and maintained an enduring loyalty to their family solicitor it no doubt worked well enough.
Today, there are too many variables for this system to be efficient. People can easily forget to pass on the whereabouts of their will to their intended beneficiaries; there is a relatively high incidence of family break-up; and the rate of migration is much greater than ever before.
All of which means that finding a will can still be a Gargantuan task, which is often slow, cumbersome and unsuccessful. Historically, the process required a painstaking search of solicitors trying to locate the firm that may have written, and could be holding, a client's will.
Fortunately, time has moved on and increasingly solicitors searching for lost and missing wills can benefit from innovative and sophisticated services developed specifically to simplify the task.
Certainty - the national will register - has created state-of-the-art technology that provides a definitive and intelligent will search facility which upholds client confidentiality at all times. The service initially searches Certainty's national register which already contains in excess of a million wills and is growing constantly. If a will is on this register it will be instantly located. If not, the Certainty REACH will search service contacts solicitors in the areas where the testator was most likely to have written their will and issues a 'missing will notification'.
Let's recall the story of 'Memory Man', David Thomas. He used the Certainty service. Happily, it located his grandfather's will and he's now been able to conclude more than just the tale of a lost document.
Shira Real, Partner at Brooks and Partners, says: "How many times do we hear concerns from the bereaved where they are sure that the deceased wrote a will but they can't find it? Additionally, there is an assumption on the part of the family that the document they hold is the last will, but what if a later will was written? The Certainty REACH search allows us to look for registered and unregistered wills. It's a vital additional service."
As well as the search facility, Certainty and First Title are helping solicitors to tackle risk through their joint Will Search Protect service. This offers indemnity against a claim for the wrongful distribution of an estate - particularly in the case of an intestacy. Helpfully, this policy meets the needs of all Section 27 requirements.
New initiatives of this nature are designed to help solicitors enhance the quality and scope of the services they offer. Hopefully, they will also contribute significantly to a massive improvement in the way each of us deals with our will management processes.
Sources
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1source: |
Office for National Statistics: Monthly provisional figures on deaths registered by area of usual residence, England and Wales |
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2source: |
60% ratio is based on 300,000 intestacies (source: BBC 'Heir Hunters' programme) - out of 492,000 deaths in England and Wales, 2010 (source, Office for National Statistics Monthly provisional figures on deaths registered by area of usual residence, England and Wales |
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3source: |
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4source: |
Can't Take it with you - BBC2 http://www.bbc.co.uk/programmes/b00xk532 |
Dan Godsall is Distribution Director at First Title Insurance plc. He can be contacted on: 020 7832 3100 or at: dgodsall@firsttitle.eu
This article first appeared in the 11th March edition of New Law Journal.