The Today’s Thought Focus Roundtable views on the Law Commission proposals

Bringing you the first of our forward features, this month we have focussed on legal updates – gaining views on the latest consultation put forward by the Law Commission.

Karen Babington, Lisa Watts and Heather Cameron of Today’s Wills & Probate sought to further develop the quality of content we bring to our subscribers and readers. To achieve this, we decided to bring in depth focus on key topics and gain insight from a range of professional backgrounds in our Today’s Thought Focus Roundtables.

For the first Roundtable, we invited a group of experts from the wills and probate profession to discuss the recent Law Commission consultation on will writing.

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Bringing Wills and probate into the digital age

Encouraging people to write a Will

What circumstances are causing the biggest issues in Wills and probate?

Responding to the Law Commission consultation on Will writing

Making changes happen in the Wills and probate sector

Bringing Will writing to the consumer

Influencing change in the Wills and probate sector

Following from the release of the Law Commission consultation on creating Wills, we posed some key questions within the Today’s Thought Focus Roundtable, that many will be asking.

The discussion began with a leading question: are the current laws around Will writing and probate fit for purpose? This got those within our Today’s Thought Focus Roundtable talking.

Bringing Wills and probate into the digital age

Kylie Simmonds, Managing Director of Red Apple said the current laws definitely need reviewing as they are dated and don’t fit with modern family dynamics as well as technology. She used the intestacy laws as an example, stating that step children and cohabitees don’t currently benefit. Kylie also said that in a digital and paperless world, it’s outdated that the industry still requires “a physical document with a wet signature on it”.

Patrick Harrison, Head of Corporate Relationships at The Legal Services Guild (LSG) agreed with the point regarding cohabitees and wondered why it hasn’t been addressed.

Speaking as a specialist in dispute cases, Martin Holdsworth, Director at Jones Myers commented that he’s yet to come across an intestacy case where it’s worked for all parties involved. He stated the difficulty being in working out an effective method of dividing assets in these cases. Martin also agreed that the laws do miss out key family members and forces people into litigation.

Questions were raised about how to make Will writing more accessible and easier in order to combat these issues and encourage people to have a Will in place.

Kate Saunders, Solicitor at Irwin Mitchell Private Wealth said the introduction of digital Will writing in this sector could open up a ’claims culture’ and could lead to difficulties in proving ultimately who has prepared the Will document.

Entering from the perspective of a fraud specialist, Paul Saunders, Managing Director of Legal Eye agreed with Kate but stated that when trying to bring any sector into the digital age, it will always come with risks – which is why there are insurance products in the background.

Colin Blears, Director of Risq Ventures has worked within conveyancing, as well as in the Wills and probate sector. He stated when looking at digitising the sector, through the use of electronic signatures for example, that we have to look at how other sectors and even other countries have achieved this. In other countries, he said, each person has a digital signature licensed to them which is used for various formal agreements where identification is required. Like with wet signatures, Colin said that it comes with the same issue of whether someone was forced into signing, but the risk is less likely.

So why haven’t over 7 out of 10 (77%) of people created a Will and why haven’t the laws changed – like the Wills Act 1837?

Martin said that it shows the sector hasn’t come up with better ideas and technology hasn’t caught up with society. Colin, however, thought it’s not technology that’s the barrier and saw the key as having a stable onboarding process in place with a clear chain of authority. “I think there will need to be a framework around it,” he said.

Paul agreed that it’s the processes that need to be looked at, saying: “I think I’d like to see a regulated industry and to get to a stage where it’s proven that with the correct advice and being able to interact with the process from a non-physical perspective, so being online or remote, what tools are used to do that and what the process is for those needs to ensure you get the confidence that the Will at the end cannot be challenged. Once it’s got to that stage, then you can discover the wealth of digital, online type Wills. But I think we’ve got a long way to go.”

Encouraging people to write a Will

Life circumstances and family dynamics are ever-evolving in today’s society and Colin thought as professionals, we need to utilise these changes. He felt there is a consumer appetite to catalogue assets and decide where they will go, they just need a reason why – or a “trigger” to do so.

Consumer research from YouGov shows us that 25% of people haven’t made a Will because they don’t think they have assets of any significant value. Colin raised the point though that many people have valuable online assets like photos and social media accounts, so it’s all about educating them and giving them the confidence in their decision making.

Writing a Will and planning for post-death is also “an emotional buy”, said Paul, so we need to consider that when looking to go digital – do consumers want to see a person or would they prefer to do it all online?

Clive Ponder, Director of Countrywide Tax & Trust said we also have to consider the big cases, like with Ilott.

“Clients see a woman who didn’t want her daughter to have anything, so they think what’s the point making a Will anyway, because it’s a waste of time,” Clive said.

What he would like to see is a verbal statement of change made by the Government which is then backed up by physical change, in order to truly change people’s attitudes. Clive felt there are proposals being put forward, but the Government and regulators have no interest in making those changes.

Dennis Gardener, Chair of the Institute of Professional Willwriters (IPW) looked at the efforts of how Scotland have changed their laws and made the sector regulated. He said the issues still haven’t been sorted out there, even with a much smaller number of people when compared to the rest of the UK. There are also problems with synergy between Scottish and English laws, so consumers view it as too much of a hassle, according to Dennis.

Colin gave an overview of a personal experience which he faced whereby he needed to make a Will before a life-risking challenge. He said it was difficult to find a Will writer, as well as getting his wife to discuss things. It was a long, drawn-out process for something that should have been simple and after a period of time years later, Colin said he received no follow-up or prompt to update his Will – even though things had changed in his life in that time.

Kylie agreed that customer service is a flaw in the legal services industry and said: “It’s [the industry] notoriously known for not looking after its customers and not having repeat business. It always goes to the new clients, rather than looking after its existing clients.”

Having the popular TV soap operas “do a few nasty stories” could be an effective way of getting the message across on the importance of Will writing, Dennis thought.

“When you think about it, it’s exceptional storylines. You can interweave the whole thing – you can go six months with a problem at all. It makes people aware of what they’ve got to do, with some of the storylines they’ve put in there. They’ve realised the British public needed to know.”

What circumstances are causing the biggest issues in Wills and probate?

Two of the most common circumstances seen in disputes, according to Martin, are families with children on both sides who are of varying ages, and another is having no family at all. He said that these both lead to inheritance issues if there is a Will in place or not, in around 65% of all dispute cases.

“You can only change what was happening in a Will through the 1975 Inheritance Act, but that’s 1975! You have to step back and think for a minute. That’s 1975 from 1837 [Wills Act]! It’s taken that long for the courts to even give the rights to anybody to change anything.”

In response, Colin stated it’s interesting if you look at the Office for National Statistics figures for divorce following the implementation of the Inheritance Act. Martin agreed that there were very few divorces pre-1970 – which is now becoming increasingly common, said Colin.

Responding to the Law Commission consultation on Will writing

Looking at the mental capacity changes, said Kylie, it’s a good area to review, but what constitutes as mental capacity?

Making changes happen in the Wills and probate sector

Tragedies like the Grenfell Tower incident is where problems with voice or text messages will come to light, thought Dennis. He said it’s situations like that which “can emotionally move a law and that potentially isn’t the right way of doing it” as it’s a “knee-jerk” reaction.

Colin put forward the idea, like with the workplace pension scheme, of having an “opt-out” policy for having a Will in place. Some members of the Today’s Thought Focus Roundtable questioned about the self-employed or not letting people have freedom to make their own choice. However, Patrick thought you’d possibly have to incentivise the employer, like with education.

Looking at how Wills are currently highlighted to the consumer, Colin said it’s something conveyancers upsell to other departments within their firms. Gill Massey-North, Operations Manager at Countrywide Tax & Trust stated that all independent financial advisers and mortgage brokers ask if the person has a Will, but then it’s down to the client as most advisers don’t offer these services.

“It is down to the individual, not any amount of forces and education saying ‘you gotta have this, you gotta have that’,” said Gill.

Bringing Will writing to the consumer

Martin went back to Colin’s point about having “triggers” and he said often it’s when people are faced with mortality, such as when a family member dies.

Kylie raised the point of the sector being renowned for over-complicating circumstances which isn’t always appealing for consumers.

“Trying to find examples of things that have gone wrong and actually finding them in ways that can be brought to the consumer’s life, is really difficult. It’s not brought to life in the same way that a sinkhole appearing in St Albans; everyone’s aware of it, you don’t get the same example when someone’s estate goes wrong,” said Colin.

It’s social media and the celebrity culture that highlight estate planning issues to the masses, agreed Kylie and Colin. Dennis said these could be the way forward, but we’d have to be careful with differing rules between Scotland and the rest of the UK.

Kate said it’s about promoting the benefits of writing a Will and one way of doing that is to show how costly it is should a Will be contested.   Preparing a Will could ultimately avoid distress within a family, which Will disputes can sometimes create.

Taking away all the legal jargon was a key issue raised during the discussion. Documents like a Will aren’t properly read and understood by the clients, and Kylie said the wording needs to be simplified so the person doesn’t just sign. Martin agreed and said everything needs explaining to the client about what’s going to happen.

Kylie saw the mindset of the sector as an issue when the Government try to implement changes to make the consumers’ lives easier. She said that some think altering elements of the process means that professionals will lose out “which is completely against the consumer needs”.

Martin agreed, but also said that money is an issue for the beneficiaries as well. No matter the amount, the family will see the division of assets as a declaration of love and importance, according to Martin.

Richard Phillips, Managing Director of Cascade Legal said there are two categories of estate planning consumers: those who are planning and those who are seeking “control and protection”. He thought we as a profession need to look at our relationships with each of these client personas and create value out of our services.

Jim questioned whether the members of the Today’s Thought Focus Roundtable think it’s confusing for consumers with there being both Will writers and solicitors. He said there should be a unified message to the public, and Will writers and solicitors should work together. Kylie agreed and said often people assume a Will writer is also a solicitor, with others in the Today’s Thought Focus Roundtable saying some over-complicate matters or create unnecessarily long documents.

Influencing change in the Wills and probate sector

We asked the Today’s Thought Focus Roundtable attendees what they will be doing within their businesses to influence change. Richard is interested in getting lawyers to look at the Wills and probate sector, and see the commercial opportunities, whilst training them to develop effective relationships with clients. It’s about establishing credibility, he says.

Kylie sees it as an important factor to establish digital assets into estate planning and ensure clients are communicating to the right people about what they own and how to access their assets.

Andrea Pierce, Legal Services Director at Kings Court Trust said they have already conducted research with Will writers and consumers on a range of topics, including the Consultation. Richard stated the sector is lacking in good research like this and should be using it to see what people actually think about what’s happening.

The Today’s Thought Focus Roundtable members agreed reporting is a key area for consideration which should be opened up within the will and probate sector. Even mystery shopping exercises as a way of gaining market intelligence could be a positive step forward to discovering the mindset of the consumer.

Martin said one of his teams is looking at “human interaction with clients but in the digital world” using artificial intelligence to resolve issues online – providing good advice exactly when it’s needed.

We plan on holding these Today’s Thought Focus Roundtables every few months. Our next Roundtable for the wills and probate sector will be held on 15th November in Birmingham. In addition to this we have a range of other opportunities to work with us – including partnerships, blog writing, PR services and much more. To find out more about how you can get involved, please contact Karen Babington at [email protected].

Featured image: L-R: Clive Ponder, Patrick Harrison, Jim Emsley, Richard Philips, Martin Holdsworth, Dennis Gardener, Heather Cameron

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