The Risks of Using a Will Writing Company

The recent case of Pearce v Beverley has highlighted not only the shifting evidential burden in cases involving testamentary capacity, but also the risk of using a non-qualified will writer to draft a will.

The facts of the case are briefly that Mr Pearce did in 2008 having made a will via The Will Writing Company. In his will he named his sole beneficiary as his companion and carer Ms Beverley, omitting completely his only daughter Ms Pearce.

Ms Beverley moved in with Mr Pearce as his carer and companion in 2005 and in 2007 Mr Pearce along with Ms Beverly attended a solicitor for the purpose of Mr Pearce making a will. At this time Mr Pearce was unable to speak and therefore the solicitor refused to draw up a will due to a lack of capacity. Just two days later, a representative from The Will Writing Company attended upon Mr Pearce to take instructions for a will. Despite Ms Beverley being present during the interview and helping to answer questions on Mr Pearce’s behalf, the will writer proceeded to draft a will for Mr Pearce.

In addition to his will, Mr Pearce also sold a property in 2007 that his daughter was living in and the proceeds of such were paid into a joint account held with Ms Beverley, despite Mr Pearce having accounts in his sole name. An LV Life Insurance policy had also been amended to name Ms Beverley as a beneficiary.

The judge considered that this was a case in which there was a ‘real doubt about capacity’ and therefore held that the evidential burden shifted back to the defendant Ms Beverley as the sole beneficiary of the will. The onus was therefore on Ms Beverly to prove that Mr Pearce did in fact have capacity at the time he signed his will, which based on the facts, could not be proved.

In the Mental Capacity Act 05, the burden of disproving that someone has capacity to make a will remains at all times upon the person seeking to challenge and disprove capacity and the validity of a will, which in this case was Ms Pearce. The judgement given in this particular case therefore seems to suggest a shift in the burden at common law.

The case also clearly highlights the risks of instructing a non-qualified will writer to draft a will. Many people often incorrectly assume that an individual or business that specialises in drafting wills must of course be qualified, but this is often not the case because will writing companies:

  • are not regulated
  • do not have adequate indemnity insurance
  • are often not experienced in a specific area

 Compare this with a wills solicitor who:

  • is both qualified and experienced in a specific area
  • heavily regulated
  • must follow a strict code of conduct
  • must have adequate indemnity insurance in the unlikely event that they act negligently

The government recently rejected calls to regulate will writing as a whole. This decision was widely criticised by solicitors and the legal profession and a significant disappointment as it is solicitors who often have to deal with the consequences of negligently drafted wills.

Forbes offer a competitive fixed fee for most wills and importantly, it will be drafted by a qualified solicitor who is experienced in drafting wills.

Jennifer Wilkinson

About Jennifer Wilkinson

Jennifer Wilkinson is an Associate Solicitor within the Wills, Probate, Trusts and Tax Department at Forbes Solicitors. Jennifer’s blogs cover her specialisms of Will writing, dealing with the administration of estates, paying for care, powers of attorney and court of protection issues. Jennifer is also a member of Solicitors for the Elderly and specialises in matters specifically relating to elderly clients.
This entry was posted in Wills, Tax, Trusts and Probate.