By Emma Baddaley, Strategic Relationship Director, Estatesearch and Committee Member of Women in Wills.
Data has shown law firms offering advice in the area of contentious wills, trusts, and probate have more than doubled since 2018 [1]. Questions over the validity of Wills is one factor behind this growing trend.
In 2023, we conducted our own a survey of 2,000 UK residents and found that 64% of people with a Will had since updated it.
Society’s definition of the ‘traditional’ nuclear family unit is quickly ceasing to be the ‘norm’, and second and third marriages and stepchildren are commonplace leading to more complex family relations. Add in acrimonious divorces and extended family connections and it’s clear why Wills are changed so often.
Crucially, however, our research also revealed that 1/5 of those who had updated their Will used a different provider. Comparing this to UK population statistics, we’re looking at a potential 7 million Wills that are out of date.
The Value of Will Searches
These days, consumers have more choice and ease of access to other providers in order to update their Will. Therefore, the risk of an unknown Will coming to light sometime after an estate has been distributed to beneficiaries has greatly increased in recent years, leaving executors open to litigation.
According to the Gazette: “Personal representatives who have distributed the assets of the deceased are personally liable to any beneficiaries if an incorrect distribution has been made, even if the personal representatives were unaware of the mistake.”[2]
For law firms acting as executors, the risk of failing to identify and act in accordance with the latest Will is significant. As well as the financial burden and further upset to the family, the damage to a law firm’s reputation would be detrimental.
In the past, best practice to demonstrate due diligence taking all reasonable steps to identify the most recent version of a Will was very much a manual process. Executors would have had to write to a selected group of people including a handful of local law firms,relatives and financial advisors for example. This was both time consuming and inadequate, but there was no other option. However, these days technology exists to conduct a Will Search online. Something which offers greater flexibility, a more robust searching criteria and better cost efficiency. A Will Search also provides an audit trail to prove the law firm has done everything in its power to identify the latest version of a Will.
Implement Will Searches
Emma Davies, Solicitor, Masefield Solicitors LLP: “We recommend a Will search and if we are acting as the personal representatives, it is our policy to order one through Estatesearch. This checks there was no later version of a Will created by the deceased which the family were unaware of. It’s a belt and braces approach which ensures due diligence and good service on our part.”
Lucy Cresswell, Solicitor, JMW: “One aspect of our work is referrals from the council or a private hospital who are unable to identify next of kin, so are unaware of any executor. In these cases, our first step is to use Estatesearch to do a Will search. On three occasions we have discovered a Will and then the file was handed over to the right executor without incurring unnecessary costs to our firm.”
John Tunnard, Legal Director, Shakespeare Martineau: “Carrying out an Estatesearch Will Search proves useful when considering a probate claim. For example, if a client seeks to overturn the last Will, you need to consider what any earlier Will(s) say. Previous wills can also fail to be considered in the context of validity disputes where a later Will appears on its face value to be a significant departure from previous Wills.”
Estatesearch’s Role
Estatesearch’s Will Search meets the recommendations made in section 19.1 of the Probate Practitioners Handbook (Missing Wills) and 23.3.1 of the Law Society Wills and Inheritance Quality Scheme (WIQS), making enquiries across local and national Will holders including local solicitors. It also makes enquiries of the Institute of Professional Willwriters (IPW) and the Society of Will Writers (SWW). It also includes a search of the Probate Depository and a number of online will providers. Uniquely, Estatesearch takes into account that the average person moves house up to eight times during their lifetime, and searches on providers near all connected addresses supplied with no maximum limit.
The stakes are high should an executor or a law firm acting on their behalf fails to identify the most recent version of a Will. Therefore, it is recommended a Will Search should always be done where the law firm is the executor to protect against personal liability. When representing a lay executor, firms should explain the importance of conducting a search, and ensure clients understand the risks of not doing so; an opt out clause is useful here which places the onus on the lay executor should they wish to decline. It’s a very small price to pay to ensure no stone is left unturned in a growing area of risk.
Originally Published on Today’s Wills and Probate.