Consumer Power: Should will writers be regulated?

stevepett

1) The Mental capacity Act has nothing to Wills.
2) Accountants are "Regulated" in EXACTLY the same way as Will Writers.
3) Banks may well have brilliant Will Writers on board for their very top clients, but most get a form to fill in and no advice other than "let us take the strain off your family at a difficult time and do the probate for you" . Maybe in your day banks had ethics.
4) Who says Will Writers are probate experts? Most of us refer on to a specialist organisation.

This demonstrates clearly just a few of the issues which can arise when people think they know more than they do - and I include everyone who is not humble enough to be absolutely certain that they DON'T know everything. Continuing Professional Development is essential - ask for proof of it, ask for proof of professional indemnity insurance, and don't appoint any professional executor who refuses to agree in writing that they will stand down charging only for time spend if requested to by the family (far better to appoint the family and RECOMMEND a firm to do the work - then the family can fire them anytime.
Members of STEP (accountants, solicitors and will writers may be), the Society of Will Writers and the IPW should be a pretty good bet, but do make sure that they actually make an effort to understand you. Anyone who doesn't try to get you do do Lasting Powers of Attorney (even if they charge 5 times as much as us!) has not got your best interests at heart and does not deserve the title "professional adviser"
The gravy train is probate, and ensure a solicitor confirms they will not charge the "responsibility allowance" on top of all their other add ons - its is a simple commission on the value of your estate, sanctioned by the Law Society of between 0.5% and 1.5% + VAT of the ENTIRE value o f the estate and it is, in my humble opinion, a rip off!

PhiltheBear

wise_fool wrote: »

But Phil, this is all about your preposterous statement that everything about the law of succession can be gleaned from a single book. No exams. No training. No years of experience...

And then you start gibbering on about how solicitors and willwriters should have all sorts of training....

You never did answer that little contradiction, did you?

No contradiction at all. Everything you need is available in one book. Find it yourself. There's a whole difference between being competent to write a will and charging for it.

But, if we are going to allow people to write wills then they should be examined.
And that examination should be set and administered by a competent body.

This is a real education. Are you saying that the Mental Capacity Act 2005 is the test of capacity for someone wanting to make a Will?

The Mental Capacity Act 2005 and amendments is the latest legislation which affects those who may or may not be capable of making decisions. Making a will requires 'Testamentary Capacity'. In most (older) wills there would be a phrase "I, N, being of sound mind and body..." which would be taken as proof thereof. However, this is no longer adequate and a testatee can challenge a will if they believe that the testator wasn't capable. To do so they have to prove incapacity according to the 2005 Act.

Is this a trick question Phil? Perhaps you can explain how Capital Gains Tax would arise on shares (however long they've been held) when someone dies?

Oh dear. You really haven't a clue have you? And you expect people to put their affairs into the hands of someone like you? CGT is determined at the date of death of the shareholder on the valuation of any securities held against the value when obtained. It becomes immediately due and payable and the executors of the will are legally responsible for paying it.

Not a trick question at all. Just something every competent will writer should know. They should also know how to advise the testator how to minimise the effects and how to calculate it. What happens where the shares were bought for £1 each, were valued at £1000 at the date of death and drop in value to £200 the following day? I await the fruits of your knowledge.

And, where did you get "laws of succession" from? I'm talking about laws of inheritance/probate. If you don't know the difference then you should bow out now before you embarrass yourself even more.

Perhaps dropping the word 'wise' from your forum name would be a good idea.

PhiltheBear

stevepett wrote: »

1) The Mental capacity Act has nothing to Wills.

Do, please tell us which legislation defines how to test for Testamentary Capacity then.

2) Accountants are "Regulated" in EXACTLY the same way as Will Writers.

Not at all. The two bodies which regulate accountancy qualifications are both recognised in law, one by Royal Charter. Will writing bodies are not recognised. By law only qualified accountants can undertake certain tasks. Which similar law applies to will writers?

3) Banks may well have brilliant Will Writers on board for their very top clients, but most get a form to fill in and no advice other than "let us take the strain off your family at a difficult time and do the probate for you" . Maybe in your day banks had ethics.

Most banks want to do the probate work - it's ridiculously overcharged and I'd tell people never, ever to appoint a bank as executor. But it's simply not true that all they do is send you a form. That's scare tactics.

4) Who says Will Writers are probate experts? Most of us refer on to a specialist organisation.

Then why do so many will writers try and sell their services as executors? If they aren't competent themselves they shouldn't be putting themselves forward.

This demonstrates clearly just a few of the issues which can arise when people think they know more than they do - ....

It certainly does.

wise_fool

Now then Phil, you are an interesting patient, but it really is time you were taking some medicine. Don't worry nurse will be along shortly...

PhiltheBear wrote: »

The Mental Capacity Act 2005 and amendments is the latest legislation which affects those who may or may not be capable of making decisions. Making a will requires 'Testamentary Capacity'. In most (older) wills there would be a phrase "I, N, being of sound mind and body..." which would be taken as proof thereof. However, this is no longer adequate and a testatee can challenge a will if they believe that the testator wasn't capable. To do so they have to prove incapacity according to the 2005 Act.

No Phil.

I am afraid your secret little bible has let you down. The actual test for testamentary capacity is laid down in the case of Banks v Goodfellow (1870).

You know, laws that men with funny wigs make...

I am not sure how you think declaring yourself of sound mind would be proof of that fact. There are many delusional people out there who are not in a position to judge their own frailties after all, eh Phil?

PhiltheBear wrote: »

CGT is determined at the date of death of the shareholder on the valuation of any securities held against the value when obtained. It becomes immediately due and payable and the executors of the will are legally responsible for paying it.

No Phil...

There is no CGT on death...

Are you getting mixed up with Inheritance Tax?

Easy mistake to make...

PhiltheBear wrote: »

Oh dear. You really haven't a clue have you? And you expect people to put their affairs into the hands of someone like you.

Perhaps dropping the word 'wise' from your forum name would be a good idea.

You are quite right...

I am in total awe of you...

You are da man...

The moon is also made out of cheese...

PhiltheBear wrote: »

...a clinician (not some unqualified layman) has to determine "impairment or disturbance of mental functioning"?

And what precisely are your clinical qualifications in being able to decide whether a person has an impairment?

I am no professor of psychiatry, but I can spot from afar a serious impairment or disturbance of mental functioning.

stevepett

It is hardly fair to generalise about all will writers form one with personal problems.
There are bad apples in all walks of life.

I have pressed the Legal Services Board to introduce equal regulation and educatation for everyone writing Wills.
That will be a real shock for many people who think that being a professional automatically means they know everything (as you will see elsewhere in these forums!)

The humility to learn and keen learning is essential for anyone writing wills.

PhiltheBear

wise_fool wrote: »

I am afraid your secret little bible has let you down. The actual test for testamentary capacity is laid down in the case of Banks v Goodfellow (1870).

You know, laws that men with funny wigs make...

And, if you understand the law you will also know that all B v G does is lay down the principle: "It is essential that a testator shall understand the nature of his act and its effects; the extent of the property of which he is disposing; and shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right, or his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made`"

The 'test' of such capacity is enshrined in the 2005 Act. That is, the capabilities he is required to show under B v G have to satisfy the later criteria. Guess what? New laws override old judgements.

There is no CGT on death...

Are you getting mixed up with Inheritance Tax?

When someone dies any securities they hold are 'disposed of' at the date of death. The increase in value from the time they obtained them and the disposal is a Capital Gain. It's got nothing to do with Inheritance Tax. The estate is liable for CGT on that gain. The principle held is that the owner sold them at the point of death.

I am no professor of psychiatry, but I can spot from afar a serious impairment or disturbance of mental functioning.

Obviously you can't (or you'd never look into a mirror). And, legally, you certainly can't.

wise_fool

This will have to be quick as I've got things to do today.

But it seems the medicine hasn't kicked in yet...

PhiltheBear wrote: »

Oh dear. You really haven't a clue have you? And you expect people to put their affairs into the hands of someone like you? CGT is determined at the date of death of the shareholder on the valuation of any securities held against the value when obtained. It becomes immediately due and payable and the executors of the will are legally responsible for paying it.

Dear oh dear Phil...

You are getting into a pickle over this CGT issue aren't you?

The value of the estate, including shares are not subject to CGT upon death. They are subject to IHT.

The beneficiary receives the shares at the probate value. Only if there is an increase in value AFTER death will CGT become an issue for the Executors.

Take a look the Government's own website if you don't believe me. Perhaps they have got it wrong as well?

http://www.direct.gov.uk/en/Governmentcitizensandrights/Death/BenefitsAndMoney/DG_10029815

PhiltheBear wrote: »

And, if you understand the law you will also know that all B v G does is lay down the principle: "It is essential that a testator shall understand the nature of his act and its effects; the extent of the property of which he is disposing; and shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right, or his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made`"

The 'test' of such capacity is enshrined in the 2005 Act. That is, the capabilities he is required to show under B v G have to satisfy the later criteria. Guess what? New laws override old judgements

I suspect that one day, the MCA will be the test for testamentary capacity, but it hasn't happened yet.

Can you refer me to any case law that supports your assertion that the MCA is the new test for testamentary capacity?

I look forward to seeing this...

Then I can tell all the legal professionals they've been getting it wrong...

And Phil with his secret little book is right...

Errata

If someone tasked to draw up a will has doubts about the mental capacity of the will maker they can refuse to draw it up or ask for a psychiatric assessment. A psychiatrist can assess someone as having capacity at the point of assessment but that doesn't mean the will maker will have that same capacity the following day, week or month.

wise_fool

Anyone who knows what they're talking about will be asking the right questions, and so only if doubt remains over their capacity to make a will should they need to refer to a medical practitioner.

After all, if all wills practitioners were also required to be "health and social care professionals" as our expert Phil seems to suggest, then there wouldn't be a great deal of wills produced.

sloughflint

stevepett wrote: »

Panorama could have been made 100 times over with solicitors in the dock - all professions have members who go wrong in them, and I can only repeat that if you have a genuine complaint and are not just point scoring, you should write to the Society at the address given.

Steve

No point scoring. I was simply explaining to you that despite your attempts to promote your society, it had already let itself down both on this forum and on the Panorama programme.

John_Pierpoint wrote: »

............and let us all know how you get on.

No need. We've already got an anecdote here:

alidix wrote: »

My mum had the misfortune to deal with a SWW member for a Trust which cost £3662 and turned out to be invalid, they will not respond the society have done nothing for all their so called complaints procedure and so we are out of pocket.

Perhaps the man on panorama could not stop them as well, he does not seem to have a handle on his members, it all seems like a big money making scheme.:mad:

stevepett wrote: »

I can assure other people reading this that the Society of Will Writers:

a) Demands adequate training and ongoing training every year
b) Monitors that training
c) Insists that all members carry full professional indemnity insurance.
d) Has a fund to finish off work should a member go out of business

What about measures to stamp out dubious sales tactics?