Wills and ways

Since the beginning of 2008, 11 solicitors have placed adverts in this publication in an attempt to locate the will of a deceased. Most solicitors will confess that responses are rarely received. What is clear is that the administration of the estate will have been delayed by uncertainty about the existence of a will.

How long should a solicitor wait before assuming no will exists and drafting a writ for the appointment of an executor dative? More importantly, the application of the rules of intestacy could result in a distribution contrary to the wishes of the deceased. That a compulsory centralised register of wills would address this uncertainty (and the potential unnecessary costs should a petition be made, a bond of caution obtained and a will subsequently come to light) is clear; but do the arguments in favour of such a system outweigh those against?

Already enacted

Registration of wills during life is not a new idea, but it remains a topical one. In May 1972, the European Convention on the Establishment of a Scheme of Registration of Wills was drawn up. The Convention provides for the establishment of national registration schemes on the basis that it would be useful for people to be able to ascertain whether or not a deceased person had a will, and if so, where it could be found.

Under the Convention, only those wills declared to a notary or similar person authorised to record them and those wills deposited with an authority will be subject to registration. Equally, withdrawals, revocations and other modifications of those wills must be registered. The issues of confidentiality and access are addressed, in that presentation of a death certificate will be required if documentation is to be released, and during the life of the testator the registration will be secret.

Various countries, including Belgium, France, Italy and the Netherlands have ratified the Convention. Sections 23-26 of the Administration of Justice Act 1982 enact its provisions in the UK, but are not yet in force. They will ultimately produce new regulations to replace the Wills (Deposit for Safe Custody) Regulations 1978 (SI 1978/1724) currently in force for England.

New provision?

More recently, in March 2005 the European Commission published a green paper on Succession and Wills. Question 36 asked: “Should provision be made for a scheme of registering wills in all member states? Should a centralised register be considered?”

In a joint response submitted in 2007, the Society of Trust and Estate Practitioners (STEP) and the Law Society of England & Wales expressed “concern” at the proposal. The UK Government advocated “careful evaluation” and stated: “The UK Government does not have any overriding objection in principle to the possible creation of a scheme for registering wills in all member states, including the possibility of a central European register. However… any registry should be voluntary and… not preclude informal and deathbed wills.”

The then Justice 1 Committee of the Scottish Parliament had been less ambivalent, stating: “the proposals are fundamentally flawed and unnecessary” (release, 6 October 2005).

No response appears to have been given by the Law Society of Scotland, but the approach of careful evaluation seems to have been adopted in England & Wales with the Law Society launching an online survey. The closing date for responses was 29 February 2008 and participants were asked to respond positively or negatively to the questions whether they would welcome the creation of either a compulsory, or a voluntary, UK wills register (for registration of the existence of a will).

Pros and cons

To gauge accurately opinions on the proposal to introduce a register of wills, the exact scope of the reform must be made clear. Is opinion sought on the introduction of a Scottish register, a UK-wide register or an EU-wide register? Would registration in a national register confer automatic registration in an EU-wide register? Will the information be stored simply as a list of testators with no access to the content of the will, or will the document itself be stored with potential access? Who could access such information, when, and on production of what supporting documentation? Would registration be compulsory or voluntary, and what impact on validity would a failure to register have? Which body would be responsible for registration? How much would the register cost to set up, and what would be the cost to register each document?

Assuming there are no technical impediments (see panel), what are the arguments in favour of and against a compulsory register, whether Scottish, UK-wide or EU-wide, likely to be?

Proponents are likely to argue that wills will be easier to locate on death and that any delay in commencing the administration will therefore be reduced, with unnecessary expenditure avoided. If all revocations, subsequent wills and amendments are similarly registered, there will be a reduced likelihood of an individual having more than one current and perhaps conflicting will in place on death, and the rules of intestacy will only operate when no will is in existence. It may also be argued that if registration is to be implemented, it must be compulsory if the uncertainty potentially caused by a voluntary system is to be avoided.

In addition, they may suggest that testators will have the peace of mind of knowing that their current will and any codicils are securely stored, and can be located on their death without reliance on an efficient home filing system or family knowledge of the solicitor used during life.

Opponents may well argue that there is no demand or justification for a compulsory register of wills (Minutes of Evidence, House of Lords EU Select Committee, 10 October 2007; www.publications. parliament.uk/pa/ld200708/ idselect/ldeucom/12/7101002), and that the change to the current system is too fundamental. It is likely that significant issues of confidentiality would also be highlighted. They may argue that existing safeguarding procedures adopted by solicitors in terms of providing clients with copies of completed documentation, storing principal wills both as hard copies in fireproof units and in electronic format, combined with the facility to register for a nominal fee in the Books of Council and Session, are sufficient. The practical difficulties of accessing all existing testamentary writings for registration may also be raised.

Further considerations

The connection between registration and validity is likely to be seen as particularly problematic. It has been strongly argued by the Justice 1 Committee in Scotland, by STEP and the Law Society of England & Wales, that informal wills can accurately reflect wishes and be properly executed. To invalidate these because of a failure to register the document would cause more cases of intestacy, not fewer.

It has also been argued that individuals should not be forced to spend money on the preparation of a will by a solicitor for the will to be valid. Legal practitioners may respond that there is a massive variation in the cost of preparing such documentation throughout the profession, providing a solution for most. Some firms will prepare a simple will as part of a conveyancing process for no additional charge. Other firms will do so for a nominal charge. Complex and specialist wills will be more expensive and generally form part of wider tax or financial planning advice. In response, it could be said that there is no reason to restrict the ability to register to the legal profession. A member of the public could prepare their own will and present it for registration, as facilitated by the existing English regulations.

There is also the difficulty of regulating the practices of currently unregulated will writers who charge a fee for their service. Solicitors may argue that an accurate will is of such importance that only those legally qualified to draft such documentation should do so. Many solicitors will have experience of administering an estate on the basis of a poorly drafted or incorrect will, and the additional delays and expense that invariably result.

Essentials of validity

What is perhaps more of an issue is whether the validity conferred by registration will be because the testamentary writing has been reviewed by qualified personnel as part of the registration process for the current requirements of formal validity, or whether registration will be automatic upon submission. If registration is to determine validity, this checking process would appear essential. Such a process has been successfully adopted by the Office of the Public Guardian in connection with the registration of powers of attorney.

Perhaps a staged process may be more appropriate, similar to that under the Requirements of Writing (Scotland) Act 1995, which draws a distinction between valid and probative (self proving) documentation. An unregistered will could be valid provided it fulfils certain requirements in terms of format and execution. A registered will would be probative. Section 39 of the Conveyancing (Scotland) Act 1874, which facilitates the curing of minor defects in execution, or a similar provision, could provide a process for making a valid but unregistered will probative. It would be important for such a process to be user friendly and address the various practical issues that will be presented.

If a system of registration is to be introduced, much could perhaps be taken from the process outlined in the 1978 English regulations. Addressing what could be seen by many as the major issues of confidentiality and access to the registration process, these set out a comprehensive voluntary depository system for wills in the High Court However, in practice this is rarely used.

Draft legislation is expected from the European Commission later this year. As registration of wills was not addressed in detail in the Scottish Law Commission Discussion Paper on Succession (August 2007), Scotland should undertake its own careful evaluation before then if opinion, demand and jurisdictional issues are to be accurately gauged and addressed.

Shona Lowe is the Professional Support Lawyer for Private Client & Financial Services at HBJ Gateley Wareing

TECHNICALLY FEASIBLE

The technology required for a register of wills exists in Scotland and has been tested. The General Register of Scotland, through its internet outlet ScotlandsPeople, last year completed a five year project to store images of all the Scottish records of births, baptisms, marriages, deaths, wills and census returns online. Fifty million such records have now been scanned.