Why conveyancing is not a simple business...

I went on a course last year called the PSC, for people aiming to qualify as solicitors.  My own background is that as a Legal Executive I decided to go further and complete additional examinations as well as the Law Society’s requirements and hope to enrol as a solicitor having now jumped through all the necessary hoops.  It is a less usual (although more and more popular way) of becoming a solicitor; many Legal Executives do not feel the need to do further qualifications.  As an instinctive student I quite enjoyed the additional learning.  Working in a legal practice means I am governed by the SRA (Solicitors’ Regulation Authority) Rules in any case so we are all in the same boat professionally.

So, I was on this course, and because it was run by a large City-style provider in London, I was blessed with the company of many young trainees working in-house at US banks and in commercial departments at magic circle firms.  Our first seminar was on the changing landscape in legal services and instantly one lovely young lady proclaimed “Oh I wouldn’t mind Tescos doing legal services for something easy, like conveyancing”.  Having spent the last ten years of my life mainly focussed on this area in my professional career and knowing exactly how challenging it can be, I simply referred her to the data on negligence claims and dabblers in property matters (who presumably take the same unenlightened view that it is “easy” law).

The general public are led to believe by various internet firms and home moving sites that conveyancing is a simple paper exercise which anyone could carry out, but as conveyancing lawyers do it every day and everyone uses one, you may as well do that.  This is so far from the truth.  Whilst the work is transactional, there are any number of pitfalls associated with this including the obvious (making sure your client is not committed to buying a new house without having sold the old one) and the less obvious, like ensuring the plans provided by the Land Registry do in fact reflect the whole of the land you are buying. 

The law around this is not just land law (think rights of way, payments to local churches, covenants against building on certain land) but contract law (how else would you buy something so important if there was not a contract) and the law of trusts, because all property is held on a trust of land.  The concepts of co-ownership and beneficial entitlement to property exercise all residential property lawyers in their daily grind (imagine a row over who put more deposit in later – did your conveyancer give you the correct advice on this?), as do having an understanding of what happens following death and divorce – as of course these circumstances are often the trigger for a house or piece of land being sold.  There is the further complication of landlord and tenant law – if you buy an investment property with a sitting tenant do you know if you could get him or her out of the property?  Not all tenancies are the same. What about the field next door?  Who owns the stream and is that a public footpath across the bottom of the garden or just a friendly neighbour walking his dog?

You see my point.  None of this is simple.  I haven’t even mentioned listed buildings, conservation areas and planning problems yet.  And our profession is being denigrated by those who think that as long as the person dealing with the file has a checklist in front of them, it will all be fine.  There is so much intelligence involved than that, and I for one, am fed up of hearing the expression “just a conveyancer”.  If it was that easy I’d be out of business.

Why you shouldn't write your own Will...

Many high street stationers like W H Smith are now offering “Write your own Will” kits for less than £10.  This seems, on the face of it, an absolute bargain for those people who know they should have made a will but have neither the time nor money, so they believe, to speak to a qualified practitioner with legal training.  Many of these kits seem very straightforward – you just fill in the blanks and away you go – but is it really that simple?

In deciding the future of your estate there are some fundamental points to consider: for example, did you know that if you leave a close family member out of your will that he or she may be able to claim on your estate after you have gone under current legislation?  Do you know who would be entitled to make a claim, and what kind of wording should be used in the will to indicate what your general wishes were and why?  This may not prevent a claim but it may give some indication to those left behind as to why the provisions of a will were drafted as they were and prevent confusion and potential animosity between family members.  Without taking into account the legislation protecting dependants and their claims on the estate, your will could be invalid despite having following the instructions on the document supplied.

Whilst the forms offered by stationers and widely available for use on the internet are, in most cases, originally drafted by a person with legal training, there is no advice given with the use of these “boilerplate” (or “one size fits all”) documents.  Therefore the implications of the gifts a person is making (or possibly not making in some cases) are not explained; nor are the tax implications or the consequences of making a Will which excludes a close family member.  More distressingly for those left behind, these mistakes can mean in fact not only are there unexpected financial consequences but in some cases that the “will” is not valid at all.  One of the key parts of the document is the attestation clause, i.e. the part that is signed and witnessed, and if this is not done correctly the will could not be proved as valid following the death of the testator (the person making the will).  Therefore the whole idea, which was not to die intestate (i.e. without a will), is made a mockery of  and the intestacy legislation kicks in.  This is a very strict regime which allows certain family members to inherit particular portions of an estate in order of priority.   For example, a mother who lives with her partner and her child who has not made a will would find all of her assets going to her parents – who may neither want nor need anything – whilst the child and partner are left without.  Live-in partners and stepchildren cannot inherit if a person dies intestate.

Occasionally, if a person dies without any remaining relatives, and no valid will, his estate will revert back to the Crown, despite the presence of a live in partner.  This means that all assets held by that person would revert to the government whilst the person with whom he or she had shared his life, potentially  for a number of years, would be left with nothing. 

There is a common misconception that “common law marriage” provides rights to unmarried couples in the way that the contract of marriage does to Mr and Mrs.  This is not the case and unmarried partners, particularly with children, should be careful not to complete DIY wills on the basis of general assumptions made by lay people.  Equally the introduction of civil partnerships has altered the position for same-sex couples – I was asked recently if a ceremony, but not a formal civil partnership, was enough – the answer is no.  If the paper contract does not exist then in law there is no spouse.

In addition to ensuring that the correct people inherit what you would like them to (difficult if you do not know the rules and do not have a lawyer to advise you on them at the initial stage), inheritance tax can be relatively complex and really does need discussion before you decide what to do.  There are a number of devices that can be utilised to minimise the risk of inheritance tax such as the method by which jointly owned property is owned, the creation of a separate nil rate band discretionary trust in your will, and lifetime gifts.  It is impossible to give these matters full care and attention by ticking boxes or filling in gaps on a basic document designed to work for every Tom, Dick and Harry.

Aside from the obvious danger that a DIY will not be valid for one of the reasons already stated (which in one recent case led the latter will to be held void, with a previously drafted will with very different provisions being held valid and thus disappointing the intended beneficiaries of the second in no small way), there are worrying aspects relating to fraud.  In 2007 a case was unearthed in which a daughter was found to have forged her mother’s signature on a DIY will which the daughter then attempted to prove as original after the mother’s death.  In this cause the daughter should have been entitled to £17,500 but tried to claim £64,000.  Fortunately her two siblings challenged the assertions she made and graphology (handwriting analysis) was used to determine that the mother had not in fact signed the will herself.

Contentious probate legislation is increasing as the laws protecting dependants have been used in a number of cases to establish significant claims against various estates;  with the increasing popularity of home-made or DIY wills, this is only likely to continue.  With all these potential problems, how much money would you really save by going to WH Smith?

PS If you decide you need a solicitor to write your Will, head over to Setfords website. for a bit more info. If you think you'd like to talk to someone who does more than just fill in a form, drop me a line here.