Some considerations about the services a lawyer provides as compared to that of a professional will writer in the preparation of wills.
I have been asked on many occasions to write wills for my clients. For the record, I do not rely on will-writing as a staple business, and neither am I interested to attract any will-writing clients. I doubt any lawyer would rely on will-writing as a staple business, since will-writing is generally construed as a ‘lower-end’ task. After all, it takes many years of study and enforced hands-on training before a person qualifies to be a lawyer, but any suitable candidate willing and able to pay the franchise fees of a will-writing company could qualify to be a ‘professional will-writer’. One can almost immediately discern the difference.
However, such professional will-writers have been successful in creating awareness in the average Joe Public about the importance of wills. Partly, this is because lawyers are tied to strict rules of professional conduct and etiquette, and cannot widely market their services. However, will-writing companies do not suffer from the same restraint and therefore can widely disseminate their marketing materials.
Whilst wills may be important, it must be noted that wills are not important all the time. Hence, the first question one needs to ask before writing a will is whether a will is even necessary. This is an issue which I suspect will-writers would not fully explore with a potential client since their income is derived primarily from the act of writing wills. A lawyer however is entitled to charge regardless whether the client proceeds to write a will or otherwise, hence the lawyer would be more objective in his advice.
Sure, there is the common misconception that without a will, beneficiaries could be involved in lengthy legal processes or complex legal battles. Guess what? Beneficiaries could be involved in lengthy legal processes or complex legal battles even if a will is drawn up. Fact is, complexities arise out of the circumstances of the deceased, not out of the absence of a will. Beneficiaries of a deceased man who had multiple marriages and secret children from illicit affairs would more likely face a complex legal battle than that of a family man with one wife and two kids. The presence or absence of a will is irrelevant.
How about the assertion implied that one’s assets would be distributed in a complex manner to distant relatives in the event there is no will? Again, this is patently untrue except in the most far-fetched circumstance. If a man died without a will and had a surviving parent, wife and children, then his assets are simply distributed to his parent [1/4], wife [1/4] and children [1/2]. No one else from the extended family gets a share. If there is no surviving parent involved, then only his wife and children share his assets. Honestly, how many people would truly object to such a scheme?
Then, there is the assertion that one needs to go through a Court process to distribute one’s assets without a will. Guess what? You still need to go through a Court process even with a will. The only way your beneficiaries could avoid going through a Court process is if your assets were less than RM 2 million, and you died without a will. Read the last sentence carefully. I have not made a typographical error. You can possibly avoid a Court process if you died without a will. If you died with a will, you have no choice but to go through the Courts to distribute your assets.
Have you ever seen any statement like that in any of the marketing materials distributed by will-writing companies? Of course not! It goes against the interest of the will-writers to highlight such information to you. So, the next time before you start believing in any marketing material, check with the experts. Lawyers can be compared to doctors who need to go through a thorough study and vetting process to be qualified. Do you really feel comfortable taking advice from unqualified persons instead?
(Loyarburok Editorial Note: This article was written after a discussion arising from the following article in The Star and has previously appeared in The Sun.)
Posted on 6 March 2010. You can follow any responses to this entry through the RSS 2.0.
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Errata.
By what criterion or criteria can such persons hold themselves out to be professional will writers.
By what criterion or criteria can such persons hold themselves out to professional will-writers.
Thanks for the article. However I am still confused whether a will as a whole will make life easier for my loved ones in the case I am not around anymore. I was under the impression that a will, will make my life easier for my loved ones if I am not around. This is all due to the advertising that has been done around the country (you know who I am talking about). So in a nutshell, should I get one drafted or not? I'm sorry to trouble you with this simple query, but it will certainly clear things up for me. Thanks.
I wish to add that when the father allotted shares in the ratio 1:2 unfavourable to the daughters, one of them actually was angry with the family's 'consultant' for having influenced her father's decision. This further adds to my point that being involved in family affairs can be very sensitive indeed. There is no clear right or wrong where feelings are concerned, with some thinking they deserved to be treated equally (daughters) while some expected to be treated better than others (sons), or even a favoured son expecting to get a lion's share!
There was an example of a simple will prepared by a brother for a sister. As it turned out, the estate was small at the time of her death, so the brother suggested that with the agreement of the three children, they are better off doing away with the will which involved getting a court order. Her share from her mother's company under liquidation just require a legal way to distribute which could have been done faster for small estates without involving the court. One of the children happened to be rich said something to the effect that she would like her lawyers to have a look at the will and ended up having to pay them a few thousand Ringgit! This example also shows the disadvantage of having a will where the distribution was meant to be equally among all the beneficiaries.
There was a case of a family where the father asked a Chinese educated man for his opinion on how he should write his will, especially with regards to the difference, if any, between sons and daughters.
The man gave examples of some rich Chinese men's which varied from only lifetime gifts to daughters, daughter getting half of son's portion, and equally among the children regardless of sex.
Finally, the family head decided to allot shares in the family company in the ratio of 1:2 between daughters and sons, with the remaining shares retained by the old couple.
After the death of the old man, the widow decided to write a will and asked one of the sons to prepare a simple will on the basis of equal shares instead of 1:2. Another of the sons who was unaware of the existence of the will was furious because he was expecting the same ratio of distribution as before.
The moral of this story is to tell others of the thankless task of a will writer because someone might get upset and blame him for the contents of the will.
I often wondered why the Bar Council was so quiet regarding professional will writers. I fully agree with what you said. Sadly, the Boleh Land has badly brought up the younger population whilst keeps frightening the older ones…….I sincerely hope more lawyers give more such 'tutorials'and make it a point to reach as many as possible. A big tq.