Wills: concerns over scare tactics and high-pressure sales techniques
North East Trading Standards Association (NETSA) has joined forces with the Law Society to warn consumers about unregulated will-writers mis-selling wills and delivering reserved legal activities.
NETSA says it has received numerous complaints about scare tactics and high-pressure sales techniques in a bid to persuade consumers to sign up to property protection trust wills or asset protection trusts, as well as excessive fees being charged.
Though these are designed to help home owners protect the value of their home and safeguard their share of a property in the event of changing circumstances, such as the death of a partner, will-writers are telling consumers that transferring ownership of property into the trust would mean that a local authority would not be able to class the house as an asset when carrying out a means test to assess whether it will pay care home fees.
Howard Turton, regional enforcement manager of NETSA, said: “We are concerned that the victims are typically elderly and are subjected to high-pressure sales in their own homes. The average person would have very little knowledge of such products and therefore would be at a significant disadvantage to the caller, who they perceive to be an expert.
“Wild claims could be made with little likelihood for the homeowner to doubt them. The potential limitations of such products are also not always conveyed to the homeowner. Local authorities have a legal right to overturn any gifts into such trusts where they can prove that there has been a ‘deliberate deprivation of assets’.
“For this reason, customers who take out an asset protection trust or similar could find themselves challenged by the local authority at a later date, especially if care home fees are required soon after the trust arrangement is put in place.”
Law Society president John Wotton added: “The preparation of trust deeds relating to real or personal estate for the purposes of law, in particular, is an offence, unless a person is authorised or exempt under the 2007 Legal Services Act.
“Key elements of preparing a property protection trust fall within the definition of a reserved activity. Consumers need to be aware that reserved activities can only be carried out by a solicitor or other authorised person, or an exempt person, and that unregulated will-writers may not be legally entitled to prepare these sorts of trusts”.
The Legal Services Board is on plans to make will-writing a reserved legal activity.
The above article is very muddled and misleading as it fails to properly define what is meant by ‘property protection trust’. This is a generic marketing term which means different things to different people.
A distinction should have been made in the article between lifetime trusts – which are regulated – and Will trusts – which are not.
Many independent Willwriters (as yet unregulated) do offer in an ethical manner lifetime asset protection trusts – which are sold using widely differing marketing names – but these are actually prepared on their behalf by regulated solicitor firms with no resulting breach of the law. If marketed correctly for the right reasons (e.g., not solely to avoid care fees) such trusts can be highly effective.
Regarding the matter of overcharging, such trusts do not have a fixed price and any attempt to fix the price could be regarded as manipulating natural market forces and could also constitute creation of a price fixing cartel.
It is a pity that this article was not better researched before publication.