"Free" charity wills
Wills and Charity Funds
Many people know that charities offer a free will-writing service.
Many people believe that the system works like this: the charity drafts your will for free in exchange for you leaving a gift to them.
The reality is more complicated - and is explained geared mostly to protecting testators by ensuring considerable distance between the testator and the charity. It is in no one's interest for a will to be challenged on the grounds that the charity exerted undue influence or the testator did not really understand the nature of the gifts he was making.
To reduce the likelihood of legal challenges, the Charity Commission issued guidance on charity-paid wills in a document titled 'Paying For Wills with Charity Funds' (the full 23-section 2000-word document is available on the internet).
The heart of the matter
The solicitor and the testator must have a normal professional relationship.
The solicitor must act in the interests, and on the instructions, of the testator alone.
The testator can insist on confidentiality; the charity has no right to know the contents of the will, and the testator can direct that the will's contents be kept secret (although the testator can permit the solicitor to reveal the contents).
Do you have your own solicitor? If you do, the Charity Commission suggests that, even with a charity being involved, this is the solicitor who knows you best and should write your will.
Who pays? Technically, the testator is responsible for paying for solicitor's fees; in the event, the charity pays the solicitor or reimburses the testator.
More details
The Charity Commission"strongly" suggests that "charity employees should never become involved in drafting an individual’s will". The drafting of the will should be entirely between the testator and the testator's solicitor.
To reduce the risk of a legal challenge, the charity should provide written clarification. This document should explain the basis upon which the charity is offering to meet the cost of the preparation of the will and the procedures to be followed.
Regardless of who pays for the preparation of the will, the solicitor must act "exclusively in the interests of the testator." The solicitors instructions should come directly from the testator, not from the charity.
Furthermore, the solicitor is under no obligation to suggest that the testator should benefit any charity in their will. In addition, if the testator does want to make a gift to charity, the solicitor should advise the testator that their first priority should be family and dependants.
"If the testator raises the possibility of benefiting a charity we would expect the solicitor to advise that adequate provision for family and dependants ought to be made first."
"The normal professional relationship must exist between the solicitor and testator. The solicitor must act in the interests, and on the instructions, of the testator alone."
Charity Commission
Ideally, an individual’s own solicitor should be instructed. If the testator does not have his own solicitor, the charity should recommend that a solicitor be instructed but the charity should not recommend any particular firm or individual.
