Why Ventilators are like Wills

Easy answers to intricate questions are often appealing. But do they really lead to positive outcomes? Taking a look at the surge in demand for ventilators and Wills during the Coronavirus outbreak, and the associated influx of supposed quick and easy solutions, would suggest not.

Ventilators, alongside personal protective equipment (PPE), hand sanitizer and toilet paper have been in the news on a pretty consistent basis over the past few months, for reasons that need no elaboration. I was one of those people who couldn’t really understand why making a few thousand more ventilators was so difficult for a nation and a world that had reached out into space, and so I was quite intrigued to watch a very interesting video on Youtube on ventilators recently, entitled ‘Designing Low-Cost Ventilators’, from the channel “Real Engineering”.

Well worth a watch, but for those who can’t spare the time, let me briefly summarise it for you.

A ventilator is designed to do the job of your lungs and get oxygenated air into your body, and deoxygenated air out.  This is crucial for sufferers of Coronavirus, because, in the most serious cases, the patient no longer has the strength to take in enough oxygen by themselves, as the lungs become lined by a mucusy excretion, which reduces the efficiency of the tiny air sacs (known as alveoli). Alveoli act as the places of exchange of oxygen and carbon dioxide into and out of the blood. So far so good. However, the way breathing works is not the way a balloon expands – i.e. by blowing air into it. Rather, we breathe as a result of the movement of the rib-cage outwards and the diaphragm downwards, which creates lower air pressure in the lungs compared to the air outside the body, causing air to flow into the lungs – a crucial fact. Many cheap ventilators, however, work on the principle of a BVM or Bag Valve Mask, i.e. a plastic bag with a mask attached which helps to manually push air into the lungs for short periods of time, such as in the ambulance on the way to hospital. The problem with a BVM, and all those ventilators which essentially just automate the process of squeezing and releasing the bag, is that if not carefully controlled, the act of pushing air into the lungs can actually push the lungs against the diaphragm and rib cage, increasing the pressure within the lungs. This in turn causes the alveoli to become over-pressurised and, before long, damaged beyond repair. As a result, more pressure is needed to get the same amount of oxygen into the blood and you begin entering a vicious cycle which can ultimately result in serious harm to, and the death of, the patient.

Where do Wills Fit in?

So, what has all this got to do with Wills?

Just as we have seen an increased surge in demand for ventilators over the past few months, there has been a similar peak of enquiries from those looking to arrange their affairs and write or update their Wills. As with anything, when there is increased demand, new entrants into a market will make their appearance, often with little or no previous experience in the field and so we have seen in relation to Wills. These new entrants are often willing to stack their Wills high and sell them on the cheap, no doubt sensing that the ‘good times’ will only last so long. Many of these new entrants quote statistics relating to the low number of estates that pay inheritance tax (IHT). With this fact placed into the mind of the reader, the ABC sales logic goes something like this –

• If you have a smaller estate (say anything less than £325,000 or even upto £1m for a husband and wife couple) then you won’t be paying IHT.
• Therefore, you don’t need proper advice from qualified solicitors, who will consider your particular circumstances and advise you accordingly.
• Therefore, our cheap online option which asks a few questions and gets a Will out to you in a couple of days and which you can do now……. now, now(!) is perfect for you.

Sounds appealing doesn’t it? After all, none of us want to pay more for something than we have to and to have to arrange a meeting with a solicitor and go through all the rigmarole associated with that in time and effort, suddenly sounds significantly less appealing (if it ever was appealing in the first place). My recent conversation with a dentist client illustrates this point. I always struggled to pin him down for meetings to progress his work. On one occasion, I asked him about this after I had finally managed to get him to meet with me, and he answered “Rizwan, do you like going to the dentist?”, my reply was “Obviously not, nobody enjoys that, it’s associated with pain and distress.”; his instant response was “Well, that’s exactly how I feel about meeting a solicitor.” Touché!

But the dentist’s point, also reiterates, the point of this article. The reason the visit to a dentist can be painful is that we often leave the visit too long and don’t follow proper advice on cleaning and taking care of our teeth and so the dentist is required to fix the problems that our negligence has caused. Also, despite the best will in the world (no pun intended), advice on teeth from your mother or spouse or anyone not qualified for that matter, is not a substitute for a dentist giving you the once a year checkup.

Getting your Will done doesn’t have to be like going to the Dentist.

Easy Answers are Often Wrong

The American author H. L. Mencken once wrote:

“For every complex problem there is an answer that is clear, simple, and wrong.”

For anyone considering preparing their Will, that should be a quote that sits at the forefront of your mind.

How so?

Well, going back to our friends, the cheap, easy to complete, online Will writing start up, let us consider their ABC logic in a little more detail.

• If you have a smaller estate (say anything less than £325,000 or even upto £1m for a husband and wife couple) then you won’t be paying IHT.

Unfortunately, the logic fails at the first hurdle. Whilst for most people this statement is broadly correct, as with anything legal, you have to read the smallprint! In this case, the smallprint has the following clauses:

• Assuming you have not made any gifts or transfers of value in the last seven years, or for any period of time which you have continued to benefit from, as these will reduce the £325,000 allowance.
• £350,000 of the £1m is only available for married couples who own a home they lived in worth at least £350,000 and have children or descendants to whom a home is passed on directly following their death.
• Any unused allowance can be lost for the first spouse to die, if not claimed within two years of second death.
• A common scenario is where most of the assets are in the name of one spouse. If that spouse is the first to die, then they will have upto £500,000 IHT allowance to set against their estate. On second death if the surviving spouse has a smaller estate then much of their allowance could go unused and effectively wasted. (This is a common situation for Muslims due to the fact that the majority of the estate does not pass to the surviving spouse and so is not passed on to surviving spouse.)

Ok, so you’ve read the smallprint and you might think, that’s not an issue for me, I should be fine. Great, let’s move on to (B):

• Therefore, you don’t need proper advice from qualified solicitors, who will consider your particular circumstances and advise you accordingly.

Hold up there a minute. Implicit within this argument, is that IHT advice is the only reason that an individual would go to a solicitor or get proper advice prior to making a Will. However, that is far from the reality. Because this subject opens so many cans of worms and this article would end up being far too long, I have decided just to list a few of the additional reasons why proper tailored advice is crucial when writing your Will, so here goes:

1. Consideration of potential claims against the estate, particularly where there are strained relations within the family, or even where there are not, where the proposed distribution may be challenged.
2. Ensuring Wills are properly explained and understood by the client in question, particularly important where there may be a lack of capacity, an elderly client or a potential dispute amongst beneficiaries.
3. Determining how the estate may be distributed between beneficiaries and how this will affect each beneficiary (including those who may live in the family home).
4. Discussing the most appropriate persons to be Guardians and Executors named in the Will.
5. Considering any jointly and solely owned property and how this affects the Will.
6. Gifts and legacies that need to be given and the best way to give the same.
7. Looking at the protection of assets for young, vulnerable, disabled or imprudent beneficiaries.
8. Determining if there is any property which is not owned in a manner which is consistent for both legal and beneficial purposes, and how this can be clarified and dealt within the Will.
9. If there are business assets, then these need to be considered carefully and planning put in place to make sure these assets are properly safeguarded.
10. If there are foreign assets, how these will be dealt with and the steps that need to be taken.
11. Discussing pension and life policies and the most efficient way to deal with such assets.

That, however, is just for starters. Many times, a conversation with a client leads to the revelation of an important piece of information, crucial to the proper Will writing process and ensuring the estate is administered in a manner consistent with their wishes. Whilst a questionnaire is always a useful first step in this process, it cannot and should not be a substitute for a proper consultation with someone who is appropriately qualified, save perhaps in the simplest of situations.

For Muslims looking to have an Islamic Will (or to be advised on what this entails), everything stated above applies but there is also the additional element of religious rights and responsibilities to consider. This adds a whole additional level of advice to the Will making process. Again, this is a detailed subject and proper justice to it will require a separate article, but as a brief overview some of the most important aspects to consider include:

1. Confirmation of the correct distribution of the estate according to Islamic law.
2. Advising on provision for beneficiaries who may receive less in such circumstances and how vulnerable beneficiaries may be safeguarded.
3. Considering the provision which can be given to non-inheriting beneficiaries and how best to provide for the same.
4. Looking at charitable causes via the provision of sadaqah jaariyah and Waqf.
5. The rules relating to whether and how beneficiaries may be deprived or given a larger share.
6. Advice on the need to compensate for missed religious obligations such as prayers, fasting Zakat and Hajj.

Again, the list goes on, but I think you get the point.

So that leaves point (C) in the above ABC logic:

• Therefore, our cheap online option which asks a few questions and gets a Will out to you in a couple of days and which you can do now,… now, now(!) is perfect for you.

Tempting as this may sound, it is always worth checking for credentials when looking to purchase goods and services. Many online Will-writers say that their Wills have been checked by ‘lawyers’ and in the case of Islamic Wills additionally by an ‘Islamic scholar’. The problem is that if the people actually drafting the Wills have no background in Wills, have never practically administered one of their Wills or even dealt with an administration of an estate full-stop, and aren’t even or never have been lawyers, alarm bells should start ringing. Added to this void of uncertainty is that, all the person drafting your Will has to go on, is the strength of your answers to the questions they have set (which may in themselves have been poorly thought out). All of this can lead to a very poorly constructed Will at the end of the process.

The client who receives this Will, may be able to determine that their Will is not up to much, in which case they may decide to go-back to the Will-writer; however, this will be hit and miss at best. The entire model of the online Will-writer is reduce costs to a bear minimum by automating as much as possible. Messy, awkward, and difficult questions from those using the service don’t fit well into this model. On the other hand, those who do not realise their Will is far from adequate, will be blissfully unaware that they were better off not having a Will in the first place, given the level of grief and heartache that a poorly drafted and/or considered Will can lead to, post-death. Making a complaint against a non-regulated Will-writer is usually as beneficial as a fridge in an igloo!

Consider your options and the service provider carefully before going ahead with an online only option.

Conclusion

In the final analysis, badly designed ventilators and badly designed Wills have a lot in common. They look appealing, they sound like they do the job and you can have one in double quick time for a very reasonable sounding price. What could be wrong with that? A lot, as it turns out.

There are occasions where a free online template Will is the most appropriate answer but this will generally be only for  certain low-value and uncontentious estates.

If you are considering going with a cheap online Will-writing service, then you should consider carefully before ploughing on. We have created a free online questionnaire which will enable you to consider all of the major questions that should be looked at and gives responses based on your answers and a cost estimate for the most appropriate type of Will, check it out here. If after reviewing this, you think that your circumstances do not warrant a Will from a suitably qualified solicitor then there are a few different options out there and you should carefully compare the services being offered.

Remember however, that the cost difference between a professionally drafted Will from I Will Solicitors and that of many online solutions is often only a hundred pounds or so (especially when you take into account that if husband and wife do their Wills together we do not usually charge anything extra above the cost of a single person). Where it is more than this, then there will be reasons for why that is the case, often linked to everything mentioned above. For this, you receive a tailored service, with all your questions answered, your Will professionally drafted*, stored in safe storage at no cost at the end of the process, and with the peace of mind that we have a track record of many years of not only drafting Wills but of dealing with administering those same Wills after death and so when we draft clauses in a Will, we have properly considered how this will be dealt with post-death, and that if you have any issues, complaints or queries, you are dealing with a regulated law firm with a right of redress which has been established for over a decade. And despite what my dentist client thought, the process is not like getting teeth pulled out. As a very quick summary it means the following:

1. Complete our online questionnaire (here) and at the end request a free no-obligation video call or if it is our PDF questionnaire you are completing (here) then email the questionnaire to us and request the same.
2. We review your circumstances and respond to you within two working days to arrange a meeting by video call. This facilitates meetings with clients, who live or own property, anywhere in England and Wales.
3. During the video call, which usually lasts 45 minutes, we discuss everything that needs to be covered and provide a quote for the work (sent by letter following the meeting to your email address).
4. If you decide to proceed, we then draft your Wills within 5-10 working days, providing detailed written guidance on what the Will does, what you still need to consider and what to do next.
5. The initial video call meeting is followed by emails, telephone or video calls in order to clarify queries and get you to a point you are ready to sign your Will.
6. Depending on location (and taking into account the current circumstances) we oversee the Will signing process and store the originals and send you copies in the post. There is no reason the whole process cannot be completed within three weeks to a month from now (and where required much quicker).
7. Job done, you can sleep a little easier at night knowing your Will and affairs are in order.

*We recommend STEP qualified solicitors and not simply those who prepare Wills as a sideshow to their main area of law. STEP is the professional body which acts as an organisation overseeing the quality provision of advice in the Private Client field which covers Wills, tax planning and administration of estates amongst other things. Visit www.step.org for more information. I Will Solicitors Wills are prepared by or overseen by STEP qualified lawyers.