Walter Ventriglia, 47, was running a will-writing firm called Legacy & Law. He charged clients between £30 and £60 to make modifications to their wills to save them becoming invalid due to changes in the law, when there hadn't been any changes to the law. He also claimed that his clients’ wills were stored in a secure facility in London; in truth, they were kept in an airing cupboard at his home in Berkshire. He was sentenced to 14 months at Reading Crown Court on 19 August, having pleaded guilty to fraudulent trading contrary to section 9 of the Fraud Act 2006.
In refering to this case, I am in no way suggesting that will-writers are crooks, nor is this article intended merely as support for the Law Society’s campaign for will writing to be a licensed activity. Nevertheless , licensing is a topical issue and, as a concept, is supported by the Society of Will Writers (“SSW”) itself. Terry Le Long of SSW says:
“Every action taken and initiative supported by the Society recognizes the importance of ensuring that the consumers' interests lie at the heart of all we do. We believe that now could be the right time to introduce a system of regulation that will ensure any person or company that provides wills and other testamentary documents in exchange for a fee are properly licensed to practice."
What really caught the eye in the case of Mr. Ventriglia was the fact that, at last, the Fraud Act 2006 is starting to show its teeth. The Act sneaked onto the statute books with hardly a fanfare, yet it’s a major piece of consolidating legislation, remedying the mass of confusion that was previously the criminal offence of fraud.
In addition, the act created a re-defined offence: fraud by abuse of position. A person is in breach of this section if s/he:
(a) occupies a position in which s/he is expected to safeguard, or not to act against, the financial interests of another person,
(b) dishonestly abuses that position, and
(c) intends, by means of the abuse of that position:
(i) to make a gain for him/herself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
Those of us in the legal profession who deal regularly with the affairs of the elderly hope that this section will bring to book those guilty of financially abusing their position as attornies for their elderly relatives. DenzilLlush, former master of the court of protection reckoned that 10% - 15% of registered Enduring powers of attorney were the subject of abuse and incidence of abuse of unregistered powers was likely substantially higher.
The safeguards for those executing lasting powers of Attorney introduced by the Mental Capacity Act 2005 will have gone some way in the prevention of abuse, but its hoped that the Fraud Act 2006 and a robust attitude by the Police and prosecutors will go one step further in tackling the scourge of financial abuse of elderly persons (as often as not by members of their own family).
For advice or more information, contact Jim Sawer.