Background
Summary of Council Decision:
Two issues were investigated both of which two were Upheld.
Ad description
A circular, for will writing, viewed in February 2012, was headed "If your Home went to the Government instead of to your children... How would you feel? Make Your Will Now and ensure those you love inherit...not those you don't!!". Text stated "The Right Will and Planning Could make a huge difference! Every week around 400+ Family Homes go to the Government and other unintended beneficiaries. Don't let this happen to your family. These are family homes (and often peoples [sic] savings too) that were meant to be inherited by loved ones. Instead families lose their inheritance (or at least part of it) to the Care Authorities, the Taxman or somebody not meant to inherit, such as an ex or a future spouse. Without a Will or any Planning.... YOUR SPOUSE does not automatically get everything; they may end up with less than you thought. YOUR UNMARRIED PARTNER could end up with NOTHING. YOUR YOUNG CHILDREN could end up being raised by people you might not have otherwise chosen. A Basic Will gives you a say in who You want to inherit The "RIGHT" WILL AND PLANNING can help ensure the Maximum Possible goes only to those you love... NOT to those you don't! Our Basic Wills start from under £60*".
Issue
The complainant challenged whether:
1. the claim "If your Home went to the Government instead of to your children..." misleadingly implied the Government would take the estate over any children in the absence of a Will.
2. the claim "families lose their inheritance (or at least part of it) to the Care Authorities, the Taxman" was misleading, because they understood that those debts would be settled before the estate was distributed whether or not there was a Will.
Response
1. Allguard Legal Services said the complainant had misconstrued the statement. They explained the top section of the ad related to care home fees if an individual had not conducted accurate estate planning and the bottom part of the ad, which was indicated in a different colour, referred to making a Will. They provided the ASA with a press article to demonstrate that a number of people had sold their homes to fund care home fees.
2. Allguard Legal Services said if someone carried out effective estate planning they would minimise the risk that the inheritance would be subject to more debts and liabilities than may occur had such planning not been undertaken. They stated the ad also suggested they could protect the home from care fees and ensure the estate passes to family rather than being sold to fund care.
Assessment
1. Upheld
The ASA considered the claim "If your Home went to the Government instead of to your children...How would you feel?", which was followed immediately by text stating "Make Your Will Now and ensure those you love inherit...not those you don't!!" in the context of an ad promoting Wills. We noted the press article submitted by Allguard Legal Services referred to people selling their homes in order to pay for care home fees and not having their homes sold after death. We considered the ad implied that people's homes would go to the Government if they died intestate and therefore, because we understood that was not always the case, we concluded that the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
2. Upheld
We noted the first page of the ad stated "Make Your Will Now" and did not include any reference to estate planning. Whilst we noted the second page of the ad stated "The Right Will and Planning", we considered the overall impression of the ad was that Allguard Legal Services were offering a Will writing service only. We understood that, by creating a Will, there were ways in which an individual could avoid paying more inheritance tax. However, while we accepted that effective estate planning could reduce liabilities, including care home fees, we understood that a Will was not relevant in relation to care home fees because an individual's liability to pay was assessed on the assets they owned on the date they went into care. Because we considered consumers would read the ad to imply Allguard Legal Services were offering a Will writing service only, and because the claims were inaccurate in relation to care home fees, we concluded that the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
Action
The ad must not appear again. We told Allguard Legal Services not to imply that the Government would take an estate over any children in the absence of a Will and not to imply the creation of a Will would be relevant in relation to care home fees.
