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Will writers face regulation - 08/08/2011
A recent research report commissioned by the Legal Services Board has highlighted the perils faced by consumers when making a will, and prompted the announcement of a statutory investigation.
The Legal Services Consumer Panel’s call for regulation of will-writing has led to the Legal Services Board’s announcement in July 2011 that a statutory investigation would take place. The investigation will examine how best to protect consumers, and in particular the question of whether will-writing should be a reserved activity.
At the moment, there is no restriction on who can prepare wills. Typically, they are prepared by solicitors, banks, non-solicitor will-writing firms, as well as affiliate groups such as trade unions and industry bodies. The extent to which they are regulated varies enormously.
Whilst the vast majority of will-writing professionals are perfectly competent and ethical, a minority are damaging their reputation. The issue was highlighted last year by the conviction of 2 non-solicitor will-writers who were found guilty of fraud and theft in relation to their mishandling of wills and estates.
This prompted public debate about whether and how will-writing should be regulated.
The Legal Services Consumer Panel published a research report in July 2011, following a lengthy investigation into the issue. The research report identified a range of problems including poor quality will writing and hidden costs. It was clear that many consumers using non-solicitor will writing firms did not realise that their wills were being prepared by draftsmen who were not legally qualified, lacking insurance and unregulated. It also found that some non-solicitor will-writers who, at first sight, appeared to be significantly less expensive than solicitors, used misleading sales tactics and added substantial charges for ongoing storage and executorship services.
Unsurprisingly, the report found that the poorest quality wills were those prepared by testators using do-it-yourself kits, either bought off-the-shelf or using online packages.
Typically, problems with poorly drafted wills do not come to light until the testator has died, often many years later. The family of the deceased can be left with very limited redress if the will was prepared by an unregulated will writer, or a DIY kit. Many consumers who thought they were saving money by using these methods, will find that they are out of pocket in the long-term.
The research report concluded that will writing should be a reserved activity, so that nobody would be permitted to engage in the preparation of wills for fees, without being subject to a regulatory scheme. It proposed that the regulatory scheme should include a requirement to demonstrate competence, to comply with a Code of Conduct, and be subject to ongoing monitoring.
What does this mean for will-writing professionals?
The negative publicity generated over the past year has caused difficulties for solicitors and other will-writers, who are under increased pressure to demonstrate to potential clients that they are competent and honest.
The Law Society has been campaigning for the regulation of will writing, and welcomed the Legal Services Consumer Board’s recommendations. For solicitors (who are already highly trained, insured and subject to regulation by the Solicitors’ Regulation Authority and independent complaints handling by the Legal Ombudsman), the impact of any further regulation is significantly less than for non-solicitor will-writers.
No doubt a reasonable level of regulation will be welcomed by solicitors, as it should weed out the rogue element and enable public faith in the profession to be restored.
The concern is that over-regulation will lead to rising costs – driving more consumers to perilous DIY remedies.