Unregulated Will Writing

The Legal Services Board (LSB), the independent body which oversees the regulation of lawyers in England and Wales, has recently asked its Consumer Panel to conduct a study on the area to report on whether a different regulatory approach to will writing is needed.

The problem with will writing stems from the fact that it is an unregulated market. Will writing is not included in the definition of ‘reserved legal activity’ under the Legal Services Act 2007 and so anyone can advertise and practice as a will writer.

It is primarily the presence of these untrained and unregulated will writers that has led to a range of problems for the public consumer. The fact is that making a will can be a complex process, something not always appreciated by the public. They think it should be simple, but often will writing is more involved and complex due to such things as step-children, property and other assets in other countries, tax protection, and avoidance and lots of other issues. Unregulated will writers who lack legal training often fail to understand these legal complexities.

However poor will writing is only one problem. Mis-selling and the lack of transparency on costs is also a major issue. Some will writers advertise their services at very low rates, but there are often massively high costs that are not disclosed, so it turns out to be much more expensive than the client imagined it would be.  This is not just the case with will writing but also with the administration of estates as part of the probate process. A common occurrence is for will writers to circumvent the fact that obtaining a grant of probate is a regulated activity under the Legal Services Act by getting clients to make individual applications.  The additional fees mentioned above sometimes include an upfront fee for dealing with the eventual administration of the estate once the testator has died. These monies don't seem to be being set to one side or safeguarded, but rather seem to be being used in the day to day running of the business, and so can't be recovered later if the company ceases to exist or is otherwise unable to fulfil the promised service.

The final major cause of worry lies in the lack of insurance and supervision. When solicitors have been negligent or have fraudulently misappropriated funds they are insured. If clients have seriously overcharged solicitors can also be held to account by the Law Society.

As a result of these factors many academics, as well as the Law Society, have taken the view for some time that will writing should ideally be a ‘reserved activity’ or at least a regulated activity, in order to protect consumers. It is a commonly held view that, as solicitors must have professional insurance and must adhere to the Solicitor’s compulsory Code of Practice, so should all will writers. It should be noted that the OFT has published a Code of Practice will writers can adhere to, however it is voluntary, not mandatory.

It is for these reasons that, as the market stands, instructing a solicitor must surely be the most secure way of ensuring that your will is everything you want it to be.

Robin Gambles

Published on 19/11/2010