Friday, 22 March 2013

Should will-writing services be regulated?

In February this year, the Legal Services Board (LSB) made a recommendation to the Lord Chancellor that will-writing should be regulated. This, the LSB claims, would reduce the “significant risks” that consumers face when using will-writing services.

However, the body has not recommended that estate administration or probate activities be regulated. There is also no intention to restrict or regulate individuals wishing to act for themselves or wishing to provide free advice to help others.

The LSB claims that it has “found comprehensive evidence that the market is working contrary to the statutory regulatory objectives outlined in the Legal Services Act 2007 and to the detriment of consumers and providers alike”.

If the Lord Chancellor accepts the recommendation, then consumers of all will-writing service providers will have a means of redress by way of access to the Legal Ombudsman. Research undertaken suggests that around two million wills are written each year, of which around 85% of wills are drafted by professionals.

There is currently no restriction on who can provide will-writing services meaning that there is an inconsistent level of protection for consumers. Some will-writers are regulated by their membership of professional bodies (for example, the SRA for solicitors); other professionals have joined voluntary regulatory schemes (the Institute of Professional Willwriters); but some will-writers are not regulated at all.  In addition, although all solicitors must be covered by professional negligence insurance, the same is not true of all other providers of will-writing services.

Research found that one in every five wills examined, failed because of being ineffective, inadequate or not achieving what the testator wanted. Problems with wills are often not discovered until the testator has died making it harder for such problems to be resolved. The LSB further claims that unregulated will-writers are selling consumers unnecessary, inappropriate or ineffective products and that their services represent poor value for money.

The body believes that by making will-writing regulated a more level playing field for traditional law firms and new providers will be created. It also believes it will support the wider objective of encouraging more people to write wills.

The Law Society reacted positively to the LSB’s recommendation but does not think it goes far enough. It is campaigning for estate administration and power of attorney services to be regulated as well as will-writing. Richard Roberts, the chair of the wills and equity committee, recently commented that he “[doesn’t] think people understand just how vulnerable the recently bereaved can be”.

Until I undertook my seat in the Private Client practice group, I did not appreciate how easy it is to prepare a will for a client which fails to deliver what the client wants. I think it is vital that all will-writers have comprehensive knowledge, training and expertise to write wills. Making will-writing a regulated activity will help to ensure that every person that makes a new will can rest assured that it will effect their clients wishes as desired.  

The Lord Chancellor has until May to decide whether to accept the LSB’s recommendations. If accepted, changes would come into force in 2015.

Here at B P Collins LLP we are committed to providing high quality legal services to our clients. If you are interested in making a will or wish to review your current will, please contact our Private Client practice group.

Posted by Harriet Betteridge, trainee in the private client practice.

Harriet started her training contract in September 2012 having previously worked in the Litigation team as a paralegal. Her previous experience includes working at a group of law centres in south London and in the Legal, Compliance and Risk team at the Charities Aid Foundation.

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