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Will writing should be a reserved activity, LSB recommends

Estate administration and will writing should become reserved activities, the Legal Services Board (LSB) has said today (27 September 2012) in recommendations to be considered by the Lord Chancellor early next year.

27 September 2012

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Primary legislation would be required to give effect to the new rules, which could involve the creation of a brand new regulator responsible solely for the supervision and enforcement of a specific set of standards.

As a separate reserved activity, will writing and estate administration would be open to approved professionals irrespective of their qualification, which could see solicitors rubbing shoulders with will writers.

An alternative would be to delegate regulatory compliance to the current frontline regulators, but Southampton Row is reportedly cooler about this option, as it could lead to discrepancies in the way the rules are applied.

Any legislation would be unlikely to be adopted before the summer recess next year and much would depend on the new justice secretary’s interest in taking the recommendations forward.

One insider told PCA’s sister publication Solicitors Journal that the previous incumbent, Ken Clarke, was understood to be in favour of the new rules. Newcomer Chris Grayling on the other hand was more likely to follow the government’s stance for a strong deregulatory drive, which could scupper the LSB’s proposals.

The LSB is suppporting regulation as a means of further protecting the public.

David Edmonds, chairman of the LSB, said: “The support shown, the research we have done and evidence provided, confirms our view that we should recommend that will writing and estate administration activities should be reserved, predominantly on consumer protection grounds. Lives can be seriously damaged by incompetence or misdemeanour in drafting a will or administering an estate.

“The number and range of high-quality submissions we received demonstrates that there is professional, business and consumer support for proposals to regulate will writing. Only a small number of respondents did not, or took diverging views, and we have paid particular attention to them,” he said.

“This will be the first recommendation by the Board to bring new legal activities within the regulatory scope of the Legal Services Act 2007. It is not a step we take lightly. It will be targeted and proportionate.

“This is about achieving better regulation: to support innovation and competition; to deliver consistent consumer protection; and ultimately to improve consumer confidence to choose and use legal services.

“We believe that these goals are best pursued by the regulation of will writing, probate and estate administration,” he concluded.

Elisabeth Davies, chair of the Legal Services Consumer Panel, welcomed the LSB’s annoucement. “Our evidence has revealed poor standards of will writing and sales practices that are leaving consumers seriously out of pocket.

“We are delighted that the Legal Services Board has listened to the Consumer Panel and agrees with us that regulation is necessary to protect consumers – it would give people much needed peace of mind that their wishes will be respected and give loved ones confidence that professionals dealing with the estate are competent.

“There’s a powerful consensus of support for this move and it’s striking how representatives of consumer groups, charities, solicitors and will-writing businesses are all convinced that regulation is needed. The message is clear – consumers are already suffering and the Legal Services Board’s proposals need to be acted on without any delay,” said Davies.

However, not everyone in the private client services sphere supports regulation or making will writing a reserved activity.

In its response to the consultation in July, the Law Society said the LSB’s assumptions could not be relied on because they were based on a sample that was too small and not sufficiently representative of the market.

The LSB’s report concludes the first stage of its consultation that started earlier this spring. It will now be followed by a second consultation canvassing stakeholders about the detail of the proposed rules with a view to making full recommendations to the Lord Chancellor in early 2013.

The second consultation will run for six weeks from today and will close on 8 November.

Categorised in:

Legal services Wills, Trusts & Probate