After life: alarming number of wills account for nothing

New SRA guidance for will writing focuses on professional ethics rather than technique but will this protect consumers? John van der Luit-Drummond reports

The Solicitors Regulation Authority has produced new will-writing guidance in response to evidence that nearly 25 per cent of wills drafted by solicitors failed to achieve the desired quality expected by clients. A 'shadow shopper' survey exercise was carried out by the SRA, in partnership with the Legal Services Board, Legal Services Consumer Panel and the Office of Fair Trading. The survey involved researchers shadowing genuine clients and their will-writing requests, rather than using
professional shoppers.

In 2011, the Legal Services Board launched its first statutory investigation into whether to extend the scope of regulation for will writing, following its consumer panel recommendation to make it a reserved legal activity.

Extensive research into will writing discovered evidence of poor-quality drafting, sharp sales practices and the loss of wills altogether. Of particular interest were the findings that solicitors were just as likely to produce shoddy wills as the unregulated will-writers in
the marketplace.

However, despite the LSB's recommendation, and near-unanimous support from both legal and consumer groups, lord chancellor Chris Grayling rejected the proposal to make will writing a reserved activity
in 2013.

A year on, the SRA's survey found that of 101 wills considered, a quarter - prepared by both solicitors and will-writers - were deemed to be poor quality. Specifically, of the 41 wills drafted by solicitors, nine did not meet the needs and circumstances of the clients in question.

Failing clients

The reasons were varied. Issues with inadequacy and legality will be of particular importance to practitioners. The content of some wills did not fully account for the client's estate, failed to make adequate provisions or neglected to take certain outcomes into consideration. Some wills were found to be legally invalid or had actions specified within that were potentially illegal.

Concerns were also raised over client requirements. In some circumstances a client's requests had simply not been met (as specified in the testator questionnaire) either through omission or because of conflicting specification.

Inconsistency and detail were highlighted as problem areas too, with the language, logic and/or content of the will found to be contradictory, or the items, people and requests within described in insufficient detail.

The final failure recorded in the survey was about presentation, where the language and format of the document was lacking from what one would usually expect.

The results of the research give rise to concern about the standard of drafting of wills by some solicitors. The SRA has therefore issued new guidance for the preparation. Although, somewhat surprisingly, while this survey was carried out back in 2011, the SRA took the decision to delay producing the new guidance until now as the LSB were awaiting the decision on whether to make will writing a reserved legal activity, which could have ultimately led to alterations to the Solicitors Handbook. How many more wills produced since 2011 are not fit for purpose?

Ethical dilemmas

The guidance is a reminder to solicitors of their responsibilities and to the outcomes in chapter 1 (client care) of the SRA code of conduct 2011 in relation to services a solicitor may provide and the information that they give to both clients and potential clients. The SRA have chosen to focus on professional ethics and behaviour rather than will-writing technique itself, which it thinks will eliminate the above reasons for previous failures.

The SRA guidance states that a practitioner should not lead their client to believe that they must retain a solicitor to write their will, or that it is even the norm to do so. Furthermore, they should not suggest that it is usual for a testator client to appoint their solicitor as an executor, or indeed, that professional executors are needed at all.

Gifts given to solicitors by their clients is also covered. The guidance goes at length to warn solicitors that they were "likely to be at risk" of breaking the rules if they drafted wills for clients who offered them gifts of "significant value", which they then accepted. To avoid such risk, a solicitor should be satisfied that the clients had taken independence advice.

"The risk arises not only where the gift is of significant value in relation to the size of the client's estate, but also where the gift is of significant value in itself," said the regulator. This created a "potential own interest conflict" and solicitors "will usually need to cease acting if the client will not agree to take
independent advice".

And there may be circumstances where a solicitor could continue to draft the will, such as if they were drafting it for their parents, but this would depend on the specific circumstances and whether their ability to advise impartially was "undermined by any financial interest or
personal relationship".

The risk of allowing a client to leave a legacy to their solicitor, or one of their relatives, is also noted in the guidance.

Moreover, a client should be invited to explain why they have excluded any relative who might have expected to benefit from their estate.

Continued training

The training and storage of wills is also considered. If a firm does not supervise the execution of the will itself, it should check the will when returned to ensure that it has been properly executed. The guidance notes that as it may not always be in a client's best interest to have the solicitor store the executed will, the probate service will store it for a £20 fee. This might be seen as a further loosening of the ties between solicitor and client.

The SRA has reiterated that staff involved in drafting wills should be properly trained and supervised and "keep up to date with developments in the law". Senior managers should ensure that processes and controls are in place to make sure a client has testamentary capacity.

Verification of a client's assets and immediate family would also help to avoid the risk of any undue influence or fraud, particularly in circumstances where the service is
provided online.

With so much choice now available in the marketplace it is becoming easier to have a will drafted quickly and cheaply by any number of providers, both online and on the high street. Solicitors must ensure that they maintain the high standards that the public associates with the profession.

If the public fail to believe they will get what they came for when they set foot in a solicitor's office, they may go and buy that do-it-yourself will from
WH Smith, or just fill in some boxes online. Who knows how much money a firm will really be losing if its will-writing practice becomes non-existent? Firms cannot afford to be throwing away clients and work like wills that aren't worth the paper they are written on. SJ

 

'Raising the bar' John Bunker is a solicitor, chartered tax adviser and the head of private client knowledge management at Thomas Eggar "The new guidance is understandable and reasonable. It addresses some areas where there is consumer concern, such as when lawyers are appointed as executors, guiding solicitors on issues to address so that they act in the best interests of their clients. But there has not been enough publicity around it. Practitioners need more than just the odd email from the SRA and the Law Society. "The guidance has to be put into perspective with the research undertaken by theLSB's Consumer Panel and Office for Fair Trading. When they looked into drafting with its shadow shopping exercise it showed that a lot of solicitors got things wrong. The Law Society suggested regulating all will writing but the government decided it was up to the professions to raise standards themselves. "In practice, consumer pressure takes precedence over the achievement of higher standards. The government accepts that people may have a cheap will. Consumers are king and price drives this. People have traditionally seen wills as a cheap commodity. "The qualities needed for drafting have never been fully recognised. Preparing a will is one of the most important things you will do in your life. I have always taken the writing of wills seriously and see it as a privilege. "The concern that there could be will writers with minimal training has been lost. It is fine to say the profession must recognise and raise standards but there are others out there competing by producing cheap products. "The SRA guidance will help raise standards among solicitors, although for those who are STEP members, the STEP wills code is better, and I hope the profession can re-establish its reputation as leaders in will drafting, the first port of call for clients."

 

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