Catching up

'Not consistently good '“ must try harder!' That is the conclusion on the quality of will writing in the Legal Services Board consumer panel's report in July 2011, co-sponsored by the SRA and the Office of Fair Trading. Too many wills written by solicitors, as well as will writers, were wrong, not reflecting what the clients intended and contained basic errors. This is a salutary lesson to the profession not to be complacent '“ as I fear that some may be. Will writing is historically an area in which many have dabbled. As a solicitor who has specialised in wills and associated private client work for more than 25 years, I have sometimes found it soul destroying to see the apparent casual contempt with which many in our profession seem to approach this subject.

In the last ten to 15 years the excellent work done by STEP, the Society for Trusts and Estates Practitioners, supported by the Law Society's private client section, and more recently Solicitors for the Elderly, has helped to raise the profile of private client work and to value will drafting properly. STEP has worked hard to build up the specialist skill set required for solicitors (and others) who specialise in this area.

Should the training of solicitors be changed to give more priority to will writing? The private client content in the LPC course is, I understand, quite minimal, with only a two-week course comprising about four lectures and two seminars at the College of Law, for instance. Since 2006, unless in the minority choosing the private client elective, this is a very limited amount of training for people who might then turn their hands to drafting wills later. I believe it would help if there was a better wills element in the LPC but, sadly, many who plan from the outset to be commercial lawyers don't feel they need any private client training or experience.

Would new regulation of will writing '“ for solicitors and others '“ make a difference? The LSB consumer panel has recommended that will writing should be a reserved activity with new regulations based, ironically, on the scheme operated by the Institute of Professional Will Writers. I don't know the details of that, and it is perhaps questionable whether such an arrangement would be workable, but it is a worthwhile idea to explore. STEP has recently started a will preparation certificate, which could naturally be developed to tie in with this, and it would be sensible if any new arrangements took into account STEP membership '“ so the members could automatically qualify or have a simple shortcut process to undertake.

Anybody for will writing?

Preparing wills is a greater challenge since the reform of inheritance tax on trusts in 2006. Are wills really so simple when what we offer clients is, in fact, the choice of five different types of trust for children and three forms of trust for grandchildren and other relatives? Understanding the proper tax implications of the different forms of trusts, and the powers that may be needed in a will, is a very specialist skill. Despite the work of STEP etc, there is still a great deal more understanding needed across the will-writing profession on some of the technical elements of our work. While some parts of will drafting are more straightforward, the real skill is in spotting the situations that require more complex provisions, and explaining and handling those appropriately.

One major change at present for solicitors is the increased competition in the wider legal services sector. Even before the Legal Services Act fully comes into force, serious competition has developed, with The Co-op having effectively become a top 100 law firm in only four years through its wills and probate work and now offering legal services through some of the Britannia Building Society branches. There is also the combined Saga/AA operation doing wills, which has huge brand loyalty, and others planning to enter the arena.

Lawyers cannot compete with these large organisations for public access, brand names, customer networks and experience of automated systems. This is a big threat to solicitors that should be taken seriously.

Fighting back

How do solicitors respond to this competition? Wills will continue to be price-sensitive and solicitors need to process them as efficiently as possible, using precedents effectively. I strongly advocate using precedents with an automated will commentary, which produces a guide for clients to read alongside their draft will, which my firm has valued using for many years. This is for the dual purpose of cost-effectiveness, to avoid reinventing the wheel with explanations in a covering letter, and risk management '“ with the best will in the world, describing the terms of the will in a letter risks either getting some of the detail wrong or leaving out key elements.

It would be wrong for us to try to compete with the large brand names purely on the basis of cost and efficient delivery of services. Our expertise is in understanding clients and communicating difficult concepts to them. We need to know the potential solutions (in our precedents) that we offer, allow time to ensure we understand the real concerns of clients, and explain the differences in the options open to them, so that we can ensure we find drafting solutions that answer their concerns.

The context for will drafting work in 2011 is further complicated by: the increasing age of clients, issues about loss of capacity, and neighbours, friends or family 'pulling the strings'; more understandings and misunderstandings in families '“ i.e. the growth of proprietary estoppel; growing influence of children and others in families who have been 'educated' by the internet and seek to use that knowledge with their parents, etc; more parents helping out families with loans '“ or is it a gift? '“ including 'gifts' around the time of reducing capacity; and growing costs of care and people anxious to plan to avoid losing all their capital on care fees.

So while we may be pressed to do wills over the internet, or by post, and to give clients the opportunity to be 'co-producers' of wills - for instance, by the information they complete on a questionnaire being input straight through to the wills '’ the context is increasingly complicated and the risks greater. How do you assess testamentary capacity, and ensure there is no undue influence, if you're doing a will through the internet or post without any face-to-face contact with your client?

The RSPCA v Gill case highlighted the issue of knowledge and approval of the terms of the will, particularly where taking instructions from a couple where one may be the dominant partner and the other may not truly know and approve what is being proposed. Where we are not having face-to-face contact, the drafting of the engagement letter and the assumptions and exclusions is so much more important, and we need to look carefully at how to use telephone calls to assist with any uncertainty we may have.

Do we need a national will registration service? A compulsory register would be invaluable, a means of protecting wills that are legitimately made, avoiding abuse and uncertainty. A voluntary registration service is being promoted but, unless and until it is made compulsory, it will not work.

Risky business

We should not be naive about the risks of abuse with wills. We have increasing obligations towards elderly clients at the very time that consumer pressure and outside competition is at its fiercest. The case of Key v Key [2010] is a cautionary tale. The deceased made a will one week after his wife's death, after 65 years of marriage, and the court took into account modern psychiatric medicine in concluding that his devastation amounted to 'severe affective disorder'. As a result he was deprived of testamentary capacity. In that case the solicitor saw the client. How much greater the risk if instructions are taken online or by post, with greatly enhanced risk of someone else 'pulling the strings', and how then do we cover our backs?

With many large commercial organisations keen to get in on the act, solicitors need to be sure that in drafting wills they are doing so from a secure risk management base, and as cost-effectively as possible, but in seeking to do this we must beware the twin dangers. One risk is that we delegate or automate the process so much that we lose the potential to develop opportunities with clients. All the competition don't want to do wills simply for their own sake, it's all the added extras that can follow from that. So we should be continually conscious of the potential to be appointed as executors and trustees, to identify clients who need help with lasting powers of attorney or who need some tax planning undertaken.

The other risk is that we lose sight of our fundamental objective to understand our client, their needs and how we can meet those needs. A rushed or superficial process that fails to identify the need for a will trust, or selects the wrong form of trust, or doesn't explain properly to the client their choices, can lead to the results that came from the LSB report.

So, yes, we do need some greater training of solicitors and a greater recognition of the expertise required to draft wills. If a new regulatory system is not to be imposed on everyone, perhaps lawyers should self-impose their own.

Clients need to know they will receive a consistently reliable quality of will writing from solicitors.

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