Lord chancellor refuses to make will writing a reserved activity
No evidence reservation the most appropriate solution to address consumer detriment without investigating alternatives, Grayling says
The Legal Services Board has failed to demonstrate that tightening the regulation of will writing was the most appropriate way of addressing consumer detriment in the market, the lord chancellor said as he decided not to make it a reserved activity.
Most observers expected the Ministry of Justice to rubber-stamp the LSB’s recommendation made in September last year that the law should be changed to make both will writing and estate administration reserved activities.
In a statement released this afternoon Chris Grayling said the board’s report “did not adequately demonstrate that reservation is the best solution, or that alternative measures have been sufficiently exhausted in seeking to address this detriment.”
Both the LSB and the Consumer Panel expressed disappointment but said they would work with stakeholders to increase confidence in the market.
The secretary of state explained his decision saying that before increasing the regulatory burden on providers, “further efforts should be made to see if such measures can be made more effective, before resorting to reservation.”
This could include “more targeted guidance for the legal profession and strengthening of existing regulation of authorised persons in this area, combined with voluntary regulation schemes and codes of practice for non-authorised providers.”
Grayling also suggested there could be “greater efforts made to educate consumers on the different types of provider and their respective protection and options for redress, as well as greater use of existing consumer protection.”
LSB chair David Edmonds said the super-regulator would work with Ministry of Justice officials, consumer groups, providers and other stakeholders “to ensure that the issues are tackled and that consumers’ confidence in the market for will writing services is increased.
“The onus is now on both regulated and unregulated providers of will-writing services to improve standards and thereby earn consumer and public confidence”.
Elisabeth Davies, chair of the Consumer Panel – which has been a strong advocate of reservation – found the decision “extremely disappointing” and “made no sense given the sheer weight of evidence of consumer detriment and the wide consensus backing regulation”.
“Major doubts have already been expressed about whether self-regulation will work and even the will-writing trade bodies have conceded this is unlikely to succeed. If this is the only option then we'll do all we can to make this work for the benefit of consumers,” she said.
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COMMENT 'Missed opportunity' |
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"The announcement by the government that it is unwilling to regulate will writing is a missed opportunity. "The current level of self-regulation has not worked and consumers are in any event unaware of the lack of regulation. The damage caused by a badly drafted will is significant, both financially and emotionally and is particularly difficult because the problem comes to light after the testator has died. It is then impossible to seek clarification of the testator’s wishes, and reliance on the instructions/notes taken/made at the time is the only source of help. A failure properly to reflect the consumer’s wishes can result in litigation which can have a serious impact on the costs of winding up an estate. "Consumer research showed that 67 per cent of consumers think that all will writers are solicitors. It is not clear therefore whether the consumer is aware that non regulated will writers are not solicitors and do not have the same level of regulation or consumer protection. "We are aware of bad practice and unethical behaviour. Regulation is the only way to police such activities because there is no redress under general law. There are also concerns over the levels of service and the appropriateness of the services sold, for which there is no redress for consumers and no formal complaints process without regulation. The consumer is exposed. "The regulation of will writing does not remove mistakes that can be made within a will and the problems that can potentially arise after death. However, regulation would provide a framework for proper and easy redress, reduce the likelihood of such mistakes happening and ensure that adequate insurance provisions are in place. "Consumers should be confident that their wills are written by trained and competent individuals who understand the law. We work with clients of all kinds - from individuals to corporate institutions and charities – and have seen how the common requirement between them all is the desire for a service which meets the highest professional standards. Those individuals should be regulated by having proper professional indemnity insurance, training and competence requirements and professional obligations/codes of conduct so that it is clear that they must act in the client’s best interest. This will include the need for independence and primacy of the consumer’s interest without having inappropriate relationships with other bodies (funeral providers may be an example) selling services that they do not need or desire. Consumers should be clear about the costs of the service and what they are receiving for that price so that there is no unfair advantage. "Consumers need to be confident that they are receiving a proper service with proper means of recourse so that errors are rectified without cost to the consumer and that there is a robust complaints process. "We believe all will writers should be subject to oversight regulation by the LSB to ensure that frontline Regulators in turn are able to ensure that all writers are covered by:
"We were in favour of regulation for will writers and suggested a regime (overseen by the LSB and along similar lines to the regulation by the SRA of the Council for Licensed Conveyancers) where those drafting wills are subject to regulatory sanction if they fail to provide proper services. "A properly regulated sector would be able to reassure consumers of the value of will writing services and should result in the overall benefit to society and individuals/families of wills being written in greater numbers." Adam Draper is a partner at Irwin Mitchell |