Losing the will

Poor quality wills, sharp sales practices and wills that are lost forever when the companies that wrote them disappear without trace were just three of the problems unturned by the Legal Services Board’s consumer panel report into will writing published this month. The results of the panel’s mystery shopping exercise will make for embarrassing reading for those who work in the sector, and led to its recommendation that will writing become a reserved activity.

Currently there are no restrictions on who may draft wills for payment, but, if the panel has its way, all will writers for hire will have to demonstrate that they are competent to offer the service, to follow a code of conduct, and to allow complaints to the Legal Ombudsman.

Obviously this raises questions, such as just how a will writer would be expected to demonstrate competence. Some solicitors might also feel threatened by the fact that, while the panel is calling for will writing to be a reserved activity, it doesn’t think it should be reserved only for solicitors.

The verdict of the consumer panel, chaired by a “shocked” Dr Dianne Hayter, is that regulation for solicitors should be strengthened, while for non-solicitors it should be based on the existing scheme operated by the Institute of Professional Willwriters.

As well as better regulation, the report also calls for training standards for solicitors to be raised, and for the Office of Fair Trading to lead an enforcement campaign targeted at the will-writing companies responsible for practices such as pressure selling and exorbitant pricing.

A press statement from the Law Society said it was “delighted” that the LSB “has thrown its weight behind the society’s campaign to ensure that all will writers should be fully regulated”, with chief executive Desmond Hudson saying that “the society has seen too many examples of dishonesty and bad practice from unregulated will writers” and that is has “been campaigning for many years to have this addressed”.

Hudson added that the society “strongly supports” steps to improve training but concluded: “What is most important to remember is that solicitors are required to be covered by insurance, are subject to a strong complaints and disciplinary process, and a compensation fund exists to ensure that consumers using solicitors do not lose out.”

“…unlike will writers”, he might have added. And in case anyone missed that not so subtle market positioning for the solicitor profession, Hudson went on to spell it out: “Anyone seeking advice on wills should go to a solicitor to ensure that the will is done properly,” he said. “Solicitors will provide excellent advice and will be able to advise on complex financial issues such as inheritance tax and trusts planning. Solicitors are all trained and consumers can have confidence in them.”

The only problem with the Legal Services Board’s recommendations is that they have come 20 years too late, argues Paul Sharpe, chairman of the Institute of Professional Willwriters

That the first in-depth look at the will-writing sector has found issues is no surprise to us at the IPW, as the report reflects exactly the issues raised by telephone callers to our office. And it is no surprise to us that the issues are such that the consumer panel has concluded that regulation is the only answer – after all, it’s what we’ve been saying for 20 years.

What was also no surprise is that wills drafted by solicitors were just as likely to have problems in them as wills drafted by will writers. This is something that we have known for years, and is borne out by the rates that our members can obtain for their indemnity insurance, which would make any solicitor weep with envy.

What was a surprise, however, is the high level of wills drafted by both will writers and solicitors deemed to have ‘failed’. Although the sample was very small, with only 24 wills produced by the will writers examined, we need to understand exactly why all these wills ‘failed’ to be able to determine whether any of our education and training requirements need to be strengthened.

We’re pleased that the consumer panel has recognised the status of the IPW and the strength of its code of practice by recommending that the IPW code is used as the basis of a new regulatory scheme. In 2010 the IPW became the tenth organisation ever, and the only one in the legal sector, to have a code approved by the Office of Fair Trading under its consumer code approval scheme.

Will writing should be regulated, but not reserved only for solicitors, says Charlotte Watts, an associate on the wills, trusts and probate team at Wilsons Solicitors

An invalid or poorly written will can create stress and unnecessary wrangling which may ultimately undermine the document’s primary purpose – the testator’s true wishes.

As a firm reputed for contentious trust and probate, one could suggest that we have a vested interest in poorly drafted wills given the potential for disputes, but, despite this interest, we support the Legal Services Board’s consumer panel’s recommendation that will writing should be a reserved activity.

Criticism has rightly been levelled at unregulated will writers who set up without any qualifications and who deliberately exploit vulnerable people by drafting overly complex wills which may not actually work, or by selling themselves additional services which they do not need. But this does not necessarily mean that will writing should be an activity only undertaken by solicitors. Many reputable will writers demonstrate good practice, while we have also seen a number of solicitor-drafted wills which leave much to be desired, because of sloppy errors, a failure to dispose of the entire estate or wills that simply do not make sense.

Given the importance of making a will, I can only support a wider choice of regulated will-writing services making them more accessible to the public and their individual requirements.

A decision which regulates the profession and ultimately safeguards the public, vulnerable or otherwise, and their personal wishes should be welcomed by all credible will writers.

Compulsory professional indemnity insurance should be introduced for all will writers, sorting the competent from the cowboys, says Gary Barber, a partner in the family and wealth team at Mills & Reeve

Will writing should be classified as a reserved activity, but need not be reserved to solicitors alone. There should be a minimum recognised specialist qualification for those undertaking will writing and this would apply equally to solicitors, perhaps along the lines of the STEP certificate in will preparation. This should be supplemented by continuing professional development requirements, and an appropriate regulatory body.

In addition, compulsory professional indemnity insurance should be introduced for all will writers, as this would add a commercial control to those wishing to undertake this work – sorting the competent from the cowboys. This would ideally be with a prescribed minimum term in force, so as to provide meaningful protection to individuals who suffer loss as a result of poor-quality service or the disappearance of the provider, bearing in mind that this will often only be discovered after the testator’s death.

As a counsel of perfection, I would also like to see the introduction of a national will registration service, under which all wills would have to be registered to be valid, with registration effected by an insured regulated practitioner. There will be a cost implication to this, of course, but what cost the alternative?

Finally, the requirement under rule 2 of the Solicitors’ Code of Conduct that professional executor fees be notified to the client before the appointment of such executors is an example of regulation currently only directed at solicitors, when clearly this should apply to everyone undertaking professional executory functions.