Private Client Focus | Will writing regulation: aiming for the highest standards

The Legal Services Board has recently announced proposals to bring will writing and estate administration services within the scope of legal services regulation and make it a reserved activity. While we live in a society that seems to be over flowing with red tape, regulations and legal requirements the LSB’s announcement is to be welcomed. It marks the beginning of the end for many providers of will writing services that are not regulated, and which may provide a poor level of both service and quality of product. The LBS’s announcement can only open the way for greater protection for consumers.

It is contrary to popular belief but the preparation of a will and the administration of a person’s estate once they have died can be (and often is) a complex process. Such a process will involve sensitive and emotional issues including both financial and legal considerations. This requires an in-depth knowledge of trust law, property law, family law, company law (if there are business interests) and the interaction ?of various taxes. Not to mention the myriad of issues that can arise through family dynamics.

If there is foreign property or a testator with a foreign domicile it is vitally important to understand how far a will here in the UK can govern those foreign assets (if at all) or even how UK assets of an individual with a foreign domicile are best handled. A broad understanding of the laws of the particular foreign jurisdiction in question will be helpful although care must be taken not to stray in to giving advice about jurisdictions in which you are not qualified. Consequently, and most importantly, a clear understanding of when and how to import the necessary legal expertise from the relevant jurisdiction will provide the best outcome for the client. This applies to both will drafting and the administration of a person’s estate once they have died.

?Regulation overdue?Due to the various complex issues ?that may be involved in taking instructions to determine which will structure is the best fit for an individual and administering that individual’s ?estate in the future, it may be a surprise to many that will writing in the UK is currently unregulated.

As an example of the complexity that can be associated with will drafting, take an increasingly common situation of a married couple with children from previous marriages and substantial business assets and personal wealth. How should the will be structured? Sophisticated trust structures should be recommended to make the wills tax efficient but also to deal with the competing demands on the testator. They will often want on the first death to maintain the survivor’s security and standard of living but in a way that ensures wealth eventually passes on to their own children and in an appropriate fashion (taking into account the relevant circumstances of the children).

These trust structures require complex drafting and a large time input with the clients explaining how they operate and the benefits they bring. Learning how to present this information to the clients, advise them fully and prepare the paperwork is a substantial challenge that takes years of experience, training and knowledge to master.

It is therefore peculiar that regulated status for this area of work has not already been granted here in the UK. This can only depress standards and be detrimental to the consumer.

Here in the UK you do not have to be a solicitor to provide will drafting services and advise the likes of the married couple referred to earlier. Nor do you have to have any other form of training that will put you at the same high standards as a solicitor. In contrast a solicitor has to spend many years of academic study followed by a demanding two year training period before they are able to practice. In addition, they must each year undertake a certain number of hours of training in order to keep up with the latest legal developments.

In stark contrast a will writer may not have any legal or other training and, more worryingly, they may not have any insurance in place if things go wrong.

A badly drafted will (unless it is reviewed in a person’s lifetime by an individual specialising in the preparation and supply of wills) only shows its shortcomings after a person has died. This may leave the deceased’s family or beneficiaries under the will with limited recourse at what is often a very difficult time emotionally. Having to also deal with complex legal issues in an attempt to rectify the issues undoubtedly brings a terrible burden for the family or other beneficiaries.

This is not to say that solicitors don’t get it wrong. However, solicitors are highly regulated, and as referred to above under continuous professional training. This helps to reduce mistakes. Importantly, solicitors must have indemnity insurance in the event that mistakes are made. By employing the services of a solicitor you are more likely to ensure peace of mind that not only is your will properly drafted but that your estate administration can run as smoothly as possible. This will help to keep costs to a minimum and ensure that your loved ones will be provided easily at what can be a very difficult time.
?True cost?It is often the case that will writers are seen as a cheap alternative to expensive lawyers. That may certainly be the case initially in terms of the cost to put the will in place. However, the true cost may only become apparent many years later and with the potential that there is no realistic redress open to the intended beneficiaries. It may be more cost effective in the long run to instruct a solicitor who is more likely to be highly trained and regulated.

The regulation of will writing will not see an end to poorly drafted wills nor the resultant problems that can potentially arise after death. However, the recent announcement by the LSB signals a move in a direction that will hopefully see an increase in standards across the industry.

Although regulation is important, the exact nature of that regulation is equally significant. Individuals and companies who are authorised to draft wills and administer estates must meet minimum regulatory requirements to ensure that clients and beneficiaries benefit from ?high standards of service, quality of product and an effective means of redress which, outside the legal profession, is certainly lacking. That minimum regulation must be similar to that expected of a solicitor in order to ensure both fair competition and a uniform regulatory system. A two-tier system is not acceptable.