Protecting the public and our reputation

The Legal Services Board is expected shortly to make formal recommendations to the Lord Chancellor that will writing should be regulated '“ and not before time.

In April 2012, the LSB launched a public consultation on will writing. This was to gauge popular opinion on its initial proposals that will writing should become regulated, predominantly on consumer protection grounds but also to safeguard the reputation and trust placed in those who work in private client matters.

The results were overwhelmingly in favour of adding will writing to the list of reserved activities. This would offer greater protection to consumers of will writing, probate and estate administration services by restricting the duty of drafting the will to solicitors, barristers and legal executives who meet required qualifications.

Currently, will writing may be dealt with by people who are not subject to regulation which may leave people vulnerable to unscrupulous will writers. Over the last few years, we have seen a rising number of examples of unfair sales practices, fraud, deception and extortionate charges.

A 2010 investigation by BBC Panorama shocked many people, uncovering cases in which initial fees of £75-100 spiralled out of control into four-figure charges. Regulation would do a lot to eradicate this problem.

Fraud and mistakes

However, fraudulent will writers are not the only problem. Care, competence and precision are all paramount in wills, ensuring that the testator's exact wishes are carried out once they have passed away. It's one of the most important documents anyone will ever complete, so must be executed with extreme precision.

The BBC investigation estimated that an astonishing 20 per cent of wills nationally have been found to contain mistakes. These range from incorrect figures and clauses to basic errors such as spelling. Adding the service to the list of reserved activities would see this figure reduced dramatically, as unprofessionalism and carelessness is weeded out.

Due to the nature of wills, these issues rarely come to light until after death, when the will comes into effect. By this point, it is often too late to rectify the mistakes. Families affected by such issues find that they have no redress. In a time of such emotional difficulty, the prospect of rectifying a will is even more daunting.

It's taken a long time for will writing to be considered as a reserved activity. Regulation will make a huge difference to the way people guarantee their will is executed after their death.

I have seen first-hand the damage and inconvenience caused by malpractice '“cases where will writers have acted in an appalling manner, costing families many thousands of pounds as they are unregulated and uninsured.

One thing that many solicitors hear in this scenario is 'We wish they [the deceased] had come to you first.' The problem is, with no form of regulation, the client often cannot tell what they need to watch out for until it's too late.

Obviously, changing will writing to a reserved activity would have great implications on testators and their families, slashing the number of wills containing mistakes and in the words of Elisabeth Davies, Chair of the Legal Services Consumer Panel, offer 'much-needed peace of mind' to the consumer. However, it would also be a huge boost to the solicitors who work in the area.

Protecting reputation

Amid all the negative stories around will writing, it's easy to lose sight of a key fact: the vast majority of solicitors and firms who work with wills are highly professional, competent, hardworking and trustworthy. Most wills are expertly drafted and correspond to the client's wishes exactly.

Yet the longer that will writing remains unregulated, the more the honest and competent majority will be tarnished by negative stories stemming from malpractice. People need to have complete trust in those they assign with their will, and the worst thing to happen to the industry would be for this trust to be eroded by the actions of a minority.

Private client solicitors I have spoken to have been unanimous in their support for regulation as a measure to protect the prestige and reputation of the sector as well as the client's best interests. The recommendation for 'proportionate, risk-based and flexible' regulation would still ensure healthy competition and allow different types of providers to offer their respective services.

Should will writing become a regulated activity, the benefit will be immediate and widely-felt. It is a necessary move to both defend consumers from incompetence or misdemeanour and to protect the sense of trust in legal services. I sincerely hope that the Lord Chancellor takes heed of the Legal Services Board's recommendations and ensures a better deal for everyone.

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