Raising the bar

What do the average private client lawyers and the current lord chancellor, Christopher Grayling, have in common? Since Grayling is the first non-lawyer to have served as lord chancellor for 440 years or so, many lawyers might say:
'Not very much.'

But perhaps the answer is relatively simple: 'Both need to have thick skins'. After all, many practitioners have advised clients whose affairs are extremely complicated, who then respond with that old chestnut, 'Why does it cost so much when a form in WH Smith is £25?'.

Yet few of us can have felt as isolated as Grayling after his announcement in May 2013 that the government was not going to follow the recommendation of the Legal Services Board (LSB), that all will writing should be regulated.

Representative organisations queued up to express their disappointment. The LSB stated that they were disappointed but would have to work with stakeholders to ensure that consumer confidence was increased.

The Law Society chief executive, Desmond Hudson, said: 'Consumers have been let down by this deeply disappointing decision.' Nick Hanning, the president of CILEx (Chartered Institute of Legal Executives) summed up the likely outcome succinctly, saying: 'The result of this decision will be an uneven playing field between unregulated companies and regulated professionals, such as CILEx members; and such a situation can only be contrary to the interests of the public.'

Fallout of regulation failure

Two years on, it is fair to say that the predicted uneven playing field has emerged. In the absence of national regulation, various players have now stepped into the breach, offering different quality standards that might now be applied to will writing.

The Law Society acted swiftly, launching its wills and inheritance quality scheme (WIQS) in July 2013. This introduced a protocol designed for all practices that offer not just wills, but also probate and estate administration services. However it is not a universally required standard, rather, an optional quality or kitemark type scheme for those who choose to sign up to it.

The Society of Trust and Estate Practitioners (STEP) issued its own code for will preparation.This code is binding on all STEP members who prepare wills in England and Wales (rather than being an optional scheme) but it covers all STEP members who may or may not be solicitors.

The SRA issued guidance in May 2014 (updated in July 2014) which is directed at all regulated persons (effectively solicitors), but only covers the drafting and preparation of wills and not estate administration. So what are consumers to make of these schemes and how do they compare?

The first thing to note is that because they differ so much, they cannot create a completely level playing field. Certainly no consumer is going to be able to directly compare the different levels of service they might expect when writing a will.

SRA guidance

The SRA guidance only covers regulated solicitors in England and Wales involved in the drafting and preparation of wills. But it is only guidance and not part of the SRA handbook, and therefore not mandatory. Together with all other SRA guidance, it is focused on outcomes rather than specific quality standards to be followed to achieve those outcomes.

While it gives guidance on points such as whether a firm should be appointed as an executor, how to manage the business of will writing in relation to staff training and storage of wills, and what to do about gifts proposed in a will to someone within the regulated practice, it is, and is stated and designed to be, guidance on ethics rather than service standards in the broader sense.

STEP code

The STEP code is not a direct comparator either. It applies to each STEP member preparing wills in England and Wales who could be a full member or affiliate, associate or technical associate, a student or retired or restricted member of STEP. Therefore it could apply equally to an accountant, tax advisor, unregulated will writer or solicitor among others,
so long as they are a STEP member. It is not clear what the consumer will make of these potentially very different service providers, all of whole will be using the same quality mark.

The STEP code is however much more detailed and explicit than the SRA guidance, and does offer greater protection to the otherwise confused consumer in a number of areas. For example it ensures that dealings with that client are open and transparent over questions such as costs, conflict of interest, keeping a record of instructions and so on.

It also offers restrictions akin to a protocol, such as describing the will drafter's duties to identify their client's capacity, protect their confidentiality and respond expeditiously to their instructions. It goes even further by, for example, ensuring that will writers acting under the code must not refuse to prepare a will on the grounds of a client's race, colour, religion, nationality, gender or sexual orientation.

The STEP code is therefore much more comprehensive than anything that existed before 2013, and should offer consumers greater confidence in dealing with different service providers, so long as they are STEP members.

WIQS

This leaves the Law Society's WIQS scheme. What stands out about WIQS
is that it is far more comprehensive than the SRA guidance, STEP code or any other regulatory framework protocol
or guidance.

It is a genuinely exhaustive assessment of every conceivable area of best practice in the area of will writing in particular, and it is not purely guidance or outcomes focussed; subscribers have plenty of areas with which they must comply.

But it also goes far beyond wills, covering general estate administration and specific areas of advice, such as creating settlements, application of intestacy rules, and Inheritance (Provision for Family and Dependants) Act 1975 claims among others. The WIQS protocol is substantially more thorough and detailed, running to some 80 pages, as against six for the STEP code and just a couple of pages for the SRA guidance.

Aside from the compliance standards, the actual process of applying for WIQS accreditation might put off plenty of applicants: there is compulsory additional training and security checking of all relevant staff (not just practitioners),
and a raft of additional responsibilities.

As a specialist practitioner, just reading the WIQS protocol serves as a reminder of the complexity of this area of practice, and of any number of potential pitfalls which should put off the unwary, and which you can readily imagine must often catch out the non-specialists who dabble in this area. So while signing up to a voluntary quality scheme like WIQS appears a daunting task, it is to be hoped that any practice which feels it is able
to continue advising on wills and estates, should find the time and commitment
to become accredited.

From the point of view of the consumer, although the wills playing field is not evenly regulated, the WIQS quality mark should make plain that accredited firms have indeed achieved a very high threshold of quality for training, practice standards, advice and service, and provide a clear point of differentiation from unaccredited practices.

Industry has a duty to respond

For those firms who do sign up to WIQS or alternatively which are required to comply with the STEP code, it is to be hoped that putting in place measures to ensure that they can carry these quality marks should raise standards for private clients. It is just a shame that the opportunity to make them compulsory and let consumers choose their advisers from a level playing field was missed.

Those of us who are practising within these protocols can now reply to the WH Smith question, by pointing out that clients are paying for advice and services which must meet a high standard.

But we will still have to be thick skinned, as we are sure to get that other old chestnut in reply: 'Well you would say that wouldn't you'.

To an extent, the success or otherwise of these initiatives depends on practitioners. It is up to us to sign up and support them, back up our words with actions, and have confidence that consumers will be able to recognise the difference. n

Rhoderick McGrigor is an associate
at Barlow Robbins