Safeguarding clients: professional bodies take the will-writing initiative

Quality marks are probably necessary and do have value but only if members of the public know about them. Jennifer Palmer-Violet reports

When the lord chancellor decided not to burden the regulators with making will writing a reserved activity last May, he effectively passed responsibility to the profession to educate consumers and lessen the risk of being ripped off.

Badly written wills have plagued the industry for some time and with the threat of ABS competition, the pressure is on to ensure practitioners with specialist expertise reach the wider public and restore confidence.

The Law Society’s response – its Wills and Inheritance Quality Scheme (WIQS) – has seen more than 1,000 firms register expressions of interest since its launch in October and the society is now processing the first batch of successful applicants, which are expected to be named in February.

Following suit, the Society of Trust and Estate Practitioners (STEP) unveiled its Code for Will Preparation last week, which deputy chief executive George Hodgson says “aims to be a mark of quality, ensuring that if a client goes to a STEP member to draft their will, they can be confident that the practitioner is properly qualified, operates the highest professional competencies and demonstrates the highest ethical standards”.

Complementary schemes

Rather than compete, both bodies insist their respective ‘quality marks’ complement each other by working in different ways. While STEP’s code will automatically (from April) cover its 7,000 members in England and Wales focusing on the outcomes and principles of their behaviour, the Law Society’s equivalent is an optional accreditation for firms looking at their procedures and practices reviewed on an annual basis.

Between the two, solicitors could ultimately have three quality strings to their bow: gaining the TEP designation as a full member of STEP and being bound by the code, and working for a WIQS-accredited firm. Not all practitioners are interested in both options, though.

“STEP has provided a clear and concise code that will find favour with practitioners,” says Wedlake Bell partner Ann Stanyer. “It will undoubtedly help our private client business and help us demonstrate a gold standard for good practice.

“It will be seen as a viable alternative to WIQS, which seeks to regulate not only will drafting but also estate administration and inheritance claims. In so doing, WIQS is unnecessarily proscriptive.”

For John Bunker, head of private client knowledge management at Thomas Eggar, who was “very disappointed with WIQS”, STEP is filling a gap in a measured response to the Law Society’s scheme. He does have some initial concerns, however.

Not optional

“It is not optional, and therefore any work undertaken on wills, including delegating wills work to a non-STEP member or managing or supervising such a person is covered and the STEP member needs to advise their client that they comply with the code.

“There are many solicitors who are experienced and competent in dealing with wills who are not members of STEP and it would be incongruous for them to be ‘supervised’ by a STEP member so that a firm comes within this code.”

WIQS, as a voluntary qualification, perhaps has more to prove, particularly having drawn much criticism for its overwhelming ‘checklist’ criteria.

Bunker continues: “The greatest potential to fail consumers is that the emphasis on complying with huge amounts of detail, and ticking lots of boxes, may take the eye of solicitors off the need to truly listen to and understand their clients.

“A Legal Services Board Consumer Panel report on will drafting in 2011 was critical not of the failure to give extensive ancillary advice (very fully covered by WIQS) but failure to get the basic provisions of the will right, in accordance with what the client really wanted.

“The STEP code could achieve a better balance between safeguarding consumers and a workable arrangement for practitioners.”

The code is comparatively succinct but it is an extension of STEP’s core values (see box). STEP was founded as a dedicated private client body to give trust and estate practitioners recognition and credibility challenging the misconception that ‘anyone could draft a will’.

This latest move is perhaps to resonate more with the public. Trusts and estates may be deemed too highbrow, whereas everyone knows what a will is and surely mass market is the key target.

Measure of success

Neither quality mark will work without raising awareness, though, which could be a challenge considering how heavily Co-operative Legal Services and Saga are promoting their services. And, of course, one of the Institute of Professional Willwriters’ founding aims is to promote the importance of making a will to the public.

“WIQS will be a success if we are able to get our message across externally to the general public that will writing and probate administration is an important area of the law, and they should be instructing firms who offer a specialist service in terms of their technical ability but also the client service they receive,” says Gary Rycroft, partner at Joseph A Jones Solicitors and vice-chair of the Law Society’s private client section, who has been championing the scheme.

While Rycroft doesn’t have an ideal quota in mind, he says: “As long as we accredit firms
that are good firms and that the public recognise there is a differentiation in the market.”

Clearly it is necessary to have something in place that highlights the expertise in the sector and helps attract the public to competent professionals.

Whether consumers are drawn to the ubiquitous ‘tick’ on the STEP code or the WIQS logo or both, what’s important is that qualified solicitors are seen and, following Co-op and Saga’s lead, are making themselves more accessible. SJ

‘STEP’s code is much simpler to formally adopt’

After vociferously arguing to the government that will writing should be regulated by statute to protect the public from estate-planning cowboys last year, STEP has launched its own code.   Described as a ‘gold standard’, the code sets out a series of ethical principles that STEP members must follow. It makes barely any mention of technical expertise – after all, members must pass four demanding exams so they really should know what they are doing.   It comes about six months after the Law Society announced its own quality mark, the Wills and Inheritance Quality Scheme (WIQS). Unlike the mighty WIQS, which is 83 pages long, the STEP code takes up a mere seven pages. But is it any the poorer for that?   WIQS appears to be much more prescriptive than the STEP code, presumably because there is no underlying qualification. For example, the WIQS guidance on mental capacity goes on for two and a half pages and sets out the case law and legal tests in some detail.   By contrast, the STEP code has four paragraphs on this subject, simply setting out the professional obligations. The legal knowledge is taken as read and, indeed, forms a key part of the exam syllabus.   This means that the STEP code is much simpler for practitioners to formally adopt. All we really have to do is keep doing what we are doing. Solicitors who wish to sign up to WIQS will have to formally apply, pay a fee and adhere to detailed and strict criteria.    The STEP code simply requires members to take notes of instructions – the content and format is left up to the practitioner.   By contrast, WIQS not only sets out a checklist of information that must be included but also requires the practice to have a written policy about attendance notes.   Arguably, the shorter document is more client-friendly. If a client is concerned about something their solicitor has or has not done, it will be much easier for them to pinpoint whether and how the code has been breached.   STEP already has a long-standing code of professional conduct, which is more general applying to all practice areas. STEP describes this as a “common central spine” that will be supplemented by further mini-codes relating to specific areas of practice.   Therefore, the will-writing code appears to be the first of several specific ones.      Sarah Playforth, solicitor, Kingsley Napley, and student member of STEP

Jennifer Palmer-Violet is private client section editor at Solicitors Journal and editor of Private Client Adviser

jennifer.palmer-violet@wilmington.co.uk