Will-writing should be a reserved activity, LSB recommends

Will-writing and estate administration should become reserved activities, the Legal Services Board has formally proposed today in recommendations to be considered by the Lord Chancellor early next year.

Primary legislation would be required to give effect to the new rules, which could involve the creation of a brand new regulator responsible solely for the supervision and enforcement of a specific set of standards.

As a separate reserved activity, will-writing and estate administration would be open to approved professionals irrespective of their qualification, which could see solicitors rubbing shoulders with will-writers.

An alternative would be to delegate regulatory compliance to the current frontline regulators but Southampton Row is reportedly cooler about this option as this could lead to discrepancies in the way the rules are applied.

The LSB’s report concludes the first stage of its consultation started earlier this spring in which the super-regulator relayed concerns over the quality of will-writing across the legal services sector and called for the activity to be regulated.

It will now be followed by a second consultation canvassing stakeholders about the detail of the proposed rules with a view to making full recommendations to the Lord Chancellor in early 2013.

The second consultation will run for six weeks from today, 27 September 2012, closing on 8 November.

Any legislation would be unlikely to be adopted before the summer recess next year and much would depend on the new justice secretary’s interest in taking the recommendations forward.

One insider told Solicitors Journal that the previous incumbent, Ken Clarke, was understood to be in favour of the new rules. Newcomer Chris Grayling on the other hand was more likely to follow the government’s stance for a strong deregulatory drive, which could scupper the LSB’s proposals.

Not all in the private client services sphere support regulation or making will-writing a reserved activity.

In its response to the consultation in July the Law Society said the LSB’s assumptions could not be relied on because they were based on a sample that was too small and not sufficiently representative of the market.

Questioning the initial findings that solicitors were just as likely, or more or less likely, to write poor quality wills as will writers the society’s chief executive Des Hudson said the current regulatory framework offered suitable guarantees of competence.

Instead Hudson said the Law Society would be launching a new will-writing quality scheme, similar in spirit to the Conveyancing Quality Scheme.

“Such a scheme can demonstrate specialist skills, quality assurance and appropriate service standards delivering value to the market based around our strong brand,” Hudson said.

 

'Solicitor brand cannot be taken for granted'

Responses to the LSB’s proposal to make will-writing a reserved activity has been more positive than may have been expected.  Moving away from the initial position of the Law Society’s chief executive in July that this was not needed, the society’s president, Lucy Scott Moncrieff said last week that Chancery Lane was “pleased that the Legal Services Board shares our concerns regarding consumer protection”. She urged the LSB and the government to “proceed swiftly to ensure that in will-writing, estate administration and probate consumers are protected from bad advice and untrained providers”. The consumer panel, which has been calling for regulation, was unsurprisingly “delighted” with the LSB’s proposal. “There’s a powerful consensus of support for this move and it’s striking how representatives of consumer groups, charities and will-writing businesses are all convinced that regulation is needed,” said panel chair Elisabeth Davies. There are signs too that solicitors themselves increasingly support such a move. “Solicitors need to be spearheading the drive to regulate will-writing and estate administration,” said Gary Rycroft (pictured), a partner with private client firm Joseph A. Jones & Co in Lancaster. “However, we also need to acknowledge that the trust the general public have in the solicitor brand cannot be taken for granted.” Rycroft hinted at the proposed will-writing quality scheme, saying that “the robust accreditation of solicitor will-writers would be an opportunity to address the concerns of the LSB and drive up standards across the solicitors profession to the undoubted benefit of consumers. “ But he also expressed concerns that frontline regulators could end up “competing to be the most attractive body for providers”, which “might conceivably result in lower standards being applied and this is unlikely to be in the consumer’s best interest.” “Solicitor have an established and robust system of regulation with a proven track record; the future regulation of will writers should at the very least be to the same standard to which solicitors already adhere”, he said.