Workshop: Ensuring will-writing standards

The Lord Chancellor on 15 May rejected the Legal Services Board (LSB) recommendation that will writing should become a reserved activity (like probate activities i.e. taking out a grant, which remains reserved) and that estate administration services should be regulated. This was disappointing news, but what does this mean for solicitors doing wills and estate work?

It was apparently "not clear this was the right answer to protect the public", but instead the sector should come up with alternative measures to address the consumer detriment highlighted by the LSB, including greater efforts to educate consumers on different types of provider, their protection and options for redress. The LSB said the onus was now on providers of will-writing services "to improve standards and thereby earn consumer and public confidence."

The Law Society has developed WQS - ?a wills and estates quality scheme - with two protocols for will writing and estate administration, currently being fine-tuned, to be launched in July and to take effect from October. Gary Rycroft, vice chair of the Law Society's private client section, that the rejection of the LSB recommendation "makes it even more necessary than ever to differentiate providers with expertise from others".

Solicitors have, in addition to will writers, more significant and high profile competitors in this market. There is substantial new competition from the Co-op Legal Services, which has built up a large wills and estate service with extensive access to the public through branches including Britannia Building Society. Saga too now offers a will-drafting service alongside their insurances. Solicitors can't compete with these providers for brand, public access and automated systems, so how do we respond? There is increasing pressure to cut the cost of wills and offer fixed prices.

Whatever we do, we must not be complacent. A report into the quality of will writing in July 2011, by the LSB's Consumer Panel (with the SRA & OFT) found that too many wills written by solicitors (not just will writers) were wrong, did not reflect what clients intended and contained basic errors. This lay behind the LSB's proposed changes, which have now been rejected, and it's clear that whether through WQS or not our profession must change.

Keeping consumers onside

Ensure people taking instructions and drafting wills have sufficient experience and expertise. A paralegal who is well trained and drafts many wills may be better than an experienced partner who only does this occasionally. Then get a fresh pair of eyes to check all draft wills, however experienced the drafter, to minimise the risk of mistakes.

To process wills efficiently, use precedents with an automated will commentary, where possible, for risk management and cost effectiveness. If not, try having a series of client guides on regular topics, like trusts for children and grandchildren, options for leaving your personal chattels, explaining the different trust options for owning and leaving a property interest, and the operation and tax effects of a nil rate band discretionary trust. This could save reinventing the wheel by describing in a letter, regular important issues, wasting time and risking mistakes.

Recognising that our expertise as solicitors is in understanding our clients, and communicating difficult concepts to them, we should allow sufficient time for this.

If we (a) know the precedents we offer ?as solutions;

(b) allow time to ensure that we understand our clients' real concerns; and

(c) take time to explain the options and differences, e.g. between different forms of trust for a property and indeed whether a trust is needed at all, we can then (d) ensure we draft wills that do properly answer their real concerns. The risk is that in seeking to process quickly, we don't allow enough time to hear our clients. We are generally better at speaking to, rather than listening to, clients.

As clients don't always want to take up our good advice, or more to the point, pay for it, we need good strategies for flagging up issues we consider need more detailed advice. The need for a trust to address specific situations, or the value of inheritance tax planning, or advice on the structure of a business for IHT purposes. If a client won't pay we need to confirm the issue in writing to cover our backs, especially with the client's family, and ensure the engagement letter makes clear what is and is not covered.

WQS may present a great opportunity to differentiate ourselves from those who have less expertise. We wait to see the details of how it works. Many express concern about higher costs and bureaucracy and are fearful of change. Whatever our view, those who do wills and estates work need to do it well, seek to improve standards and earn some of that missing consumer confidence.