Who wants a regulated will writing industry? According to a YouGov poll which was commissioned by The Law Society, around 55% of UK adults would like to see some form of regulation. However, the survey also showed that those polled were, by a vast majority (90%) perfectly satisfied with the will writing services they had received.
Of course, that does mean that 10% were not. And of those 90% who were satisfied, they may not realise anything is wrong with their will (if something is), and it is only when they pass away and their family has to deal with their estate that the truth usually comes to light. That's the problem with cowboy will writers; it's often too late to do anything about it by the time the problem becomes apparent. Perhaps that's why a relatively small number of people are keen to have the industry regulated, and why so many are happy with the service they have received, and yet also why so many problems seem to occur in the courts thanks to invalid wills.
At the moment, there are no regulations in place that stop someone from setting up as a will writer and practising – and charging customers for their work which may not may not be up to standard. A governing body overseeing everyone who practises as a will writer, and offering a recognised qualification would ensure that those writing the wills know what they are doing and, if something where to go wrong, there would be some kind of fall back.
The Legal Services Board (LSB) has been campaigning for this for a number of years now, and has recommended that it become a 'reserved legal activity' (meaning that it is regulated and those who are qualified are the only ones who can practise).
Is it really that important though?
Let's look at the figures.
Poorly drafted and invalid DIY wills are causing problems for about 38,000 families every single year. And those figures are rising. This is partly due to poorly drafted wills, and also partly due to changing family structures with more divorces and combined families making some wills invalid or inaccurate. This is why updating your will when any of your personal circumstances change is so important.
Fixing an invalid will can be a costly and time consuming – not to mention emotionally charged – problem.
Had to smile last week when I read about the argument which has flared up between the International Chartered Accountants of England and Wales (ICAEW), and the Law Society, over probate regulation.
The fact of the matter is, probate work involves varying degrees of both legal and financial expertise. However, many people choose to use experienced probate practitioners rather than a solicitor or accountant – particularly if the practitioner offers a fixed fee service.
Currently, probate services are self-regulated – an issue which has been very publicly discussed recently, with several solutions proposed and a flurry of membership organisations all trying to claim ownership in a spate of competitive activity.
In this latest round of squabbles, the ICAEW applied to the Legal Services Board last year, with a request to regulate firms operating probate services. It wasn’t until May this year however, that the Law Society also wrote to the LSB, voicing its concern about the “inconsistency and confusion” contained within the ICAEW’s application.
Meanwhile, those of us who are neither solicitor nor accountant – ie, we practitioners who have specialised in probate work for years and have built up an excellent reputation, are quietly liaising with all relevant bodies to provide a solution for regulation – without the drama.
Despite having worked hard to bring a standard regulation to the will writing industry and to protect those seeking to write a will, the Lord Chancellor has ruled that other avenues of protection must first be explored before considering the possibility of regulation again.
On 13 February, the Legal Services Board (LSB) presented its report regarding English will writing, estate administration and probate activites; recommending that the Lord Chancellor bring these activities entirely under the regulatory umbrella of legal protection.
Although the Lord Chancellor agreed that there was a problem of unprofessionalism among some within the industry, regulation was a costly exercise, and would not be considered until other solutions had been explored, namely:
- targeted guidance for practitioners
- strengthening of regulation of authorised professionals
- voluntary regulation schemes & codes of practice for non-authorised providers
- increased education for consumers on differing types of provider & their rights
In addition, investigation is currently underway as to whether will writing could become classified as legal services, without adding any extra burden to the regulatory landscape. Until such time as this has been completed however, no decision will be made.
It must be said that the focus of this ruling does seem to lie on minimising costs as much as possible, to the detriment of the consumer. However, in the meantime, if you’re looking for a will writer or probate expert, ensure that they are a member of a regulatory or self-regulatory body (for example, IWC is a member of The Society of Will Writers). In addition, do your research – check reviews online and ask for references, or check with friends and family.
Recently, the Legal Services Board (LSB), recommended to the Lord Chancellor that will writing should only be carried out by regulated professionals.
This is of course the first positive step in what will inevitably prove a long and challenging road for will writing regulation. In the meantime, the SWW is campaigning to allow clients fast and easy access to the Legal Ombudsman, should they be dissatisfied with any aspect of the service they have received to date.
It is certainly heartening however, to learn that these two professional bodies are actively driving this campaign for will writing regulation, which must surely only benefit those involved in the industry and their clients.
The LSB in drafting these recommendations also advised that estate administration activities needs no further regulation stating that regulation would not be able to stop criminal activity. IWC wholeheartedly agreed with this finding and IWC Director Tony Crocker was pleased to read that his viewpoint would appear to have been listened to. Afterall if regulation was the answer why are there some solicitors convicted of fraud against estates.