Posted on August 14, 2017
A briefing paper on the regulation of will writing was released by the House of Commons last month.
Looking at the current legal position on wills in England and Wales, the paper reviews the arguments both for and against regulation, highlighting the need to balance cost and effectiveness of its enforcement against consumer protection.
As will writing is not a “reserved legal activity”, it can be conducted by individuals who are unregulated, although a large proportion of will-writers are registered to a regulated voluntary body. These include the Society of Will Writers and the Institute of Professional Willwriters for example.
Implemented in 2007, the Legal Services Act lists the legal activities which are “reserved” and are subject to the regulatory control of the Legal Service Board (LSB). Whilst any activity within this list must be carried out by a legal professional, advice which falls outside of this remit can be delivered by those without a legal qualification.
The Act was also highlighted earlier this month in regard to separation of the Legal Services Board and the Office for Legal Complaints. In order to remove the ties between the regulator and the linked professional body, primary legislation would need to be enacted – as set out in the Legal Services Act 2007.
As the briefing paper sets out, the Labour Government decided not to include will writing within the Legal Services Act, meaning that it falls outside of the regulated activities. It is important to note, however, that this list can be extended.
Although there were numerous reasons why will writing was excluded, that’s not to say the decision was unanimous – there were various calls for it to be regulated prior the legislation coming into force.
A white paper was published in 2005, setting out the suggestions for the future of legal services in England and Wales. ‘The Future of Legal Services: Putting Consumers First’ found that there was no compelling argument for will writing to be regulated. It suggested voluntary regulation instead, such as codes of conduct.
When reviewing the draft Legal Services Bill, the Joint Committee stated that where a fee, gain or reward was given in exchange for a will, it should come under the regulatory framework.
The Government at the time responded by saying that this would be left to the Legal Services Board to decide in the future.
Calls were made for the regulation of will writing during numerous debates on the Legal Services Bill, with a focus on the consequences of its absence. This view was strongly opposed, with contesters stating that there was a lack of evidence for regulation being necessary.
Currently, there are three different levels of will writing regulation, as outlined by the Competition and Markets Authority. These are as follows:
There are several voluntary bodies which each set out their own codes of conduct, requiring providers who are signed up to adhere to them.
The paper details findings from the CMA, which states that “around half of unauthorised providers have signed up to be regulated by voluntary bodies.”
It also considered the potential limitations of voluntary regulation, highlighting that despite their effectiveness, a lack of obligation for providers to join means that they are free to leave or not join at all. There is, therefore, a lack of consistency in standard across the wide network of providers.
A Wills and Inheritance Quality Scheme is operated by the Law Society, which provides a benchmark quality standard for wills and estate administration for practices which are regulated by the Solicitors Regulation Authority (SRA).
The SRA also have a guide to Ethic on the Drafting and Preparation of Wills.
Following a comprehensive study into the legal services in England and Wales, the CMA found a range of consumer protection issues in regard to will-writing but were unable to identify the scale of consumer detriment. Rather than the unauthorised sector itself, it felt that it was a “small rogue element” which caused problems.
It concluded by stating that although there was a potential role for some level of regulation, more evidence was required, with a need to weigh up the benefits against the burdens.
In a response delivered in April 2017, the Government stated that it would respond to the CMA’s report and provide its recommendations “shortly”.