The Legal Services Board has published proposals for the regulation of will-writing, estate administration and all related activities. The regulation of will-writers is a welcome step towards ensuring that appropriate standards are met and protecting the public from "cowboy" will-writers.

The Proposals

The proposals seek to ensure that there are minimum standards of competence amongst will-writers and that the public are protected by:

  • introducing a mandatory register of authorised providers of will-writing and estate administration services;
  • ensuring that providers of these services have financial protection arrangements (such as negligence insurance) in place, a code of conduct, appropriate staff training and supervision; and
  • imposing fines where these requirements are not met.

A will-writer is anyone who prepares a will and may include solicitors, non-solicitor will-writers or independent financial advisers.  Although solicitors are already regulated, the proposals will tighten this regulation as well as introduce regulations for non-solicitors who currently do not need to have any technical or legal qualifications to prepare wills.  (These proposals only apply to paid-for services; do-it-yourself will writing and estate administration will not be subject to such regulation).

A consultation period in respect of the proposals is open until 16 July 2012 and Government policy in this area will be decided thereafter.  We will be watching the developments closely.

Comment

The proposals are welcome as they seek to protect consumers from "cowboy" will-writers.  For many people, a will can be the most important document they have ever made as it sets out how they will provide for their loved ones after death.  The consequences can be serious if the will is not correctly prepared.

A survey carried out last year by the Society of Trust and Estate Practitioners (STEP), the professional body which represents trusts and estates advisers, found that three quarters of its members had come across "incompetence or dishonesty in the will-writing market" in the previous 12 months.  Cases included unqualified will-writers producing wills that were invalid due to lack of legal knowledge and/or triggered higher tax bills on death due to inappropriate (or no) use of tax mitigation strategies in the will.  It also found that some unqualified will-writers did not have negligence insurance in place to protect consumers and some had gone out of business with the wills disappearing with them; the consequence being added costs for the client or the intended beneficiaries who needed legal advice thereafter.

The cost of a badly drafted will which fails to do what was intended or becomes contested can be significant, both financially and emotionally, for the family.  This can include the professional costs for re-drafting the will or post-death litigation/legal advice, unnecessary tax bills and distress.  Regulation of the will-writing market will help to protect consumers and their families from going through such an experience and encourage more people to make a will.