Writing should be on the wall for unregulated activity

The phenomenon has been discussed again in recent days following recommendations last week to the UK government by the Legal Services Board (LSB) for England and Wales that will writing activities south of the Border should become subject to regulation.

Currently, only solicitors among those offering will writing services in the UK are fully regulated. The move by the LSB to put its recommendations to the Lord Chancellor, the Rt Hon Chris Grayling MP, would mean that, if accepted, all will writers would be required to register and would be subject to oversight and regulation. This would reduce risks to members of the public using these services. The Lord Chancellor has 90 days to decide and, if he chooses to accept the recommendation, negotiate for parliamentary time to bring into effect a scheme.

The LSB, however, has not recommended bringing estate administration work under a reserved legal activity. This has generated some criticism, including by the Law Society of England and Wales, that they do not go far enough.

The LSB’s original investigation last year into will writing “found systemic problems with the services delivered by many different types of provider … We found consistent patterns of sloppiness, simple errors and poor communication. Too often consumers were subjected to unfair sales practices. There have also been well-documented cases of fraud and deception.”

These problems, of course, did not stop at the Border.

In Scotland, the situation is half a step further on. During the passage of the Legal Services (Scotland) Act 2010, the Law Society of Scotland, along with other organisations, pressed for amendments to include regulation of will writers, and we were very pleased that these representations were taken on board by the Scottish Government.

While this part of the act has yet to be implemented, the regulatory scheme for will writers will involve having rules, a code of conduct and a complaints system.

Unlike the recommendations by the LSB, the Legal Services (Scotland) Act also has a similar scheme of regulation of non-solicitor agents, who apply for confirmation as an executor of an estate. That part is also awaiting implementation.

At the moment, only a Scottish solicitor can apply for confirmation and therefore the public can rely on the range of protections which only a solicitor can offer.

Making a will is one of the most important things we can do. It determines how our most personal possessions and hard-earned savings will be shared among close family and friends. Wills are, as a result, highly important documents.

There is a huge amount of trust invested in a will writer, by the testator and their beneficiaries, and wills may not only involve the law of succession but also have an impact on the law of trusts, charities and tax law, as well as the general law of property. They should not be approached as being unimportant or peripheral documents.

We firmly believe that the regulation of non-lawyer will writers will help to ensure that members of the public are provided with better protections, that they have access to redress should things go wrong, and can be sure that they are getting good advice that meets their requirements.

We also believe that non-lawyer will writers should meet certain standards of education and training to be able to draw up a will on behalf of a client.

Under the act they will be subject to proper regulation by a professional or other body and will be required to comply with statutory requirements as to training, professional indemnity, and a legally enforceable complaints system.

The Scottish Government position is that they have not yet commenced part 3 of the Legal Services (Scotland) Act 2010 which will introduce a regulatory framework for non-lawyer will writers, but are working towards doing that later this year – something which we and many others will look forward to. .

• Michael Clancy is director of law reform, Law Society of Scotland