Section 1 Background and current situation
1.1 This section considers the aim of the consultation paper; the background to the Legal Services (Scotland) Bill; and the present situation in respect of will writers.
Aim of the consultation paper
1.2 This consultation paper seeks views on the possible regulation of non-lawyer will writers in Scotland. It provides the following:
- background information on the Legal Services (Scotland) Bill;
- the present situation in respect of non-lawyer will writers;
- the proposal to regulate non-lawyer will writers;
- views on the regulation of non-lawyer will writers; and
- options and consultation questions.
Background to the Legal Services (Scotland) Bill
1.3 The Legal Services (Scotland) Bill (the Bill) was Introduced by the Scottish Government to the Scottish Parliament on 30 September 2009 1. The principal effect of the Bill would be to liberalise the legal services market in Scotland by allowing solicitors who offer legal services to operate using certain business models which are currently prohibited. A regulatory framework will be created for such models.
1.4 The Bill also makes provision for confirmation agents to provide confirmation services. These services consist of the preparing of papers on which to found or oppose an application for the confirmation of a person as the executor in relation to the estate of a deceased person. We believe that confirmation services should continue to be restricted to properly qualified professionals, but that with proper regulation, professionals other than solicitors could properly discharge the responsibilities of applying for grant of confirmation.
1.5 The Scottish Government intends to bring forward some amendments to the Bill at Stage 2 in the Spring. One of these amendments could be in respect of the introduction of a regulatory framework for non-lawyer will writers. This is being considered following representations made to the Scottish Government on the subject during the consultation on the Bill 2 and subsequently by various bodies.
1.6 It would not be the intention to regulate individuals preparing their own will, with or without a DIY pack, or other persons providing a free advice service. The aim is not to place any restrictions on informal or "deathbed" wills, which are made fairly frequently and which do not raise the same level of concern as those made by unregulated non-lawyer will writers.
The present situation in respect of non-lawyer will writers
1.7 Section 32 of the Solicitors (Scotland) Act 1980 provides that it is an offence for an unqualified person to prepare certain documents, including writs 3. However, subsection (3) of that section provides that a writ does not include a will or other testamentary writing. Therefore, it is not an offence for an unqualified person to prepare a will and such persons are not subject to regulation. .
1.8 Some will writers offer services to the public for a fee. The service consists of the provision of wills and, in some cases, advice or services in respect of such provision. These services might be offered by a firm of lawyers, in which case, the lawyer providing the service would be regulated by the Law Society of Scotland. However, where the service is provided by non-lawyers, the non-lawyer will writer is not regulated.
1.9 Therefore, non-lawyer will writers are not required to have professional indemnity insurance or any alternative dispute resolution mechanism in relation to inadequate service or negligence. They do not have to be associated with a professional body that would exercise disciplinary powers. Furthermore, they may have no scheme for safeguarding stored wills where the will writer ceases trading for whatever reason. It is to these non-lawyer will writers that any proposed regulation would apply; as stated above, solicitors who write wills are already regulated by the Law Society of Scotland.
1.10 The Scottish Government understands that there are about 100 non-lawyer will writers operating as businesses in Scotland, although some are based in England.
1.11 There is a limited amount of evidence of malpractice in respect of such non-lawyer will writing businesses in Scotland. However, it is anticipated that there could be more, but for the fact that evidence often only come to light when a person dies and, as a result, it may be difficult for the relatives to prove the deceased's intentions. It has been alleged that some non-lawyer will writers in Scotland have carried out "cold calls", provided misleading advice and charged excessive fees.
1.12 There has been more publicity in respect of cases in England and Wales 4. There is evidence there to support the view that some non-lawyer will writers exploit the elderly and people on low incomes who cannot afford to use a solicitor and have little experience of legal documents.
Proposal to regulate will writers
1.13 The Scottish Government is concerned that some non-lawyer will writers may be exploiting the lack of regulation to the detriment of the consumer in Scotland, so is considering whether the regulation of non-lawyer will writers providing a service for a fee should be introduced. The aim of this regulation would be to continue to allow non-lawyers to provide a will writing service, but to protect consumers by providing a set of regulatory rules and enforcement measures and sanctions that would apply to such non-lawyers. As already mentioned, it is not the intention to regulate individuals preparing their own will, with or without a DIY pack, or other persons providing a free advice service.
1.14 It is envisaged that such regulation would take the form already provided for confirmation agents in Part 3 of the Bill 5. This Part creates a new process by which bodies may apply to the Scottish Ministers to regulate professionals who are not solicitors to prepare documentation in relation to confirmation (part of the process for winding up estates of a deceased persons). It provides that the regulator must make a regulatory scheme, which would include provision for the following:
- code of practice;
- professional indemnity;
- rules about complaints; and
1.15 It also makes it an offence to pretend to be an authorised confirmation agent and provides for situations where an approved regulator (known as an approving body) wishes to cease regulating. Confirmation agents will be expected to pay a fee to the approving body to cover the costs, so the regulation will be cost neutral to the Scottish Government and the approving body.
1.16 If an alternative model of regulation is preferred, then it may not be possible to accommodate this by amendment to the current Bill and the alternative model would be delayed for consideration at a later date.