Section 2 Views on the regulation of will writers
2.1 This section outlines the views of various individuals and groups on the issues surrounding the regulation of will writers.
Review of the Regulation of Legal Services in England and Wales
2.2 The Rt Hon. Lord Hunt of Wirral MBE, in his Review of the Regulation of Legal Services 6 in England and Wales which was published in October 2009, commented:
"Will-writing is not a straightforward contract. Simple mistakes can lead to unjust outcomes and these outcomes will often occur a long time after the will has been written. Those affected by poorly drafted wills are likely in a vulnerable state, grieving for the recently deceased. A survey conducted by the Institute of Professional Willwriters found that 94 per cent of respondents felt anyone offering to write a will for a fee should be qualified and regulated. What worries me is that if a badly created will is drawn up by someone who is not regulated, there is no regulatory recourse or professional indemnity insurance in place to offer compensation. This cannot be right. The balance in the current circumstances should be moved towards increased consumer protection."
2.3 He went on to recommend that the Solicitors Regulatory Authority in England and Wales and the professional body of the Law Society there should discuss with the new Legal Services Board the possibility of extending the edges of the regulatory "net" to cover will writing.
View from the Institute of Professional Willwriters
2.4 The Institute of Professional Willwriters was founded in 1991 as a self-regulatory body to safeguard the public from unqualified practitioners and unethical business practices and has become established as the recognised professional body regulating and promoting the profession of will writing. It campaigns for it to be compulsory for all will writers to be part of a regulatory regime for the protection of the general public and to help give the sector and IPW members wider recognition and credibility. The Institute is based in England, but has members in Scotland.
2.5 The Institute of Professional Willwriters has identified the following three concerns about the current position:
- inadequate and/or incompetent wills
- lost wills
- high pressure sales techniques
2.6 It believes that (a) consumer failure is still evident in the non-lawyer will writing sector; (b) take up of a voluntary scheme by non-lawyer will writers is negligible; and (c) that the only viable solution is to create a statutory requirement for any non-lawyer providing will writing services for a fee to be part of a scheme which provides independent regulation and redress.
View of the Society of Will Writers
2.7 Like the Institute of Willwriters, the Society of Will Writers is a non-profit making self-regulatory organisation. It has a mission statement to protect the public and serve the interests of those men and women who are active professionals in the field. It seeks to promote to the public at large the real need and sense in having a valid will. Its aim is to act as a self-regulatory body by vetting practitioners through stringent membership requirements, proficiency standards and on-going training.
2.8 The Society of Will Writers believes that concerns about will writers recently raised by Lord Hunt and the Law Society are unfounded. However, given the increasing number of individuals entering the profession, it does support the introduction of "light touch" regulation to ensure that certain standards are met. It raises some concerns about statutory regulation, however, suggesting that any substantial increase in costs may drive competent will writers out of the profession or into large companies, which may be to the detriment of the consumer.
2.9 The Society of Will Writers has summarised its position on the regulation of non-lawyer will writers in Scotland as follows:
- all will writers should be trained to a minimum standard and be required to maintain that standard through the use of Continuing Professional Development;
- all will writers should carry and maintain professional indemnity insurance to a minimum agreed to meet today's consumer needs;
- all will writers should comply with and adhere to an agreed Code of Practice;
- suitable disciplinary measures, including independent arbitration, should be in place;
- the consumer is held at all times at the heart of the Will Writers code of practice.
View of the legal profession and consumer bodies
2.10 There is also some unease amongst the legal professional and consumer bodies about the lack of regulation of non-lawyer will writers who provide a service for profit. There is concern that there is potential for non-lawyer will writers to exploit that lack of regulation to the detriment of the consumer.
2.11 The Law Society of Scotland said:
"The Society has serious concerns about the way in which will writers are currently able to operate without being subject to any form of regulation. A number of our members have reported incidences where they have received visits from clients who have been charged substantial sums of money by will writing companies to have wills drawn up that have either not achieved their intended testamentary objective or have lacked legal competence altogether. Scotland has always had a tradition of encouraging people to set out their testamentary wishes and as such, the courts will make every effort to ensure that these wishes are carried out as far as possible, regardless of the formality of the way in which they are expressed. The Society supports this tradition but given the complexities that can often arise would want those who seek to make a formal will to have the comfort and reassurance of knowing that their affairs will be settled according to their wishes. The Society would therefore urge the creation of a regulatory scheme for will writers, including requirements such as an entrance qualification, complaints handling through the Scottish Legal Complaints Commission, indemnity insurance and CPD to ensure greater protection for the public."
2.12 In its submission to the Justice Committee in respect of the Bill, the Scottish Law Agents Society wrote:
"Evidence is building of consumer detriment through the growth of completely unregulated will writing services. Some of these services are using commercial practices which are outlawed by the Unfair Commercial Practices Directive such as 'bait and switch'. An advertised fee is often £30 but the customer is then told that their circumstances are more complex and a fee of £400 is charged when the value of the work is less. Advice is given on English law rather than Scots succession rights. In some cases extravagant claims are made in relation to saving Inheritance Tax and/or liability for care home fees without it being explained that the scheme proposed is, at best, doubtful and may be wholly unnecessary… One recent example in the press relates to an English Will writer who misappropriated the estate leaving the beneficiaries with no compensation."
2.13 In its response to the consultation on the Bill, Consumer Focus Scotland said:
"We would at this time suggest that the Scottish Government also give consideration to the potential to introduce regulation for individuals or organisations offering will writing services. Whilst such will writing firms have had little presence in Scotland in the past, we are aware some of them have begun to advertise their services here. The Institute of Professional Willwriters has concerns that the recession will lead to an increase in the number of unscrupulous willwriters. Whilst we have no specific evidence of consumer detriment caused by willwriters in Scotland, we have concerns that bad practice will not be discovered until a person has died, by which time it is too late and the family must deal with the consequences of the bad practice."
2.14 In February 2008, Citizens Advice warned people to be wary of adverts and cold calls promising cut-price wills. Which? covered the story in an article in April 2008. Citizens Advice Bureaux reported increasing numbers of people who had been conned into parting with many hundreds of pounds by bogus will writers cashing in on people's desire to make sure their financial affairs are settled according to their wishes after they die. More recently, Citizens Advice has suggested that the case for independent regulation is considered, but cautioned that it would need to be proportionate to keep small, specialist will-writing firms in the market whilst enabling mass providers, such as banks, to develop will-writing services.