LSB launches formal probe into regulating will-writing, probate and estate work

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Wills: solicitors produced as many poor-quality ones as unqualified providers

The Legal Services Board (LSB) today launched its first statutory investigation into whether to extend the scope of regulation, after its consumer panel recommended making will-writing a reserved activity.

The LSB’s investigation goes further, however, by looking at what measures are required to protect consumers in the probate and estate administration markets as well.

The LSB made it clear that reserving will-writing to solicitors was not the answer, with a new regulator dedicated to will-writers a possible outcome.

In the meantime the LSB is asking the current regulators and trade bodies to explore “the immediate steps that can be taken within the existing regulatory structures to raise standards across the market place”.

The panel’s extensive research into will-writing discovered evidence of poor-quality wills, sharp sales practices and lost wills where companies disappear without trace, with solicitors just as likely to produce poor-quality wills as unregulated will-writers.

As a result, the panel also called on the Solicitors Regulation Authority to consider strengthening the will-writing part of the legal practice course, and that the joint regulators’ education and training review should “consider the lessons of will-writing, particularly on the issues of specialisation and ensuring the ongoing competence of lawyers”.

The panel said the evidence suggests will-writing companies, which it estimated prepare about 10% of the 1.8m wills made a year, “provide a valuable alternative to solicitors as they tend to be cheaper and the key element of their business model – providing wills and related services in the home – appeals to consumers due to the flexibility of service”.

It added: “The best will-writing companies at least match the service provided by solicitors.” A survey conducted by the panel found that 90% of consumers would recommend their will-writing company to others.

A mystery shopping exercise of 101 wills found that a quarter of wills prepared by both solicitors and will-writers were failed, with more than a third of all the wills scoring either poor or very poor. Those prepared by banks scored the best, with those completed by consumers online scored the worst.

Eight of the 101 wills were judged not to be legally valid or meeting the client’s stated requirements, while 24 were failed for poor quality, such as cutting and pasting of precedents.

The panel suggested that the Institute of Professional Will-writers’ code of conduct – which has been (OFT) – could be the starting point for a regulatory regime. “Around this core should be added greater monitoring of the quality of wills and some regulatory arrangements that apply to solicitors, such as falling within the Legal Ombudsman’s jurisdiction.”

In the meantime it said the OFT should lead an enforcement campaign targeted at the minority of will-writing companies responsible for the worst sales practices, such as pressure selling and exorbitant prices.

Panel chairwoman Dr Dianne Hayter said: “The panel was shocked by the poor quality of wills in the mystery shopping. Although the sample was small, will-writing companies and solicitors were equally culpable, pointing to the need for tighter controls across the sector. Only by requiring all providers to be regulated and to demonstrate their competence can consumers enjoy peace of mind that their final wishes will be respected whoever prepares their will.”

LSB chairman David Edmonds said: “On the basis of these findings, and the evidence we have seen, we agree that is a prima facie case to start a statutory investigation into regulation, not just of will-writing but also of estate administration and probate. This will be the first time that this process has been used and we will be consulting widely on responses to these findings, which clearly indicate consumer detriment across wills produced by different types of providers.

“Importantly, solutions will need to be targeted at the actual problems – it is clear from the results of the mystery shopping exercise and the consumer panel’s analysis – that the challenges are common to all providers and that a monopoly for solicitors is not the answer.”