House of Commons Library

Regulation of will writers

Published Thursday, November 29, 2018

This Commons Library briefing paper considers arguments for and against statutory regulation of will writing.

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This briefing paper deals with the position in England and Wales, except for Section 7 which deals with the position in Scotland.

The issue

Some types of legal activities, known as “reserved legal activities”, may be carried out only by regulated “authorised” legal professionals, such as solicitors and barristers. However, other legal advice, including will writing, may be delivered by people (“unauthorised providers") who are not regulated in the same way.

There is no sector-specific regulation that covers will writing and no-one is legally prevented from offering will writing. A similar service may be offered by regulated legal professionals, such as solicitors; will writers subject to a self-regulatory scheme; and will writers who are not subject to either compulsory or voluntary regulation.

A problem with a will may not come to light until the testator (person making the will) dies, which may be many years after the will was written. If there is a problem, the redress (if any) available may be dependent on who wrote the will, and complainants may not have anticipated this.

Regulation of will writing

In its 2016 report on the legal services market, the Competition and Markets Authority (CMA) found three different levels of regulation in will writing:

  • at a minimum level, all providers are subject to general consumer law;
  • regulated legal professionals are covered by their wider professional regulation and are subject to additional requirements intended to protect consumers, including access to the Legal Ombudsman, mandatory Professional Indemnity Insurance, training requirements, and codes of conduct;
  • the CMA found that around half of unauthorised providers have signed up to be regulated by voluntary bodies, such as the Society of Will Writers and the Institution of Professional Willwriters, which have similar requirements to those of regulated legal professionals – the CMA also considered the effectiveness of self-regulation.

Arguments for and against regulation

Arguments have been advanced both for and against regulating will writing, based, for example, on the need for consumer protection on the one hand, and the cost, burden and effectiveness of regulation on the other. The Labour Government decided against making will writing a reserved legal activity because it considered at that time that there was insufficient evidence that statutory regulation was necessary – it favoured voluntary regulation instead.

Legal Services Board recommendation that will writing should be a reserved legal activity – rejected by the Government

The list of reserved legal activities may be extended on the recommendation of the Legal Services Board (LSB). In February 2013, following a statutory investigation, the LSB recommended to the Lord Chancellor that will writing activities should be reserved, on the basis that the risk of detriment to consumers was significant enough to warrant regulation.  

In May 2013, the then Lord Chancellor announced his decision not to accept the LSB’s recommendation. He acknowledged that the LSB had identified consumer detriment in the will writing market. However, he considered that further efforts should be made to address the problems through alternatives to regulation, in order to ensure that the costs and burdens of increased regulation were not imposed unnecessarily. The LSB and several interested parties expressed disappointment with the Government’s decision.

Competition and Markets Authority legal services study

On 13 January 2016, the CMA began a market study into legal services in England and Wales to examine whether they were working well for consumers and small businesses. As part of this exercise, the CMA carried out a detailed examination of will writing and probate services to individual consumers.

The CMA published its Final Report on 15 December 2016. With regard to will writing services, the CMA found a range of consumer protection issues but had not been able to identify the scale of any consumer detriment. It also found evidence that it was a “small rogue element” rather than the broader unauthorised sector which caused problems.

The CMA concluded that there was there was potentially a role for some regulation of will writing, such as training and entry requirements, but that more evidence was needed.

The CMA recommended (among other things) that the Ministry of Justice should:

  • work with the Legal Ombudsman, the self-regulatory bodies, Citizens Advice, HM Courts and Tribunals Service and the Probate Service in order to consider whether there is scope to adapt existing data sources to collect additional information relating to the unauthorised part of the sector;
  • look at whether to extend protection from existing redress schemes to customers using ‘unauthorised’ providers; and
  • review the current regulatory framework to make it more flexible and targeted at protecting consumers in areas where it is most needed.

In its letter of response dated 19 December 2017, among other things, the Ministry of Justice:

  • accepted the recommendation to work with others to consider the scope to adapt existing data sources to collect additional information;
  • agreed to review any case made for extending redress to consumers using unauthorised providers; and
  • agreed to “continue to reflect” on the potential need for a formal review of the regulatory framework – but without a commitment to carry out such a review.

Scotland

The Legal Services (Scotland) Act 2010 contains provisions which would allow for the regulation of will writers. However, these provisions have not been brought into force.

In October 2018, the report of a Review of the Regulation of Legal Services, which was set up by the Scottish Government, recommended the creation of a single, independent regulator for all providers of legal services in Scotland.

The Review recommended that will writing should continue to be unregulated (although it noted that, in practice, many will writers are part of a voluntary regulatory regime). It should not become an activity that only solicitors could carry out. It would be up to the new, independent legal regulator to make proposals to change this system in the future.

The Scottish Government is currently considering the Review’s recommendations.

 

 

Commons Briefing papers SN05683

Author: Catherine Fairbairn

Topics: Civil law, Wills and intestacy

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