This Commons Library briefing paper considers arguments for and against statutory regulation of will writing.Jump to full report >>
This briefing paper deals with the position in England and Wales, except for Section 7 which deals with the position in Scotland.
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.
In its 2016 report on the legal services market, the Competition and Markets Authority (CMA) found three different levels of regulation in will writing:
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.
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.
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:
In its letter of response dated 19 December 2017, among other things, the Ministry of Justice:
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.