Towards the middle of last year a team from BBC 1's Panorama produced a documentary detailing evidence they had uncovered that catalogued horror stories provided by members of the public who had Wills drafted by Will Writing companies.
The Panorama investigation went on to reveal a growing problem of consumers being contacted by unregulated and unqualified will writers offering services that are often advertised at a large discount on the normal fees charged by a solicitor for a similar job.
The growth in non-solicitor will writing is due to the fact that, unlike probate work (more particularly the preparation of an Oath for Probate or Letters of Administration) and other work usually associated with a solicitor such as conveyancing, will writing is not a regulated activity. Therefore you do not have to be a member of a particular regulated body to set up practice as a will writer.
With an estimated 60 - 75% of the adult population without an up to date will there is a potentially huge market for anyone with access to the internet and a printer to make a decent living.
So where's the problem?
This may appear to be sour grapes from a Private Client Solicitor who is seeing someone else muscle in on his patch, charging a much lower rate than he is able to justify but an unregulated will writing sector is a danger to both the legal profession and society at large.
A solicitor will (in most cases) have received thorough training both in terms of taking proper instructions and in terms of drafting an end product that is suitable to the client's needs. A solicitor will also as a requirement of their practising certificate be required to undertake 16 hours of continuing professional training a year in order to keep themselves up to date with recent changes in law.
An unregulated will writer has no requirement for any initial training nor any continuing training and as such may not be able to advise clients as to subtle but potentially devastating changes in law. The will writer may not be able to spot other potential problems when taking instructions. For example a will writer with no broader legal training may not advise a client going through a divorce that unless a clean break settlement is reached there may be potential for the former spouse to make a claim on their estate if the client was to predecease them, courtesy of the Inheritance (Provision for Family and Dependants) Act 1975.
If a solicitor makes a mistake in drafting or does not follow instructions through correctly then the client has a course of redress through the Solicitors Regulation Authority and ultimately, if the client (or their beneficiaries or intended beneficiaries) suffer a financial loss then compensation can be gained through a claim against the solicitor's professional indemnity insurance. As members of a professional body solicitors must adhere to a strict code of conduct and have adequate indemnity insurance in place. For example my firm has both an internal complaints procedure together with carrying PII with a limit of indemnity running in to £3,000,000.00.
In the unfortunate circumstances where a will writer has drafted a will and something goes wrong there is no current requirement for a will writer to have any kind of complaints procedure or be backed with any PII insurance.
Using a solicitor over an unregulated will writer should be a no brainer. Regrettably many consumers will be lured in with the promises of a product being offered at bargain basement prices without realising that either they or their loved ones may be paying a higher price in the future.
I have not intended this piece to be a bashing of non-solicitor will writers in general. There are a number of good organisations out there providing a quality service. However, in the main such providers will belong to one of the several will writers bodies such as the Institute of Professional Will Writers who enforce a code of conduct and require their members to carry appropriate levels of PII. For this reason I back the calls by the Law Society, the IPWW and STEP (http://bit.ly/hvBJJS) for will writing to become a restricted activity that can only be done on a professional basis by a member of a recognised and regulated body.
It is my personal belief that such a move would create parity between will writers and solicitors and provide consumers with a degree of comfort in knowing that the person they have entrusted with safe guarding their family's future is at least trained to a minimum standard and armed with up to date knowledge.
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