The Association of Will & Probate Lawyers are a non-regulatory or diciplinary Association

formed to encourage co-operation and understanding between Will Writers,

Solicitors and other members of the legal profession.

SORRY, NO FURTHER APPLICATIONS FOR MEMBERSHIP ARE BEING CONSIDERED AT THE PRESENT TIME

Should Professional Will Writers be subject to statutory regulation?

The decision of whether the general public would benefit from the statutory regulation of Will Writers should not be based on a small number of proven cases where a Will writer has prepared an inappropriate Will, it must be based on the effectivness of such regulation.

Recently an article in the Saturday Times ‘money section’ condemned a major high street Bank which apparently charged excessive fees for the handling of the administration of an estate after death. The article then went on to criticise Will Writers in general, recommending that they be subject to compulsory regulation. The preparation of papers for probate (papers required to found or oppose a grant) is a reserved activity under Schedule 2 of the Legal Services Act 2007 and therefore this element of the estate administration would never be carried out by a Will Writer.

It is unlikely that regulation could be justified purely on the basis of a few articles found in the press (who may not always be clear on the differences between probate and the writing of Wills) and the opinion of a small number of individuals who may not be considered to be impartial.

If a financial adviser, Will Writer, book keeper, banker, legal executive (not under the supervision of a solicitor) or any other person or organisation is providing a ‘probate service’ for a fee, although not actually preparing probate papers, then this indeed might justify an amendment to the Legal Services Act but surely not the compulsory regulation of one profession. It would certainly be considered wise for any Testator to think carefully before appointing the person or firm preparing their Will(s) to act as executors of their estate.

What difference would compulsory regulation make?

Following the 'Credit Crunch' a number of Will Writers have ceased trading, however many still provide a useful home visit service to discuss their clients requirements, take instructions and return in person for the explanation and attestation of the Will. Most do not carry out estate administration or probate.

Will Writers who are members of the Society of Will Writers or the very much smaller Institute of Professional Will Writers should already have their own Professional Indemnity Insurance (normally with at least £2,000,000 cover). They should also have their own Terms of Business with friendly and speedy procedures for dealing with any complaints. Their Code of Practice should already ensure that clients have the correct information on the service provided prior to the appointment as well as a clear explanation of the fees. Most importantly complete discretion and confidentiality should be maintained at all times.

Will Writers are already subject to existing Government rules and regulations including the Consumer Protection from Unfair Trading and Cancellation of Contracts made in a Consumers Home or Place of Work Regulations (7 day notice of right to cancel).

It is estimated that approximately 8% of those making Wills use the services of a Will Writer but a higher percentage use an online Will Writing System or DIY Will Writing Packs where clearly regulation is not an issue.

The most convincing argument for compulsory regulation comes down to the number of successful negligence claims made against Will Writers and whether these exceed the numbers of successful claims (pro rata) made against (regulated) solicitors. If this is found not to be the case then an increase in compulsory Government regulation may be very difficult to justify. It may be suggested that perhaps anyone submitting a case for regulation should research this information first.

In summing up it seems that an increase in compulsory Government regulation could be an over reaction that may be of little (if any) benefit to the general public, or the Will Writing Profession. The costly regulating of other activities in the past have not necessarily provided the desired level of customer service and protection.

At this stage, no decision has been made to investigate the compulsory regulation of will writing. However, the Legal Services Board has indicated that it will examine the current split of reserved and unreserved legal activities as part of its 2010-11 work programme. This will include analysis of the costs and benefits of regulating currently unreserved legal activities, of which will writing would be an example.

AWPL Member

16 April 2010 

16 June 2010 - Office of Fair Trading (OFT) Press Release confirmed that only 7% of those making a Will used the services of a Professional Will Writer and 43% used a solicitor.