Regulation of Will Writing
Those of us drafting Wills for a living are increasingly tired of the old saw that most Wills are simple. The Law Society campaign arguing for the regulation of Will writing has included anecdotal evidence of poor drafting and sharp practice which may encourage regulation. Against this backdrop the Legal Services Institute has published a paper entitled: “Legal Services: What is the case for reservation?” and I would commend Will draftsmen to read it.
In February 2011 the Legal Services Institute, a policy body which was set up by the College of Law, issued the second of its papers focusing on the regulation of legal services in the run up to 6 October 2011. In its first paper it examined the origins of the six reserved legal activities found in s.12(1) Legal Services Act 2007 (LSA 2007) and considered whether there was a sound basis for them. It also attempted to elucidate as a matter of policy how reserved services might be identified and justified. In this second paper it moves into the area of what the reserved activities should be and why and how reservation sits alongside other approaches to regulation.
Regulation & Reservation
The first part of this paper addresses the eight regulatory objectives of the LSA 2007 which the Legal Services Board (LSB) are under a statutory duty to promote and considers how reservation might be relevant to delivering these objectives.
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The second part of the paper then addresses the reserved legal activities and who carries them out – individuals or entities. It considers that the multi-faceted approach to regulation adds some complexity which may confuse consumers. It makes the argument that for reservation to be a justifiable regulatory response it is necessary to be satisfied that regulation and reservation are in the public interest and either other responses are less effective at doing that or reservation affords a degree of additional protection to clients by virtue of their purchase of a reserved activity.
Particular legal activities
In part three of the paper attention is turned to those cases where a case could be made for reserving a particular legal activity. The Institute clearly says that where it thinks that it is appropriate to reserve a particular activity it is not saying that those who are authorised must be legally qualified.
A distinction is made between the reservation of certain legal activities where the Institute believes that the justification of reservation should be based on principle whereas other legal activities might be reserved but only if they are supported by evidence of risk or detriment to consumers.
Activities connected to the administration of justice and due process fall into an existing category of reserved activity which the report suggests is essential to ensure continues as authorisation of persons to carry it out would result in ‘higher levels of self-representation and litigants in person, as well as – perhaps more disturbingly – by many paid but incompetent or inexperienced advocates.’
Notarial activities are also considered sufficiently important to the securing of effective administration of justice. Immigration advice and services are currently regulated but not reserved activities and the report recommends that as it is in the public interest that advice and representation in relation to a citizen’s status should be given only by those appropriately qualified so as to ensure that only those entitled to the benefits of citizenship have the rights attached to it then it too should be a reserved activity.
As we Will draftsmen know, Will writing is neither reserved nor regulated at present, unless it is carried out by a regulated person such as a solicitor. This category of legal service falls within the section the report calls ‘consumer protection reservations’. That is, if a risk and detriment is known to exist for the consumer then the need to protect them from just simple market forces requires reservation.
The Legal Services Consumer Panel therefore called for evidence and many different bodies, including the Law Society, responded many using their own surveys to convey the reasons why Will writing might be regulated or not.
The Institute believes there is a strong case for the preparation of a Will or other testamentary instrument to be a reserved activity carried out by an authorised person. Their reasons for this are:
- Detriment to the consumer might be caused by incompetent, inadequate or biased advice
- An invalid Will or one that does not properly give effect to their intentions might result
In any case these shortcomings would in many cases only come to light after death when the testator can no longer clarify their intentions or execute a valid Will. After the event compensation is not in the Institute’s view an adequate remedy because at the least it will involve the estate in some cost and inconvenience.
The report also mentions that it is in the public interest to have parity of treatment within the UK and since Scotland has already given its authorities the power to regulate Will writing it would not be sensible to avoid it in England and Wales.
The report does not undermine testamentary freedom since it does not suggest that authorisation should only be granted to lawyers. It recommends an exemption should exist for both testators to make their own Wills and for individuals acting without payment or in expectation of gain or other reward to prepare Wills. Consumers should therefore be free to choose whether or not to gain the benefit of protection by instructing an authorised person or whether to take a risk.
Interestingly, the report goes on to recommend the removal of the current probate reservation but its replacement with a much wider reservation to sensibly cover the administration of estates following the issue of a Grant of representation but again as with Wills, such reservation would not simply be the preserve of lawyers.
The Legal Services Institute has added a much needed principled approached to the at times emotional reaction to the question of regulation and reservation. The endorsement of the view that Wills writing and estate administration should be reserved activities for the better protection of the consumer is welcome and may lead to a better playing field rather than a completely level one in the provision of such services if the LSB agrees with the report’s conclusions.
To read the whole report see
© Gill Steel LawSkills Ltd
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