As Neil Rose’s blog in the Guardian indicates, there seems to be something of a head of steam gathering towards the regulation of will writers. A Panorama expose and plans to regulate in Scotland have thrust the issue into the spotlight, as has the Legal Service Board’s request that their consumer panel investigates whether this is an area meriting greater regulation. Furthermore the Society of Trust and Estate Practitioners released a survey saying that 75% of its members have encountered cases of “incompetence or dishonesty” in the will-writing market in the last 12 months.
Implicit in much of this is the assumption that solicitors are regulated and will writers are not and that therefore will writers need to be regulated. The LSB might well take another view, that will writing rather than will writers needs to be regulated, if they feel a need to do anything at all. Why?
It is possible they will decide to do nothing. Their approach to referral fees has been to require their to be significant evidence in favour of regulation before they do anything and they clearly do not think yet that there is sufficient evidence to establish the nature and extent of any problems. STEPs evidence is interesting but self-serving (our members think non-members are not competent, quel surprise). Panorama indicates the potential seriousness of the issues but not their extent.
The evidence so far suggests that there are problems with transparency of charges and with the quality of wills as well as more ‘straight-forward’ allegations of fraud. It is tempting to put this evidence alongside the fact that will writers do not require education and training to set up in business (nor are they required to hold professional indemnity or meet fitness to practice requirements, witness one firm in the Panorama programme employing a former solicitor who had been struck off for dishonest offence(s)) and say the problem is that we should require will writers to be regulated by dint of their being non-lawyers. There is no evidence yet (putting to one side the ex-solicitor) of whether the problems Panorama identified are also found amongst solicitors doing wills and probate work but any confidence is not strengthened 11% of all complaints against solicitors are in this area. Furthermore, lack of transparency in charging problems have been identified in research that has looked at solicitor-client costs. Perhaps more surprisingly not many who have undergone (or provided!) legal education, research in other areas of work directly comparing lawyers and non-lawyers has not found the lawyers outperforming the non-lawyers: specialisation not qualification has generally been found to be the key.
We can expect any work done by the Legal Services Board and its Consumer Panel to focus both on whether transparency and competence is something found in both the regulated and unregulated sectors of the market. There is much to be gained from a better regulated will writing market if it can be regulated cost-effectively. It may be sensible to require clear and simple charging approaches. In my view, only simplicity is intelligible by consumers and encourages effective competition. There needs to be one clear price for a service. I’d suggest requiring charges to be either a fixed fee or a percentage fee but not a combination of the two, for instance. Establishing and regulating the competence of practitioners, but specialisation and assessment of competence will need to be rigorous and meaningful if it is to work – that risks dampening competition of course and I would expect the LSB to need quite persuasive evidence of widespread competence problems to embark down that route.
Opportunities for exploitation in will writing are significant and worrying. Allowing the unregulated to steal from the rich has the regulatory toxicity of a death tax but more importantly tackling mistrust may increase the proportion of society that have wills, but I would be surprised if such regulatory change focused only on the unregulated sector.