The LSB has launched an investigation into whether there should be wider and deeper regulation of will, probate and estate administration. You can get a good sense of the facts and the politics of this from Neil Rose here. The process is likely to lead to greater regulation of all will-providers not monopoly rights for the solicitors. The Chairman of the Legal Services Board is quoted as saying:
“Importantly, solutions will need to be targeted at the actual problems – it is clear from the results of the mystery shopping exercise – and the Consumer Panel’s analysis – that the challenges are common to all providers and that a monopoly for solicitors is not the answer. We are asking the existing regulators and trade bodies to explore the steps that can be immediately taken to raise standards across the market place.”
Indeed, the clamour of high street solicitors against shonky will-writers is poised to provide the profession with a glass houses moment. Research published today suggests poor quality of will-writing is not the domain solely of will writers but is a more prevalent problem. It also suggests that, in key regards, that quality is not significantly better than the unregulated sector. I am still digesting the findings but as well as looking at quality the study provides interesting evidence of how clients shop for will services (suggesting more shopping around than other studies, less narrowly focused, have suggested) and some residual concerns about self-help and internet provided services unless they are provided by well institutional services. It also points to a key problem with consumer- market-led reform of legal services. Most research shows that consumers tend to think quality is high even when it is not. Broadly speaking, this study confirms that trend suggesting markets don’t work when it comes to quality. The question then becomes: if markets don’t work, can regulation, and if so, what kinds of regulation?
I have précised below the executive summary of the study. It consisted of:
- A shadow shopping study (similar to mystery shopping but using real consumers rather than professional shoppers) consisting of 102 “shops” that resulted in the purchase of a will;
- A retrospective survey of 500 consumers who had purchased a will in the last 12 months; and
- A programme of 97 qualitative telephone depth interviews with solicitors and will-writing companies.
Firstly, let us consider some of the interesting marketing type findings.
How do clients choose their will writing service?
Solicitors more likely to be chosen because client had used them in the past (45% of those using sols) or been recommended to them (20%). Other providers were more often chosen for divers reasons with value for money and cheapness being the reasons for between 40 and 50% of them. Interestingly, a reason for using self-completion was that the will-writing process seemed simple and easy to understand (29%).
Interestingly, there was evidence of shopping around. 35% of respondents compared the will-writing services of different providers: half (51%) used a search engine; two-fifths (40%) contacted providers either by telephone or in person to obtain a quote (and these were most likely to use solicitors).
What affected their judgments?
Price was most likely to put people of solicitors (61% of those deciding not to use them). The figure for will-writing organisations was 40% – although interestingly a fairly high 36% cited concerns over their reliability. Concerns over reliability and whether wills would be legally binding were commonly voiced by those deciding against a self-completion approach (and more so among those who considered an online rather than paper-based self-completion approach). Some consumers were wary of services that appeared too cheap.
What did clients think of the service?
The vast majority of clients received explanations of the process that were clear, comprehensive and accurate; especially those who chose solicitors. They also agreed there were enough opportunities to ask questions (again solicitors did better here). This was, unsurprisingly, clear advantage over self-completion. Self completion clients also appeared to be asked about fewer relevant issues (say through the web interface). Similarly, there was less explanation of how their personal circumstances could affect their will or the costs of it.
Solicitors were more likely than any other mode to become the executor of the clients’ wills: 19% compared with 7% who used a specialist will-writer and 4% who chose the self-completion route. This raises an interesting question about how informed the consent was to that appointment given the potential conflict of interest. This is particularly so as solicitors also appeared to be more likely to suggest to clients that they appoint them as executors than other suppliers of will services. Although the researchers note:
“The shadow shopping exercise shows very little evidence of will-providers’ applying pressure on customers to appoint them as executor, although there was evidence of some hard selling, or playing on the customer’s conscience.”
The absence of a hard sell does not mean the client was given an informed choice.
In relation to will storage and Power of Attorney customers of specialist will-writers were more likely to feel pressured than those of solicitors, consistent with the importance of this income stream for specialist will providers and greater use of incentives on staff to sell such services. Interestingly will writers appeared more likely to exceed their cost estimates/quotes than solicitors.
Customers satisfaction of solicitors specialist will-writers was high and not significantly different. Being able to review the will with the will-writer was associated with satisfaction. They also generally found the will to be good value for money across the provider types suggesting that lower satisfaction with self-completion services was compensated for by lower cost.
Quality of the will
One-quarter of all wills collected failed the assessment mostly because they failed to meet the needs and circumstances of the client. Sometimes they were deemed not to be legally valid. They report:
“In line with the overall assessment, the highest scores for the quality of the will were achieved by banks or affiliate groups (3.30 on a five-point scale where 1 is “Poor” and 5 is “Excellent”), solicitors (3.28) and specialist will-writers (3.14); self-completion wills (paper: 2.67; online: 2.46) received considerably lower quality scores.”
Problems with the wills included:
“Inadequacy – where the content of the will does not account for an estate fully, fails to make adequate provision or neglects to take certain outcomes in to consideration. It also includes wills which are legally invalid;
Requirements – where the client’s requests have not been met (as specified in the testator questionnaire) through omission or conflicting specification;
Legality – where the actions specified in the will are potentially illegal;
Inconsistency – where the language, logic and/or content of the will is contradictory;
Detail – where items, people and requests are described in insufficient detail; and
Presentation – where the language and format of the document is lacking.”
Sometimes detriment led to “relatively small” consumer detriment sometimes there were, “high levels of consumer detriment, whereby beneficiaries might fail to receive all or part of their intended inheritance.”
The issue of detriment may be key here. The study will need careful consideration and it will be interesting to see how the investigation unfolds. The profession has picked up the stone of quality and hurled it at the will-writers. It was a surprising thing to do, from the point of professional self-interest. Research in analogous areas has tended to suggest that specialist non-lawyers can and do perform at or beyond the levels of competence of solicitors. This research is actually not as bad as one might have expected on prior evidence. Ultimately, though, the profession should be applauded for taking up the cudgels. If a better form of regulation can be found – the quality of will-writing should rise.