The Law Society has supported the introduction of mandatory regulation of Will writing, probate and estate administration activities.
In its response to the Legal Services Board's (LSB) consultation to extend reserved activities to Will writing and probate, which closed on 16 July 2012, the Society said the entire process from the initial contact with the client through to the execution of the Will should be reserved to ensure high service standards and adequate consumer protection. The regulation should be wide-ranging to include trusts and powers of attorney so that customers would have greater clarity on what protection they get.
Drawing a Will and administering an estate to pass a deceased person's assets to their successors whilst executing that person's end of life wishes in a proper and lawful manner can be a complex process. It entails financial and legal issues, some of which may be highly technical involving trusts, property rights, taxes, international law, as well as issues related to vulnerable clients. Moreover, a badly written Will shows its defects only after the Testator's death, leaving the beneficiaries with very limited options that often involve complicated and hard-to-afford litigation.
It is therefore vital for those who are authorised to draw Wills on behalf of their clients to meet minimum regulatory requirements to shield the public from any bad practices. The Society considers all persons who are empowered to perform reserved legal activities should be subject to consistent standard of regulation and believes a risk-based approach to regulation should be sought.
The Society further said it views the poor scores in the mystery shopping research on 102 Wills conducted by the Legal Services Consumer Panel as having no representative value because of the small sample size and cautioned against the use of those findings as a foundation for establishing probate regulation.
The Society considers the Solicitors Regulation Authority's (SRA) new regulatory approach based on risk and focused on outcomes is sufficient for appropriate regulation of Will writing and estate administration.
Extending the scope of reserved activities to Will writing and probate would not hurt competition, the Society claims. The regulation of Will writing and probate would bring better safeguards for consumers, thus fully compensating any rise in the cost of services. Unregulated Will provision may even turn costlier in the long term when taking into the picture hidden add-ons such as Will storage expenses. In fact, most consumers would pay a higher price to have a Will prepared by a regulated provider if they get better protection, the Society said, citing its 2010 survey on factors determining consumers' choice on Wills.