It's regulatory, my dear will writers

Which of these can you really trust? Your doctor with your health? Your dentist with your teeth? A will writer with your will? If you are not too sure of the answer, would it help if you knew for certain that two of the above professionals are regulated by law, while the remaining is not?

This may be a good question and answer for any solicitor to put to a client when they are debating a solicitor's charge for a will compared to seemingly cheaper deals that are offered by an unregulated will writer. There has been growing unease about the lack of transparency, adding to pressure for the sector to be regulated.

The first clear argument for regulation is that solicitors, like doctors and dentists, both have to practise under a clear statutory regime of regulation, while will writers do not. Those who are against regulation for the will-writing industry as a whole ask: does this matter? After all, having a section of the legal services market unregulated surely offers a better deal for the consumer overall?

However, the current situation is anti-competitive. Solicitors remain regulated by the SRA and thus have a regime of limits in the way they are able to market their will-writing and probate services. Will writers who are free from such limits are able to act as they please within the remit of existing legislation on advertising and fair trading. This has instantly placed the solicitors at a disadvantage in the marketing race. But it is the consumer choice issue that continues to dominate the regulation debate and as such to hope for even a basic framework one must understand the dynamics that exist between choice and protection.

The first argument against regulation stubbornly remains one of access to justice and that to introduce regulation for the entire will-writing industry would necessarily provide a barrier to this. The second is that the problems that have so far come to light within the unregulated sector relate more to charges that are being levied for probate services or probate assist packages. This is where clients are being asked to pay in advance to reduce charges that may be levied against the estates in the future '“ to pay a charge to reduce a charge.

This second point is a growing cause of concern but is not a conclusive argument against regulation of will writing '“ it is actually the reverse. This is because a full regulatory system would seek to examine and control such services which in some cases are being sold to the consumer as part of a will-writing package. These packages are surprisingly easy to sell as they appeal directly to the legitimate concerns of the consumer; namely costs without due consideration being given to all the potential dangers that may lie within them.

Redressing the balance

So what is the solution? Clearly the current situation is unsatisfactory. The solicitors cannot compete in the same marketing arena as they are regulated. The consumer remains largely unprotected from the unscrupulous types who seek to take advantage of the vacuum where regulation should be.

The argument that regulation is necessarily a barrier to access to justice is clearly one that must be addressed. Perhaps someone should ask: why is this the case? Obviously the answer is that by its very nature regulation introduces restrictive practices. However, this does not need to be the case. Instead, a compromise that promotes access to justice and provides consumer protection while allowing all to fairly compete must be made.

A complete review of the aims of regulation and how this is being delivered needs to be conducted and the imbalance that currently exists corrected. What this may mean is that some of the restrictions that are currently faced by solicitors, particularly in how they can market their services, are removed, while for the hitherto unregulated will writers some restrictions where deemed necessary for the protection of the consumer are added. The result would be the same. Will writing would be finally and universally regulated under one overarching set of rules, redressing the balance, widening service and provision and giving consumer protection. A major dividend in this approach would be a much-needed restoration in consumer confidence while finally opening the market up to true market forces and thus promoting access to justice.

Regulatory reluctance

So why is there a reluctance to do this especially when our neighbours in Scotland are forging ahead down the regulatory path? Well, there is an existing problem from the perspective of the consumer, not the lawyer, and regulating would at least go some considerable way to solving that problem. Until this case is conclusively made and accepted by the Legal Services Board, then the endemic problem will remain '“ the will-writing industry as a whole remains unregulated, subsequently meaning there is very little consumer protection available.

A further problem linked to a lack of regulation is that there arguably remains an incorrect perception that employing a will writer effectively means you are employing a solicitor, or at least someone who is qualified to the level of such. It is because of the complete lack of regulation that there is currently no national requirement foranyone who holds themselves out to be a will writer to have any kind of formal legal training whatsoever.

Unfortunately, as many people feel compelled to take the word of those deemed knowledgably authoritative, there is often little that can be done to ascertain just what qualification or training, or, more importantly, the significance of any qualification or training, that someone may have. However, there is an enormous difference which can be of the utmost significance to the ability of anyone who claims they can give you the best advice when drafting a will.

There is a suggested middle road which has been developed by several organisations in the form of self regulation for will writers. However, self regulation is exactly that. It has no formal government backing, and, as such, any will writer can join any organisation of the self-regulatory 'club' and claim they are regulated by them. This means that, should there be a complaint levied against the will writer to the self-regulating body, then at best if the complaint is upheld the self-regulating body can expel them. In cases where a consumer has lost money as a result of the actions of a will writer, then generally they would have to sue the said will writer or turn to their insurance company through the mainstream legal system in the hope of recovering some form of compensation for their loss.

This aside, there have been some recent advancements. One body has announced the endorsement of its Code of Practice by the Office of Fair Trading. Generally the code is to be welcomed as it attempts to address many issues of consumer protection. However, the niggling point remains '“ without clear government-backed regulation, the enforceability of it and the effect it will have on the industry as a whole remains questionable. The voluntary code is what it says '“ voluntary '“ with no real teeth to enforce it.

Choice and protection

The Fellowship of Professional Will Writers and Probate Practitioners has mounted a campaign to have the will-writing industry regulated. Although currently a self-regulating body '“ and to remain so until the government finally gets around to regulation '“ it has in every way emulated the role of a government-backed regulator in its structure.

It has a representative side which deals with its membership, but also its own appointed regulatory board that has guaranteed independence from the representative functions of the organisation. The regulatory side to the fellowship has created its own rules of practice for its will-writing members, together with a disciplinary code and panels that deal with breaches of the rules of practice of the organisation once a complaint has been properly received. It also operates a compensation fund to reimburse any member of the public who has suffered financial loss as a result of any negligence by its members in the provision of will-writing services.

In addition, it has a full suite of nationally accredited qualifications that its members must take to achieve practicing status of the fellowship, combined with a period of supervision. All of these things demonstrate a clear step up in an industry that continues to be self regulated.

The case for regulating the will writing industry as a whole has never been clearer. The government and those officials who have the power to do this should now be asking themselves: since will writing is undoubtedly a legal service, why should this be allowed to operate outside the framework of regulation? If the answer is consumer choice over consumer protection then this is no longer good enough '“ unless of course there is a suggestion that the legal profession as a whole should cease to have any kind of consumer-protecting regulation?

In the meantime, the fellowship can offer the general public properly qualified members who can deliver a first-class service who are regulated by its regulatory board '“ therefore offering choice and protection.