Private client focus | Unreserved will-writing activities – a death knell for solicitors?

In spite of recommendations to the contrary given by the super-regulator the Legal Services Board, and after tenacious lobbying by the Law Society, Chris Grayling's announcement that he would not regulate will writing may result in further squeezes to already hard-pressed solicitors up and down the country. How should solicitors react to the presence of will-writing businesses in a world where it is not, now, going to be a regulated activity and where new entrants are already starting to make waves? How should probate practices adjust?

The "bears" in the profession say that solicitors will face ever more competition from cut price, less-qualified will writers as well as other new providers (including online), and that this will undermine an already largely commoditised practice area to such an extent that it is no longer possible for lawyers to practice profitably in this field. With over 7,000 firms listed by the Law Society as practising in wills and probate in England, there could be a huge fall out ahead.

However, a closer analysis of the characteristics for the will-writing market offers a more positive view. First, the market is, potentially, far from mature in the UK. It is estimated that as few as three out of ten people in the UK have made a will, and this is in spite of the wide availability of DIY wills costing as little as £9.99 on the high street. This low penetration suggests that not only is there a large, untapped market to develop, but also that price is not the principal reason for such latency.

If anything, it would seem that it is our complacency in making a will - at least until later in life - which explains this low figure. Businesses which find the key to converting more of us to make a will, and to make our first will earlier in life, can prosper.

The will-writing market is also far from homogeneous, and offers scope for further segmentation. Not only do purchasers have widely differing needs, from very standard wills to highly complex ones, for example involving tax advice or cross-border issues, but the will-writing service itself can be delivered through different mechanisms, ranging from face to face advice to online forms and algorithms.

This segmentation enables a wide range of providers to co-exist profitably, so long as they define precisely which segment of the market to address and design their service and pricing accordingly.

Where a will is straightforward, the market is already largely commoditised with prices to match, and increasingly competitor services are emerging to meet the needs of these clients. The legal profession has (at least for the time being) lost the argument on whether non-solicitors can provide sufficient quality to protect consumers, and so competitor services, whether through the likes of Co-operative Legal Services, an unlicensed will-writer, as a form purchased online or from a high street newsagent, will no doubt tend to offer a more-cost effective, if generic, service to the traditional face to face solicitor's advice.

Lower-cost delivery

The MOJ's decision may simply hasten the already declining competitiveness of traditional solicitors' services in this segment - a new approach is needed. One such approach is lower-cost delivery, which favours the use of IT, as predicted by Richard Susskind in his revolutionary book The End of Lawyers? If this is online, it has the benefit of opening up the market to a wider geographical reach than simply the town or high street of the solicitors' office.

In contrast, at the other end of the '¨scale are more complex wills, where '¨people will continue to pay for high quality advice tailored to their specific requirements, and where lawyers can continue to compete effectively.

What then should solicitors do to protect, and grow, their will-writing practices? Most obviously, but often forgotten, they should continue to engage with their existing clients for whom they have previously written wills. This wills "bank" offers the possibility of periodic repeat business - after all, the client already took the view to seek the help of a solicitor. So there should be a systematic process of reviewing wills in the "bank", and of contacting clients for whom wills are held to check that the client's needs have not changed, for example through marriage, divorce, second families, new wealth, or a change in the law.

Even where no changes are required, regular contact might lead to them instructing the firm on other matters, or recommending a contact to become a new client of the firm. It should also improve the firm's chances of being appointed ultimately to advise on the administration of the estate, a typically higher value instruction.

Delivery is key

Next, solicitors should identify which segment(s) of the market they currently operate. A number of factors come into play, which may include the location of the firm, the presence of any affluent clients with more complex financial affairs, and of course the firm's size and its market profile.

If private clients tend to be in the commoditised segment of the market, '¨they are likely to be very price sensitive '¨and increasingly look to use low cost, alternative providers over a traditional solicitors' service.

The firm will therefore need to look at how to deliver the lowest cost possible service as its overall priority, a combination of lower input costs coupled with greater time efficiency and higher volumes. Lower cost staff, for example legal executives, is a common solution to reduce input costs.

Firms may also consider outsourcing, using staff located in cheaper premises, or home or part-time workers. Employing technology, for example online forms to fact find and produce a draft will which a solicitor then reviews, increases efficiency by reducing expensive lawyers' time.

This has helped competitors offer wills for as little as £89, a fraction of the time '¨cost approach traditionally used by '¨many lawyers.

Such strategies are already familiar '¨to the legal profession, if not always in '¨use. It is surprising how many private client practices still use expensive, quite senior lawyers, to produce relatively '¨simple wills because it helps with the utilisation of their existing staff. Too often, firms will procrastinate rather than take difficult decisions about reshaping the cost base; increasing competition will limit how much longer this can happen and will '¨force change.

Value-added

Alternatively, solicitors may look to add in services to make a higher cost service '¨more appealing to price sensitive clients. This might include, as examples, lasting powers of attorney or a future will review. There may be a further marketing benefit '¨to the firm from this approach in that it '¨may help maintain a degree of loyalty by the client, and possibly bring other, unrelated instructions. A longer-term strategy to consider is whether to build '¨up a capability in contentious probate lawyers and target disputes arising out of poorly drafted wills which may result from over-commoditisation.

For clients with more complex affairs, the commoditised service is less likely to be appropriate, and here solicitors can better compete on the bases of service and expertise. Though the size of an estate is one factor, there are many others which mitigate towards a more bespoke service; sharing a property with someone who isn't a husband, wife or civil partner, or family members who may make a claim on a will, for example as a result of more than one marriage, are common features, as is owning a business. Solicitors can employ '¨a number of strategies to compete for '¨these clients.

One way is to invest in the firm's profile and brand, whether directly through advertising, PR and online optimization or by joining solicitor franchise branding networks, but these are likely to be very expensive. While there are benefits from this approach, the franchise branding network in particular does not target a specific segment of the market other than by geography - the pay back is therefore uncertain.

A more focused strategy would be to target other professionals who already advise such clients, whether commercial '¨or family law specialists with no private client capability, or local accountants or estate agents.

Through these networks, in-market recommendations should lead to referrals and the prospect of new clients. It is worth considering that the business these professionals are advising on, for example buying or selling a business or property, or getting divorced or re-married, are the types of events that trigger new wills.

They may even provide the opportunity of converting some of the complacent majority into finally addressing the need to make a will.