Will they, won't they

During the passage of the Legal Services Act 2007, many aspects of legal services reform were discussed and debated. But one area that remained unchanged was the list of reserved legal activities '“ those areas of practice that can only be performed by lawyers. A wide variety of activities, such as will writing and the provision of general legal advice, remained able to be provided by anyone who chose to enter the market to do so.

Historically this has been an academic point because, practically speaking, there were few alternatives to visiting the local high street solicitor for a will to be written. However, since the late 1980s this picture has changed dramatically, with a proliferation of non-lawyer will writers entering the market alongside the growth of do-it-yourself options. A recent Law Society survey found that a third of respondents who had made a will had used a non-lawyer will writer.

These changes in the market have had the positive effect of creating greater choice for consumers. But many have argued that the emergence of non-lawyer providers has left clients exposed to harm and poor practice, leading to calls for will writing to be brought within the scope of legal services regulation.

The argument has been supported by horror stories of consumers suffering considerable detriment while attempting to secure an effective will. During 2010, legislation was passed in Scotland that will make it illegal for anybody to write a will for payment if they are not authorised and overseen by a legal regulator. These Scottish reforms have led to greater calls for the same position to be adopted south of the border.

The question of whether will writing should be regulated differently is one that has provoked concern among commentators on legal services regulation for decades. But, despite how many times problems have been raised by consumers and their representatives, little has been done to develop a sound evidence base on which to set out a way forward. Until now, the debate has been characterised by anecdote rather than hard facts.

Fact-finding mission

Parliament left the door open for the Legal Services Board (LSB) to look in more detail at this area '“ and at other activities not currently on the 'reserved' list. The board is currently developing a framework that will allow objective decisions to be taken about the scope of regulation '“ including whether, and if so how, regulation should extend to will writing.

In forming that view we need to develop a proportionate response to the challenges that we identify in the will-writing market. Part of this will be to move beyond individual complaints to a comprehensive evidence base of all the different problems, both current and potential, that are being experienced by consumers and beneficiaries of wills.

We need to find out how widespread each problem is, why it happens and what the impact on consumers looks like. Only by fully understanding the problems can we develop the most effective interventions.

Proportionality is key '“ restricting who can write wills could have the effect of driving up the cost of services as well as driving out more flexible ways of providing advice. We know that half of consumers in this country have no will at all, meaning we need to be careful not to impose extra compliance burdens that worsen this access to justice gap.

Reservation to specified groups of lawyers is the most extreme of the options for intervention. The best and most effective response will be one which delivers the consumer protection required while maintaining the greatest accessibility and choice for consumers.

To help build the evidence base in this area, we have asked the Legal Services Consumer Panel to explore problems experienced by consumers. Their investigation is examining the following areas of consumer detriment that have been brought to our attention:

• Poor quality of wills owing to invalidity or in cases where the will does not reflect the testator's wishes.
• Unfair commercial practices, such as bait advertising and pressure selling, leading consumers to purchase unsuitable services or to pay inflated prices.
• Cross-selling of probate, estate administration or other related services causing detriment to beneficiaries.
• A lack of transparency meaning consumers do not make informed choices or do not realise the consequences of their purchase decisions '“ this includes who they choose to be their executor.
• Consumers failing to make a will because of avoidable barriers to access '“ for example, cost, lack of awareness or being put off by the use of jargon or unnecessarily complex English.

A unique feature of the market is that problems with the technical quality of wills are unlikely to be discovered until the testator has died. To overcome this and bring together evidence, the LSB and the consumer panel '“ supported by our funding partners the Office for Fair Trading and the Solicitors Regulation Authority '“ have commissioned a series of strands of original consumer research.

Mystery shoppers

An early element is a shadow shopping exercise. This involves recruiting 100 ordinary consumers to make wills using a variety of different types of provider; including solicitors, non-lawyer will writers and 'do-it-yourself' options. The sample covers individuals with both simple and complex circumstances '“ testing the full range of service needs.

To assess the spectrum of results, we have established an expert panel of volunteers made up of different types of solicitor and non-lawyer will writers to evaluate the quality of the wills.

While the 100-strong sample size of this qualitative exercise does not allow for robust statistical extrapolation of results, it will provide a sound picture of the variance in quality between different types of provider.

The post-purchase questionnaire will also explore with consumers their experience of both the shopping and the will-writing process '“ with questioning focusing on whether consumers felt there were misleading claims, pressure selling or general sub-par customer service.

Alongside the shadow shopping exercise are two other major strands of consumer research. The first of these will be a retrospective consumer study, built through a quantitative post-purchase survey with 500 consumers who have purchased a will over the past year.

This will explore a range of issues, including the type of provider and delivery method, selection criteria, time taken for the process, satisfaction levels, perceptions of value for money and fair sales practices. The second strand will be based on in-depth telephone interviews with 100 will-writing providers to discuss their approach to composing wills.

Alongside this original research, late last year the consumer panel issued a call for evidence to providers, regulators, charities, trade bodies and consumers concerned with will writing '“ both inside and outside of the legal services sector. Submissions were invited on issues including evidence of consumer harm, degree of professional skill needed to write wills, vehicles for consumer protection, the approach that ought to be taken by regulation and the effect of compliance burdens. While respondents tended to be in favour of regulation in the main, each had different thoughts about which form interventions ought to take and how regulation would operate in practice.

The panel also asked members of the public, lawyers and other professionals to contribute case studies to help build up a picture of the consumer experience. More than 400 such case studies have been received, with many illustrating vividly the problems and frustrations experienced by some consumers. Further statistical data is also being collected, including the number and details of complaints about will-writing services received by Consumer Direct.

Timeline for resolution

The LSB's aim is for the full range of research to be generated by Easter, bringing together the final strands of evidence for the consumer panel's investigation. Following a period of analysis, the panel will deliver its advice to the LSB during July 2011. This will then act as a key evidence component for the LSB's own consideration of this area. The subsequent timetable for the LSB will then be determined by the nature of the recommendations.

Should the LSB conclude that the case has been made out for will writing to be made a reserved activity under the Legal Services Act 2007 the statutory process for extending reservation will commence, with the ultimate decision lying with the Lord Chancellor. We aim to consult on the proposed way forward by early 2012 at the latest '“ giving all with an interest the opportunity to have their say.