Willing to change

The Law Commission estimates that over 40 per cent of the adult population still does not have a will and, of those that do, some will be found to be invalid at the time of need. The Law Commission has recently announced that this is because of the current archaic legislation that still governs this area of law. For those who choose not to clarify their wishes during their lifetime, the law imposes strict, out-of-date and restrictive provisions.

For those who do choose to make a will, the rules that have to be adhered to stem from legislation created in the 1800s. This has been criticised for being unworkable in practice and difficult to apply. Couple this with the fact that the wills and estate administration industry is totally unregulated (meaning anyone can set up a business to write wills or administer estates) and it is no wonder there have been calls for reform in the whole sector over the last few years.

In July 2011, the Legal Services Board (LSB) announced that they were using their powers under sections 24 and 26 of the Legal Services Act 2007 to commence the first statutory investigation into will writing. They looked at how best to protect consumers for both will writing and estate administration. The investigation was intended to decide whether these activities should be added to those ‘reserved’ for professionals authorised by an approved regulator.

Regulation won’t help

The LSB sought to confirm reports that unregulated will writers were at the heart of the problem following previous research carried out among Law Society members in 2006. Newspapers reported that some 70 per cent of solicitors responding to the survey said that they had come across clients who reported problems after using an unregulated will writer. However, evidence compiled during the investigation showed that there was no difference in the quality of documents produced by unregulated will writers to that produced by solicitors.

While they identified problems within the sector, the Ministry of Justice confirmed that regulation is not the best way forward and other options should be explored. With the number of regulated solicitor errors being equal to errors made by unregulated individuals, it is perhaps easy to see how this decision was reached. Eliminating the non-solicitor will writing sector would not have a beneficial effect for the consumer; it would simply narrow the choice available to them without improving the quality. Although the industry was somewhat shocked by the outcome of this lengthy investigation, it has prompted positive moves in many sectors of the industry.

Alternative remedies

The Law Society has introduced its Wills and Inheritance Quality Scheme for solicitors, designed to “help prospective clients to make a confident and informed choice of local legal practice”. The Law Society president stated that the scheme was designed to differentiate subscribing firms from those with “infrequent experience, generalists and new market entrants”. The firm-level accreditation scheme involves a wills and estate protocol, compulsory training and development, and marketing support for solicitors by promoting the scheme to the public.

The Society of Trust and Estate Practitioners (STEP) have also launched a Code for their members. The STEP Code for Will Preparation in England and Wales came into effect on 1 April this year. While the Code automatically applies to all STEP members preparing wills in England and Wales, only specific practitioners are able to use the STEP Will Writing Code logo. This shows that they have completed certain qualifications relating to will writing. The Code lays out a set of ethical principles that demonstrate openly the standard of transparency and service a client can expect from a STEP member preparing their will.

Earlier this year we launched Estate Planners Network (EPN) to offer a new forward thinking membership organisation for will writers and estate planners. Accredited EPN members must undergo a stringent entry process which includes criminal record checks, entrance examinations and business/personal references. Members must hold a professional indemnity insurance policy, complete at least 14 hours structured CPD per year and work to a professional charter.

EPN members also have access to technical support from an in-house legal team if they need advice on a case they are working on. This facility is a major benefit of EPN membership and one that is used frequently. This support has helped to educate members and in turn will reduce the risks of errors occurring. We have been delighted with the feedback that we have received from members so far. We will continue to develop our support services that we offer to ensure that EPN members stand out above the crowd and, if regulation does come in
the future, they will be ready to meet it head on.

Whether voluntary or compulsory, the above schemes and services are designed with the consumer in mind; they are there to restore confidence in the market and prevent clients suffering any detriment. This will only be achieved where conscious efforts are undertaken to promote the importance of having a valid will to the public as a whole. Despite continuous reviews of the quality of documentation produced, there seems to be a continued apathy by the general public to ensure their affairs are in order. The Law Commission, in their 12th programme for reform, support the need for individuals to make a will and recognise that the law needs to support this. They have highlighted the need for reform in four key areas.

In need of change

The first is testamentary capacity; the law governing this stems from a case decided in 1870. As life expectancy increases, this is likely to be a growing area of concern, with Alzheimer’s Research UK reporting that dementia already affects 820,000 people within the UK. The second area is the formalities of making a will. Contained in section 9 of the Wills Act 1837, this has been criticised for not keeping up with social developments and new technology. Advances in this area have revolutionised the legal landscape and legislation is struggling to keep abreast with these developments. The third is the rectification of wills; the difficult court process of amending any administrative errors or a failure of the will producer to understand the instructions given.

The final area for consideration is mutual wills. Although rare in practice now, these wills contain an agreement by the parties not to revoke or alter their will after the first party dies. Although there are benefits to these arrangements in some circumstances, this is deliberately restrictive for the survivor and does not reflect changes in society. All of these areas increase the possibility of litigation and challenge after death, which the Law Commission is looking to reduce.

The project commences early in 2015 with final recommendations to be published in 2018, meaning reform is still some years away. In the meantime, it remains for the professionals within the industry to convince the public to ensure they have a valid and up-to-date will in place, and to ensure that they themselves are suitably qualified and confident in their ability to give the best possible service to their clients.

Helen Hill is legal services director at Estate Planners Network Ltd?