Will-writing should be reserved, super-regulator recommends

Why on earth should probate be reserved?

Above all, it is an administative exercise.

Administative?

As a non-practising solicitor (admitted 1976) I have 35 years' experience of private client work, though tax of all kinds is my main specialisation. I have drafted thousands of trusts and Wills, mostly complex.

In the early days I had to have instructions to Counsel "backsheeted" by a solicitor. Since I gave up having a practising certificate (so I could afford to earn a living) I have had problems of the same kind with trusts. It looks now that I'll have to deal with Wills in the same way.

One person's protection for consumers is another's anti-competitive oractice reducing the choice of those same consumers. And one person's regulation of reserved activities is another person's entrenchment of monopoly provision of services open like the Ritz Hotel to all those who can meet the exorbitant cost of regulation and stomach the Stalinist prescriptiveness and interventionism of the regulator.

Of course it should and probate. But is it not time for solicitors to realise, as has been proved to be the case, that they who are often not trained in wills and probate make as many mistakes as will-writers. The most badly drafted wills I have seen have been prepared by solicitors. Smug comments like those from Richard Bridge achieve nothing. Solicitors should welcome working in conjunction with properly trained and STEP qualified will-writers. And I suspect that if Volemort did a search of solicitors' disciplinary tribunal hearings he would find many of his brethren who have run off with proceeds of an estate.

On the home page of the Gibson Forge website, the word "principal" is misspelt as "principle" and the word "professional" is misspelt as "proffesional". You might want to sort those things out.

Clients called me last week after buying a pre-paid funeral plan through Golden Charter who then tried to sell them LPAs and also new Wills - the gentlemen styled himself a 'consultant'. The couple in their late 80s live in a park home and have a joint bank account - he frightened them into believing that if one became incapable then their finances would be frozen. He also tried to sell them an 'asset protection trust'! I see from their website that they also offer probate services. It seems dishonest to be invited into a persons home to discuss funeral plans to then start selling legal services.
You only have to look at this weeks undercover programme on funeral directors to see how dishonest some of the individuals working in this sector are.

Contribute nothing to the debate

I am not a qualified solicitor but work for a solicitor firm. I've administered estates since 1999 and advised on the preparation of wills for approx 10 years. I am STEP qualified.

The solicitor v will writer arguments are pointless. There are good and bad across the board. However, I have seen sharper practices by will writing companies. The best (worst) example is the company that appointed themselves exors then 'sold' a policy to 'ensure' they would beat any quote for administering the estates! They paid £20 per month direct debit on top of the fee. It gets better, they had never even signed the Wills! I doubt a sols firm would get away with this for long.

Whether reserved or better regulated, something needs to be done.

Z Ahmed.....the problem is the law and the 'erosion' of testamentary freedom by other legal principals I'm afraid. This proposal will not address your situation, nor should it.

Totally agree with most of the sentiments stated I would however suggest that part of Benedict's comment should take into account the guidance provided on the British Bankers Association website with regard to joint accounts which states ...
"What happens if the other joint account holder becomes mentally incapable?
If the other joint-account holder becomes mentally
incapable, the bank or building society must get an
order from the Court of Protection (in England and
Wales), which protects the rights of mentally
incapacitated people, before they can let you use the
account"

Unless of course a registered LPA is available......

Voldemort is RIGHT. There should be no relaxation of regulations regarding what is possibly the next most financial important matter after spending all your (and the Building Society's) money on a house?

My Principal 40+ years ago in Newcastle taught me the most important lesson: all you have to sell is integrity. I also learnt 'don't dabble'! That way, oh dearie me! Reinforced by many years in defendant Professional Negligence. I am still waiting some 3 years after the death of a wealthy client (for whom I was a named exor and whose relations decided to do it themselves with 'help' from Uncle Fred who had done it before....) to be served with any notice or request to renounce my role. When I have a spare 6 quid I may ask for a copy Grant if any. If granted, I may ask the Probate DR if they ever asked for proof that I had been told, what did the affidavit say?

Home-made Wills and I suspect also home-done probates (especially involving IHT and fractious relatives) are a prime source of wonderfully lucrative litigation.

To quote respectfully from Voldemort, "There is no room for amateurs".

Gibson Forge etc are also right. There are rogues everywhere.

If I want a proper professional job, I don't ask a spotty youth with a wide tie and market-speak.

Maureen, I certainly hope no one is currently selling Enduring Powers of Attorney....

Also I am confused by your reference to transparency of fees? Surely a client engagement letter has to be sent otherwise fees are unenforceable ?

Maureen soon pops on any message board where wills are involved, often blaming solicitors for things like inheritance act claims as if solicitors created the act. My guess is she has fallen foul of this provision and believes solicitors are to blame. I could be wrong, she may just be a bitter individual wallowing in her own pity how 'the system' did her over.
She will probably question my identity, am I really called bert? Maybe. Maybe not. Is she really called Maureen? Is she really a she? Who knows?
Maureen is consistent with her posts berating solicitors as they must all be con artists as she has had a bad experience........I only wish I could see the world so simply.
Move on Maureen, this bitterness will make you ill.
Adios all

So long as those who write wills are regulated in exactly the same way, required to attend exactly the same type of CPD training and (hopefully) required to be accredited as specilaist will writers then what's the problem?

The some solicitors are as bad or as good as some will writers argument isn't the point. The point is that there are people writing wills who dont actually know what they are doing or offer the service at such a low rate that they allow templated wills to be used for every client.

The fee paid for the will is indicative of how little effort has been applied to the cliuent's particular case.

I am a little lost on this discussion. I was always told that the most expensive word in legal language was assumme and you should only work with the facts.

However I did enjoy Domcoop above who has taken a long time to write out his own script and even numbered his opinions as facts.

1. Concerning Market price. Will writers are not always cheaper than solicitors but they do tend to offer a different approach with home visits etc. Most are also proactive in the market place wheras solicitors tend to wait for the customer to come to them.

2. quote 5. a will writer obtaining his /her own PII is nowhere near sufficient: it probably wouldn't pay out in most cases (there are no minimum terms and conditions, run-off cover, compensation fund, etc.) so no wonder the premium is low.

Where did this come from? Made it up

3. quote 6. The will writer's business model consists on the whole of conning and lying to elderly people, usually with utter tripe about care homes.

I dont know where this comes from, most will writers I know have different business models according to their objectives. In respect to conning and lying to elderley people I challenge you to prove this. Who does this? How many people do this? Total loob.

In my experience the reason why a will writer is used instead of a solicitor is simply down to the fact that the will writer approached the client. The reasons why a potential client does not walk down the high street to a solicitor is more complex and you should be looking at your own business models instead of making up dribble about your competition.

When a will writer goes out of business where does his/her will-writing file go? How can a claim for negligence be made when this disappears, if there was a file in the first place?
The benchmark for quality in this sector has to be membership of STEP. In the May exam for the Administration of Estates exam only 65% passed, which demonstrates how rigourous their approach is.

Same case scenario with large Solicitors and Accountant firms. My Mother's Accountants/Independent Financial Advisers were Arthur Andersens before the Enron debacle, during the Enron debacle and when Andersens staff merged with other large Accountacy firms such as Deloitte. Andersens were introduced to my Mother in 1998 together with Davies Wallis Foyster who then became DWF and then DWF LLP - they still appear to trade under all names so it was difficult to even pin point which DWF to put on the Court proceedings. Andersens and DWF worked together as Accountants/ IFA's and as Will Writers/IHT/Trust Advisers/Trustees and Executors of my Mother's Estate. Large amounts of my Mother's money (Trusts etc.) were thrown into the Stockmarket at the peak of the Tech Boom - late 1998 - although her investment Risk Profile was low risk.

2001 and 2002 were a particularly busy year.... the Stockmarket was crashing, my Mother's Investments set up by Andersens (as were our Investments) were plummeting, Andersens were involved in the Enron affair and then went into liquidation and their staff were hopping over to Deloitte. There was also the fall out from the Cross selling of Investments in cases such as the Exeter Zero Preference Fund. A particularly large percentage of my Mother's money was invested in Exeter but all concerns she had about the dramatic fall in value were just brushed aside. Exeter then went into administration and was later declared to have been in default so it was possible to obtain partial compensation for loss from FSCS. By that time my Mother had passed away and DWF, as her Trustees and Executors, refused to even sign the form for Compensation from FSCS for the loss.

My Mother had engaged DWF as IHT/Trust advisers - as many documents proved but DWF actually blamed Andersens for the lack of IHT mitigation but by By that time my Mother had passed away and Andersens were in liquidation. DWF as Executors and Trustees of my Mother's Estate refused to communicate with Andersens on our behalf or even substantiate whether or not Andersens had any Professional Indemnity Insurance in place or any means of paying out on a claim. By that time, the particular individual from Andersens - who was my Mother's IFA and had set up her Investments - worked at Deloittes. Therefore, my Mother had inadvertently become a Client of Deloitte. Disregarding the fact that Andersens (the liquidating partner) and Deloitte refused to communicate with us directly and DWF refused to communicate with them on our behalf, I sent a Letter of Claim directly to Deloitte.

Deloitte threatened to have any Court proceedings made against them struck out with substantial costs to ourselves. They also emphasised that it is for the Executor of the Estate and not the Beneficiary to make any claim against them. The Executors, as already pointed out wouldn't even communicate with Deloitte let alone bring a claim against them on the Beneficiaries behalf. Hill Dickinson who became DWF's "Indemnity Solicitor" - though who DWF's actual Insurers are is still a mystery - also threatened us with huge costs and that they would strongly defend any Court proceedings. One case that did go near the Courts was just hushed up and made confidential so that only the individuals involved would ever know it was brought. This is a system of complete unaccountability and a system that can proliferate abuse.........these large organisations, in my opinion, are complety removed from any empathy with the customer and have just become money making machines.

Tell me Maureen , have you had an unpleasant experience.....

Could I please add to the debate.

As a solicitor of some years standing I would support Will writing and Probate being restricted work. I do not think the current unregulated approch is in the clients best interests.

I have not only come accross Wills being prepared negligently by Will writing firms but an increasing number of Banks contacting their clients and writing Wills for them. Those Wills perhaps unsurprisingly appoint the Bank as executor and in one particular case was so badly drawn even the client could spot the errors. The cost was excessive and the only saving grace was that I was able to prepare a new Will before death.

If a solicitor sought to appoint themselves as executor in such a manner the SRA would have had something to say. Conflict of interests come to mind

The Bank being unregulated would currently have no such liability.

Either that or abandon all such regulations and let solicitors compete on a level playing field. That is not however in my opinion in the interests of the public when such large sums on money are involved.

I can see that if the writing of wills is to be regulated for the benefit of the consumer it is important that all providers work and start on the same level ground. This is a once in a lifetime opportunity to get it right. We should therefore start with what we want and not what we have got. These are my thoughts:-

1. The first thing is we should all work to the same rules. An accepted (code of practice) which forms the basis of the regulation.

2. We should therefore have all the same terms and conditions at the customer interface. It should also be illegal to have T&C which does not agree with this Regulation.

3.We should recognise that there are easy wills and more difficult ones. The license should therefore be split A&B. Only those with the higher qualifications should be involved in the difficult Wills.

4.Who actually gets regulated? To make it work it should be everybody who has any involvement with the production of wills to the consumer. This would include telemarketing, instruction takers, will drafters, office back staff, directors and owners. This will prevent companies operating where only one person has the in depth knowledge within the industry.

5. We should have only one regulator.

6. As the ground is now level then it can be built on with levels of qualification and education across the whole industry.

7. This regulation must apply to all who operate within England and Wales and not have special rules for those who sit in another country with different EEC rules.

Will writing can become a regulated profession which only allows those who want to run an honest straight forward business which is profitable and for the benefit of the consumer.

The question is can the consummer afford to have it done properly.