Following the Clementi report, should will writers be self-regulated or accountable to a higher body? And what about consumer choice? Stephen Ward considers the issues

‘One local funeral director was offering paper and precedents and I think even sealing wax for £15 to allow you to prepare a will,’ Meg Andrews, chairwoman of the Law Society’s wills and equity committee, recounts.


While only solicitors can charge for obtaining a grant of probate, anyone can charge for writing a will. Indeed, there will never be regulation of all wills. As Adrian O’Loughlin, a partner at TWM Solicitors in Guildford, and chairman of the Law Society’s probate section, says: ‘I don’t think anyone would want to take away from the individual the right to write a will on the back of a fag packet and have it witnessed by two people.’


But in the wake of the Clementi report on regulation of legal services, which recommends opening up probate, the Department for Constitutional Affairs (DCA) is considering regulation for the options in between the fag packet and the specialist solicitor, and this month it hosted its first round-table meeting to hear views from the various players. Civil servants are now considering what they heard and will draft proposals for the next steps.


Louise Restell, campaigns manager at consumer group Which?, who attended the meeting, says there needs to be a light touch to regulation. ‘It is a balance between consumer choice and consumer protection.’


She adds that there is not yet enough information to decide on a regulation policy, and in any event, there is no huge rush: ‘We haven’t had any great groundswell of complaints from members. And trading standards legislation does already cover will writing.’


Jamie Ross, editor at Lawpack, a company that compiles self-writing will kits as well as other legal documents sold in high street stationers and supermarkets, says there is little need for further regulation of this niche in the will market, because it is ‘horses for courses’. He says: ‘We make it clear in which circumstances it is appropriate to use our pack.’ The packs are designed for straightforward family wills. Where there are companies involved, for example, then clients are told to seek legal advice. ‘We tell them to go to a solicitor,’ he says. He adds that the company does not refer clients to any other form of will writer.


At the top end of the next section up, the specialist will writers, there is a collection of self-regulated and at least partly qualified people offering a will-writing service that they claim rivals the service offered by solicitors.


Brian McMillan, director-general of the Society of Will Writers (SWW), who also attended the DCA meeting, says membership is voluntary, so he does not know with any certainty how many will writers are operating outside it. There are probably fewer than 5,000 specialist will writers, he suggests, of whom 1,600 are members. Many of these are working for will-writing companies, and Mr McMillan maintains the society represents around 70% of the companies providing full-time will-writing.


The SWW offers two levels of qualification, with the higher taking 18 months to two years to achieve, but with no minimum educational entry standard. But all members have personal indemnity insurance up to £1 million per will. He says some, but by no means all will writers outside the SWW, including retired solicitors, take out similar indemnity cover.


Mr McMillan says corruption is not an issue for will writers, because they do not handle client accounts, so there is less to regulate. But he would like to see some form of licensing and registration of will writers. He would favour a model where the SWW could continue to investigate its own members where there is a complaint, but with a higher regulatory body as support.


‘Self regulation within will-writing companies and by the SWW would be more effective if there were a body with teeth behind it, and everybody knew it was there. We can’t impose sanctions on members. It almost always works well, but ultimately they can just walk away.’


The will writers say they are happy to be experts in wills, and leave probate to solicitors. Their argument is that they do wills, and nothing else, so they are more specialist than many solicitors.


Solicitor Ms Andrews takes issue with that as a logical demarcation of the work. She says probate – dealing with the circumstances around actual death – informs the will-writing process. In her early days, she might have been happy to see a client leave his house and contents to his wife, then on her death to the children of his first marriage. Now she would not, having seen children of a first marriage come to claim a brand new bed or hi-fi bought by the wife 20 years after the death of their father.


Making a will involves opening up sensitive financial and personal family information. Clients will be more secure and more likely to tell every material fact to a solicitor rather than a will writer, she argues.


Mr O’Loughlin says the advantage of a will drafted by a solicitor is not so much that there will be anything wrong with a will produced by a will writer, but whether it is the best will possible. It is not so much an issue for regulation as for education of the public, so they know exactly what they are getting for their money from various providers.


‘You’ll get a document [without a solicitor] which will be admitted at probate, but whether it deals with all the person’s estate, and all the contingencies likely to happen in the coming years, is open to doubt,’ he suggests.


‘What is important when you are preparing a will for somebody is the advice that goes with it. Solicitors who have trained in company law, matrimonial law, tax, land law, trusts and everything else draw on all that information in the advice they give.’


Clients need advice appropriate to their circumstances, he says: ‘The average client is not aware of what options are available.’


Mr O’Loughlin adds that he would like to see a regulatory system that ensured that anybody charging to write a will had personal indemnity insurance. He would also like to see some way of officially grading the various people working in the area.


‘It is important that if there is some form of regulation [of non-solicitors], that it does not put the idea into the public’s mind that they will get the same quality of service from all will writers that they get from a solicitor,’ he says.


He says there is a need to take into account the charges that may be added to will writing, such as an annual payment to store the will. Many solicitors still store a will for nothing, if they have drafted it.


What all the will providers agree on is that dying intestate is the worst option of all, and rising property values are making it even more problematic.


Under the current intestacy rules, if a person dies without a will, then the surviving spouse will receive only the first £125,000 where the deceased leaves children, and £200,000 if there are no children. Beyond that, the rules become complicated and the tax situation is unfavourable.


A consultation paper published last month by the DCA provisionally proposes that these levels be increased to £350,000 and £650,000 respectively. ‘It’s a good idea. It hasn’t been raised since 1993,’ Ms Andrews says.


The Law Society’s eighth Will Aid campaign to raise awareness saw 945 law firms volunteer their will-writing services free of charge, while South Wales firm Leo Abse & Cohen recently ran a shock campaign to raise awareness featuring real tombstones. But despite these efforts, the best estimate is that only one in three adults in England and Wales has a will. While the regulation of those who write wills is an important issue, the first priority must be to encourage the public to write a will in the first place.


Stephen Ward is a freelance journalist