The Consumer Panel’s investigation into the possible need to regulate will-writing is under way. On the face of it, the case for regulation appears strong. A badly written will can have serious financial and personal consequences for those left behind. Moreover, there are stories of underhand sales tactics, particularly targeted at vulnerable clients. Some firms pressurise consumers to name them as executor and then charge a hefty percentage of the estate in fees. Others end up charging far more for the will than the advertised price. Wills may be lost if they are not safely stored or if the firm goes out of business. Finally, there is the potential for outright fraud.

Perhaps the biggest drawback is that there is no statutory remedy if something goes wrong, as there is no compulsory insurance or redress scheme; added to which, problems often lie undiscovered until after the testator’s death, when it is too late to do anything. Even then, the beneficiaries are not the client and so have limited rights.

There are also persuasive arguments against regulation. Restricting who can provide will-writing services could narrow consumer choice, while additional regulation would probably increase prices. Unlike most solicitors, will-writers provide their services in the home, which makes them convenient despite the risks. Limiting choice could reduce incentives for firms to innovate – had the Legal Services Act made will-writing a reserved activity, would the online tools developed by major retail brands have emerged? Most of the reported abuses are already illegal under general law, and so enforcement of existing provisions could be enough to clean up the market. In short, regulating will-writers unnecessarily would not benefit consumers and risks fewer people making a will at all, arguably the larger cause of detriment.

Concerns about unregulated will-writers were highlighted during the passage of the Legal Services Act when the previous government decided there was insufficient evidence of harm to consumers to justify regulation. Given today’s drive to reduce regulation, it seems unlikely that the coalition will be persuaded by rehearsing old arguments. Any case for regulation, therefore, would need to rest on reliable evidence that consumers are losing out. Decision-makers will need convincing that there is an endemic problem, rather than a few rogues who could be weeded out by trading standards.

The Legal Services Board has asked the Consumer Panel to provide evidence on all the different problems, both current and potential, experienced by consumers wishing to write a will. Our investigation will seek to find out how widespread each problem is, or could be; why it happens; and what the effects are on the testator and their executors and beneficiaries. It will consider whether existing consumer protections are capable of addressing any consumer harm or whether new solutions are needed, including what the advantages and disadvantages of various ways of regulating will-writing may be for consumers.

The investigation will focus on establishing hard evidence of the scale and nature of consumer detriment to determine whether regulation would benefit consumers. We have a good idea about problems but not their frequency. We are also aware that will-writing has become more complicated due to changes in family structures, increased home ownership and civil partnerships, as well as complex financial products and tax/benefit rules.

In the light of what we learn, we will look at the case and the options for change, and examine whether it is always necessary for a qualified professional to prepare a will. Should will-writing be regulated, the activity could be restricted to the existing profession or just restricted to those who obtain a specific licence.

We are inviting interested parties to submit views and evidence by 15 December. Solicitors are uniquely placed to know where there are problems with wills, as they are often engaged to sort out the mess left behind. If you have evidence to contribute, please get in touch at the Legal Services Consumer Panel website.

Dr Dianne Hayter is chair of the Legal Services Consumer Panel