Janet Paraskeva calls for unqualified will writers to be regulated so that solicitors can operate on a level playing field

The Lord Chancellor recently made the welcome announcement that he was taking steps to regulate claims farmers. The question now is will the government also take action in respect of will writers and estate administrators?


The Clementi review of legal services provided an excellent opportunity to look at the regulation of those services that complement the work of lawyers, and that are sometimes offered by solicitors alongside reserved areas of legal practice. Neither will writing nor the administration of estates is reserved to a particular profession, and while a solicitor may perform these tasks on a client’s instructions, clients are under no obligation to use a solicitor.


Making a will has huge implications for potential beneficiaries and, when done properly, should involve serious consideration of a wide range of legal as well as family and taxation issues. So it cannot be right that will writing services can be offered to the public for a fee by an unqualified person. The Law Society’s clear position is that this is an area that must be brought into the regulatory framework for legal services.


At present, people often assume that anyone offering will drafting services for a fee has some level of training and regulation. In fact, they do not. Some such providers may give inaccurate and inadequate advice resulting in a will that does not give true effect to the wishes of the testator. Others charge exorbitant fees for simple tasks, try to sell unsuitable financial products or advise that the will writer should be named as an executor, giving that person access to, and control over, sometimes substantial assets.


The Law Society has similar concerns about estate administration. Currently, the only aspect of estate administration that is regulated is the extraction of the grant of probate – in fact, a fairly straightforward process for which only a small fee is charged. Once the grant has been extracted by a solicitor, family member or an authorised probate practitioner, the remainder of the process can be taken over by another party who does the work for a fee. This is a service routinely offered by banks, insurers, accountants and licensed conveyancers, but other unregulated, unqualified businesses do have a share in the market. While the former are in part regulated (if not specifically in relation to estate administration) the unregulated sector is subject only to general contract and consumer law.


In 2002, a company called Legacies (Will & Probate Services) Ltd, was closed down after a Department of Trade Industry investigation revealed that the company had misapplied some £4 million owed to the beneficiaries of hundreds of wills. The judge in the case said the company was preying on people at a time when they were most vulnerable. No compensation was available to the beneficiaries of the estates involved.


Of course, if a solicitor acts inappropriately, the Law Society’s compensation fund covers claims arising from dishonesty, and compulsory insurance covers any claim arising from negligence. Dissatisfied clients can turn to the Consumer Complaints Service and, in extreme cases, the Society has the power to intervene in a solicitor’s practice and to discipline the practitioner at fault. None of these protections is available to the consumer using an unregulated provider and there is no compensation available. To add to the difficulties, problems often only come to light after the death of the original client, when it is impossible to know what their true intention might have been.


The Lord Chancellor himself has expressed unease about this sector. When he spoke to the Legal Services Reform Conference in London last March, he said that people had raised concerns with him about will writing and estate administration. He promised: ‘If there is a serious problem, I will tackle it. I will not let it fester until the legal services board is in place’. He has commissioned research on the impact of regulation on the will writing market and said that ‘if regulation is in the public interest, it will happen’.


What we need now is a bit of activism by the solicitors’ profession to ensure proper regulation of providers of these services and protection of the public and to level the playing field between solicitors and others. Solicitors are well placed to provide evidence to the Lord Chancellor, since it so often falls to solicitors to unravel the problems that unsuspecting clients face as a result of poor quality work from the unregulated sector.


Anyone who has knowledge of the problems that clients can experience should write either to me or directly to the Lord Chancellor with that evidence. The Department for Constitutional Affairs recognises there may be a case for change, but unless there is enough evidence in support the momentum may be lost.


It is in the public interest to introduce a system of regulation that ensures the same level of protection to clients of will writers and estate administrators as is provided by the legal profession. It is essential that comparable quality standards operate across the sector. The government rightly regulates in other areas where it is necessary to protect the public, and the Law Society is urging ministers to seize the opportunity presented by this time of reform. I am sure that solicitors will want to do all they can to help.


Janet Paraskeva is the Law Society chief executive