Should we open our doors to unregulated providers via a voluntary scheme?

Last year lord chancellor Chris Grayling chose not to make will-writing a reserved legal activity, contrary to advice from the Legal Services Board, which believes that regulation would improve conditions for consumers.

This decision had obvious implications. For instance, how to ensure or even measure the standards of will-writers working outside the parameters of regulation, estimated to be providing some 180,000 wills each year. And how, if you are a consumer, to discern between a lawyer and an alternative service provider: is there a difference?

Of course, there is at least one major difference, since those people buying wills from unreserved providers have no access to our scheme if things go wrong.

A policy U-turn could set these issues straight. But this seems unlikely, at least in the foreseeable future. More realistic, and something that we continue to push for in our latest thematic report on will-writing, is for the lord chancellor to make an order that would allow us to open our doors to unregulated providers via a voluntary scheme. Provision exists within the Legal Services Act; it is just a matter of finding the political will to make it happen.

Some lawyers will argue that this is unfair, since unreserved providers would have the benefit of access to our scheme, and the subsequent boost in consumer confidence, without having to be subject to the same regulatory shackles and associated costs. They might have a point.

But from my perspective, it would be interesting to see how many complaints a voluntary jurisdiction would give rise to. Would the regulated sector, for instance, yield fewer complaints given that they have a duty of professionalism enshrined in their regulatory code of conduct? Research by the Legal Services Consumer Panel suggests not.

In its ‘shadow shopping’ exercise of 101 wills, a quarter of wills prepared by both solicitors and will-writers were deemed poor quality – meaning problems could arise for clients whether they used a regulated provider or an unreserved will-writing specialist. This should concern lawyers.

Our own data shows that wills and probate-related complaints account for 13% of all the complaints we see – the third highest by area of law.

Problems range from poor costs information and delays, through to misleading promotions and marketing, while often simple complaints are escalated to our scheme because they were not taken seriously. A remedy to help put the issue right is required in two-thirds of these cases. This suggests that, contrary to lawyers setting the standard for those outside regulation, there is room for improvement.

In the event of a voluntary scheme being created, lawyers will need to up their game if they want to maintain a competitive advantage over their unregulated counterparts.

Some 18% of wills and probate complaints are about unclear or excessive costs. Often these can be from beneficiaries who were not clients of the firm undertaking the work. If they were the clients they would have some say over the costs of the work undertaken; but as a beneficiary their rights are limited and this can cause disputes.

It is also common for an estate administration to take longer to complete than was originally anticipated, or to find that there was an unexpected problem, which can result in spiralling costs. However, we would expect clients to be made aware of any increase in costs as and when they occur.

At the risk of sounding like a broken record, it is frustrating that two and a half years after our report into costs and customer service, these problems still frequently arise. I can never stress enough to lawyers: be clear about costs from the start; set out scenarios where you think they might increase; and make sure you inform clients when costs are building so that they do not feel ambushed at the end of a case.

Delays (12%) are a common complaint. It is always difficult to predict how long a probate case will take, as they can range from being straightforward to extremely complex. Nevertheless, assuming there are no complications and that the will is sound, it is a reasonable expectation for executors to discharge their responsibilities within 12 months of a testator’s death.

And given that wills are sometimes required as a result of a sudden deterioration in a person’s health, there are situations where a quick, efficient service is vital. One of the case studies from our report Complaints in focus: wills and probate is a particularly harrowing example of how getting this wrong can create big problems for clients. I have included it in the case studies below.

Mr A – costs

Mr A’s mother died following a short illness leaving him as the named executor and beneficiary to her estate. Mr A employed a law firm to help him administer his duties to ensure it was dealt with efficiently.

Unfortunately, the process of administering the estate was mired with problems from the start. Some three years after initiating the process Mr A was still waiting for things to be finalised. The firm had been holding on to £150,000 left in Mr A’s mother’s will, for no apparent good reason.

In addition, the firm seemed to be racking up unforeseen costs, stating a change in personnel and ‘additional advice’ as reasons. When Mr A complained and asked for an indication of the final bill, he was told that £7,500 would be deducted from the estate in fees.

Mr A decided enough was enough and brought his complaint to the ombudsman.

When an investigator looked at the complaint, it was clear that the firm had unnecessarily delayed proceedings and that Mr A had suffered a loss of interest on the sum left to him.

We managed to resolve the complaint without referring the matter to an ombudsman by getting the firm to: waive some of its costs; refund £3,000 in lost interest; conclude the administration without charge; and finally, to give all original documents back to the complainant.

Mr A was happy with the resolution.

Ms D – delay

Ms D instructed a lawyer to help draft her will. She was terminally ill with cancer and the firm was therefore instructed on the basis that it could complete the work quickly.

Unfortunately, despite knowing of Ms D’s circumstances and agreeing to provide a speedy service, the firm failed to deliver the will in a reasonable time frame. In addition, the firm issued draft versions of the will containing significant errors – some of which had already been pointed out in previous drafts. As things progressed the firm also refused to draft the will according to Ms D’s specific requirements. This ultimately resulted in the relationship breaking down and the agreement being terminated.

Ms D complained to the firm, asking it to improve procedures to prevent the same thing happening to somebody else, particularly when they need the matter to be dealt with in a timely manner. She also wanted compensation for the unnecessary upset and inconvenience the firm had caused her at a difficult time in her life.

The firm responded to Ms D but she was unhappy with how they handled the complaint. Finally, she brought the complaint to the Legal Ombudsman.

We found that there had been unnecessary delays in drafting the will. The firm had caused considerable upset and distress to Ms D and her family. Additionally, Ms D and her brother incurred significant travelling expenses to instruct a new solicitor (who managed to complete the work in 24 hours).

As a result, we advised that the firm should apologise and pay Ms D £500 compensation.

First-tier service

A large proportion of complaints also results from the service provider’s failure to follow instructions (12%). More often than not this is the result of an innocent mistake or because of a breakdown in communication.

It is one of life’s certainties that  mistakes will happen. From my experience, as long as steps are taken to rectify these mistakes, clients can be placated and their overall experience of the service can still be a positive one.

More than this, we have research that suggests good complaints-handling at the first tier could generate net benefits to the legal industry of up to £80m over a 10-year period. That equates to an increase in operating profits of 2%-3% for individual firms. What more of an incentive do service providers need?

It is all very well lawyers advocating their superior services over those of lay or unreserved providers, but clearly some are not living up to the hype.

There is an opportunity here for lawyers specialising in will-writing and probate work to set an example by better managing client expectations with clear costs information and realistic time frames for completing work. In addition, they should set out the limits of their roles and any responsibilities at the start of a case.

Accepting that mistakes happen, service providers should aim to take complaints seriously and endeavour to resolve issues at the first tier, rather than allowing them to escalate to our scheme.

Adam Sampson is chief ombudsman at the Legal Ombudsman