Solicitors vs Will-writers - who can you trust? - Neil Rose of Legal Futures
16 December 2010
Neil Rose, Editor of Legal Futures
When the Legal Services Board (LSB) announced in August that it planned to consider the case for regulating will-writing on a “more rapid timetable” than its wider investigation into reserved legal activities, one might have reasonably expected a decision in a matter of months. But “rapid” clearly enjoys a flexible definition at the LSB, because it has just emerged that actually we won’t even see any proposals for consultation until the first quarter of 2012.
The delay has in part been caused by pulling together financial support for the independent market research that is underpinning the investigation being done by the LSB and its consumer panel. The Solicitors Regulation Authority (SRA) and Office of Fair Trading finally agreed to stump up about £30,000 each and IFF Research has now been commissioned.
Its work will include “mystery shopping” solicitors, will-writers and DIY providers. IFF will recruit 100 consumers who are looking to get a will – 40 who want to use a solicitor, 40 who want to use a will-writer and 20 who want to do it themselves, using either an online provider or a paper-based product. The sample will be selected to have an even split of consumers with simple and complex circumstances.
IFF will follow them through the process of selecting and using a service provider, and then have the quality of the wills produced assessed by a panel of solicitors and will-writers (if you fancy being part of the panel, e-mail Alex.Roy@legalservicesboard.org.uk). There will be a pilot study in January, with the full study taking place in February and March, which should encourage practitioners to be extra diligent.
The results will undoubtedly be fascinating and could potentially come as a shock to solicitors. The danger of their campaign to expose problems with unqualified will-writers is that the microscope will inevitably turn to them as well. The first indicator of what this might bring came in a survey of over 50 charities by Remember A Charity – submitted to the consumer panel following its call for evidence on will writing – which found that half of charities have experienced a poorly drafted will from a will-writer. But before solicitors get too smug, a third had also seen shoddy work from a solicitor. Remember A Charity is part of the Institute of Fundraising, with a separate membership of over 140 charities, including nine of the top 10 charities by voluntary income.
The survey found unanimous support for regulation of the will-writing sector, as a third had experienced “negative impacts of the sector not being regulated” – such as a loss of income – while poorly drafted wills had given 53% of them problems.
The results published last week show that 52% of charities had to engage solicitors to sort out the problem, while the time to get the money was significantly increased in 48% of cases. The charity received a smaller than expected legacy in a third of cases and lost the legacy entirely in 11% of cases.
There was a range of opinions among charities on what form regulation should take, but the response said: “Overall it was felt that it should be light touch to minimise additional cost for the sector that would be passed onto consumers.” Increasing the cost of wills and so discouraging people from making them was the only real concern around introducing regulation.
The current betting is that the LSB will decide that will-writing should be a regulated activity, but not reserved to solicitors. The importance of regulation in an area such as this was brought home by another survey, this time commissioned by the SRA. This found widespread ignorance of the differences between legal services providers and consumers are shocked to discover not all of them are regulated.
The qualitative research, involving in-depth interviews with 40 people who had either accessed legal services or might do in the future, found that consumers expect “all legal service providers to be appropriately skilled, qualified and regulated”. So instead of qualification, distinctions between providers are made on such things as customer service and the quality of relationships.
This has led to a very low perception of the risk that things can go wrong. Signs of legitimacy that reassure consumers of the bona fides of the provider tend to be such things as a prestigious address, a plausible website and certificates on the wall. When asked to rank the brand names of providers by the reassurance given, consumers say names that convey specialisation are most valued, such as “will-writer” or “conveyancer”. Similarly, names that included “solicitor” or “lawyer” rank highly.
SRA chief executive Antony Townsend said the research highlights the necessity “as we move into the new world, that we have a simple system of regulation that does not assume there is a sophisticated understanding of reserved/unreserved legal activity”. The SRA is calling on the LSB to reserve all “solicitor services”.
All of this means it is business as usual for those writing wills, for the time being at least. But well before the LSB comes to its decision of will-writing, let alone other reserved legal activities, alternative business structures will be with us. Then the fun will really start.
Neil Rose is the Editor of legal regulation website www.legalfutures.co.uk. Neil Rose is also Editor of the Legal Executive Journal and contributes articles to The Times and Guardian newspapers.