Professor Stephen Mayson on the case for reserving wills & probate

14 July 2011

Professor Stephen Mayson, Director of the Legal Services Institute at the College of Law, speaks to Neil Rose

When Professor Stephen Mayson began his study of reserved legal activities in 2010, he says he rather expected it would lead to the conclusion that there should be fewer of them. But it has actually gone in the opposite direction, with his final report earlier this year calling for the list to be extended.

Will-writing, preparing powers of attorney and estate administration are among those areas of legal work that he now believes should be subject to reservation – albeit reserved to a properly authorised person, rather than specifically a lawyer of whatever hue.

This distinction is important. It could be someone trained just to write a will, for example, and regulated by a body with the power to set their training standards, ensure they have indemnity insurance, and discipline them.

Mayson has ended up at this point after looking at how the current list of reserved activities has developed (haphazardly, would sum up his findings) and then looking for a modern public policy justification for reservation. For him, an activity should be reserved where it is required to “secure a public good” or for reasons of consumer protection.

While the current narrow reservation of preparing probate papers fails these tests, he argues that there are strong consumer protection arguments for reserving the preparation of a will or other testamentary instrument, and of powers of attorney, as well as estate administration.

“The will issue bothers me,” he says. “If a will writer gets it wrong – either misunderstands the client’s instructions, doesn’t consider all the possibilities, or for instance ignores the potential tax liabilities that attach to what a client wants to do – it’s too late for the client to do anything about it, usually, by the time the problem really becomes a problem.

“Although I’m not entirely comfortable with the notion of saving people from the folly of their own decisions, I do think it’s an area that potentially leads to such disruption and later costs to the beneficiaries or the estate, that consumers ought to be better protected.”

When it comes to probate, the issue is “largely around those who are administering the estate absconding with the funds and having a decent compensation scheme, one that doesn’t involve an enormous fight and yet more legal action to get the money back”.

But is this not, actually, a solution looking for a problem? Will-writers have a small share of the market (generally reckoned to be well under 10%) and it will only be a small proportion of those who are rogue. And then there is the concern that regulation introduces extra cost, which could discourage people making wills in the first place, which is arguably a greater public good.

Mayson recognises this, saying that most wills and probate work is de facto regulated at the moment because it is done by solicitors. However, he adds: “I think the increasing challenge is that as the legal services market is liberalised and new people come in and start doing things that previously unregulated people didn’t do – and I accept that that’s an ‘if’ – then the risk to the consumer increases.”

This exposes a flaw in the Legal Services Act, Mayson suggests. While this is the kind of shift in the market that the Act’s architects wanted to bring about, it is potentially increasing the dangers for consumers – the opposite of what was intended. Under the current structure of the Act, “reservation is really the only form of protection we’ve got”.

The academic - who heads the College of Law think-tank, the Legal Services Institute – does not think that extending the scope of reserved activities will deter new entrants to the legal market. “Most of the people who are likely to deliver the reserved activities are going to come from a background that’s familiar with regulation anyway and won’t regard it as unduly onerous,” he says.

And if a provider is put off offering a particular service because it has moved from being unreserved to reserved, “there’s a part of me that thinks they’re probably not the right sort of people to be delivering that activity anyway”.

What Mayson says carries a lot of weight. His work is underpinning the Legal Services Board’s major project to rationalise the scope of regulation. This will examine regulation and reservation, and propose “a rational and intellectually sustainable framework for assessing whether and where regulation is required”.

The work being done on whether will-writing should be reserved will provide a case study of how the LSB should go about this. It goes from looking at what the problem is, examining the evidence supporting that, and then applying the right regulatory tool if necessary.

With alternative business structures hoving into view, it is all go. Mayson believes this is different from all the other times when the profession has been threatened with cataclysmic change, only for little actually to happen. “Most of the change was an internal opportunity and lawyers, en masse, basically decided not to do anything about it.”

But this is different. He points to Co-operative Legal Services as a prime example, building a £25m market share in five years – much of it driven by wills and probate work – partly in the depths of a recession. “This will be a significant change, because it will be driven more from the outside.”