Scottish government to regulate will-writers

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By Legal Futures

2 June 2010


Scottish Parliament: amendments laid to reform bill

The Scottish government has decided to push ahead with regulating non-lawyer will-writers, it has emerged.

In a move that will intensify pressure on the Legal Services Board in England and Wales – which has not identified this as a major issue despite pressure from the Law Society – the proposed amendment to the Legal Services (Scotland) Bill would apply a set of regulatory rules, enforcement measures and sanctions to ensure non-lawyer will-writers conform to acceptable industry practice.

The move follows a consultation which found overwhelming support for regulation, although one of the three respondents to oppose it (out of 48) was the Office of Fair Trading, which said it “does not at present consider that enough evidence has been provided”. Also, despite the strong support, only 42% were aware of any poor practices by will-writers in Scotland. The Law Society of England and Wales was one of the respondents to the consultation.

In announcing the move, the Scottish government said regulation would “bring to an end an era where consumers have been vulnerable to non-regulated practices which are often unnecessarily expensive”. It gave the example of an elderly client who was charged £1,000 for a straightforward will in a non-inheritance tax estate, and was driven to her bank by the will-writer to withdraw the money in cash to pay the fee.

In another case, consumers wanting a will have been sold specialised services they do not require. In some cases they are being persuaded to pay up to £2,400 when a simple will costing £150 would suffice.

Community safety minister Fergus Ewing said: “A number of persons and organisations have made representations to us about non-lawyer will-writers, providing examples of poor practice. These include lack of skill and competence, ‘cold calling’ and advice based on English law. We are very concerned that some non-lawyer will-writers may be exploiting the lack of regulation to the detriment of the consumer in Scotland.

“The regulation will continue to allow non-lawyers to provide a will-writing service, but will protect consumers by ensuring that such will-writers are subject to robust regulatory rules, enforcement measures and sanctions. However, we will not regulate individuals preparing their own will, with or without a DIY pack, including ‘deathbed’ wills, or other persons providing a free advice service.”

As well as individual instances of poor practice, the executive highlighted a host of concerns:

  • Lack of skill and competence;
  • Poor knowledge of inheritance tax;
  • Advice based on English law;
  • Low advertised costs translating into substantial fees through ‘bait and switch’ and tying in of other services;
  • Cold calling and unsolicited mail;
  • Lack of professional indemnity insurance; and
  • Poor storage of wills.

The regulatory scheme will be based on the one already in the bill for ‘confirmation agents’. These are people who prepare papers on which to found or oppose an application for the confirmation of a person as the executor in relation to the estate of a deceased person. It requires a body to seek approval from the government to regulate them.

Michael Clancy, director of law reform at the Law Society of Scotland, said: “We’re very pleased that the Scottish government has taken on board the representations made by the society and others about the regulation of will-writers. We firmly believe that non-lawyer will writers who provide a service for a fee should be regulated to ensure that members of the public are protected and can be sure that they are getting good advice at a reasonable cost.”

Despite pressure south of the border to make will writing a reserved legal activity, the Legal Services Board will not consult on the decision framework for making a legal activity reserved until the last quarter of 2010. In the meantime, its 2010/11 business plan shows that it plans to understand the costs and benefits of regulating currently unreserved legal activities, identify criteria for determining whether an area of advice should be regulated, and undertake an initial review of the existing regulatory frameworks for claims management and immigration and asylum so as to inform its approach.

The College of Law’s Legal Services Policy Institute has recently begun researching the issue on behalf of the board.

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