To reserve or not to reserve? That might not be the question

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2 February 2012

Posted by Barbara Hamilton-Bruce, director of operations at Legal Futures Associate Accident Advice Helpline

Moves are afoot to examine whether will-writing, probate and estate administration should be and brought within the sole preserve of the legal profession. The review is conducted amidst a background of concerns about the quality of advice being received by consumers, particularly by those outside of the ‘legal’ framework.

Will-writing occupies an unusual place when sat alongside other client activities, reserved or otherwise. Ask a customer about a will that has just been written for them, and they might have a view whether they have what they asked for, but does the document achieve what they need? Unlike conveyancing, divorce or injury claims, the consequences of the work, ‘legal’ or otherwise, are not immediate.

The quality of a will is, naturally, driven by the information obtained to allow its creation and the willingness of the writer to probe. And, of course, that information changes potentially as quickly as the seasons of the year. An explanation of the effect of death, based on the will as written, can serve as a timely reminder.

But whether a client wants to hear, or a firm wants to tell, will be determined by the relationship between lawyer and client; letters on a sunny Saturday morning along the lines “it may be some time since you last thought about dying but” ring the wrong bells.

I recently heard somebody say: “In hindsight I don’t think X really gave us any advice. They wrote what we said we wanted. We didn’t understand the implications because what’s ended up happening has been complicated and stressful.” What was, on the face of it, a simple expression of intention designed to look after a ‘blended family’ ended up in probate with reams of paperwork and inheritance tax payments which had not been factored into the original ‘simple’ will. Tax implications and estate planning had not been discussed and it all came as an unwanted shock. They’re left questioning the value of the advice, choosing to administer the estate themselves rather than use the services of a law firm.

With all that in mind, how does a firm or client usefully measure satisfaction with will-writing services? Is it, like conveyancing, based on the time taken to complete the transaction along with the time spent waiting for the money to transfer through the ether from one bank to another (the base cost + the aggravation factor)? Or is it about the client’s overall happiness around content and whether the writer has taken on board their wishes (the base cost + does what the client asks)?

My feeling is that the measure of success is more gloomy than that and the success of the will-writing is determined by everybody BUT the client. The acid test of whether the will does what it was meant to takes place when the client has passed on, a time when emotion has to be factored into the equation.

It also depends on how much the deceased and those left behind have discussed what will happen and the willingness of those involved to ask difficult questions. Because, very simply, the non-contentious task of will-writing can become anything but that when bereavement, loss, anger and any other number of emotions come into play.

Encouraging more people to write wills and discussing the subject that few of us want to contemplate is a challenge for the industry. Adding will-writing to a service such as conveyancing is an obvious point of sale but – at cut-price fees to attract business – are clients being sold a product and service that is fit for purpose?

Measuring performance is another, entirely different challenge and one which the review will have to encapsulate in order to reach its conclusions. Reserving the activity alone doesn’t appear to be the sole answer.

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One Response to “To reserve or not to reserve? That might not be the question”

  1. I agree that simply making will-writing, probate and estate administration a reserved activity would be excessive and may not actually achieve the desired aims. There is an assumption that by restricting those persons qualified to carry out the activity (a de facto monopoly) the quality of the service increase and yet in every other industry the assumption is that increasing competition improves quality. In this area there is a inherent conflict which you have highlighted (ie the acid test of will-writing is after the client has passed on), but conflicts exist in other industries as well (including within law firms themselves) and regulation is the generally accepted approach.
    Personally, I feel that this should be the starting position of the LSB in their related review regarding the scope of the regulatory boundary as well. Surely granting lawyers a monopoly over certain legal services doesn’t fit with the idea that competition increases quality. Why should legal services be different to any other form of advice or consultancy services?
    I actually provide (non-reserved) legal services outside of the ambit of a law firm and I am confident that the advice I provide is of a high quality but if my firm wanted to provide a reserved legal activity we would have to change our model.

  2. Nick Lindsay on February 2nd, 2012 at 7:31 am

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