Concerns over the standard of will-writing by solicitors are based on limited evidence and the Solicitors Regulation Authority (SRA) should not have to prove its ability to regulate such work, the Law Society has claimed.
Responding to the Legal Services Board’s consultation on – a position it has long supported – the society also argued that any increase in the cost of legal services as a result of regulation “will be fully justified by enhanced consumer protection”.
During the investigation into will-writing, a mystery shopping exercise of 101 wills by the Legal Services Consumer Panel found that a quarter of those prepared by both solicitors and will-writers failed, with more than a third of all the wills scoring either poor or very poor.
The society said it was “concerned about the significant weight given to [these results] without regard to the limitations of this research”. The small sample meant “the findings should be treated as indicative rather than representative. While the research could be useful to gain a general insight into the will-writing industry, we would caution against using the results as the main basis for setting the regulatory parameters in this area”.
The consultation proposed that all existing and any new regulators, including the SRA, would have to apply to be designated to regulate will-writing and estate administration, proving that they have outcomes-focused arrangements in place to target the specific problems and risks caused by this work.
The society pointed out that the LSB only last year approved the SRA’s new outcomes-focused approach. It continued: “While we accept that it may be appropriate for the SRA to consider changes and its approach to supervision, we consider the SRA’s current regulatory approach is sufficient to regulate will-writing and estate administration appropriately. For that reason we believe that the SRA should be passported as an approved regulator for these activities.”
The response also called for powers of attorney and trusts to be reserved whether or not prepared in connection with a will or estate administration so as to avoid consumer confusion, and for training requirements to ensure that those conducting wills, probate and estate administration work have a “thorough understanding” of related areas of law, including property, tax and trusts, family law and issues affecting vulnerable clients.
It also said that the minimum standards set by the LSB must not be lower than those already required of regulated providers or else they would create a two-tier system.
The society argued that reservation will not restrict competition. “Many will-writing organisations have openly supported the move to regulation and we believe that these organisations will continue to stay in the market even if will writing and estate administration become reserved activities…
“We consider that any increase in cost of services will be fully justified by enhanced consumer protection through regulation. Further, in practice we do not believe that unregulated provision is in fact generally significantly cheaper. Hidden extras such as storage costs for wills may make such services more expensive in the long run.”
The society pointed to research it carried out in 2010 that indicated that cost is not a huge factor in consumers’ decisions about wills.