25/07/2012

Society urges to regulate Will-writing

There are concerns over the lack of protection for individuals wishing to make a Will. The Legal Services Board (the “LSB”) has recently reviewed this alongside the provision of probate and the administration of estates and regulation of the whole sector has been called for.

The case for regulation

Currently, the providers of professional probate services are not required to be a member of any regulatory body. Even where they are members of their own professional regulatory body, they do not necessarily monitor the specific probate activities involved. The consumers of these services are therefore at a high risk of negligent or even fraudulent activity. Substantial estates are open to abuse and it may be hard to spot low value fraud or even possible to brush it off as administrative or accounting errors. Mistakes will only be spotted after the testator has died and it will have profound repercussions on the bereaved and intended beneficiaries.

Redress

Regulation will not necessarily prevent the problems that can arise, but it will enable consumers to have better access to redress. Currently, where an unregulated business has been used, they must rely on consumer law even though the consumer themselves will no longer be involved.

The recommendations

It is recommended that probate and estate administration services should be made reserved activities along with Will writing services and that they should all be regulated. Consumers would then be able to seek redress through the Legal Ombudsman and gain financial protection through measures such as compensation funds. Under the new proposals, individuals would be subject to suitability checks including criminal record and bankruptcy searches, but services would not be restricted to the legal sector.

The Law Society has recently answered the LSB consultation, agreeing with its recommendation to regulate but highlights that until it is in place, there is not enough protection for the user. They also point out that whereas solicitors are already regulated and must act in the best interests of a client, a provider without the same training and knowledge but that is also regulated, may still pose an unknown risk to a client.

Take care

There is currently no adequate protection from defective Will writing and probate services, nor adequate redress. It is hoped that regulation, along with increasing fraud prevention measures, greater consumer education and simplifying the probate application process, will strengthen the position of vulnerable consumers. This would help to avoid additional stress and delay, allowing grieving family members to draw a line under the affair and prevent the breakdown of family relationships.

In the mean time, extra care should be taken if choosing to use unregulated providers, or with the use of do-it-yourself or “free” Will writing. The safest approach is to seek the legal advice of qualified, regulated professionals.

If you would like any further information, please contact James Laycock, partner on 0113 227 0382 or at james.laycock@gordonsllp.com.