The hot topic in the field of wills right now is clearly the issue of whether will-writing should become a reserved activity; something that is on the Legal Services Board’s work agenda.

To inform its decision on whether to start regulating the sector, it has asked its Consumer Panel, the body that provides it with independent advice on consumers’ interests, to gather evidence on whether regulating will-writing would ultimately benefit consumers. It will be weighing up whether regulation would prevent errors and provide protection, or simply deter people from getting a will by forcing up the cost to a level that outweighs the benefits of regulation.

The responses showed strong support for regulation from consumer groups, as well as the Law Society, which provided 120 case studies in support of its position, and individual law firms.

Of course, you would expect the solicitors’ profession and the body that represents it to support the notion of regulation.

But personally, it was the submission made by Co-operative Legal Services that I found most interesting. It stated that ‘will writing should become a reserved activity which can only be carried out by solicitors’ (or, presumably, supervised by solicitors).

But it also went on to provide a series of examples of where errors had been made in wills, and quite openly acknowledged that these errors can be made not just by unregulated will-writers, but also members of the solicitors’ profession.

To quote an extract from the submission, it says: ‘It is not possible to make a distinction between solicitors on the one hand and will writers on the other. We set out below a selection of the problems that we have uncovered:

1. Solicitor drafted a will with a gift included to a named charity. No charity number or any other details were recorded. Two charities with that name are now arguing over the gift. On review of the solicitor's file, it is unclear what was intended, as the file is in poor order with no notes taken as to what the deceased said.

2. Solicitor drafted a will with a gift to sons as part of a nil rate band trust. However, the gift would have had to use half share of the residential property and the deceased's wife was still living there. The drafting of the will was poor as there was no power to take a charge over the property. Needed a Deed of Variation to rectify.

3. Solicitor drafted will with only name details recorded for residual beneficiaries. There are no addresses, family relationship etc details recorded. Despite instructing a search for the missing beneficiaries this has produced nothing. Solicitor's file is no help as no notes taken as to what the deceased said.

4. Many examples of will-writer wills where life interest trusts have failed because they are circular trusts. In one specific example we attempted contact with the will writer in question to obtain their file but have never received a response.

5. Will writer drafted will which took no account of an existing Spanish will and foreign assets. Extra affidavit evidence was required to show the intention of the testator.

6. Solicitor drafted will with no revocation clause. Caused extra work to obtain evidence to work out the deceased's intentions.

7. Will writer drafted will with executor's names spelt incorrectly. Needed affidavit evidence to prove they were the people entitled to act.

8. Solicitor drafted will with badly drafted section 33 of the Wills Act clause which has led to contested estate.

9. A number of cases are now being pursued on behalf of estates for professional negligence in the drafting of wills.’

It seems, then, that any argument the profession may wish to run about how qualified solicitors are simply less likely to make mistakes, might be an easy one for opponents to knock down.

The strongest case that solicitors can make if they want to argue that will-writing should be reserved just for them, is not the quality of advice – though of course, that is a factor – but the compensation available. Which is precisely the point that the Co-op makes.

It says: ‘As indicated above, these issues are not restricted to solicitors or to unregulated will writers. That said, however, CLS is in favour of the regulation of will writing. This is because of the importance of a will and the potential consequences of getting it wrong.

‘Under the current system, if a solicitor "gets it wrong" the client or those administering an estate have a clear course of redress and the security of knowing that the provider is covered by professional indemnity insurance. These vital protections do not necessarily exist in the unregulated sector. Some providers might have insurance, some may not.

‘With recent reports indicating that the number of contested wills has risen by 38% in the past year alone, it is even more important that wills and testamentary documents are drafted correctly and to the highest standard.’

Here, here.