News focus: CMA probes will-writers

A decade after then lord chancellor Chris Grayling opted against making will-writing a reserved legal activity, the Competition and Markets Authority announced this week it would be investigating the unregulated service after receiving complaints.

Surprising? Solicitor Ian Bond, former chair of the Law Society’s wills and equity committee, said the issue was explored a couple of years after Grayling’s decision, but it was too soon to see if his approach had worked.

In 2013 Grayling, the first non-lawyer lord chancellor in modern times, rejected regulation on the grounds that alternative measures had not been sufficiently tested. These might include greater efforts to educate the public on the different types of provider, their respective protections and redress options, he said.

But 10 years on, has consumer knowledge increased? Has consumer detriment decreased? ‘Now is the right time to test,’ said Bond.

Anyone can write a will, the CMA said. Although many are drafted by regulated lawyers, will-writing itself is not a regulated service. However, as Bond stressed, a will ‘is the biggest cheque you will ever write’, guiding what happens to everything a person owned or built up in their life.

The CMA’s concerns include customers being misled over costs, and unfair contract terms such as firms automatically appointed executors of the will, subsequently taking significant sums from the estate as payment for services.

Lilly Toop, private client legal director at national firm Shakespeare Martineau, said the firm often sees problematic wills which do not accurately reflect testator wishes, leading to potential tax complications, tying a family up with unnecessary trusts, and costly and emotionally draining litigation. Certain will-writers offer free or cheap wills with hidden charges, such as ongoing storage costs or excessive fees for retrieving a will, she said.

‘Of course, we have also seen badly drafted wills from solicitors. However, as solicitors have professional indemnity insurance, at least there is someone to sue if it goes wrong, which isn’t always the case for will-writers,’ Toop said.

Should the CMA find that firms have breached consumer law, it might decide to provide guidance on the application of the law, secure legally binding commitments from a company to change its behaviour or practice, or obtain a court order to stop further breaches.

Would it recommend making will-writing a reserved legal activity? In its 2020 report on the legal services market, the CMA said it would be ‘cautious about extending reservation except where there is a clear justification to do so given its potential impact on competition and cost’.

Inviting interested parties to comment by 4 September, the CMA’s postbag will most certainly contain calls for enhanced, if not full-blown, regulation.

Solicitors for the Elderly director Jade Gani said: ‘Even aside from the debate as to who is appropriately qualified to advise on will matters, while there are some very capable unregulated will-writers in the industry, the mere nature of being unregulated leaves the public open to a much higher risk when things go wrong. Sadly, we often don’t know something is amiss until it is too late. I firmly believe will-writing should be a regulated legal service, which would require any (currently) unregulated companies to conform to the same strict rules and requirements as solicitors and be held to the consequences when they breach those regulations.’

STEP, the professional body for inheritance advisers, supports regulation of will-writing. ‘In the absence of government support for it, consumers need better education about how to choose a suitably qualified and trained advisor,’ Sarah Manuel, head of professional standards, said.

As for unregulated will-writers, the Institute of Professional Willwriters said it had long campaigned for higher standards, IPW chair Sue Ioannou said. ‘Therefore, we would welcome any genuine investigation into services that are below par and we would also recommend a level of regulation and recognition for the work that we have done to protect the consumer.’

Anthony Belcher, director of The Society of Will Writers, said: ‘We welcome meaningful investigations into the unregulated sector and continue to be involved in such to ensure that our members’ voices are heard, their needs and concerns are met and above all, they receive the recognition they deserve for the excellent work they do.’

The Ministry of Justice said it was aware of the CMA’s investigation and will be interested to read the final report. The legal profession will hope that it decides to consign yet another Chris Grayling policy to the dustbin.

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