Regulation of will writers

This research briefing deals primarily with the position in England and Wales, with the position in Scotland discussed in section 8. It covers, among other things, the recent launch of a Competition and Markets Authority investigation looking at potential consumer law breaches in will writing (among other things).

Competition and Markets Authority investigation

On 24 July 2023, the Competition and Markets Authority (CMA) launched a new investigation to protect consumers following complaints about unregulated will writing (among other things). The CMA said it had identified various areas of concern involving potential risk to customers and possible breaches of consumer protection law, including, in relation to will writing: misleading advertising, the use of potentially unfair contract terms, and reports of pressure selling and coercion of vulnerable customers.

Background Regulation of legal services

Some types of legal activities, known as “reserved legal activities”, may be carried out only by regulated “authorised” legal professionals, such as solicitors and barristers. However, other legal advice, including will writing, may be delivered by people (“unauthorised providers”) who are not regulated in the same way.

Regulation of will writing

There is no sector-specific regulation that covers will writing and no one is legally prevented from offering will writing. A similar service may be offered by regulated legal professionals, such as solicitors; will writers subject to a self-regulatory scheme; and will writers who are not subject to either compulsory or voluntary regulation.

In its 2016 report on the legal services market (PDF), the CMA found three different levels of regulation in will writing:

• at a minimum level, all providers are subject to general consumer law
• regulated legal professionals (“authorised providers”) are covered by their wider professional regulation and are subject to additional requirements intended to protect consumers
• the CMA noted that around half of unauthorised providers had signed up to be regulated by voluntary bodies, such as the Society of Will Writers and the Institute of Professional Willwriters, which have similar requirements to those of regulated legal professionals – the CMA also considered the effectiveness of self-regulation.

Arguments for and against regulation of will writing

Arguments have been advanced both for and against regulating will writing, based on the need for consumer protection on the one hand, and the cost, burden and effectiveness of regulation on the other.

For example, a problem with a will may not come to light until the testator (person making the will) dies, which may be many years after the will was written. If there is a problem, the redress (if any) available may be dependent on who wrote the will, and those involved may not have anticipated this.

However, following a call for evidence on the legal services regulatory framework, in 2014 the Coalition Government said it was keen to reduce burdens on legal service practitioners, and to ensure the growth of a liberalised and competitive legal services market (PDF). It said it must ensure that “regulation is appropriate, proportionate, and thereby protecting consumers and the wider public interest”.

Government rejection of Legal Services Board recommendation

The list of reserved legal activities may be extended on the recommendation of the Legal Services Board (LSB), which oversees the regulation of lawyers by their own professional bodies. In February 2013, following a statutory investigation, the LSB recommended to the Lord Chancellor that will writing activities should be reserved (PDF), on the basis that the risk of detriment to consumers was significant enough to warrant regulation.

In May 2013, the then Lord Chancellor announced his decision not to accept the LSB’s recommendation. He acknowledged the LSB had identified consumer detriment in the will writing market. However, he considered further efforts should be made to address the problems through alternatives to regulation, in order to ensure the costs and burdens of increased regulation were not imposed unnecessarily.

Competition and Markets Authority legal services market study

In January 2016, the CMA began a market study into legal services in England and Wales to examine whether they were working well for consumers and small businesses. As part of this exercise, the CMA carried out a detailed examination of will writing and probate services to individual consumers.

The CMA published its final report (PDF) on 15 December 2016. With regard to will writing services, the CMA found a range of consumer protection issues but had not been able to identify the scale of any consumer detriment. It also found evidence that it was a “small rogue element” rather than the broader unauthorised sector which caused problems.

The CMA concluded there was potentially a role for some regulation of will writing, such as training and entry requirements, but that more evidence was needed. It made recommendations to regulators and the Government.

Scotland

In Scotland, as in England and Wales, will writing is an unreserved activity. The Legal Services (Scotland) Act 2010 contains provisions which would allow for the regulation of will writers. These provisions have not been brought into force.

In 2017, the Scottish Government launched an independent review of how legal services are regulated. The Review published its report, Fit for the Future (PDF), in October 2018. Among other things, it recommended will writing should continue to be unreserved. It noted, in practice, many will writers who are not solicitors are part of a voluntary regulatory regime.

Following consultation on the Review’s recommendations, the Scottish Government said it was committed to “reforming legal services and to retaining the sector’s independence within a system that provides greater flexibility in how complaints are handled – to benefit both consumers and legal professionals”.

The Regulation of Legal Services (Scotland) Bill was introduced in the Scottish Parliament on 20 April 2023. A Policy Memorandum (PDF), published with the Bill, confirms the provisions in the 2010 Act relating to the regulation of will writers would be repealed. However, there would be new provisions allowing for complaints against unregulated legal services practitioners, including will writers.