Is will writing and the handling of assets open to abuse?
The Law Society warns that will writing and the handling of assets is open to abuse.
Consumers risk losing everything if they allow unqualified and unregulated will writers to have full control of their estate's assets.
The Law Society has highlighted the potential risks during the estate administration process in its submission to the Legal Services Board's call for evidence into will writing, estate administration and probate activities.
The Law Society has been running a campaign to warn consumers of the dangers of using will writers who are not properly qualified and is calling for will writers to be regulated at the earliest opportunity to stop the exploitation of consumers.
Law Society President John Wotton said it is becoming more difficult to assist consumers to identify reputable service providers as many providers now operate online.
"Anyone, particularly people looking to commit fraud, can create a website that looks professional and has many testimonial recommendations. There is currently no regulation or monitoring in place to ensure that administrators do not misappropriate a client's estate assets. There are significant risks involved in allowing unqualified and unregulated will writers to have full control of an estate's assets. The estate administrator is responsible for important tasks which can be easily open to abuse and safeguards need to be put in place to protect the testator's estate from unscrupulous behaviour.
"The Law Society has been running a campaign to warn consumers of the dangers of using will writers who are not properly qualified. The Society is calling for will writers to be regulated at the earliest opportunity to stop the exploitation of consumers.
"We believe that regulation of will writing is the only appropriate means of protecting the consumer and we support the recommendation that will writing should become a reserved activity. However, we also believe that the preparation and lodging of a power of attorney and estate administration services should also become a reserved activity to ensure consumers are adequately protected. It is vital to ensure that consumers are protected from unscrupulous will writers whose only intention is to defraud the consumer by pressuring the consumer to name them as their attorney or executor."
John Wotton said at the moment anyone in England and Wales can operate as a will writer and sell products that are not fit for purpose.
"Our members are experiencing a large number of cases where consumers have been previously mis-sold a type of trust by a variety of service providers. The trust offered is often called an 'Asset Protection Trust', or 'Life Interest Trust', or 'Protective Property Trust', but it is also referred to under various other guises. This is an increasingly difficult area. Consumers are paying thousands of pounds, which in many cases represents a significant portion of their savings, for a product that promises to protect a person's home against possible future care home fees, but the consumer may not have received adequate advice as to its applicability, its appropriateness for their circumstances and its possible ineffectiveness for the purpose for which it was sold. There are frequently errors and mistakes which render the use of the product unfit for its purpose and potentially void.
"We are also very concerned about the lack of succession planning for unregulated will providers who may become insolvent or close their business. At present, there is no safety net in place to protect a client's will and file, if an unregulated business ceases trading. By contrast, if a law firm closes down the Solicitors Regulation Authority (SRA) can intervene and ensure the safety of all wills and files for clients of a solicitor.
'Problems in the drafting of a will have the potential to cause the most profound repercussions for the bereaved. Regulation is the only true form of consumer protection in this area of law. Without regulation, providers have the freedom to market and deliver services without meeting any professional standards to the detriment of consumers or, very frequently, their families.
'Writing a will is one of the most important financial and personal decisions that someone will make, and the public should be protected accordingly.'
People who are preparing a will should engage a solicitor who can make sure that the will is legally watertight and advise on complex financial issues such as inheritance tax and trusts planning. Solicitors are all trained and regulated and are required to have adequate insurance to protect the public.
Notes to Editors:
The Law Society is the representative body for more than 145,000 solicitors in England and Wales ('the Society'). The Society negotiates on behalf of the profession, and lobbies regulators, government and others.
The Society has launched a dedicated 'issues' page on its website, which contains a campaign booklet, setting out the problems unregulated will writers cause and the arguments for their regulation.
Law Society consumer research conducted in 2010 indicates that consumers are unable to distinguish between regulated and unregulated providers. Despite this confusion, there is a clear demand for regulatory elements to be in place (regardless of the added cost that it might entail). 82% of respondents to the survey agreed that they ‘would pay more to have a will drafted by a regulated provider with a formal complaints procedure and compensation scheme'.