Worries over Wills and concerns over codicils: Should Will-writing be regulated?

Recently The Times wrote an article on the subject of unregulated Will-writing, stating that a legal watchdog report has warned that tens of thousands of people a year may have bought defective Wills.

The Legal Ombudsman has said that every year around 180,000 Wills are drafted by non-lawyers, and when a problem arises the customer is left exposed. whilst last year the Ombudsman assisted in putting right over 1,000 complaints relating to Wills and probate work undertaken by lawyers, the public currently has no access in law to the Ombudsman for services provided by non-lawyers.

Chris Grayling, Justice Secretary and Lord Chancellor, decided against making Will-writing a “reserved legal activity” last year, which undoubtedly would improve the situation for consumers.

So why are we faced with this problem? Why are the public turning more and more to unregulated Will-writers to draft their Wills?

Predictably the answer is cost, with lawyers’ fees causing people to turn to cheaper, but more precarious providers. According to Adam Sampson, Chief Legal Ombudsman, for the consumer on a budget, the fact that Wills can in theory be prepared by anyone “creates headaches about the standard of service one could reasonably expect…[and] means that some people will have access to help if things go wrong, while others won’t”.

Currently, if you were to use a solicitor to write a Will and it became apparent that a mistake has been made, there are two forms of redress available. The first is the Legal Ombudsman, which can award damages of up to £50,000. The second is a professional negligence action, which could result in damages being paid, as all practicing solicitors must have professional indemnity insurance.

In contrast, if you were to use a Will-writing service provided by non-lawyers and a mistake is made, you have no option to go to a regulatory body. As there is no obligation for such a company to have a form of professional indemnity insurance, suing for damages is likely to be pointless.

Clearly, using a solicitor provides the consumer with far more protection being regulated, but this offers little comfort for those that find a lawyer’s fees for writing their Will beyond their means.

‘Complaints in focus: Wills and probate’, the Ombudsman’s report, gives a variety of suggestions for the Government to attempt to address this problem, one of which being a voluntary ombudsman scheme that unregulated Will-writers could choose to join.

The scheme is supported by many, including the Society of Will Writers. It would provide consumers wishing to choose non-lawyers more peace of mind, as those suffering detriment up to the value of £50,000 would be given protection.

In the meantime however, whilst choosing a lawyer to write your Will may not be the cheapest option, compared to an unregulated Will-writer, it certainly remains the safest.

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