Worries over wills and concerns over codicils: Should will-writing be regulated?

    Worries over wills and concerns over codicils: Should will-writing be regulated?

    In October 2014, The Times wrote an article on the subject of unregulated will-writing. It stated that a legal watchdog report warned that tens of thousands of people a year may have bought defective wills.

    The Legal Ombudsman said that every year around 180,000 wills are drafted by non-lawyers, and when a problem arises the customer is left exposed. Whilst in 2013 the Ombudsman assisted in putting right over 1,000 complaints relating to wills and probate work undertaken by lawyers, the public had 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”, which undoubtedly would have improved the situation for consumers.

    Why do people use unregulated will-writers to draft 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”.

    What happens if there is a mistake in my will?

    Currently, if you were to use a solicitor to write a will and it became apparent that a mistake had been made, there are two forms of redress available:

    1. The Legal Ombudsman, which can award damages of up to £50,000.
    2. 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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    If you would like to discuss making a will or updating a current will, please contact a member of our Private Client Team.

    [Originally published in October 2014; updated in March 2020]

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