Could you be at risk from an unregulated will writer?

An article in the Law Society Gazette a few weeks ago revealed that a couple were stung with an £89 annual storage fee for their wills, having already paid £4,500 for their wills and been told the storage fee would be £49. Meanwhile, the estate of another individual was hit by a £45,000 inheritance tax bill after they were advised to enter into an unnecessary and complicated lifetime trust.

How is this possible?

Will writing is currently an unregulated area of law. That means anyone, regardless of their qualifications or experience, can call themselves a will writer and charge any fee they like for preparing wills and setting up trusts.

A cursory search on Google (or your search engine of choice) will bring up any number of unregulated will writers in your area.

Why is this an issue?

Will writing is a complex area of law. While many people assume writing a will is as simple as putting your wishes down on a piece of paper, there are many things that need to be considered when making a will, such as your family circumstances, the type and value of your assets and the potential tax consequences each of your options could bring.

Similarly, if a will is not written or signed correctly, it might not meet your wishes or, in some cases, might not be valid at all, causing your family additional stress when you die.

Unfortunately, some unscrupulous will writers take advantage of people’s genuine concerns and sign them up to complicated and unnecessary wills or trusts, charging them thousands of pounds for little or no benefit. Indeed, as seen in the example above, they may even end up costing many thousands of pounds more in tax or administration fees than if the individuals had been advised to set up simpler wills.

What is the government doing to stop this?

In short, not a lot.

Ten years ago, the Legal Services Board, the body which oversees the regulation of legal professionals in England and Wales, called for will writing to become a ‘reserved activity’, meaning it could only be carried out by qualified professionals. That was rejected by the then lord chancellor, Chris Grayling.

However, the Competition and Markets Authority (CMA) is undertaking a ‘consumer enforcement investigation’ into will writing, pre-paid probate plans and divorce. Their concerns over will writing include misleading advertising over fees and potentially unfair contract terms. While they do not have the power to make will writing a reserved activity, they can ensure consumer protection laws are complied with by all will writers, whether they are regulated or not.

How can I ensure I am not stung by an unregulated will writer?

You should always do background research into the individual or firm you are looking to make your will with.

Firms of solicitors are regulated by the Solicitors Regulation Authority (SRA), which means if you are ever unhappy with the advice you have been given or the fee you have been charged, you have the opportunity to seek redress through the Legal Ombudsman or complain to the SRA, depending on the circumstances. The SRA also require firms to be transparent about their fees, which means when you approach a solicitor to write a will for you, you should be told exactly how much it will cost before you are asked to commit.

Some non-solicitor will writers may be voluntarily regulated, for example with the Society of Will Writers. Some are former solicitors or experienced legal assistants, while some may have undertaken will writing qualifications, such as the diploma offered by the Society of Trust and Estate Practitioners (STEP). But it’s not always easy to tell whether a non-solicitor will writer is regulated or has the right qualifications or experience to assist you, and if you are ever in doubt you should always err on the side of caution and look for someone you can trust.

What can I do if I think I’ve been sold a will or trust that doesn’t fit my needs?

It is usually possible to bring a trust to an end. However, you should seek advice from a qualified professional before doing so as sometimes it can end up costing more overall to bring a trust to an end.

Similarly, it is always possible to prepare a new will, provided you still have the capacity to make it. Again, you should seek advice from a qualified professional to ensure any new will you make is right for you.