Whilst it might dictate what will happen to someone’s assets after death, a will is arguably the most important document that someone will create during their lifetime.
Rather than the interests of the individual, a will is unique in that it’s prime purpose is to benefit others; therefore, ensuring that it has been executed to the highest standard will be even more of a priority.
Naturally, for something that is so personal in nature, it seems obvious that all means possible would go towards making sure that this is the case. However, as has been highlighted by both the profession and the Government, there is room for improvement, particularly where levels of service quality are concerned.
This article will explore the barriers that consumers face when it comes to choosing their estate planning professional, expert insights, as well as developments which could change the market while ensuring that the public receives the highest standard of service.
CONTENTS
- Going through changes
- A reserved legal activity
- The importance of voluntary standards
- The value of training
- Difficulties with differentiation
- E-wills and price transparency
Going through changes
Over recent years, the demand for estate planning services has grown tremendously, something which has largely been attributed to media attention on celebrity estates, as well as firms which have challenged the will writing stereotype. Cases involving high profile individuals have gathered public interest, whilst innovation within the sector has provided a source of intrigue for both consumers and professionals.
Despite this market seeing a number of developments and changes, there is one thing that stands out which, as yet, appears resistant to change.
A reserved legal activity
Having come into effect in 2007, the Legal Services Act lists all legal activities which are “reserved” and therefore subject to the regulatory control of the Legal Service Board (LSB). Currently, as it falls outside of this remit, will writing is a service which can be delivered by someone without a legal qualification.
The decision to exclude will writing was one made by the Labour government, but it was not one that was free of challenge, with many calls for legislation being made.
However, following the publication of a white paper and further review of the Legal Services Bill, it was found that there was a lack of evidence for regulation being necessary.
Commenting on the fluctuating nature of regulatory consideration within the profession was Thomas Stansfield. The Sales and Marketing Director of the Society of Will Writers (SWW) stated:
“The question of regulation raises its head every so often and from discussions that both myself and the SWW Director General Brian McMillan have had with the Chief Executive for the Legal Services Board, statutory regulation is unlikely to raise its head in the next few years. I believe the direct quote was ‘Government is far too busy with issues like Brexit to consider regulating will writing’. Brian McMillan, having led the SWW since 1996 has always been of the view that regulation should only be introduced if it is necessary and proportionate to the problems that the profession is facing.”
At present, there are three different levels of will writing regulation, as outlined by the Competitions and Markets Authority (CMA). These are:
- General consumer law which all providers are subject to
- Wider professional regulation which authorised providers are covered by
- Additional voluntary regulation for self-regulated providers
If regulation were to be introduced, the key question is to what extent it would reach, and whether its benefits would outweigh the potential cost to the market.
The threat of so-called ‘cowboys’ entering the profession is still apparent and the resulting media attention has deterred some consumers from making a will at all. Nevertheless, it’s important to understand that this type of coverage also increases consumer awareness with regard to the rogue traders, and in turn, means they are easier to spot amongst legitimate professionals. In the long term, the introduction of regulation within the profession could provide a greater degree of protection for consumers, as well as further assurance in that the service that they’re receiving is trustworthy.
On the other hand, it is important to consider the cost of enforcement, as well as the potential barrier that it would create for legitimate professionals who wish to enter the profession. Given the concern that law graduates are choosing areas such as crime and corporate law over estate planning, it raises the question as to whether introducing regulation would do more harm than good, especially in the short term.
The importance of voluntary standards
Although will writing is an unreserved legal activity, there are a number of voluntary bodies that set out their own codes of conduct, requiring professional members to adhere to them. These include organisations such as the SWW, Institute of Professional Willwriters (IPW) and the Society of Trust & Estate Practitioners (STEP).
Membership of these organisations will often be paired with additional benefits such as discounted educational materials, opportunities to take part in training as well as the provision of Professional Indemnity Insurance (PII). In this sense, choosing to use the services of one of these organisations provides a high level of protection and assurance for consumers, as well as ensuring that the quality of service to be expected will be of a certain standard.
They also aim to set an additional bar for professionals, demonstrating to consumers that the respective practitioner or firm follows an approved code of conduct. Working closely with legal regulators and often forming their own internal boards, these organisations are constantly reviewing these codes, ensuring that members are kept up to date.
However, as membership of these bodies is voluntary, it naturally means that some providers will not be adhering to any code of conduct at all. In fact, the CMA found that “around half of unauthorised providers have signed up to be regulated by voluntary bodies”. This means that the other half have not signed up, highlighting the lack of consistency in standards across the network of providers.
From a consumer perspective, the relevance of these voluntary bodies is largely dependent upon awareness. Whilst some consumers may know to look for accreditation or membership of an organisation, others may not. Similarly, it may be difficult for consumers to be able to differentiate between professionals who are members of voluntary bodies. Whilst organisations will require individuals to prove their level of qualification through exams or assessments, some professionals may remain very close to this level, with others choosing to gain further qualifications. This again highlights the potential lack of consistency, and therefore clarity for consumers.
The value of training
In a profession which is unregulated, undertaking regular training is regarded as important in order to keep up to date with the latest case law, as well as develop personal skills.
Taking this view is Sue Ioannou, Council Member and Vice Chairman at the IPW, who also highlighted the importance of training from the consumer perspective. She stated:
“In an industry which is unregulated, qualifications become even more valuable for all concerned. Not only does it help professionals stand out from competitors, but it also demonstrates to the consumer that the service that they’re receiving is being delivered by someone who is committed to keeping their market knowledge up to date.”
The SWW’s Thomas Stansfield also shared his view on the importance of training for professionals, with a view to them obtaining a standard which is recognised within the profession.
“Chris Grayling in 2013 had everyone geared up for statutory regulation and the decision not to regulate Will writers came as a shock to some. Since then and along with his calls for stronger self-regulation, the SWW have placed a bigger emphasis on training and the importance of professionals working to approved and recognisable standards.”
For will writing professionals that aren’t solicitors, training may be considered a driving force when it comes to establishing themselves within the market. Membership organisations and associated organisations play a key role in providing this training and enabling professionals to continually develop their knowledge and skills.
However, whilst the positive impact of training is clear to those aware of its benefits, there may be an absence of understanding for the consumer.
Sharing his views on this point was Trevor Worth, Managing Director and Founder of Portcullis Legals. Whilst he acknowledged the importance of professionals holding qualifications, he questioned their benefit if they don’t directly contribute to consumer decision making.
“For far too long there have been too many inward-facing discussions about examinations, memberships and regulation, with insufficient consideration from the consumers perspective. How do the public genuinely differentiate from a will writer with full TEP qualifications to someone who joined a random “will organisation” years ago, but holds no formal qualifications and has attended no CPD events since?”
Nevertheless, it’s vital not to underestimate the value of training and instead focus on improving public awareness as to what these standards mean for the service that they will ultimately receive. Building transparency and consumer education would ultimately be a step in the right direction, signposting to consumers what they need to look out for when choosing a professional, as well as the procedure should they need to make a complaint. Voluntary bodies will often have these functions internally and factors like this should be made more apparent to consumers.
Difficulties with differentiation
The inability to differentiate between providers has been regularly highlighted as a key issue for consumers. Some may naturally be drawn to more established providers, while others may choose to opt for a more fledgeling company that appeals to them directly. However, as highlighted by Stephen Lawson, time in the profession or depth of knowledge is not necessarily reflected in the service provided, thus causing even greater confusion for consumers.
“Having worked with estate planning professionals from businesses of all sizes, one thing that’s clear is that there is no monopoly of wisdom. Just because someone has been an established will writer for over 40 years, it does not indicate that their services will naturally be better than the practitioner who is finding their feet within the profession. For consumers, therefore, it can be incredibly difficult to ensure that the service that they will receive will be of a high standard, or whether they could have received a higher quality service elsewhere.”
The need to distinguish one provider from another has been met with much support throughout the profession.
Trevor Worth expanded on this point, highlighting the need for a shift in priority towards the consumer.
“If the public is to be reassured about quality in our sector, we have to take steps to ensure that they are able to differentiate in quality easily, and maybe introduce some joined-up thinking as a group of forward thinkers, rather than be too concerned with our own vested interests as membership organisations, commercial enterprises or individuals.”
In order to curtail this issue, he went on to suggest the introduction of a national register, listing the qualifications and reputability of each provider.
“If the public is to feel some degree of certainty in the standards of advice being provided, and that it is provided by qualified and insured firms and individuals, surely some form of kitemark or national register of will writers is worth exploring to assure quality? This would clearly lay out qualifications – and where these qualifications stand in the pecking order in the real world of law- regular CPD and years of experience. This could link directly to customer reviews.”
Given that the focus of this article is on ensuring that consumers receive the highest standard, it’s important to note that this standard will vary – or rather, the standard required in order to ensure that the will is legally robust.
Stephen Lawson elaborates on this point, stating that whilst in some cases a will may be reasonably straightforward, more complex estates will require a greater degree of expertise.
“The complexity of the estate also plays a key role in terms of the skill required to draft the will. Where this is straightforward, such as where a husband is leaving everything to his wife, it is arguably easier to write, with a higher number of professionals being qualified to do so. Where there are complexities, for example where the estate is high in value or someone has children from multiple marriages, the will us automatically more vulnerable to challenge. In these instances specifically, the importance of seeking professional legal advice is vital, in order for the will to stand up in court.”
E-wills and price transparency
Recently, there has been a number of key developments within the will writing and estate planning profession, as well as the legal services sector in general, with a view to improving the consumer experience.
In July of this year, the Law Commission launched a consultation on proposals to update the existing legislation on wills. Stating that the current rules were unclear, the Commission said that they could actually deter people from making wills and the law should be brought into the “modern world”.
It also questioned whether, in exceptional circumstances, electronic communications should be recognised as a valid will.
It was this particular proposal which sparked the greatest level of concern within the profession, largely in terms of increasing the risk of fraud and exploitation.
However, when the issue was raised during a Parliamentary debate, it was stressed that governmental assessments would be put in place to ensure that consumers would be appropriately safeguarded.
The proposals have been applauded for their application where the formal route is less accessible, such as where a condition may affect decision-making.
Nevertheless, there is a clear need for any changes to be carefully considered and that appropriate and proportionate protection to be implemented.
Set to close next week, the consultation on the proposals can be accessed here.
Whilst the legal services sector has been previously criticised for its lack of clarity, regulators have recently made calls for greater transparency following the results of a report from the CMA.
These proposals aim to improve the experience for the consumer and aim to ensure that they fully understand the quality of service they’ll be receiving, as well as the price that they will pay.
Commenting on the reaction witnessed within the profession, the SWW’s Thomas Stansfield stated:
“Since the CMA report findings established the need for greater price transparency, I think that a lot of people have woken up to the realisation that clients or members of the public are driven by price as a motivating factor. The SWW have long called for members to provide clients with detailed information on costs of their services and disbursements but these findings have enabled us to further highlight this important topic.”
Regulators anticipate that making prices explicit will have positive side effects within the market, particularly in terms of boosting competition and service quality. When the price is clearly provided, the hope is that consumers will instead look to the quality and type of service provided by the practitioner or firm, as communicated by their presence online. In turn, the consumer will be better informed, and therefore able to make a more informed choice.
Sharing his thoughts on this point was Stephen Lawson, who highlighted that paying slightly more for the skill and experience of a professional is likely to pay off in the long run.
“Whilst price can be important for the consumer, it is certainly not the only guide. Complex estates require skill and experience, and may therefore not be the cheapest on the market because this will be reflected in the cost. Paying for the skills of the professional and the resulting robustness of the will is likely to pay off in the long run, especially if the will becomes subject to legal scrutiny.”
It’s clear that quality of service is a priority within the profession, and is a stance taken by voluntary bodies and professionals alike. Whilst more strict rules and consistency may not be right around the corner, it will be interesting to see how developments in technology and transparency impact the quality of service being delivered and whether they really do benefit consumers in the long run.
