CMA will writing investigation: What does the industry make of it?

Following the Competition and Markets Authority’s (CMA) decision to launch an investigation into unregulated legal services, the feeling from within the industry is – somewhat predictably – mixed.

One of the CMA’s focuses is will writing, an unreserved activity which is currently undertaken by qualified, regulated lawyers as well as unregulated practitioners.

Naturally, therefore, there is a split of opinion as to what the CMA’s investigation could – or should – mean for the practice of will writing. Today’s Wills and Probate polled the industry on their thoughts – here’s what they said.

Why now?

Discussion around whether will writing should be regulated is not new: it’s been going on for years. This discussion has, on occasion, evolved into officials and regulators taking a considered look at the sector.

For example, the Solicitors Regulation Authority (SRA) commissioned independent research into the unreserved legal services market in July last year. The findings, released in June, revealed concerns over the “cowboys” providing lower quality legal services with lower standards and no regulation.

However, just last year the Legal Services Board (LSB) announced it would not be pursuing a full statutory review of the sector at the time, citing the lack of a “compelling case”. Then, in March, they stated they would not be reviewing the list of unreserved activities in the imminent future.

Therefore, with regards to the CMA taking up their own investigation, one must ask: “why now?”

While the exact reason is unknown, it is understood the investigation comes as a result of concerning complaints from consumers accompanied by notable levels of financial harm.

The extent to which the SRA’s and LSB’s own activity has informed the CMA’s decision isn’t certain, although the LSB told Today’s Wills and Probate that the CMA did indeed engage with them prior to announcing its own investigation, and they promptly shared their own findings.

Regulated vs unregulated, or qualified vs unqualified?

It is not expected that the matter of deregulation itself will be considered as part of the CMA’s review: rather, that consumer protections need to be reinforced. The LSB, as explored above, are also not considering the matter.

Therefore, it begs the question of whether the debate should focus on qualified vs unqualified practitioners as opposed to regulated vs unregulated. Naturally, Sarah Williams, Vice Chair of the Institute of Professional Willwriters (IPW), appears in favour of this idea:

“There are a vast number of professionals within the unregulated sector who willingly and voluntarily adhere to strict codes of conduct through their professional bodies…

… These will writers in theory fall into the ‘unregulated’ definition whilst actually the codes that they adhere to are similar to those imposed by other professional bodies who are regulated.

It is, in essence, the ‘unregulated’ will writers who are not members of any reputable bodies who cause concern to the industry as a whole.”

One frequent criticism is that “anybody can wake up one day and decide to be a will writer”. This, says Anthony Belcher, Director General of the Society of Will Writers (SWW), is a fair assessment. While Belcher points out that “nobody gets into the SWW without proof of proficiency”, he conceded:

“Whilst I’d like for that anyone who wants to start up as a will writer should be able to, I do think there’s a right way to go about it. There is some risk in the sense that as it stands anyone can do it without any formal requirements to do so…

… I suppose we’re nudging the conversation towards a more formalised form of regulation here, which many would see as a bad thing, even though it takes many different forms and doesn’t necessarily have to mean restricting more legal activities in the process.”

The IPW’s Sarah Williams offered a similar assessment:

“The IPW would welcome regulation and would become a regulator if necessary, however we do not see any evidence that there is detriment to the public requiring will-writing to be a reserved legal activity when compared against other professional bodies.”

A spokesperson for the Best Foundation suggested the implementation of a “strict minimum standard” for will writers, which would involve continuing competence, conduct rules, remedies for clients, and sanctions for non-compliance.

Support for full-scale regulation is virtually unequivocal in other quarters, such as the LinkedIn following of SFE (Solicitors for the Elderly). According to their recent poll, some 96% believe the will writing industry should be regulated. While their audience is, of course, made up of solicitors, it is nonetheless a striking figure. Michael Culver, Chair of SFE and Managing Director of Culver Law said:

“There’s a wide variety of will writing suppliers on the market. Currently anyone can write a will, therefore the nature of the industry being unregulated leaves the consumer open to a much higher risk of things going wrong. As is the nature of wills, we often don’t know something is amiss until it is too late.

… Consumers should be able to clearly identify qualified practitioners, with a requirement for suppliers to complete regular training, and hold insurance.”

Clear identification of qualified practitioners is a key issue. There are, for example, instances where a will writing organisation will “hide” behind a STEP qualification. Here, a small number of staff will be TEP-accredited, so this is presented as a front for the whole business. On this, Sarah Manuel, Head of Professional Standards at STEP said:

“When we become aware of alleged misleading statements we always investigate and work with firms to ensure that they comply with our membership advertising and marketing requirements…

… We do not condone any misrepresentation of the relationship with STEP, qualifications or membership status held by members or those they employ. We encourage the public to get in touch if they feel any of our members have breached our code of professional conduct. We will investigate any complaints under our disciplinary rules.”

STEP also pointed out that they feel the distinction between qualified and unqualified as opposed to regulated and unregulated is “fair”:

“Being regulated doesn’t mean that a legal professional has been trained in will drafting.”

When asked the same question, the Law Society declined to comment. They did, however, state that they would encourage anybody writing a will to use a solicitor.

Insurance

Another issue raised by Michael Culver was that of insurance:

“Ensuring adequate insurance is carried should be a key point. Whilst solicitors carry professional indemnity insurance, this isn’t the case for all will writers. It’s hoped that any (currently) unregulated companies must conform to the same strict rules and requirements as solicitors and be held to the consequences when they breach those regulations.”

All three of the Best Foundation, the IPW, and the SWW confirmed to Today’s Wills and Probate that they ensure their members are ensured, with the latter two stating that members must be covered up to a minimum of £2 million. The Best Foundation also offers a Client Guarantee to ensure client’s wishes are fulfilled should a member be unable to fulfil a contract, and the SWW has its own equivalent – the SWW Guarantee.

There are, of course, individuals and firms not within the remit of any of the above membership organisations and may not have the same levels of insurance, while all solicitors’ firms are required to hold PII such is the nature of regulation. Yet, this can also be prohibitive, as explained by the IPW’s Sarah Williams:

“The SRA’s small number of [PII] providers [is] extremely prohibitive, especially for the private client sector whose income is much less for example than a litigation or commercial practice.

That is why there are a number of non-practicing or retired solicitors operating in the ‘unregulated’ will writing market. This is reiterated in current times where even the Law Society have called for insurers to do more to assist solicitors in obtaining realistic and competitive insurance.”

Williams pointed out research earlier this year that revealed at least 46 solicitors practices were forced to close in the 15 months prior to 6th October 2022 solely due to the rising costs of PI insurance.