Unregulated will writers

The Competition and Markets Authority (CMA) identified the unregulated legal services market (particularly businesses offering will-writing and pre-paid probate services) as posing considerable risk to customers, and has issued draft guidance on consumer protection in the legal services market. In July 2023, the CMA estimated that there were 208,000 unregulated providers of legal services, with many of these operating in the will writing sector.

What are the most common issues?

1. Professional accountability

Unlike solicitors, who are regulated by the Solicitors Regulation Authority (SRA) and adhere to strict codes of conduct, unregulated will writers are not bound by any statutory regulatory framework. This means they're not required to have any formal qualifications, adhere to professional standards, or maintain professional indemnity insurance. Consequently, if an unregulated provider gives incorrect or negligent advice, there's often little recourse for the affected parties to seek redress. In addition, a common complaint is that unregulated advisors include unfair contract terms that do not offer sufficient protection to the client (such as an exclusion of all liability and lack of any cancellation rights).

The lack of formal training and qualifications among some unregulated will writers also raises concerns about the quality and accuracy of the wills produced. Drafting a will requires a comprehensive understanding of the client’s specific personal circumstances, tax and the ability to foresee and mitigate potential disputes. Some unregulated providers will offer the production of a will based on a completed online form or a brief exchange of emails. This doesn't allow the advisor to check the mental capacity of the testator and even whether the testator has complete knowledge of the information being provided. This can lead to invalid wills, ambiguities, or unintentional disinheritance, resulting in costly and time-consuming legal disputes.

2. Misleading advertising and aggressive sales practices

It's common to see sales literature of unregulated companies offering wills for a very small fee (or even for free in some cases). The literature will make brief mention of additional fees where more complex will structures involving trusts are required, without specifying the additional fees involved. Inevitably, the promise of a free or very cheap will draws in the potential clients who are then subjected to aggressive upselling of unnecessary complex wills (for much higher costs). We've seen examples of such complex wills where the drafting is incomplete and doesn't actually reflect the testator’s wishes at all.

Vulnerable individuals without close family nearby are particularly susceptible to aggressive pressure sales practices such as door to door sales, exaggerated promises of the risks to their estate in relation to tax or care home fees and the upselling of unnecessary additional work. The absence of regulatory oversight makes it challenging to monitor and prevent such unethical practices.

3. Data protection

Unregulated will writers may fail to adequately safeguard personal and sensitive information. Proper data protection is crucial when handling documents that contain intimate details about an individual’s assets, beneficiaries, and personal wishes. Without the stringent data protection protocols that regulated professionals must follow, there's a heightened risk of information breaches, identity theft, and misuse of personal data.

4. Cost vs value?

The financial impact of using an unregulated will writer can be severe. While they may offer initial services at a lower cost compared to solicitors, any initial savings can be quickly offset by the costs of rectifying mistakes. This includes legal fees for contesting a will, costs associated with probate delays, and potential tax penalties from improperly structured estates. In some cases, the financial burden can significantly deplete the estate's value, reducing the inheritance available to beneficiaries.

As part of their draft guidance, the CMA has suggested that will writers follow a checklist including:

• “Do clearly and prominently give consumers the total cost of the service you are marketing, including likely expenses or associated costs, even if not charged by you”
• Don’t make misleading comparisons when marketing your services, for example by comparing the (higher) cost of a bespoke service provided by a solicitor with your (lower) cost, omitting the relevant fact that the higher cost reflects a very different service”.

The CMA’s final compliance guidance is expected later in 2024.

In our view, protecting the assets built up over a lifetime for the benefit of your chosen beneficiaries should be dealt with carefully by qualified, regulated advisors and the importance of such advice can't be overstated.