Is there a case for the statutory regulation of will writing? A recent Commons briefing paper considers arguments for and against.

While certain types of legal activities can only be carried out by solicitors and barristers (“reserved legal activities”), will writing can be delivered by “unauthorised providers” who aren’t regulated in the same way.

No-one is legally prevented from offering the service of will writing and they are not subject to either compulsory or voluntary regulation. Problems with wills may not come to light until the testator dies, which could be years after the will was written and if any redress is available, this might depend on who wrote the will.

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Levels of regulation

The Competition and Markets Authority (CMA) found three levels of regulation in will writing when they looked into the issue in 2016:

• all providers are subject to general consumer law at a minimum level
• regulated legal professionals are covered by their wider professional regulation and are subject to additional requirements intended to protect consumers, such as access to the Legal Ombudsman, mandatory Professional Indemnity Insurance, training requirements, and codes of conduct
• the CMA found that around half of unauthorised providers have signed up to be regulated by voluntary bodies, such as the Society of Will Writers and the Institution of Professional Willwriters, which have similar requirements to those of regulated legal professionals.

Arguments have been advanced both for and against regulating will writing, based, for example, on the need for consumer protection on the one hand, and the cost, burden and effectiveness of regulation on the other. In 2013, the Legal Services Board recommended that will writing activities should be reserved because of the risk to consumers but this was rejected by the then Lord Chancellor.

‘Small rogue elements’

The CMA’s market study found consumer protection issues when it looked at will writing services, but was unable to identify the scale of any consumer detriment, and that a “small rogue elements” caused problems, rather than a broader unauthorised sector. It recommended the Ministry of Justice should collect additional information relating to the unauthorised part of the will writing sector, and review the current regulatory framework to make it more flexible and protective of consumers.

In Scotland, the Legal Services (Scotland) Act 2010 contains provisions for the regulation of will writers, but they have not been brought into force. A review has since recommended that will writing continue to be unregulated and should not become an activity that only solicitors can carry out.

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