The Legal Services Board has published proposals for the
regulation of will-writing, estate administration and all related
activities. The regulation of will-writers is a welcome step
towards ensuring that appropriate standards are met and protecting
the public from "cowboy" will-writers.
The proposals seek to ensure that there are minimum standards of
competence amongst will-writers and that the public are protected
● introducing a mandatory register of authorised
providers of will-writing and estate administration services;
● ensuring that providers of these services have
financial protection arrangements (such as negligence insurance) in
place, a code of conduct, appropriate staff training and
● imposing fines where these requirements are not
A will-writer is anyone who prepares a will and may include
solicitors, non-solicitor will-writers or independent financial
advisers. Although solicitors are already regulated, the proposals
will tighten this regulation as well as introduce regulations for
non-solicitors who currently do not need to have any technical or
legal qualifications to prepare wills. (These proposals only apply
to paid-for services; do-it-yourself will writing and estate
administration will not be subject to such regulation).
A consultation period in respect of the proposals is open until
16 July 2012 and Government policy in this area will be decided
thereafter. We will be watching the developments closely.
The proposals are welcome as they seek to protect consumers from
"cowboy" will-writers. For many people, a will can be the
most important document they have ever made as it sets out how they
will provide for their loved ones after death. The consequences can
be serious if the will is not correctly prepared.
A survey carried out last year by the Society of Trust and
Estate Practitioners (STEP), the professional body which represents
trusts and estates advisers, found that three quarters of its
members had come across "incompetence or dishonesty in the
will-writing market" in the previous 12 months. Cases included
unqualified will-writers producing wills that were invalid due to
lack of legal knowledge and/or triggered higher tax bills on death
due to inappropriate (or no) use of tax mitigation strategies in
the will. It also found that some unqualified will-writers did not
have negligence insurance in place to protect consumers and some
had gone out of business with the wills disappearing with them; the
consequence being added costs for the client or the intended
beneficiaries who needed legal advice thereafter.
The cost of a badly drafted will which fails to do what was
intended or becomes contested can be significant, both financially
and emotionally, for the family. This can include the professional
costs for re-drafting the will or post-death litigation/legal
advice, unnecessary tax bills and distress. Regulation of the
will-writing market will help to protect consumers and their
families from going through such an experience and encourage more
people to make a will.
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A well-meaning friend, relative or even a carer of a deceased person may take what they believe are helpful steps to tidy up a deceased’s affairs in the days following their death to pave the way for those who will carry out the administration of the estate.
In the legal context mental capacity is the ability to make decisions. Examples of the situations in which it might be particularly important to establish a person’s mental capacity include when in relation to making a will, undertaking lifetime giving or making a lasting power of attorney.