There could also be major problems if consumers allow unregulated practitioners to draw up lasting powers of attorney.
The society raised its concerns in response to the Legal Services Board’s call for evidence into will writing, estate administration and probate activities.
The problem is that anyone can set up in business as a will writer, even though they have no qualifications, no insurance and are not regulated in any way. Solicitors, on the other hand, have to be highly qualified and must abide by a strict code imposed by the Solicitors Regulation Authority.
The society is calling for all will writers to be regulated and has been running a campaign to warn people of the dangers of using unqualified practitioners.
The President of the Law Society, John Wotton, said: “Anyone, particularly people looking to commit fraud, can create a website that looks professional and has many testimonial recommendations. There is currently no regulation or monitoring in place to ensure that administrators do not misappropriate a client’s estate assets.
“There are significant risks involved in allowing unqualified and unregulated will writers to have full control of an estate’s assets. The estate administrator is responsible for important tasks which can be easily open to abuse and safeguards need to be put in place to protect the testator’s estate from unscrupulous behaviour.
“We believe that regulation of will writing is the only appropriate means of protecting the consumer and we support the recommendation that will writing should become a reserved activity.
“However, we also believe that the preparation and lodging of a power of attorney and estate administration services should also become a reserved activity to ensure consumers are adequately protected. It is vital to ensure that consumers are protected from unscrupulous will writers whose only intention is to defraud the consumer by pressuring the consumer to name them as their attorney.
“We are also very concerned about the lack of succession planning for unregulated will providers who may become insolvent or close their business. At present, there is no safety net in place to protect a client’s will and file, if an unregulated business ceases trading.
“By contrast, if a law firm closes down the Solicitors Regulation Authority can intervene and ensure the safety of all wills and files for clients of a solicitor.
“People who are preparing a will should engage a solicitor who can make sure that the will is legally watertight and advise on complex financial issues such as inheritance tax and trusts planning. Solicitors are all trained and regulated and are required to have adequate insurance to protect the public.”
Please contact Dominic Mackenzie if you would like more information about the issues raised in this article or any matters relating to wills, trusts and lasting powers of attorney.