Time to claw back on cowboy will writers

Unregulated will writers are operating without training or insurance, exposing the families of the deceased to costly mistakes and excessive fees, a leading legal body has warned.

Regulation to stop cowboy will writers in their tracks is long overdue and potential victims need better protection, say campaigners.

"Writing a will is one of the most important financial and personal decisions that someone will make, and the public should be protected accordingly. Currently there is no regulation surrounding will-writing and anyone is able to write a will, effectively holding themselves out as an expert," says Linda Lee, president of the Law Society, which launches a campaign tomorrow for regulation of will writers.

The problem with many specialist firms is that they offer an attractively cheap service, but lack relevant qualifications and skill. Moreover, while solicitors are obliged to take out insurance and are regulated by the Solicitors Regulation Authority, anyone can set themselves up as a will writer and without appropriate protection in place.

The very nature of drafting a will means that the most damaging problems will surface only after the testator has died, leaving loved ones to foot the bill.

One of the major risks is that will-writing firms often ensure that they have themselves appointed as sole or joint executor – the person responsible administering the estate when the customer dies – then charge way over the odds to the bereaved relatives. And when asked to step aside from acting as executor by relatives of the deceased, some will-writing firms refuse.

In many cases, a family member or friend is capable of handling the estate on their own and can be appointed as a lay executor, then choose to get some professional help at the time.

As we exclusively revealed, banks have been getting in on the act as well. Barclays, for example, offers will-writing services for free with its packaged current accounts and then levies fees of as much as 4.5 per cent of the estate as executors, working out to £22,500 on a £500,000 estate. In comparison, even the most experienced solicitors could do the same work for less than a quarter of that fee.

In an Office of Fair Trading (OFT) survey it was revealed that 43 per cent of people appointed the professional will writer or solicitor who wrote their will as executor, costing UK consumers an estimated £40m a year in fees. There is some good news for consumers after the OFT announced last week that Barclays, HSBC, Lloyds Banking Group and RBS Group have voluntarily agreed to review how they sell will-writing and executor services.

However, there are still considerable pitfalls to watch out for. In January, the Society of Trust and Estate Practitioners (Step) revealed that 75 per cent of its members encountered cases of incompetence or dishonesty in the will-writing market last year.

Members reported coming across hidden fees and significant additional tax bills due to a lack of skill. Even more of a concern is that a mammoth 63 per cent had direct experience of will-writing companies going bust and disappearing with their clients' wills.

Step has also voiced its concerns about will writers falsely representing themselves as being both regulated and insured, with some even posing as solicitors.

Unscrupulous firms have even persuaded clients that their existing wills are out of date and need rewriting when there is no need to do so, while others have charged for safe storage of wills only to keep them in an attic or shed.

The potential pitfalls from using shoddy will writers are wide reaching. Drafting errors such as basic typos, or jumbled wording due to a lack of legal knowledge, can render the will invalid. "Classic examples that we come across are basic muddling up of the addresses of beneficiaries, or naming a specific item or a property to pass to someone," says Sue Medder, a solicitor from law firm Withers who co-hosts the current BBC2 series You Can't Take It with You.

"If the address changes, that property isn't there when the deceased dies and the gift of the houses fails because it's not in the will."

For anyone with a complicated estate, which is increasingly likely with today's changing family life, it is advisable to use a qualified and regulated solicitor to draft the will, someone who can wade through any difficult legal areas, including any technical issues regarding tax, trusts and property rights.

"The testator might want to deal with several generations but these will writers may not have the proper legal training to cope with the complexities of modern family living," says Ms Medder.

Until a regulatory framework can be put in place, the best way forward for consumers is first to check that any firms or solicitors they use are members of a professional body such as Step or the Law Society.

David Harvey, Step's chief executive, says: "The cost of professional advice will normally be very modest relative to the potential cost and family distress that can be caused if, for example, a badly drafted will fails to do what was intended, or is contested."