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That clanging is the sound of doors being closed after the horse has bolted

Editorial Staff

The Legal Services Board, an industry body representing and - after a fashion - regulating lawyers in England and Wales, is to propose to The Lord Chancellor that will-writing and post-mortem legal services should be "reserved" - that means only those falling within the scope of the LSB's supervision should be allowed to do them. That's going to cause a near riot. And it may be another nail in the coffin of small firms.

It was long the case that only a solicitor or a registered trust company was allowed to extract a grant of probate or letters of administration. The only exception was where the grant was obtained by a person named as executor of a will or, in limited cases, entitled to benefit under a will or intestacy.

But there has at no time been any restriction on who can give advice on the drafting of a will.

Banks have for decades drafted will under which they were named executors, collecting fees - often substantial - for the service. Accountants joined in and began offering similar services - and in doing go found a self-selecting group of the above averagely wealthy. Accountants sold it as part of succession planning and wealth planning.

Indeed, in banks, accounting firms and solicitors' practices, will drafting has long been a loss-leader, at low cost or even free for those appointing the adviser as executor. Therefore banks and accountants, as executor, were able to by-pass the restriction on extracting a grant.

Over the past 20 years or so, a thriving parallel industry has grown up: will writing is now big business. And so are the related areas of probate and, even, enduring powers of attorney and "living wills."

There is no official regulator for the will writing companies although there are several rival membership schemes that declare that they regulate their members.

In an article published in The Law Society's Gazette, England and Wales Law Society president Lucy Scott-Moncrieff is said to be concerned that the LSB might "confuse the need for professionalism with a desire for competition" and warns "that regulators competing to be the most attractive body for providers could result in lower standards."

In short, the Law Society wants to bring will writers and providers of related services to a standard of regulation that applies to solicitors, not to see a drive to the bottom as rival membership schemes vie to be the biggest in the hope of gaining precedence should one of them be chosen to be the official regulator in due course.

The LSB's chairman, David Edmonds, who has no experience in the legal sector nor in the regulator of that section (save as a member of the Legal Services Commission) but has been chairman of various public bodies and who is paid GBP63,000 to do just 70 days work per year, demonstrated his credentials as a representative of the previous Labour government which sought to dismantle much of the centuries old legal system by saying that the changes would be "targeted and proportionate." That's detailed and clear, then.

In fact, the growth of will writing outside the legal sector surged during the period 1997-2010 under the Blair-Brown government. That government encouraged the undermining of the legal profession outside the commercial arena that dominates the City of London and generates vast revenues for the City.

The attempt to close this particular door long after the horse has bolted is not the fault of the legal profession: it has been warning the government for many years and, in the face of apathy from the government, has run its own campaigns, which many saw as partisan and self-interested.

Will writing companies are now in a position to do their own lobbying - and they are much more media savvy than most lawyers. Their PR campaigns are likely to be much more effective that those from law firms or LawSoc.

There is no guarantee that the so-called "super-regulator" will get more attention from the government than the LawSoc did. But it is at least connected within government and is seen as (somewhat) independent of the various branches of the profession.

In the meantime, the firms of will writers that do a good job face a battle for defining their regulatory regime. We've seen it before: when, under a Conservative government, de-regulation of the legal services industry created a discrete group of "licensed conveyancers" who, free of most of the expensive regulation imposed on solicitors, were able to undercut them in a price sensitive market. Ironically, some small solicitors' firms "downgraded" and became licensed conveyancers instead of solicitors.

Many will writers within law firms are not actually solicitors: nor are probate clerks. They often have vast experience, many having done the prosaic work entailed for decades. They are rarely ambitious but contribute to the bottom line without drama. For the LSB, there's a problem on the horizon - but it doesn't know it yet. So far, all professional bodies have grown on the basis of grandfathering-in those with much experience. And when they are offered professional status, many take it, even when they stay in their previous employment. That's a good thing.

But, as was seen in the case of licensed conveyancers, that status brings a concept of independence. For solicitors, then, the creation of a new profession of will writers, etc. is likely to lead to a loss of some of the most experienced staff who no longer need the cover of a law firm to do their work. And many of those staff will be free to set up shop just a few doors away from their old employer: non competition clauses are rare for older staff.

What looks like a good idea might just turn out to be another nail in the coffin of small high-street law firms.