Where there's a will there's a way, isn't there?

Unless you are a lawyer, or some strange legal hanger on, the news that the Legal Services Board (LSB) has formally asked the government to regulate will writing has probably passed you by. Most normal people do not think about regulation (although I confess I have no evidence for this assertion) and if they do, they probably assume it is already there. They aren’t likely to waste valuable minutes reading about it when the future queen of England has been snapped in only her bikini.

I don’t blame these normal people, they shouldn’t have to think about regulation.  It’s not terribly exciting at the best of times and when it involves lawyers it’s a subject guaranteed to get you struck off the dinner party invitation list, not least because the landscape of legal regulation is so confusing most lawyers probably don’t even understand it. 

Regulation is also a controversial subject and these should always be avoided at parties.  What  deregulation enthusiasts (normally politicians and  businessmen) often fail to recognise is that consumer groups don’t, in fact, want to regulate everything that moves.  There’s a very good reason for this: regulation has to be paid for and that cost is always passed on, to the consumer obviously. 

On the other hand, the Office of Fair Trading reckons the annual cost of consumer detriment resulting from the unsatisfactory purchase of goods or services is £6.6 billion, so we clearly need some regulation.  Without it we’d all be at the mercy of a few rogue bankers out to line their own pockets without a thought for the consequences…

The fact that we were at the mercy of a few rogue bankers was because financial regulation wasn’t working properly, probably something to do with a lack of consumer focus, a lack of accountability and weak enforcement.  Most lawyers, however, would probably argue they are over regulated following the setting up of new regulators like the LSB and the Solicitors Regulation Authority.

This makes it kind of odd that the Law Society has been at the forefront of calls for will writing to be drawn into the small circle of regulated activities. Regulating will writing won’t necessarily mean only lawyers can write wills.  It will mean that the person doing it is regulated by somebody somewhere rather than just being a bloke from the pub who read a book about it once. 

And regulating will writing won’t stop bad stuff happening.  You also can’t expect zero risk, although it seems consumers are prepared to pay extra to ensure they are protected when buying legal services.

A recent survey for the Legal Services Consumer Panel (LSCP) found consumers firmly rejected the option of taking on more responsibility for insuring themselves against risk in return for lower costs.  This is understandable, and very sensible, because consumers are quite clearly not on an equal footing with lawyers and would be quite likely to make bad choices. 

The government, however, is quite keen on the idea of consumers taking on greater responsibility for risk.  It’s hard to see how legal insurance could offer anything like the protection consumers need when it comes to buying legal services.  This is not just about an information imbalance, but the degree of harm that can be caused when things go wrong. 

It is quite extraordinary to suggest consumers should protect themselves against the risks of fraud, negligence and insolvency as these are impossible to foresee or control and the stakes potentially so high.  It goes without saying that removing any guarantees would hit vulnerable consumers the most. 

Having long been unconvinced by the need to regulate will writing, I will now concede the body of evidence suggests it should be so, although the final decision lies with the Lord Chancellor, who has 90 days to make his mind up.  Interestingly, I also find myself sympathetic to the view of the Law Society and the LSCP that this doesn’t go far enough. 

They wanted the LSB to recommend regulation of estate administration, an idea it ultimately rejected. So as not to descend into a world of legal terms and processes I don’t understand and that will bore you to tears (if you aren’t already), suffice to say it would makes sense to me, as a consumer, to regulate the whole sorting-out-stuff-when-you-die process from start to finish, not just pick bits of it and confuse everyone even more.  Sometimes there are principles other than level of risk worth considering.

So where does this all leave us? Assuming the Lord Chancellor agrees, will writing regulation could come into force in April 2015 and I won’t have to write about it anymore (a good thing).  But we’ll still have a fiendishly complicated regulatory system that, while it may provide the necessary protection for consumers, does nothing to empower them.