Scottish Government plan to regulate non-lawyer 'will writers' may see Law Society regulate all complaints against mishandled wills, legal business

Community Safety Minister Fergus Ewing announces regulation for non-lawyer will writers. FERGUS EWING, the Scottish Government’s Community Safety Minister standing in for the Justice Secretary Kenny MacAskill announced the latest round of amendments to the Legal Services (Scotland) Bill which include the regulation of non-lawyer will writers in Scotland, some of whom have been targeting people with the same sharp practices so often employed by solicitors & law firms who, as the complaints statistics reflect, still represent the greatest threat to deceased clients wills & executry estates.

However, there is a deadly twist in the plans announced by the Scottish Government, which may well end up ensuring any non-lawyer will writing services and indeed any new entrants to Scotland’s legal services market, are regulated by the Law Society of Scotland, as no other regulatory bodies have indicated they intend apply to Scottish Ministers to be ‘approved regulators’ for the expanded legal services market which the Legal Services (Scotland) Bill is designed to reform, aiming to bringing wider access to justice for Scots consumers of legal services, many of which are currently available through solicitor members of the Law Society of Scotland.

Accountants regulator ICAS had intended to apply as an ‘approved regulator’ although the Law Society are now viewed as the ‘favoured applicant’ by Scottish Ministers. Initially the Institute of Chartered Accountants of Scotland (ICAS) had announced they were considering making a bid to become an ‘approved’ regulator in the reformed legal services market, however ICAS have not updated their position on the issue, and with the dithering, anti-client Scottish Legal Complaints Commission also undecided about whether it will apply to the Scottish Government as an ‘approved regulator’ of legal services, the only contender for regulating any new entrants to Scotland’s currently solicitor only legal services sector is the Law Society itself, leaving the possibility the infamous solicitor’s self regulator may well use its dominant position to force out new entrants to the legal services market it may see as competition to its own solicitor members.

As I am in favour of regulating non-lawyer will writers, I have no huge problems with the Scottish Government’s proposals, however the fact nothing has been done to protect the public from the Law Society of Scotland’s poor regulation of solicitors & law firms who in many cases, deliberately mishandle a deceased client’s estate simply to ramp up their own firm’s profits & personal finance deals with some of the major High Street banks on the back of assets of deceased clients, means there is still effectively no protection for Scots consumers when it comes to wills & executries.

Allowing the Law Society to regulate the entire wills & executries sector where the Law Society has already proved it cannot regulate its own member’s conduct on handling wills & the assets of deceased clients, will not improve consumer protection nor help reduce the huge amount of will fraud in Scotland, whether such frauds are committed by lawyers, or non-lawyers.

Law Society of Scotland covers up too many complaints against wills & executry estates to protect rogue lawyers. It all comes down to poor regulation, and with estimates of solicitors siphoning off tens of millions of pounds a year from wills & executry estates in Scotland, and getting away with it because the Law Society continually whitewashes complaints made by families, beneficiaries and sometimes even charities, then until a fully independent regulator is created to ensure complaints against all legal services, including particularly wills & executries, the mere window dressing for one part of the industry, while leaving the lion’s share of will handling to the even worse regulated legal profession, will do nothing to protect members of the public and their bequests to families & friends etc …

The Scottish Government’s proposals, announced earlier this week by Community Safety Minister Fergus Ewing are as follows : Legal Services Bill to regulate non-lawyer will writers with the actual amendments lodged at the Scottish Parliament : Amendments to Legal Services Bill : non-lawyer will writers (pdf)

Scottish Government announcement on non-lawyer will writer regulation. The proposed amendment to the Legal Services (Scotland) Bill follows a consultation process, and would apply a set of regulatory rules, enforcement measures and sanctions to ensure non-lawyer will writers conform to acceptable industry practice. It will bring to an end an era where consumers have been vulnerable to non-regulated practices which are often unnecessarily expensive (the same couldn’t happen in a solicitor’s office, of course …)

One example of this was when an elderly client was charged £1,000 for a straightforward will in a non inheritance tax estate. That client was driven to her bank by the will writer to withdraw the money in cash to pay the fee. In another case, consumers wanting a will have been sold specialised services they do not require. In some cases they are being persuaded to pay up to £2,400 when a simple will costing £150 would suffice. (similar stories have been told where solicitors have done the same to their clients …)

Community Safety Minister Fergus Ewing said: "That is why we intend to regulate non-lawyer will writers. Yesterday, I lodged amendments to the Legal Services (Scotland) Bill to provide for such regulation. A number of persons and organisations have made representations to us about non-lawyer will writers, providing examples of poor practice. These include lack of skill and competence; "cold calling"; and advice based on English law. We are very concerned that some non-lawyer will writers may be exploiting the lack of regulation to the detriment of the consumer in Scotland.”

"The regulation will continue to allow non-lawyers to provide a will writing service, but will protect consumers by ensuring that such will writers are subject to robust regulatory rules, enforcement measures and sanctions. However, we will not regulate individuals preparing their own will, with or without a DIY pack, including "deathbed" wills, or other persons providing a free advice service."

The Scottish Government consultation on the regulation of non-lawyer will writers took place between December 18, 2009 and February 19, 2010. The consultation paper sought views on the possible regulation of non-lawyer will writers in Scotland. The Legal Services (Scotland) Bill ("the Bill"), which was introduced in the Scottish Parliament on September 30, 2009, provides a legislative vehicle to provide for regulation of non-lawyer will writer services in Scotland. Following representations made to it, the Scottish Government is concerned that some non-lawyer will writers may be exploiting the lack of regulation to the detriment of the consumer in Scotland.

As well as individual instances of poor practice, it is possible to identify some main themes, including the following:

* Lack of skill and competence * Poor knowledge of inheritance tax * Advice based on English law * Low advertised costs translating into substantial fees through bait and switch and tying in of other services * Cold calling and unsolicited mail * Lack of professional indemnity insurance * Poor storage of wills

The consultation responses indicated that there is almost overwhelming support for regulation of non-lawyer will writers amongst the respondents. Indeed, 45 out of the 48 respondents are in favour of such regulation. As to the method of regulation, the vast majority of respondents are in favour of using the same model as outlined in Part 3 of the Bill. The regulation will continue to allow non-lawyers to provide a will writing service, but, at the same time, will protect consumers, by providing a set of regulatory rules, enforcement measures and sanctions that would apply to such non-lawyers. It is not the aim to regulate individuals preparing their own will, with or without a DIY pack, including "deathbed" wills, or other persons providing a free advice service.

Michael Clancy, the Law Society’s Director of ‘Law Reform’. Michael Clancy of the Law Society unsurprisingly supported the Scottish Government’s plans to regulate non-lawyer will writers, as the plans had come about from orders representations made by the Law Society of Scotland to Scottish Ministers, where the society clearly wishes to retain it’s regulatory role & power over all entrants to Scotland’s legal services market. Mr Clancy said : “We’re very pleased that the Scottish Government has taken on board the representations made by the Society and others about the regulation of will writers. We firmly believe that non-lawyer will writers who provide a service for a fee should be regulated to ensure that members of the public are protected and can be sure that they are getting good advice at a reasonable cost.”

Since members of the public are currently not protected from solicitors mishandling wills, nor are clients getting good advice from solicitors at reasonable costs, how would allowing the Law Society to regulate non-lawyers improve consumer protection ? The answer is clearly it wouldn't, but it would of course, maintain the Law Society’s power base and hold over the Scottish legal services market, which the Law Society is clearly intent on holding onto, at whatever cost.

As far as the individual instances of poor practice listed by the Scottish Government in their press release are concerned, most or all of the instances quoted in reference to non-lawyer will writers also apply to the services of a solicitor, which begs the question why the Scottish Government are content for the Law Society of Scotland to poorly regulate thousands of complaints about solicitors mishandling wills & estates, while introducing new regulation to oversee non-lawyer will writers.

Lack of skill & competence - which many solicitors seem to suffer from when they are found out after robbing a deceased’s estate of a few hundred thousand pounds for their own personal benefit. Indeed, lack of skill & competence is one of the favourite excuses for the Law Society of Scotland to cover such cases up, with a slap on the wrist for the solicitor concerned, and off he goes to work once again to ruin someone else’s will .. and again, and again, and again …

Poor knowledge of inheritance tax – again, another rampant issue in the legal profession, and speaking from experience in the case of Borders solicitor Andrew Penman, of Stormonth Darling solicitors Kelso, who ignored up to eleven letters from the Inland Revenue on inheritance tax, prompting the Inland Revenue to contact me directly, well … what more needs to be said ?

Low advertised costs translating into substantial fees through bait and switch and tying in of other services –The same happens in a solicitors office when it comes to dealing with a will. Just watch how quickly huge overdraft accounts are opened on a deceased’s client’s estate with the solicitor’s bank, gaining the solicitor cheap personal finance deals using the deceased’s client’s assets as cover in what is one of the most common ‘scams’ known in executry work.

Lack of Professional Indemnity Insurance – which solicitors do have, in terms of the Master Insurance Policy, run by the US owned insurers Marsh, who pled guilty to fraud & bid rigging criminal charges in the USA along with Royal Sun Alliance on behalf of the Law Society of Scotland. However, the Master Policy hardly ever pays out, and if victims of solicitor will fraud try and make a claim against either the Master Policy for negligence, or the equally corrupt “Guarantee Fund” compensation scheme run by the Law Society, sheer hell is unleashed, making sure claims fail on a routine basis.

It should also be noted I reported earlier on the personal cost of trying to claim against solicitors Professional Indemnity Insurance which revealed Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

Poor storage of wills – indeed, I could write about hundreds of solicitors who are or have been the subject of complaints to the Law Society where original wills have went missing, to be replaced with doctored versions giving intricate & costly duties to the solicitor never intended by the deceased client, and in some bizarre cases, even leaving legacies to the solicitors themselves.

I have reported in earlier articles on the difficulties & dangers of allowing a solicitor to handle wills & executry work, particularly focussing on one of the primary dangers of making a solicitor an executor of a will – something I would not recommend anyone ever try as such a decision will lead to many problems for those left behind to deal with. You can read my earlier report on this topic here : Consumer warning on wills : Don't make your lawyer your executor as soaring cases of 'will fraud' show Law Society closes ranks on complaints

Reprinted from my earlier report are a few examples of solicitors defrauding wills & executry estates, which it appears the Scottish Government are still content to allow by leaving regulation of lawyers in the hands of lawyers, and thus denying the Scots public the total consumer protection of fully independent regulation of legal services in Scotland.

You decide who should be protected from whom after reading these examples :

Example 1

Solicitor ripped off dead client & family, paid huge interest to his own Bank. An elderly man recently deceased had left his home, possessions & sizeable investments to his wife & family in what he obviously thought was a simple straight forward will, making the mistake of appointing his solicitor as his executor. The first thing the solicitor did was open up three overdraft accounts with a local High Street bank which coincidentally, the solicitor also deals with on a business & personal basis. Over the three years the solicitor took to process his deceased client's estate, the High Street Bank received a staggering £27,000 in interest alone on the overdraft accounts, despite there being no debts on the deceased’s estate. Documents also now reveal the solicitor negotiated some cheap personal finance from the same High Street bank to purchase a second home.

The widow of the deceased, upon being told the investments in the will had been cut in value by three quarters, made a complaint to the Law Society of Scotland after discovering through careful investigation her late husband's investments had been changed around by the solicitor at his own discretion rather than being realised and handed over to the family as per the instructions contained in the will. Now the Law Society have backed the solicitor against the family, despite a £250,000 loss being incurred in the late husband's investments, together with the loss of title deeds to the home in which the widow still lives, while it seems the solicitor has experienced a remarkable increase in his own personal wealth, along with 3 recent top of the range cars.

Example 2

Solicitor & accountant ripped off client’s charitable donations via her will. The result of the charitable intentions of a deceased elderly nurse who bequeathed her substantial entire savings including her house, in total valued at over £2 million to charitable causes, has so far resulted in not one of her wishes being respected by the solicitor and a long time friend, an accountant, she made executors of her will.

Charities who were named in the initial will have, after two years, yet to receive a penny, while again, a local High Street Bank has received over £18,000 in interest on several overdraft accounts opened by the solicitor allegedly to pay debts on the estate which never existed. Meanwhile the solicitor has also bought himself a second house, as has the deceased's' long time friend' the accountant, and the charities who were due to receive sums of money are now questioning whether they will receive anything, given a recent letter to one charity from the solicitor suggesting "there was little left in the estate to cover the charitable bequests" - this despite the fact the nurse had no debts whatsoever, and owned her own home.

The paralegal who brought this case to the attention of Law Society of Scotland has been sacked from solicitor’s law firm, and since there is no one to independently monitor how the solicitor and accountant, both acting as executor, have so fraudulently mishandled the estate of their client (and victim) nothing will probably be done against those who have so obviously plundered the estate of their dead client. Even the charities themselves are apparently reluctant to make a complaint to the Law Society of Scotland, possibly because a fleet of solicitors wives and family relatives sit on one of the charities concerned.

Example 3

Solicitor stole 400k from will, no action by Law Society. A solicitor named as executor in an estate of an elderly unmarried man who had no surviving family, dying three years ago, tore up the original will of his client, and replaced it with one he had created to cover up the fact that a whopping £400,000 has disappeared from his deceased client's bank accounts.

The will, which left a substantial bequest to a care home managed by the deceased's local authority, has also seen the usual huge payments of interest fees to a local High Street Bank, in one case alone of £14,000 of pure interest, the same bank handling the solicitor's law firm accounts.

The local authority had questioned when the bequest was to be made over to them, after being told by the solicitor there was little left to pay out his client’s wishes. The Law Society are supposedly still looking into the case, with as yet no action against the solicitor concerned.

Example 4

Solicitor acting as executor stole over £30,000 from children’s trust. A deceased soldier who appointed his lawyer as executor, leaving everything to his wife & children, has unwittingly placed his family in the position of having to endure sickening refusals by the legal profession to do anything to recover over £30,000 of investments which were placed in a trust by the deceased client, for his children. The solicitor, acting as executor, cashed in the trust and used it to pay off gambling debts which everyone including the Law Society is now trying cover up.

If the Scottish Government are keen to protect members of the public and their wills, taking self regulation away from the legal profession, who appear to be causing most of the damage against people’s wills should be a primary objective of the Legal Services Bill …