Protecting the Consumer: The CMA Investigates Unregulated Will Writing

Having detected an increase in complaints in relation to Will-writing, pre-paid probate plans and online divorce, the Competition and Markets Authority (CMA) announced on 24 July 2023 that they have initiated an investigation into potential consumer law breaches in the unregulated sector.

Will-Writing

Anyone can write a legal Will so when it comes to preparing your own Will, customers now have many options to choose from.

Whilst many Wills are drafted by regulated lawyers, Will-writing is not a regulated service which means that a Will does not have to be prepared by a solicitor. Alternative providers can be attractive as a cheaper, innovative and convenient service. However, where services are unregulated, it is paramount that normal consumer protection laws are implemented.

The CMA has identified a number of concerns about Will-writing, including:

• consumers being misled by advertising which offers an extremely low initial fee for advice but does not indicate that final costs can increase significantly
• the use of potentially unfair contract terms, such as exclusions of liability, failure to provide cancellation rights, and terms which automatically appoint the firm as executor (often for a fee)
• reports of pressure selling and coercion of vulnerable customers.

Pre-paid Probate Plans

A pre-paid probate plan, when designed and marketed appropriately, can be used to effectively help people organise their assets ahead of their death. The intention is to avoid family members having to pay anything towards the finalising of their financial affairs.

However, these plans are another unregulated service in the UK and over the last year, the market has seen a significant increase in their promotion. In January 2023, the Financial Conduct Authority published a warning to consumers noting that they do not regulate the pre-paid probate firms or pre-payment of probate costs and there are no regulatory protections in place if, for example, the service provider collapses.

The CMA’s immediate concerns are:

• pressure selling techniques being used on elderly and other vulnerable people
• lack of transparency about what costs are covered
• plans that are unnecessary or fail to serve their purpose, leading to delays in the probate process and bereaved relatives being left unable to settle bills or sell property
• lack of customer awareness that their money may not be adequately protected, even if held in trust.

The Investigations

The CMA will be contacting customers that use and firms that offer these services to obtain a better understanding of how these practices operate. The CMA will investigate whether these providers are complying with consumer law.

The CMA could react in a number of ways if it finds these providers to be in breach of consumer law. Initially, the CMA might simply publish guidance to ensure providers are operating in compliance with the law or obtain a declaration from them that it will change its practices. Alternatively, the CMA could go so far as taking enforcement action.

The CMA have issued the following statement:

“These services are essential to people, often at the most challenging times in their lives. The CMA is aware that rising living costs mean people are watching their spending, so shopping around for a more affordable option is attractive and sometimes a necessity.

“These may not be frequent purchases, but they are life-changing. That’s why it’s so important that we investigate so that people can select the right legal service for them – for divorce or probate or will-writing – with confidence. It’s essential that firms get the basics right, including complying with general consumer law which applies to all traders. Customers must get a fair deal.” (Sarah Cardell, Chief Executive)

The Legal Services Board calculate there to be approximately 208,000 unregulated legal service providers in England and Wales. At first glance, unregulated services may appear to be the cheaper alternative, however they can end up being a costly mistake.

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Ellie Holland, Managing Partner at Wilkes said,

“The CMA investigation is a necessary and positive measure to protect consumers, particularly vulnerable individuals. As a reputable firm and trusted advisor, we believe in safeguarding the rights and interests of our clients, guiding them with integrity and care”

“The lack of regulation around will writing has been a longstanding concern for many, the CMA investigation is a necessary and positive measure to protect consumers, particularly vulnerable individuals, and I certainly welcome this.”

Wilkes LLP can assist with preparing your Will, tax planning and the administration of estates. For more information, please contact us at [email protected] or 0121 733 8000.