Andrew East & Kevin Martin speak with Certainty Pt 4
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Certainty regularly meet senior legal professionals to discuss the ongoing developments of the register . Kevin Martin, Chairman of Certainty and Andrew East, Chairman STEP UK Probate & Estates Committee recently expressed the following views…
4. Q. Do you feel that Certainty has done the right thing by only including the legal profession and STEP members within a register in a conscious move to combat unqualified will writers and DIY will writing kits. In the long-term do you think Certainty was socially responsible in doing that?
A: (Kevin) There is no question that you have been and that you were quite right to target solicitors and STEP members, in other words people who are properly qualified to make wills, and not just qualified in the law relating to the making of wills, but qualified in the law on a wider spectrum. It is vitally important that people use people who really know what they are doing to make wills. We live in an increasingly complex world, people’s relationships tend to be changing much more than they used to – you have same sex relationships, you have people cohabiting, you have people marrying and divorcing, overseas assets, immigration and emigration. It is a very complex world and it is increasingly complex almost day by day, so you need to have someone who really knows what they are doing. I’m not saying that all will writers don’t know what they are doing but to a large extent they are not qualified. Some may claim certain qualifications but they are not the kind of qualifications that STEP members and solicitors have – they don’t have to study for 5-6yrs before they get those qualifications. And just as importantly as that is the question of regulation. If you use a properly qualified member of STEP or a solicitor and it does go wrong, in the unusual and rare circumstances when it does go wrong, you will have recourse. You will be able to sue for negligence and you know you will have a remedy because they will be insured. If it’s worse than that, if there’s any kind of professional misconduct, you can go to the regulatory body to seek, and in the appropriate circumstances get, recourse. Whereas if it is a will writer, then in most circumstances, not all, there is no recourse, if they disappear its bad luck. If you want to take action against them because they did not do the job properly they may be here today and gone tomorrow. The insurance backing for a lot of organisations like this is often extremely unsatisfactory or non-existent. So you were quite right to target solicitors and members of STEP in the first place.
(Andrew) I entirely endorse everything that Kevin has said there and I think, certainly my experience suggests, that many people are very surprised that will writing is actually a completely unregulated activity. You can go on a 2 day course and the next day set yourself up as a will writer and, as Kevin said, there is no requirement to have professional indemnity cover. As Kevin says quite often 20 years later you can find that these organisations have completely disappeared. As Kevin said there are a couple of organisations that are trying to introduce professional standards, but they are struggling with the problem that lots of them are saying why should I adopt those professional standards when my competitor down the road is not required to do so. So these organisations have a real struggle and I think the important thing is to emphasise the point that if it does go wrong at least you do have redress with a STEP member or solicitor. So I certainly think you have done the right thing from a social responsibility point of view.
(Kevin) I think that there is another point that needs to be made that we found out through talking to our European colleagues. They are completely amazed, and I use the word advisedly, that there is a major jurisdiction such as ours where it is possible for unqualified people to draw up wills for commercial purposes. It doesn’t happen in most other countries in Europe – you have to be properly and professionally qualified after a long period of study and training. They are in a state of disbelief that it is possible to do what we do in this country, that it isn’t regulated by law.
(Andrew) It is clearly I think a lacuna, it’s an oversight. But we have had problems persuading the government that there is a problem.
