The Society of Will Writers Code of Practice: For August the CPD topic will be the Society of Will Writers (SWW) Code of Practice. As we journey on into post-brexitland it is becoming clear that regulation and compliance in the future will have a home-grown flavour. In time depending on the speed of the negotiated severance from EU law the law of England and Wales is set to preside over all of our commercial and legal actions. Until the UK achieves settled resolution there will be nothing more uncertain about our working lives than the fact of uncertainty. Uncertainty does not come from the discussions that people have about uncertainty and its effects but from the lack of facts themselves. SWW recognises the importance of providing its members with as much certainty as possible when carrying out their business activities hence the importance of the Code of Practice in our business lives. In an article in the Times newspaper, Saturday 23 July, Marc Hoffman set out to explore the options available to the average consumer when seeking to give instructions for the production of everyday legal documents. He suggested as an alternative to using an high street solicitor, regulated by the Solicitor s Regulation Authority and including the Legal Ombudsman should things go wrong, that consumers could obtain a price advantage from using an unregulated provider; but beforehand consumers should check that such a provider is a member of a trade body, the Society of Will Writers (SWW) was named by the article, and that the entity should offer professional indemnity. A good plug for the SWW indeed. In May 2014 the then Lord Chancellor and Secretary of State for Justice, Mr Chris Grayling, choose to ignore the groundswell for statutory regulation to regulate will writing and decided not to make an order bringing will writing activities within the definition of reserved legal activities under the Legal Services Act 2007. Since that crucial decision SWW has realised that it is in effect on its own setting and upholding professional standards for its own members. In his response the Lord Chancellor called for the strengthening of existing regulation of authorised persons together with voluntary regulation schemes and codes of practice for nonauthorised persons. SWW members obtain the benefits of the SWW by pledging their compliance to the SWW rules of engagement for dealing with consumers. SWW rules are frequently reviewed and amended in order to improve the controls on the standard of SWW members when dealing with consumers making certain that consumers can be assured of proper protection when dealing with SWW members. This way SWW is ensuring that consumers who choose to use the services of an SWW member rather than a high street solicitor for everyday legal documents, receive an experience governed by a robust Code of Practice and protected by professional indemnity insurance that meets the SWW s minimum level cover. It becomes an imperative therefore that SWW members know and practice to the full all of the standards contained within the SWW Code of Practice (CoP). The purpose of this month s CPD paper is to revisit the CoP and highlight, discuss and generally shed light on its contents. Clearly this cannot be an entirely one-sided exercise. Where there are questions or the need for further explanation including questions about implementation of individual standards SWW welcomes your feedback, including suggestions to cover omissions and amendments that you would like to be considered by SWW. Please feel free to email the SWW on info@willwriters.com You should read this CPD document with the SWW Code of Practice open alongside. Page 1 of 7
The SWW Code of Practice: (Note: The importance and application of Clauses that are not mentioned are considered to be fully self-explanatory in their content.) 1: Definitions Will Writing Services is intended to be a catch-all phrase and includes the giving of inheritance tax advice and other tax planning advice in connection with the preparation of a Will. Tax advice should be confined to how the structure of the Will can be arranged so as to mitigate the effect of the quantum of inheritance likely to be paid, together with guidance about the timing of the tax charge and how the estate will be able to provide the funds needed to settle the tax liabilities identified. Specific lifetime advice addressed to reducing the bite of inheritance is not included within the definition - for example: whether or not assets can qualify for Business Property Relief or for Agricultural Property Relief is not the province of the will writer as an opinion requires specialist knowledge and should be treated accordingly. Note: SWW members who recommend trusts as part of their Will Writing Services must include with their recommendation full guidance on the tax treatment of the trust including the effect that the trust has on any liability to inheritance tax of setting up the trust and on the settlor s estate. 2: General Conduct of Business: 2.1 Members who practice in Scotland must observe Scottish law. Members who write Wills for consumers who own assets held outside the UK must provide guidance about the effects of the law of situs on the tax treatment of non-uk realty as governed by the recommended will structure; as well as including commentary about the treatment of any assets that are NOT covered by the Will. 2.2 Members have a personal responsibility to keep up to date ignorance is no excuse. 2.3&2.4 The next few post-brexit years are likely to bring about numerous detailed changes, for example not only in tax law especially, but also in the laws of succession and conceivably trust law. Individual member competence therefore will be under the spotlight, so that for example reading widely and regular attendance at Conference(s) will become an essential part of fulfilling a Will Writer s obligation to his consumer clients. In the event of a complaint a member s CPD log is checked to affirm his adherence to the principle of continuing and continuous personal development. 2.5 In response to the climate of change brought about by the Rt. Hon Chris Grayling in 2014 SWW has developed its number of internal advisers to address members concerns. These concerns can range from technical issues about the production of an appropriate individual Will to the need to support members in their business dealings with the consumer public, 2.6 SWW can provide such assistance outlined above, subject only to the member s strict adherence to his obligations under the CoP and SWW membership principles. 2.7 The SWW CoP is at the heart of the SWW epithet logo Safe to do Business with. It is your compliance textbook - use it to affirm your commitment to your clients. Page 2 of 7
2.9 Send a copy of your headed notepaper to SWW at each Annual Audit or when changes are made, see Clause 2.10. 2.12 Members are obliged to make arrangements for their practice to be covered in the event that they, individually, are unable to carry out their daily and regular client duties - for whatever reason. Further information and guidance can be found in Practice Note 3 on Locum Arrangements which can be downloaded from the SWW website. 2.13 Complaints are often created at the very first contact with the consumer. A common cause of complaints is that they develop from shortcomings in consumer handling at the first consumer/consultant meeting. Compliance procedures are not to be ignored, glossed-over or fudged. In the event of a complaint strong adherence to consumer compliance is an invaluable factor whenever a member is required, for whatever reason, to defend a recommendation. Your meticulous attention to SWW compliance procedures strengthens your compliance and not only creates a firm understanding with the consumer but is the best defence against the demanding consumer. There are three documents that underpin our procedures: o Code of Practice. o Complaints Procedure. o How should members deal with complaints. 2.15 Members offering to store documents for the consumer are personally responsible for storage throughout the lifetime of the documents including appropriate storage provision in the event that their business either fails or is taken over or merged or sold to a third party. In the event of a will written by a member remaining in force up to the date of the testator s death, the responsibility for storage only concludes once the executors have given a valid receipt for the will. 2.16 Members are required to provide consumers with a continuing service beyond the provision of the Will. Members may make a reasonable charge for this service. The price charged must equate to the extent of the responsibility taken by the member and capable of being explained to the consumer using a fair basis for the time/cost required to provide such service. 3: Conflict of Interests: 3.3 Members are required to avoid conflicts of interest whenever they arise. A member must not act when a conflict of interest is foreseen. An exception is made where a will written for one of the member s family contains a gift to that member. 4: Information for Clients: Clause 4 was introduced by SWW into the SWW Code of Practice as a direct result of the SWW s response to the statement by the Lord Chancellor on 14 May 2013 requiring the standards of consumer protection to be strengthened within the will writing market. A member s compliance with Clause 4 will be assessed by SWW in each and every consumer complaint made against members. In the event that a written complaint is received by SWW, SWW will require evidence from the member that all dealings with the consumer have been carried out in compliance with the provisions of Clause 4. The provisions contained within Clause 4 should guide the member in the execution of his duty of care towards each consumer. If followed with care, the member should be able to predict with confidence that he has established a strong defence against a potential complaint Page 3 of 7
of negligence, especially where the complaint is that the member has failed in his responsibilities by omission. Following the steps laid out in the Clause cannot of itself guarantee a solid defence against giving wrong advice, but a member following the requirements of Clause 4 should as a matter of course self-test his recommendations against the consumer s individual circumstances; so that an automatic check is made on the specific recommended advice and guidance given to each consumer. In the event of a complaint SWW will examine in detail how a member s advice and sales processes complied with Clause 4. SWW believes that proper and careful adherence to Clause 4 significantly strengthens the consumer protection given by each member to a consumer. 4.1 Clause 4.1 spells out the member s overall obligations under Clause 4 confirming when and how the member must inform the consumer of the protection standard that SWW expects from its members. The aim of Clause 4 is to ensure that consumers benefit from the increased protection that SWW wishes to provide in response to the Secretary of State s request that will writers apply targeted guidance and strengthened regulation whether they are authorised persons or as with SWW members adherents of SWW s voluntary regulation scheme as promoted by SWW for its members. A recent study by the SWW has shown that members find the Code of Practice easy to adhere to and that it is not overly restrictive. 4.2 Lists the details of the General Information that must be provided to the consumer by the member before SWW will accept that a valid contract exists between the member and the consumer. The following points are noteworthy: The member s terms of business must be of a type and style that has been approved by the SWW. They must reflect the template, or reflect information required by the SWW in the Code of Practice. Cancellation rights refer to the consumer s statutory rights found in the 2013 Consumer Contracts Regulations, which govern both on-premises and off-premises contracts. The member s complaints procedures must be modelled on the SWW Complaints Procedures guidance notes available from SWW. These are downloadable from the resources page in the members area of the SWW site. 4.3 The Clause lists the Specific Information needed to support instructions taken and recommendations given by the member or a consultant acting on behalf of the member to the consumer before SWW can acknowledge in all instances that a valid contract has been agreed with the consumer. The following points should be noted: The provisions of Clauses 4.2 and 4.3 must be met in their entirety; if any provision has not been complied with SWW might cast doubt on the validity of the contract that the member is relying on. In the event of a complaint against the member by a consumer failure to comply fully with the requirements of Clauses 4.2 and 4.3 could lead SWW to the conclusion that the member does not have a valid contract in place with the consumer. The Summary should in all cases accompany the instructions taken from the consumer and is the means by which the member confirms the consumer s instructions. The failure of the member to provide the consumer with a Summary, which confirms the main characteristics Page 4 of 7
of the service/product recommended as appropriate for the consumer s circumstances could, in the event of a complaint, be evidence of a breach of Clause 4 requirements. 4.4 The statutory obligations are examples of the legislation that a member is bound to comply with when providing a consumer with advice. The list is not exhaustive and members should use their own wider reading programmes to make certain that they have taken full account of changes in the legislative scenery around them. 4.5 Clause 4.5 imbeds into the Code of Practice all of the above points confirming the need for each SWW member to comply with the requirements of Clause 4 when dealing with consumers. 5: Instructions: 5.1 Where members find themselves in a position that they are no longer able to fulfil their agreed contract obligations with a consumer, for whatever reason, they are bound to refund any monies taken from the consumer. SWW will not accept any excuse to the contrary from a member and will treat the failure to conform to the requirements of this Clause as a fundamental breach of the CoP. 5.2 Underlining the requirements of Clause 5.1 members are required to carefully implement the requirements of Clause 5.1. The Clause is aimed at overcoming any possible mischief that might result from a member failing to keep client money separate from that of the member s working capital. SWW believes that these requirements should only become necessary only occasionally basis and should not generally form part of a member s ongoing business plan. SWW will provide advice to any member whose business planning predicates the regular need to use such an account. 5.3 SWW cannot condone the actions of a member contrary to Clause 5.3. 5.4 Clause 5.4 contains important information which members are bound to take into account when dealing with consumers who fit the description recorded in that clause; these are: An elderly person; An infirm person; A disabled person; Where learning difficulties are present; A person who is suffering an illness A person suffering distress; and A person with insufficient knowledge to understand a legal document and/or advice provided. Members should note that the definition of vulnerable is widely-drawn and in the circumstances where the consumer displays only one of the above conditions the member must be ready to give careful consideration to the requirements that confirm that the consumer has full testamentary capacity; see Banks v Goodfellow (1870). If upon inspection a member concludes that the consumer issuing instructions may have one or more of the conditions mentioned in Clause 5.4 he may wish to consider the wisdom of applying the Golden Rule ; see Re Simpson [1977] making a referral to a medical practitioner for evidence that the consumer does in fact possess sufficient testamentary capacity to give valid Page 5 of 7
instructions; that can subsequently be affirmed by knowledge and approval of the draft will before its execution. Additional information can be found in the practice note 2 provided by the SWW on vulnerable clients. Without contemporaneous attendance notes reporting the details of the instruction meeting members may easily find that a challenge against the validity of the will for lack of capacity, by a disappointed beneficiary cannot be defended potentially leading to a claim of negligence against the member or the member s firm. Where it is the member s consultant (Affiliate) who is in charge of establishing whether the consumer has testamentary capacity SWW will apply exact similar standards to the consultant s approach to the question of consumer capacity. For SWW members to rely on a claim that their approach has been to the highest professional standard, as required by the SWW CoP, SWW expects that its members will apply meticulous care to the provisions of Clause 5.4. 5.5 Clause 5.5 lays out the member s obligations and responsibilities once the client consumer is identified as a vulnerable person per the requirements of Clause 5.4. The key to compliance with Clause 5.4 is for the instruction taker, whether the member or a consultant, to make attendance notes giving a full and thorough explanation of how the will instructions were obtained including information about how testamentary capacity was confirmed. The explanation of the member s recommendation must be carefully recorded along with the consumer s response. Questions, both hard (facts) and soft (opinions and wishes), and the answers must be recorded. The more accurately the notes reflect the discussion the easier it will be for the member to restate the precise details of the instruction meeting at a later date especially where a complaint is made. Attendance notes properly compiled invariably form a good defence of the member s actions, especially when they have been confirmed immediately after the meeting within a Summary letter in accordance with Clause 4.3)c). A member s good defence is evidence that the member has fulfilled his obligations to providing a consumer who has been appropriately treated as a vulnerable person with the proper standard of protection as required by SWW. 5.6 The member is required to exercise extra caution when taking instructions without a face-to-face meeting. Clause 5.6 also confirms that the member is ultimately responsible for the actions of his Affiliate member employee who has taken instructions and made recommendations to the consumer. Members who deal with trusts should be especially careful to ensure that an Affiliate member who is taking instructions is fully trained to deal with trust matters, as it is the member who must take responsibility for the delegated instructions. 5.7 SWW requires that where members wish to offer probate services they must inform SWW of their intentions. In order to provide such services the member must provide evidence of having successfully obtained one of the qualifications listed in the Clause. On a general note: the more information you provide to the SWW, the more up to date your record will be and the more information could be provided to prospective clients. Next month we will complete our run-through of the CoP and examine the SWW standards for: Carrying out Will Writing Services; Page 6 of 7
Business promotion; Complaints; and Disciplinary Procedures. Important Reminder: These notes are produced solely for the benefit of SWW members when completing the July CPD test to gain 1 hour of structured CPD towards their annual quota. The notes do not represent legal advice and no reliance can be made on the content of the notes in any particular or individual specific client circumstances. Having read the notes members should cement their understanding by considering further reading around the subject cases details can be found by searching the case references using BAILII or GOOGLE. The Society of Will Writers August 2016 Page 7 of 7