How are unregulated companies able to continue preparing trust deeds for their clients when it is a reserved legal activity? Is this not illegal?
It is unlawful because it is a “reserved instrument activity” under ss.12 and 13 and para 5 Sch 2 Legal Services Act 2007.
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14.Offence to carry on a reserved legal activity if not entitled
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15.Carrying on of a reserved legal activity: employers and employees etc
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16.Offence to carry on reserved legal activity through person not entitled
Bizarrely “a will or other testamentary instrument is excluded” in order to afford will writers the opportunity to foul up big time but the law intends to stop that as regards inter vivos documents under seal like a trust deed.
The Act does not define “activity” so unlike FSMA it is not restricted to business activity and would catch pro bono assistance. This is bad law as on the face of it DIY activity is also unlawful. Also banned is “the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes” so charities and other do-gooders who do that commit an offence, as must will writers in the course of their “work”.
However every day there are thousands of litigants in person, lay persons probating wills, and testators doing their own wills who are all surely conducting an activity but, like burglars and shoplifters, are not having their collars felt by Inspector Knacker of the Yard.
Jack Harper
Thanks @jack - it’s amazing that some unregulated companies actively promote their work in this area without any apparent consequences.
My understanding is they instruct SRA firms to draft the Trust Deeds
Jack, whilst you say: ”Bizarrely “a will or other testamentary instrument is excluded” in order to afford will writers the opportunity to foul up big time”
I understand that (perhaps more bizarrely!) when it undertook a review of will writing “foul-ups”, The Law Society discovered that solicitors had, proportionately, created many more foul-ups than any other grouping!
I understand that all members of the Society of Trust and Estate Practitioners, the Society of Will Writers and the Institute of Professional Willwriters are required to have indemnity insurance in place, so it is really the go-it alone will writers who represent the “danger-zone” as, if there are any foul-ups, the client (using a broad brush to include the testator and disappointed beneficiaries) may not have any recourse to either be compensated or to try and correct the situation.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
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Well said Paul. I have met good and bad will writers and equally good and bad Solicitors doing this area of work.
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Will writers may well get solicitors to draft their trust deeds. I would not have accepted instructions to act on an “execution only basis”. I would have insisted on advising myself or seeing evidence that advice had been given.
If the draftsman does not advise on the law who does? The will writer? LSA 2007 s12(3) says it is an offence to carry on: " (b) any other activity which consists of one or both of the following—
(i)the provision of legal advice or assistance in connection with the application of the law [or with any form of resolution of legal disputes];"
My clients’ first objective after selecting multiple advisers was to ask them all to confirm who would be taking responsibility for each and every input into the project (so whom to sue and whose PI cover matters) and so that there were no gaps left uncovered and hopefully no disputes in which one adviser (or their insurer) accuses another of exclusively undertaking a particular role.
Recently a friend instructed a large firm who knew that share valuation advice was essential and proceeded to commission it without reference at all to the client. The first the client knew was when the valuation was produced.
It was almost worthless albeit expensive since it did not cover the full requirements for a CG34, being a valuation at the wrong date of disposal and failing to provide a 1982 valuation. So we did all that ourselves.
No fault of the valuer, only the arrogance of those instructing him who were selected on a “hot dinners” basis and should have given us an opportunity for input into the instructions. This despite their knowing of my pro bono supervisory task. At least we know the identity of the prospective defendant but that is not really the point. Fortunately it is not a will writer. " So are they all, all honourable men [and women]" per Marc Antony.
Jack Harper
You’ve misread the Act. It does not say it’s an offence to do this. Section 12(3) is merely a defining section, and what you’ve quoted is the definition of “legal activity”.
It is in no way an offence to carry on a “legal activity”. The offence occurs when one carries on a “reserved legal activity”, as defined in section 12(1) as follows:
12 Meaning of “reserved legal activity” and “legal activity”
(1) In this Act “reserved legal activity” means—
(a) the exercise of a right of audience;
(b) the conduct of litigation;
(c) reserved instrument activities;
(d) probate activities;
(e) notarial activities;
(f) the administration of oaths.
Seems rather a pernickety if correct response to me, but others can judge.
The entitlement to carry on the s12 activities is covered in s13 and ss18-21, The Offences are in in ss 14-17.
I set out the offence sections in hyperlinks in my earlier response, in order to be helpful.
But you are totally right and I am quite used to being admonished in this way at home as I often was in primary school days
Jack Harper
jack:
LSA 2007 s12(3) says it is an offence to carry on: " (b) any other activity which consists of one or both of the following—
(i)the provision of legal advice or assistance in connection with the application of the law [or with any form of resolution of legal disputes];"
You’ve misread the Act. It does not say it’s an offence to do this. Section 12(3) is merely a defining section, and what you’ve quoted is the definition of “legal activity”.
It is in no way an offence to carry on a “legal activity”. The offence occurs when one carries on a “reserved legal activity”, as defined in section 12(1) as follows:
12 Meaning of “reserved legal activity” and “legal activity”
(1) In this Act “reserved legal activity” means—
(a) the exercise of a right of audience;
(b) the conduct of litigation;
(c) reserved instrument activities;
(d) probate activities;
(e) notarial activities;
(f) the administration of oaths.
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Previous Replies
Will writers may well get solicitors to draft their trust deeds. I would not have accepted instructions to act on an “execution only basis”. I would have insisted on advising myself or seeing evidence that advice had been given.
If the draftsman does not advise on the law who does? The will writer? LSA 2007 s12(3) says it is an offence to carry on: " (b) any other activity which consists of one or both of the following—
(i)the provision of legal advice or assistance in connection with the application of the law [or with any form of resolution of legal disputes];"
My clients’ first objective after selecting multiple advisers was to ask them all to confirm who would be taking responsibility for each and every input into the project (so whom to sue and whose PI cover matters) and so that there were no gaps left uncovered and hopefully no disputes in which one adviser (or their insurer) accuses another of exclusively undertaking a particular role.
Recently a friend instructed a large firm who knew that share valuation advice was essential and proceeded to commission it without reference at all to the client. The first the client knew was when the valuation was produced.
It was almost worthless albeit expensive since it did not cover the full requirements for a CG34, being a valuation at the wrong date of disposal and failing to provide a 1982 valuation. So we did all that ourselves.
No fault of the valuer, only the arrogance of those instructing him who were selected on a “hot dinners” basis and should have given us an opportunity for input into the instructions. This despite their knowing of my pro bono supervisory task. At least we know the identity of the prospective defendant but that is not really the point. Fortunately it is not a will writer. " So are they all, all honourable men [and women]" per Marc Antony.
Jack Harper
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