There is much debate at the moment about the current classification of ‘reserved legal activities’ and whether the class of activities should be extended. As a refresher this article looks at the current activities reserved to solicitors.
Current reserved activities are:
– the exercise of a right of audience (the right to appear before and address a court, including the right to call and examine witnesses);
– the conduct of litigation (the issuing of proceedings before any court in England and Wales, the commencement, prosecution and defence of such proceedings, and the performance of any ancillary functions in relation to such proceedings);
– reserved instrument activities (such as preparing any instrument of transfer or charge for the purposes of the Land Registration Act 2002 or making an application or lodging a document for registration under that Act or preparing any other instrument relating to real or personal estate or relating to court proceedings in England and Wales. This includes, in respect of disposition of land, a contract in relation to real property (except a short lease), but does not include a will or other testamentary instrument, an agreement not intended to be executed as a deed, other than a contract that is included by virtue of the preceding provisions of this subparagraph, a letter or power of attorney, or a transfer of stock containing no trust or limitation of the transfer.);
– probate activities;
– notarial activities;
– the administration of oaths.
The most important of these in respect of a Will writer are those reserved activities in relation to probate and those in relation to completing lifetime trusts and other dispositions by deed. A deed (and therefore a lifetime trust) can only be completed by a solicitor as opposed to the future direction to set up a trust which is contained within a Will.
There are two common misconceptions in this respect; firstly that the Will is all that is needed to formally establish a trust, this is not the case. The Will does not actually ‘set up’ the trust but merely contains directions for the trust to be created on death. Secondly; that a lifetime trust can be established by anybody using a template.
Selling trusts in this way does not only risk a negligence claim from your clients but is also an illegal activity.
What happens if you fail to comply If you carry on a reserved legal activity without being entitled to do so you may be imprisoned for up to two years, fined up to £5,000 or both. Don’t be tempted to breach the legislation as offences are taken seriously. Ensure all your products are provided by people who are legally qualified to do so.
