The Minister of Justice and Constitutional Development, Mmamoloko Kubayi, recently addressed the media to provide an update on key legislative amendment bills approved by Cabinet. Among them was the draft Legal Practice Amendment Bill (the draft Bill), which seeks to amend a handful of provisions in the Legal Practice Act 2014 (the LPA). While most of the proposed amendments are matters for the legal profession itself, there are several others that could reverberate beyond the legal profession, most notably for non-lawyers who assist with will-drafting and estate administration services.
The draft Bill proposes to amend section 33 of the LPA, which deals with the authority to render legal services, in such a manner as to expand the list of professional services that may only be performed by practising legal practitioners – in expectation of a fee or reward – to include the drafting and execution of wills. The draft Bill thus proposes to expand the scope of reserved work by only permitting practising legal practitioners to draft wills for a fee. It also proposes that only practising legal practitioners may advertise or promote will-drafting and estate administration services. These are not merely technical adjustments sitting at the periphery of the draft Bill but have the potential to adversely affect banks and other businesses with fiduciary service offerings, particularly those that offer wills and estate administration services.
Before the LPA came into force, the now-repealed Attorneys Act similarly reserved fee-based will-drafting for legal practitioners and broadly prohibited the marketing of will-drafting and estate administration services – although subject to a host of exceptions. Those restrictions fell away under the LPA, meaning more non-lawyers could offer will-drafting as an entry point (pre-death) and, over time, convert that relationship into estate administration work (post-death).
The draft Bill could effectively close or significantly reduce the scope of this pipeline. It would prevent non-lawyers from marketing will-drafting services and only allow them to perform these services without being remunerated for doing so. The draft Bill goes a step further by preventing non-lawyers from marketing estate administration services, thereby cutting off a key route through which they attract and retain fiduciary clients. While the draft Bill does not reserve estate administration services for legal practitioners, the proposed marketing prohibition is drafted so broadly that it may produce the same result. Non-lawyers would remain legally entitled to perform estate administration services but, in the same breath, be prevented from advertising or promoting those services which would compromise their ability to build a viable business around them.
Significantly, the draft Bill would not only close or reduce the scope of a valuable commercial pipeline but would also do so in a manner that is detrimental to the public interest. Statistics from the Masters Office suggest that less than 15% of South Africans die without a valid will, resulting in increased costs and time to wind up and distribute deceased estates. It is thus unsurprising that government encourages persons to ensure that they execute a valid will and actively runs awareness campaigns, such as the upcoming National Wills Week, to that end. By expanding the scope of reserved work to include will-drafting services, the draft Bill is likely to achieve the opposite: reduced consumer choice, higher prices and ultimately a further reduction in the number of South Africans dying without a will.
The Minister has indicated that the proposed amendments to section 33 of the LPA are intended to expand the work that is reserved for legal practitioners and "to protect the public against exploitation by unqualified persons who may advertise the listed services". This consumer-welfare approach is a laudable policy objective. The issue, however, is that the proposed amendments presuppose that only legal practitioners are sufficiently qualified to render will-drafting and estate administration services when, in fact, there are many other competent persons capable of performing these services to the highest standard.
National Wills week is observed in September of each year. This initiative is designed to underscore the importance of having a legally valid will and to guide South Africans through the estate planning process. Coincidentally, the campaign kicked off just a few days after the period for public comment on the draft Bill closed. For reasons set out in this article, the government-backed campaign to increase will-drafting and the proposed amendments to the LPA are pulling in different directions. Prior to finalisation, the difficulties identified in the draft Bill should be addressed. Without modification, amendments intended to regulate a discrete set of professional services may place an entire commercial ecosystem, and the public interest more generally, at risk.
