The case of Australian Competition and Consumer Commission (ACCC) v Murray and Will Writers Guild Pty Ltd [2002] FCA 1252 involved the provision of will kits to members of the public. Sidney Murray was a director of Will Writers Guild Pty Ltd and both defendants sold franchises or licences to carry on the sale of will kits throughout Australia. The business involved the provision of forms and explanatory material to will-makers. Part of the service was the “hands on” assistance provided by the franchisees/licensees, none of whom were qualified legal practitioners, including the presence of the franchisee/licensee at the time of the customer signing the will.

The business came to the attention of the Australian Competition and Consumer Commission (ACCC) after complaints were made about it in several states. After examining the complaints, the ACCC brought proceedings against the defendants claiming breaches of the Trade Practices Act 1974 (Cth). In particular, it alleged that the defendants breached the Act by misrepresenting themselves as lawfully able to carry out the business of will making - in effect, misrepresenting themselves as legal practitioners. Further, it was argued that the defendants breached the relevant state legislation by carrying on the business of a legal practice without being qualified legal practitioners. Section 314 of the Legal Practice Act 1996 (Vic) prohibits a person from advertising, representing or engaging in legal practice in Victoria unless the person is admitted to legal practice and holds a practising certificate. It should be noted that a penalty of up to two years imprisonment applies for any breach under the Victorian legislation.

The defendants argued that they were not engaging in legal practice because the customers themselves wrote their own wills and they did not give legal advice to them. The defendants claimed that they merely equipped the customers with the necessary material to make their wills and facilitated the signing of them.

The Federal Court disagreed and found that the defendants had engaged in unqualified legal practice. The Court examined the modus operandi of the business and, in particular, the contents of audio tapes played by franchisees/licensees to prospective customers.

The tapes included statements such as “...a well trained will writer can achieve exactly the same result as a lawyer can, at a fraction of the cost, by using the Will Writers Guild special will writers program. Your friendly professional will writer is a logical, no nonsense alternative to a lawyer”.

Once the tape was played to potential customers, they would agree to use the services offered and make an appointment for the licensee to attend the customer’s home. At the appointment, the customer would fill out the Live Will Forms and then transcribe those provisions in the Pro Forma Will. The will would then be executed before two witnesses who were advised by the licensee to be in attendance with the customer.

The Court found that the will-making business represented “the essence of legal practice, the advising of a particular person in a particular situation and the production of a document which affects legal rights and which is tailored to the particular needs of that person.”

In the sentencing hearing, ACCC v Murray (No. 2) [2003] FCA 47, the Federal Court convicted and fined both defendants on several counts relating to the misrepresentations and restricted their future will-making business activities. The defendants were also ordered to pay the prosecutor’s legal costs.