David Buchanan-Cook: Where there's a Will there may be client-solicitor friction and complaints

Wills and executry are the cause of many complaints

One of the Scottish Legal Complaints Commission’s duties is to identify trends in the complaints which cross our desks and publish guidance based on any trends identified.

We have used this ability to include a number of guides to help consumers who may have to see a solicitor for the first time – for example, for that first house purchase, for dealing with a marital breakdown, or faced with a criminal charge. We appreciate that seeing a solicitor is more often than not a “distress purchase” where human emotions can be over-heated and brought close to breaking point. In such a climate it is all too easy for things to go awry.

Lots of the complaints we see relate to issues around wills and executries (the winding-up of an estate). It is in this light that we decided to update and relaunch an existing guide on this topic for consumers, at the same time producing a new companion guide for solicitors.

So why both?

One of the principal advantages of being an impartial body is that we very often see faults on both sides of a complaint.

While a solicitor may not have provided a service which best meets the client’s needs, on the other hand the client may have unrealistic expectations, or fail to appreciate the obligations they have.

The guide for consumers

The guide for consumers includes sections on preparing for that first meeting with the solicitor and the likely questions to be ready to answer. However, we emphasise that having written a will the consumer’s responsibilities do not rest there. The onus is on them to make sure that a) the will accurately reflects their wishes; and b) it is kept up to date, particularly in relation to any changes in their personal circumstances.

We see a number of complaints where there is confusion over the role and responsibilities of both sides in an executry. In this guide therefore we specify the role of an executor and clarify some commonly-held confusions over the distinctions between executors and beneficiaries.

The guide for solicitors

Based on issues drawn from complaints, this guide suggests best practice for solicitors in avoiding some common complaint issues arising from areas such as terms of business, roles and responsibilities, and timescales.

However, as in most business areas, the majority of complaints arise from communication issues. The guide therefore includes sections on keeping up to date, communicating with clients and – arguably most problematically – communicating with third parties.

But read both!

The guides are, however, designed to be read together and provide insight to both parties. Where there’s a will there can often be tensions, frictions and disputes. We hope that, together, these guides will assist in preventing the most common situations from which complaints can arise so that, where there is a will, there is a way… to avoid a complaint.

Wills & executries – Making a will and dealing with executries: a guide for legal consumers and Wills & executries – Avoiding complaints: a guide for Scottish solicitors are both available to download at: www.scottishlegalcomplaints.org.uk

David Buchanan-Cook is head of oversight and communications at the Scottish Legal Complaints Commission. Oversight is the area of the SLCC responsible for overseeing how the professional bodies deal with conduct complaints; monitoring and reporting trends in complaints; and producing guidance and best practice notes on complaint handling.