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Where there's a will...

11 December 17

Reflections from the Commission: highlighting two recent guidance documents issued by the Scottish Legal Complaints Commission in relation to wills and executries

by David Buchanan-Cook

One of the Commission’s less widely known duties under its legislation is to identify trends in the complaints which cross its desks and to publish reports on any trends identified.

Over the years we have specifically looked at trends in our data on the business areas that are being most commonly complained about; and the actual issues that cause people to complain.

The business area of wills and executries consistently makes an appearance within the top five business areas which generate complaints. 

It is in this light – and to coincide with Will Aid in November – that we decided last month 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 do, very often, see faults on both sides of a complaint. 

While a solicitor may not have provided a service which best meets the needs of the client, on the other hand the client may have unrealistic expectations or fail to appreciate the obligations they have – for example, in terms of providing or updating information. 

We think it’s important therefore that we address potential issues from both sides.  

The guide for solicitors

Based on issues drawn from complaints, and including some illustrative case examples, the guide suggests best practice for 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, and the guide includes sections on keeping up to date, communication with clients and – arguably most problematically – communicating with third parties. 

The guide for legal 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 client’s responsibilities do not rest there – the onus is on them to make sure that (a) the finalised will 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 – and the solicitor’s obligations to both. 

But read both!

The guides are, however, designed to be read together and provide insight to both parties. The solicitor guidance will assist clients in understanding why certain things have to happen in certain ways; from the consumer guide, solicitors will see what complainers typically complain about and better understand what is important to their clients. 

Where there’s a will there can often be tensions, frictions and disputes. Like so many areas of law, clients are invariably in distressed situations and in these circumstances things can all too readily become overheated and comments misunderstood or misinterpreted.

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.

 

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