Conduct and service

Solicitor or executor?Probate practitioners are frequently perplexed by the question: 'Who is the client?' This is important both from the point of view of supplying 'client care' information and dealing with complaints.

A full explanation of these issues has already appeared in the Gazette (see [2000] Gazette, 10 February, 44).The situation is potentially complicated if the solicitor is also the executor because some actions will have been taken in the capacity of solicitor, and others as an executor.

If the residuary beneficiary then seeks to complain - solicitors are obliged to deal with complaints from residuary beneficiaries if there is no lay executor - one of the questions to be determined is in what capacity the solicitor was acting with regard to the issue under complaint.The problem was highlighted in an estate where there was a solicitor/executor and three residuary beneficiaries who were brothers and sisters, but in which one had fallen out with the others.The complainant was concerned because she felt the solicitors had not made adequate efforts to trace all the assets, and had disposed of some at an undervaluation.

Her concerns were items of jewellery that effectively had been in her sister's possession when her mother died.

The solicitor/executor was inclined to let the sister keep the items at an agreed valuation, but, having received the complainant's objections to that proposal, had sold them on the open market.

The complainant had wanted the opportunity to buy some or all of the jewellery.

Having received no satisfaction with regard to her complaints from the firm, she approached the Office for the Supervision of Solicitors (OSS).The OSS explained that the actions of the solicitor/executor had been taken in his capacity as an executor, not as a solicitor.

If the complainant objected to them, her remedy was to seek independent legal advice with a view to having the executor removed and replaced.

In these circumstances, the OSS was not the proper forum for the complainant to air her grievance.The complainant referred the issue to the Ombudsman.

The Ombudsman endorsed the OSS's conclusions and pointed out that the distinction between the nature of the actions was subtle but important.Perhaps a more obvious example would be in cases of delay.

If a solicitor/executor unreasonably delayed the sale of a house which was an estate asset by not dealing with pre-contract enquiries at a reasonable speed, that would be a matter of service which the OSS could, and would, investigate.

But if the decision was taken to delay putting the property on the market so as to take advantage of rising prices, that would be taken as an executor, and would fall outside the remit of the OSS.l Every case before the adjudication panel is decided on its individual facts.

These case studies are for illustration only and should not be treated as precedents.