Ombudsman's casebook

A monthly column of examples from the files of the Legal Services OmbudsmanComplaints about the way solicitors handle the administration of estates - many of them from residuary beneficiaries - make up around 10% of the ombudsman's caseload.

In an article in the Practice section of the Gazette entitled Who is the probate client?, the Office for the Supervision of Solicitors (OSS) suggested that, generally, it is in the interests of client relations to treat all residuary beneficiaries as though they were clients, even if, strictly speaking, they are not (see [2000] Gazette, 10 February, 38).The ombudsman endorses the OSS's view that they should be prepared to accept complaints from residuary beneficiaries because otherwise they would have 'no one and nowhere to whom they could have recourse ...

without embarking on expensive litigation.' Unfortunately the powerlessness of the residuary beneficiary is often mirrored by the real or imagined powerlessness of the OSS - as the following cases show.Kept in the darkMr B died in September 1989 and probate was granted to the two executors, a solicitor and a family member.

Mrs K was one of 32 residuary beneficiaries.

From the start, administration of the estate was slow.

Frustrated by the delays, Mrs K wrote to the solicitor many times, but received no reply.

In December 1992, Mrs K complained to the Solicitors Complaints Bureau (SCB).

The solicitor replied by return saying that Mrs K would receive her money within two to three months.

Christmas 1992 came and went and so did several more before, in March 1998, the estate was finally wound up.

Throughout, the solicitor failed to keep the residuary beneficiaries informed of progress, with gaps of up to one year between letters being not unusual; and even these communications were often prompted by an approach from the Bureau or, latterly, the OSS.

Needless to say, Mrs K was not impressed with the efforts of the solicitor over the nine years.The OSS decided that the service provided by the solicitor was inadequate, because of delays and failure to keep Mrs K up to date.

Since Mrs K was not the client of the solicitor, the OSS could not award compensation, but it reduced the solicitor's bill by 5,000.

Mrs K was not happy with the OSS's decision, or its handling of her complaint.The ombudsman agreed with Mrs K to some extent.

She concluded that the OSS's final decisions on the complaint were reasonable, but was concerned that it took seven years for the OSS to tell Mrs K it had no power to award compensation in her case.

The ombudsman was also concerned about delays in the OSS/SCB investigation, including a failure to chase the solicitor for prompt responses to their enquiries.

She recommended that the OSS pay compensation to Mrs K of 500.All that glitters...

Mr A was the residuary beneficiary of his brother's estate and, together with a solicitor, was appointed joint executor.

Matters went wrong from the start when Mr A, acting on information allegedly provided by the solicitor about the embarrassment of riches about to come his way, went out and bought a new car.Unfortunately, as things turned out, there was barely enough to pay for the funeral.

Mr A was unable to hide his disappointment and complained to the OSS.

He was also unhappy that the solicitor had consulted him only once throughout the entire estate administration and that money and his brother's personal effects had gone missing.

Nearly two years later, the OSS replied to Mr A's complaint telling him that the solicitor had provided an adequate service.The ombudsman concluded that the OSS investigation had taken far too long.

She was also not happy that the OSS had failed to investigate most of Mr A's allegations anyway, particularly about the lack of information and involvement in the administration of his brother's estate.

The ombudsman recommended the OSS pay Mr A 200 compensation and reconsider his complaint and that this time they seek the solicitor's comments, before reaching a decision.