Monitoring of Legal Services: Wills, Trusts and Executry
The Scottish Legal Aid Board (SLAB) was given a role in monitoring the availability and
accessibility of legal services in the Legal Services (Scotland) Act 2010. Our role is to
ascertain whether people or organisations are experiencing systemic problems getting the
help they need from solicitors, whether paid for by legal aid or on a private basis.
This paper sets out data collected in relation to wills, trusts and executry issues, and SLAB’s
initial assessment for the purposes of its monitoring duty.
Feedback will help us to develop our overall understanding of possible problems with access
to solicitors and/or advocates for wills, trusts and executry issues.
Overall context for legal services and wills, trusts and executry
Effective wills, trusts, and executry services are important means of ensuring that a deceased
person’s estate is passed on in a clear and straightforward manner, in accordance with their
wishes, in a way which avoids costly disputes. Ensuring that a will has been written up, and is
legally valid is an important legal step which most adults in the UK will eventually undertake.
More than half of British adults have yet to make a will, however.1
The area of wills, trusts and executry is one in which we expect that most people in Scotland
will enter in the course of their lifetimes: as such, we assume that there will be a relatively
extensive market, and likely one with significant geographic coverage. It is also an area of
law in which we expect there to be considerable private provision. In 2006, the Research
Working Group on legal services in Scotland noted that this was ‘a growth area as the
population aged.’2
The Working Group also noted that the legal profession had a number of concerns about
certain developments in the area, in particular people making their own wills, whilst there
was thought to be ‘little price competition between firms for wills and executries. Wills
might be drawn up 'free' and given at no extra cost, often in connection with conveyancing
matters,’3 or as part of charitable initiatives (e.g Will Aid).4
In terms of competition with other advice providers (e.g. CABx) we assume that solicitors
play a relatively large role in this market, with little in the way of competition. There are
also non-solicitor will-writers (regulated under the Legal Services Act5) whose numbers
appear to be relatively small.6 In addition, trade unions may be able to direct their members
to will writing services, and banks may also provide access to a will-writing service alongside
some of their financial services.7 Thus, we expect there is something of a mixed market in
1
See WillAid statistics, available at http://www.willaid.org.uk/press/research
Research Working Group on Legal Services in Scotland, 2006, p31
3
Research Working Group on Legal Services in Scotland, 2006, p31
4
Ibid p120
5
See the Legal Services (Scotland) Act (2010), Part 3, Chapter 2.
6
Scottish Government, 2009, Regulating non-lawyer will writers: consultation report, p6
7
http://www.thisismoney.co.uk/money/pensions/article-2329527/Looking-draw-Make-sure-youretaken-ride-cowboy-writers.html
2
The Scottish Legal Aid Board
1
the area of will-writing (and possibly trusts) with various providers able to offer advice, but
with solicitors playing an important role in the actual writing of wills.
In terms of setting up of trusts, for some cases (e.g trusts for people with disabilities) there
may be specialist advice available: for instance through ENABLE, who also offer a professional
trustee service.8
Role of legal services
In 2006, the Scottish Consumer Council found that of those individuals who had wills drawn
up, 94% of their respondents had their will produced by a solicitor. A more recent UK-wide
figure, drawn from WillAid research, is that 68% of people used a solicitor to produce their
will, with only 12% using the services of a will-writer, with the remainder drawing up wills
themselves.9 Thus, even if the number of people drawing up wills themselves has risen, we
expect that solicitors continue to produce a large majority of wills. We anticipate that
solicitors will also have a role in providing representation in the most complex executry
disputes.
The Law Society of Scotland’s Find a solicitor tool includes a function which enables searches
for firms and solicitors by areas of expertise. The search tool returns 911 results for firms
undertaking work on wills: under the ‘personal’ law categories, only ‘family and
relationships’ and ‘houses, property and neighbours’ return a greater number of firms. In
terms of solicitors (rather than firms) there were 1342 identified as practicing in this area.10
Turning to data that SLAB holds, Figure 1 below illustrates that there are relatively high
numbers of intimations11 submitted per year in relation to advice and assistance for wills
(though the volume of intimations has been steadily declining since 2010). A similar, though
less pronounced trend can be seen for executry-related intimations. This may reflect the
increased ease of producing a will without a professional’s input (for instance through
internet guides) ; the growth in charitable initiatives such as WillAid; and the effects of
economic recovery, all of which may have resulted in lower volumes of will-related legal aid.
8
http://www.enable.org.uk/services/thinkingaboutthefuture/Pages/ENABLE-Trustee-Service.aspx
See WillAid research, available at http://www.willaid.org.uk/press/research
10
See http://www.lawscot.org.uk/find-a-solicitor/
11
Advice and assistance (A&A) helps pay for advice from a solicitor on any matter of Scots law, civil or
criminal – for example, to try to settle a dispute without going to court, or to advise on whether there
is a legal case to take forward. Civil legal aid helps pay for a solicitor to act in court. It covers the
preparation work, as well as the hearing itself, and can provide funding for advocates and experts if
needed. Only a solicitor can grant advice and assistance (make an ‘intimation’) or submit an
application for civil legal aid. Some people need only advice and assistance, others need only legal aid,
and some need both. Many people start the legal process with advice and assistance, and then move on
to legal aid.
9
The Scottish Legal Aid Board
2
Figure 1- Will and Executry intimations (A&A) to SLAB, 2010-15
2500
2000
1500
WIL
EXE
1000
500
0
2010-2011 2011-2012 2012-2013 2013-2014 2014-2015
In terms of legal aid provision in relation to trusts, there is no specific category code for
trust-related intimations. However, under the two categories shown in Fig.1, around 50 trustrelated intimations were made over 5 years: in comparison to the overall volumes for wills
and executries, legal aid in relation to trusts is considerably smaller. It may be that legal
services in the area of trusts are paid for largely on a private basis.
In comparison to advice and assistance, for civil legal aid (Fig. 2, below), the volume of civil
applications has been much lower in recent years: only a very small part of legally-aided work
in these areas is contentious. Civil applications in relation to contested executry will be those
submitted in the most contentious cases, which reach a stage where court representation is
necessary.
Figure 2 - Civil Legal Aid applications: Executry
Year
Executry Applications
2014-15
3
2013-14
13
2012-13
11
2011-12
17
The figures for applications above are too low to enable any comment on possible trends in
concentration by firm.
In terms of the distribution of intimations by firm, in the area of wills, a single firm
submitted 21.1% of the total intimations. In contrast, the firm submitting the second highest
volume of intimations was responsible for less than 4% of the total. Excluding the top firm,
The Scottish Legal Aid Board
3
intimations are relatively spread out between a large number of firms – 204 firms submitted
intimations (with a large majority submitting fewer than 5).
The data for executry intimations is quite similar, with the distribution of work between
firms relatively even: in 2014/15, the three firms submitting the equal highest number of
intimations (9 each) were each responsible for only 3% of total intimations. Again, the
remaining firms all submitted only small volumes each.
We do not have any specific figures on the number of wills which are produced by privatefunded solicitors per year: however, we expect that the private market in this area (and for
executry) will be fairly extensive.
In terms of the role of solicitors in setting up trusts, given the lack of a specific legal aid code
we assume that unless recorded under executry, legal services in this area are privatelyfunded. The Money Advice Service website does advise people to approach a solicitor if they
wish to set up a trust because of the complexities involved: it also notes the work involved
can be expensive, but that some charities have schemes for contributing toward payment in
certain circumstances (e.g for a disabled child).12
Geographical provision
Legal aid figures show that applicants and firms undertaking wills and executry work under
legal aid are located in almost all of Scotland’s local authorities.
Whilst geographic coverage is extensive in these areas, it is not evenly spread by volume. For
wills, applicants in Glasgow made up over 18% of the total intimations, whilst for executry,
intimations from applicants in Glasgow are particularly disproportionate (28% of the total).
In terms of firm location (as opposed to applicant location) West Lothian is responsible for
the highest volume of will-related intimations (22.1%). This appears to be because of one firm
based in West Lothian submitting 247 intimations. This firm is involved in the Positive
Forward Planning Initiative, which offers a free consultation, alongside independent financial
advisers on issues including wills, which may explain this fact.
The volume of intimations by local authority does not strongly reflect the level of population,
nor whether a local authority is primarily rural or urban. Whilst all of the top 5 local
authorities by volume (applicant location) were relatively urban, they are not the largest
urban areas. Thus, applicants in Edinburgh (with relatively large population and extremely
urban) submitted only 20 intimations, whilst those in Dumfries and Galloway (with a small
population based in primarily rural areas) submitted 44. For executry, by applicant location,
the Scottish Borders and Fife both appear in the top 5.
The number of civil legal aid applications for contested executry is too small to draw any firm
conclusions in relation to urban and rural factors from.
12
https://www.moneyadviceservice.org.uk/en/articles/setting-up-a-trust
The Scottish Legal Aid Board
4
In terms of comments made by others in relation to the geographic availability of legal
services in these areas, the Research Working Group on Legal Services stated in 2006 that
there may be ‘under-supply [in] some areas, particularly rural’ for this type of law.13
However, as suggested by the data above, there does not appear to be a strong correlation
between the levels of legal aid provision in these areas and geographic factors. We note that
we are unsighted as to the geographic distribution of privately-funded legal services in these
areas. Whilst the report of the Research Working Group on legal services suggested there may
be a problem in rural areas, we have seen no evidence to suggest a systemic problem on a
geographic basis, at least in terms of legally-aided provision.
Reports of problems with access to solicitors or advocates
We have no data available to us, nor reports made to us which suggest that there are any
systemic problems with the accessibility and availability of legal services in these areas, in
general terms. We have not been made aware of any specific instances of problems in these
areas. Concerns about low entry into the market for will-writing do not appear to be linked to
a lack of solicitors willing to undertake the relevant work.
Overall summary and assessment
For individuals seeking legal advice on wills and executry, or wishing to take forward a
contentious executry issue, we expect that there is a reasonable private market in place, in
which solicitors compete increasingly with online services and people writing their own wills,
but nonetheless continue to play an important role. In terms of legal aid provision for wills
and executry, a large number of firms appear to be active in this area, across most of
Scotland. We are not aware of any significant gaps in geographical provision. In terms of
trusts, our assessment is that legal services in this area are mostly funded on a private basis,
with some specialist provision in place for more vulnerable groups. For the purposes of the
monitoring duty, we conclude that these areas of law are low risk, with no systemic
accessibility barriers due to problems with availability.
Probability that a
systemic access
problem is
occurring
1 (low) –
5 (high)
Wills
Trusts
Executry
13
1
1
1
Reports of actual
instances
of
problems
with
access
1 (no reports) –
5 (consistently
reported systemic
access problems)
1
1
1
Exposure
[Probability
Reports]
x
1–4 Green
5-14 Amber
15-25 Red
1
1
1
Scottish Executive, 2006, Report of the Research Working Group on Legal Services p44
The Scottish Legal Aid Board
5
Consultees
 Scottish Society of Will Writers
 WillAid
 STEP Scotland
 Law Society of Scotland Trust and Succession Law Sub-Committee
 Caesar & Howie
Questions






Do you have any additional data which you would be willing to share with us regarding
this area, or are there any other sources of data which we should look at?
Are you aware of any specific instances where someone has not been able to find a
solicitor for a will, trusts or executry issue?
Do you have any comments on the likely composition of legal services in this area, in
terms of private vs legal aid-funded work? In particular, do you have any comments in
relation to the funding of legal services in the area of trusts?
In terms of contentious executry issues, is there a larger role for legal aid in this area,
when compared to non-contentious issues?
Do you agree with the comment made by the Research Working Group on Legal
Services (2006) that there may be difficulties in accessing relevant legal services in
rural areas?
Are you aware of any other organisations we may wish to consult with on these areas
of law?
The Scottish Legal Aid Board
6