Open Letter to anyone who made a Will with HSBC and appointed them as Executors

Open Letter to anyone who made a Will with HSBC and appointed them as Executors.

 

It’s a good letter:  I’m not sure whether whoever reads it realises that it is carefully written and may have taken a good few hours to check and double check, particularly when it refers to the organisation(s) to whom the wills have been sold.  Just as “concerned” means “angry”  and “precise” means”nitpicking in the extreme” in legal terminology, the swathes of what is not said about Simplify and its associated companies speak volumes.

It might seem odd that your executors can sell on the rights to deal with your assets, as the bank have done here.  But this sort of thing has happened, by and large, for professional executors over the years, albeit perhaps not so obviously.  Law firms never die, they just get taken over…  successor firms can prove the wills of the prior firm if the will was drafted that way.  Or encourage the clients to make a codicil (and in doing so, both correct any massive errors in initial drafting and/or update terms).  It is no mistake that the wills stored by a firm are called a “will bank”.  Usually, however, with a whole firm takeover, the wills and live files, the contacts and reputation are all bound up together and described as “good will” valued for a greater or lesser amount than the desks, carpets and computers.  Slightly less clear that your will can be seen as a commodity in itself, for sale to another organisation for a price, whilst still being your own property as a client.

 

Who you choose to be your executors is a personal choice – you might prefer a professional executor because your family do not get on well with each other – or you think that it is too much of a burden for friends to bear.  That’s quite alright for you to make this choice – but as this letter rightly points out – the terms on which you appoint a professional do need to be made clear to you – they will charge for their work – and how they do this should be something you feel comfortable with – these are your assets, after all.

Some professionals are bound by professional codes in their conduct towards the public – solicitors are – you can make complaints to the SRA if you feel you have not been treated in a fair way.  Accountants have a professional body too – it is fair to say that complaints to a professional body can be incredibly damaging to the firm, and so a reasonable amount of time is spent in trying to do the right thing and not get complaints in the first place.

If you are to choose a professional, then it’s a good idea to see what institution regulates them – who is the person that they have to answer to when you are no longer alive to express your concerns – who can your beneficiaries turn to when they think they are being overcharged, or waiting for ages – is there anything or anyone to protect them?

 

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Wright and another v National Westminster Bank Plc [2014] EWHC 3158 (Ch)

Applying Pitt v Holt – Unilateral transaction — life death litigation.

I can’t find a publicly downloadable account of the judgment in this case, and this report does quote some of the detail.

The lesson being highlighted for practitioners is that the gift of something must be certain.

I wonder whether there was adequate advice on the part of the advisor assisting them with setting up an intervivos trust.   Perhaps it might have been part of the advisor’s targets to sell this sort of structure.

Perhaps even, there were detailed attendance notes of what was said when, and whether it appeared as if the clients understood that they could not have the income from what was given away, that a valuable source of income on a daily basis would be removed.  Hindsight has a terrible clarity, but surely that is the basis of any advice about giving up assets.  A clarity that this money is no longer yours, but you can watch over it.  With perhaps more care than you have done with your own assets, precisely because it belongs to another

 

Fixed fee or by the hour?

Some people think that solicitors charging for their time is a bit old fashioned. There is a huge move towards the commoditisation of legal services – so that, rather like Tesco, you buy something off the shelf. This is greatly to be praised – it means the customer can see what they get and be able to compare services.

The difficulty comes when you compare a retail item to a service and a skill. If you want a T-Shirt, do you get it from Tesco, Gap, or somewhere designer? What is it about the T-Shirt buying experience, or the product that you buy that appeals? The good quality? The cheap item that you need before heading to the beach? The one with the special label that means you are exclusive and/or you look more attractive?

When you think about other trades – plumbers, electricians, mechanics, gardeners – then they also charge for their skills on the basis of how long it will take. Some charge a combination – a call out fee with one hour included.

What’s the worst thing about fees being charged on the basis of the time that is spent? Not knowing where you are. And being faced with a huge bill. And how large a bill depends sometimes on what you are used to. And what you think the job is worth.

I’d like to run a survey – how should your solicitor charge?