Simon Leney strikes a note of caution for those firms appointing themselves as executor when drafting a will – the practice may not be around for much longer
Although it is not yet clear which policies the new government will pursue, it seems likely that there will be yet more tinkering with personal taxation in an attempt to restrict what politicians like to call ‘tax avoidance’, and what we as private client practitioners call ‘tax planning’. When I grumble to my non-lawyer friends, they say that this is good for my business, at least.
I am not so sure – surely, certainty of outcome is what makes advice useful? If the best we can say is that, going on current legislation, a particular interpretation is probably correct, but that ‘retroactive’ legislation might change things, many people will decide to do nothing. And, while you can (usually) charge for giving such advice, it’s the resulting implementation that offers the more substantial work, in my experience. Let’s hope for some better legislating and less populist, knee-jerk behaviour from the next government.
Closer to home, how familiar is your firm with the May 2014 Solicitors Regulation Authority guidance for will draftsmen when including an appointment of themselves as executors? Clients should always have the best information when making a will that appoints the will draftsman (or their firm) as executor. There is a need to prove that a professional executor was appropriate, the cost implications were known, and that other options were spelled out to the client. You can’t just use will-making as a way of securing executorships.
In my firm, we include a standard clause as part of the explanatory notes to a draft will, spelling out the pros and cons of appointing us. We have long since abandoned any additional probate charge for taking on the role, and simply charge for the work we do. Most firms I come across do the same, but some charge a percentage of the value of an estate, which I feel most clients will find unattractive.
I was looking at this in the context of an actual client matter, where my client does not want to have to prove his father’s will as co-executor to the solicitor who drew up the will. The solicitor argues that he made a promise to his testator client, and has a duty to fulfil that promise. I disagree with this argument. As solicitors, we should be looking to deliver whatever is in the best interests of the client and their beneficiaries; retaining the role of executor requires more than a blunt refusal to stand aside because of an earlier ‘promise’.
There’s more at stake here than just the individual case. If my complaint about this solicitor ends up with the legal ombudsman, it will be one more nail in the coffin for the practice of appointing oneself or one’s firm as executor when drafting a will. We will eventually be subject to a rule requiring clients to have independent advice when contemplating such an appointment. In a consumer-oriented environment, we must observe the highest standards of probity. Unfortunately, by and large, it’s not us specialists that get it wrong, but the ‘dabblers’.
Finally, a few words about the new Law Society Excellence Award for Private Client Practice, nominations for which close on 5 June (go to tinyurl.com/ln3q28r for more information). I encourage you to apply, because even making a case provides an incentive to review what your firm does, and how it can be done better. In a competitive world, being different gets you noticed!
