New Probate Fees? Fairer System or Stealing From The Deceased?

Make your own mind up.

Current probate fees are £215, or £155 for those applying through a solicitor.

Putting aside the issue of whether an estate should be charged at all I think we can all just about live with the fees charged.

The Ministry of Justice (MoJ) is now proposing a massive hike in the fees for Probate.

On the new scale, the fees will be as follows:

a) estates below £50,00 will be exempt from fees

b) estates valued between £50,000 and £300,000 will pay £300.

sounds bearable so far …..but look at the higher end of the scale:

c) estates between £1.6m and £2m will be charged £12,000

d) estates worth more than £2m will be charged £20,000,

The MoJ describes the new structure as a ‘fairer banded system’ and said the fees will be used to fund the court service. (is that not the governments job though national taxation? Do we get a better service as a consequence?

The MoJ consulted on the proposals in February last year. Out of 831 respondents, fewer than 2% (13 responses) were in favour.

What do you think ?

The information provided in this article is not intended to constitute legal advice and each case requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

Penn Chambers Solicitors

0207 183 2898

Wills – definition of “UK”

Wills look very easy to prepare and even easier to execute. Right?

I spend many hours a week trying to explain to clients and potential clients that Wills are a nightmare. They are complex documents governed by all manner of case law, statute and gut instinct. They should not be prepared recklessly or without serious respect to what is being done or achieved.

Well, I would say that wouldn’t I? I am a Solicitor after all and regularly bemoan and warn against using DIY wills and even will writers to prepare Wills. I remain steadfast in that view for a whole host of reasons that I have conveyed in numerous other blogs so I will not repeat here again.

The case I wish to refer to this month highlights just how complicated Will drafting is. Even seasons professionals get caught out.

The case is The Royal Society v Robinson [2015] EWHC 3442 (Ch)

In this case the central issue was the meaning of ‘United Kingdom’ in the deceased’s will.

The deceased was a physicist who had worked for much of his life for CERN in Switzerland. He and his wife had no children, and they made English Wills leaving their combined estate, which dealt with global assets, to the Royal Society.

In 2006, the deceased acted on advice to make a Swiss Will to deal with his Swiss assets. He then made an English Will to deal with his assets here.

On his wife’s death, he sought to make specific gifts in his will to his niece, two children of another (deceased) niece and to a carer. He instructed the same English firm that had dealt with his English will. He made a new will in 2009 therefore in similar terms but with the specific gifts.

On his death most of his wealth was in offshore accounts in the Isle of Man and Jersey. At issue was the technical meaning of ‘United Kingdom’. This was critical because accounts ‘situated in the United Kingdom’ passed under the Will after the payment of legacies to the Society; accounts that were not in the UK would pass under the intestacy rules (to his specific legatees).

The court concluded that on the true construction of the 2009 Will, it did include the assets in the Channel Islands and the Isle of Man.

The case highlights the importance of correct terminology and the ever present vexing issues for the courts who are left with interpreting easily avoided mistakes.

DIY at your own peril.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

 

Shak Inayat
Solicitor
0207 183 2898

The Golden Rule – Burns

Burns v Burns [2016] EWCA Civ 37

The Golden Rule

Originally outlined by Templeman J in the 1970s, ‘the Golden rule’ relates to the caution a Solicitor or other professional must take when drafting a Will for an elderly or sick client as there will undoubtedly be concerns or doubts about such a client’s testamentary capacity, or the ability to make their own decisions with regard to their Will.

In such cases, a Solicitor should seek an opinion of a medical professional in order to ensure the client has sufficient mental capacity to not only give instructions but to also prepare and execute a Will.

In the recent case of Burns v Burns [2016] EWCA Civ 37, the Court of Appeal helpfully looked at the law surrounding the correct application of ‘the Golden rule’.

Burns v Burns

The testatrix, Eva Burns, had two sons, Anthony and Colin. She and her husband had sold half of the beneficial interest in their home to Colin for £10,000 in 1982. In 2003, her husband having died, she executed a will leaving the half share she still owned to her other son Anthony, who still lived with her and held a power of attorney for her. The rest of her estate was to be divided equally between the two sons.

Two years later, however, she executed a new professionally drafted will that left her whole estate to be divided equally between her sons. Thus, under this will, Colin would end up with a 75 per cent share of the house’s value, and Anthony with only 25 per cent.

When Eva Burns died in 2010, Anthony challenged the 2005 will for lack of testamentary capacity and also lack of knowledge and approval of its contents.

He was able to produce evidence showing that, when his mother executed the 2003 will, she was already suffering mental impairment including forgetfulness and confusion. The local authority’s social services department had referred her to a community nurse who carried out a ‘Mini Mental State Examination’ on her, which found that she was unable to state, the year, the date, the season, the day or the month, could not write a sentence, and could not recall three common objects mentioned to her by the nurse a few minutes earlier.

In addition, the manager of a day care centre that Eva Burns attended the following year (2004) gave evidence that by then she was suffering moderate to severe dementia, did not know the manager’s name, and believed her husband was still alive. A consultant geriatrician opined that Eva Burns’ test results showed she had been ‘poorly orientated as to where she was in time and place’, with ‘poor short term memory and problems with analysis and simple task planning’.

On this basis Anthony Burns alleged that the 2005 will was invalid.

The Outcome

To the surprise of many, the judge refused Anthony’s claim and held that the 2005 Will was valid.

The matter was then appealed.

The Court of Appeal did not overturn the judge’s decision.They held that the Judge at first instance ( a District Judge)  did adequately identify the salient criteria for determination of testamentary capacity, distilled from Banks v Goodfellow  and Cowderoy  v Cranfield [2011], ie that the testatrix must:

a) understand that she is giving her property to one of more objects of her regard;

b) understand and recollect the extent of her property;

c) understand the nature and extent of the claims upon her from individuals both included in, and excluded from, the will;

d) guard against any ‘insane delusion’ from influencing her will.

The court of appeal also stated that the ‘golden rule’, it is neither a rule of law nor ‘a touchstone of validity or a substitute for established tests of capacity or knowledge and approval’

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

 

Shak Inayat
Solicitor
0207 183 2898

DIY Wills

There are a number of different ways in which you can make a Will in the UK. You can visit a solicitor and ask them to draft one for you, ask a Will drafting company to prepare your Will or you may purchase a ‘Do It yourself’ Will writing pack.

However, by not using a solicitor to produce your Will, you cannot be sure that your Will is valid and if it isn’t, you have no recourse at all. This is because Will writing companies are not regulated in the same way solicitors are.

The Legal Ombudsman has produced a report urging the government to regulate the Will writing industry so that consumers are protected, whether they choose to use a solicitor or not.

The Legal Ombudsman oversees complaints from consumers against law firms and each law firm and solicitor who practises is regulated by their professional body, the SRA (Solicitors Regulation Authority). They can be disciplined if their behaviour or quality of work is not of the required standard. The Legal Ombudsman recognises that Wills and Probate complaints make up a large amount of their workload, emanating from a regulated professional, so one might safely assume that there are similar quality issues at large in the unregulated Will writing companies sector. However, the Ministry of Justice (MoJ) does not agree with the report and suggests that there is no need for new regulation. The MoJ suggests that using or adapting existing regulation under consumer laws would provide ample protection for the people who are using these Will writing services as opposed to regulated solicitors.

They do recognise though that anyone making a Will should feel secure in the knowledge that their family will be looked after and that their wishes will be carried out as per the instructions in their Will.

What is clear though, is that any mistakes made in your Will are most likely not going to become apparent until after you die and this means that your family and loved ones will not only have to cope with their grief, they may have a fight on their hands regarding the validity of your Will.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

 

Shak Inayat

Solicitor

0207 183 2898

What is a Lasting Power of Attorney?

As we grow old it can be more difficult to manage the day to day decisions we all have to make. There is an option for us to consider when we get to that time in our lives though and it is called a Lasting Power of Attorney.

There are two types of lasting power of attorney available and they are:

  1. health and welfare; and
  2. property and financial affairs

Although there are two types of power of attorney, you do not need to choose just one, you can decide to implement both.

In all cases however, the powers must be registered before you lack mental capacity. They cannot be prepared after the event.

 

Health and Welfare Power v Advance Decision

The health and welfare power should not be confused with an advance decision or “living will”. The advance decisions is a document that allows you to make specific advance decisions in specific circumstances when you lack capacity for example when you are unconscious or cannot speak following an accident. The Health and Welfare Power of Attorney is far more generic.

There are numerous other differences between the two, some of them being quite subtle. Please see the further article for more clarification.

 

Health and Welfare Power

A Health and Welfare Lasting Power of Attorney (LPA) gives one or more trusted persons the legal power to make decisions about your health and welfare if you lose metal capacity. The person who grants power is known as the ‘Donor’ and the person appointed to make decisions is the ‘Attorney’.

Your Attorney can make decisions about anything to do with your health and welfare such as:

  • refusing medical treatment
  • where you are cared for and the type of care you receive
  • day-to-day things like your diet, dress and daily routine

The Health and Welfare Lasting Power of Attorney, like the Property and Financial Affairs Lasting Power of Attorney registered with the Office of the Public Guardian and subject to more stringent administrative requirements before it is valid compared to an Advance Decision.

 

Property and Financial Affairs Power

A property and financial affairs power allows you to share the responsibility of your financial affairs with someone you trust. This will be particularly beneficial if you are struggling with the day to day responsibility of making sure your bills are paid on time, that your benefits are collected or perhaps the process of selling your home if you are downsizing or moving into a residential home or sheltered accommodation.

In order to give a property and financial affairs Lasting Power of Attorney to someone, you should consider whom you want to appoint. You need to trust that your attorney will act in your best interests. Once you have made this decision you will need to complete the correct forms and register your Lasting Power of Attorney with the Office of the Public Guardian. You will also need to be over 18 and have the capacity to make your own decisions.

Arranging one or both Lasting Power of Attorney instructions may help you to feel secure that your wishes in the future will be honoured and that you are protected.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

The “New” Intestacy Rules

We all know how important it is to have a will, yet millions of us put it off and, in doing so, run the risk of the state determining how our assets will be distributed on our death.

 

We lawyers describe someone who passes away without a will as dying intestate.

 

The Intestacy Rules (set out in the Administration of Estates Act 1925 and amended by the Inheritance and Trustees Powers Act 2014 (ITPA 2014) determine who gets what if you die without making a will.

 

The Intestacy Rules (as at October 2014) and probable scenarios:

 

You are married (or in a civil partnership) and your estate is worth less than £250,000

Under the Intestacy Rules, your surviving spouse/civil partner inherits everything.

 

You are married (or in a civil partnership), your estate is worth more than £250,000 and you have no children.

Again under the Intestacy Rules, your surviving spouse/civil partner inherits it all.

 

You are married (or in a civil partnership), your estate is worth more than £250,000 and you have children.

Under the Intestacy Rules, the first £250,000 of the estate and all the personal possessions (as defined by law) will go to the spouse/civil partner. The remainder of the estate will be divided in half, with half going straight to the surviving spouse and the other half being divided between surviving children.

If any child should pre-decease you, then their own children (your grandchildren), would get their parent’s share.

 

You are not married (or in a civil partnership) but have children

Under the Intestacy Rules your children will inherit everything equally. Again, if a child has pre-deceased you, then their children will get their parent’s share.

 

You are not married (or in a civil partnership) and have no children

Under the Intestacy Rules, your surviving relatives will inherit in the following order:

 

  • Parents
  • Brothers or sisters or their children (or children’s children etc)
  • Half-brother or sisters or their children (or children’s children etc)
  • Grandparents
  • Uncles or aunts (brothers and sisters of the whole blood of a parent) or their children (or children’s children etc)
  • Uncles and aunts (brothers and sisters of the half blood of a parent) or their children (or children’s children etc)
  • If you have no surviving spouse/civil partner, parents, children, siblings, grandparents, uncles, aunts, cousins, first cousins etc then under the Intestacy Rules, everything will go to the Crown under rules known as bona vacantia.

 

Avoiding Intestacy Problems

If the Intestacy Rules cause financial hardship, then a claim under the Inheritance Act can be considered. This however can be VERY expensive and only done after careful consideration, preferably with expert legal advice first.

However, the best way of avoiding the unintended consequences of the Intestacy Rules is quite simply to make a will. It is easy to do and cheaper then you probably think.

 

Please Remember

  • The Intestacy Rules do not recognise unmarried “common law” partners.
  • The Intestacy Rules allow a 28 day survivorship period.
  • To inherit under the Intestacy Rules a person needs to be aged 18 or over or have married earlier. If they inherit as a minor the gift will be held on trust for them until they reach the age of 18. If they do not reach the age of 18 (i.e. they either pre-decease as a minor or die before coming of age) the gift will revert to others in the same group (class) as them or the next class below if no such person in a same class exists.
  • The effect of the Intestacy Rules can be very unfair, especially for unmarried couples.
  • Surviving dependants may be entitled to seek more adequate provisions by making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 but this can be very expensive.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitors before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Seven Good Reasons To Make A Will Now

Making a Will is not normally high on a list of priorities, nor is it a particularly engaging activity, but there are a number of excellent reasons why you should make a Will, and do it soon.

 

  1. Your wishes will be fulfilled– whatever you decide should happen after your death, both to your estate but also regarding your funeral, can be stipulated in your Will. Therefore, if you want specific music played at your funeral or you want a portion of your estate to be given to a favourite charity, this can be made a certainty by using a Will.
  1. Intestacy Rules will not apply– the laws of intestacy, which are applied to an estate if no Will is made can be very strict and depending on the size of your estate, there may be a limit as to how much your spouse will be given. In the event of you dying with no blood relatives, your estate will be given over in total to the Crown.
  1. Your children will be provided for – if you have children, you will be able to stipulate who you wish to be their legal guardian. You will also be able to make financial provisions for them, for example, to remain in the family home until they reach adulthood. Without a Will, they could be taken into care until a decision over who will look after them can be made by the court, and even then, they could be placed with someone you would not have chosen.
  1. Protect your partner if you are not married – common law partners have no legal rights at all so if you and your partner have never married and you die leaving no Will, there is the very real possibility that your partner will be in financial difficulty. Your Will should be used to protect your partner from such an event.
  1. Inheritance Tax Issues– any estate worth over £325,000 is subject to inheritance tax and a Will can help you plan more tax efficiently, as many properties are worth more than this alone.
  1. Divorced but not remarried– many people do not realise that if you are divorced and not remarried and you leave no Will, your ex-spouse will inherit your estate.
  1. To help out your family – when you die intestate the whole process of probate takes much longer and is much more complicated. This will leave your loved ones with a complicated legal process and all of the funeral costs to find, whilst also grieving for you. This has to be one of the best reasons to act now and make your Will.

 

Whilst some of these points raised may not apply to you and your circumstances, some of them will and those should be enough for you to recognise the value of making a Will soon.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Advance Decision Or Health And Welfare LPA Or Both?

There are some important differences between an Advance Decision and a Health and Welfare Lasting Power of Attorney:

 

  1. Timescales

An Advance Decision comes into effect as soon as it has been signed and witnessed correctly.

A Health and Welfare Power of Attorney is only valid once it has been registered with the Office of the Public Guardian, which can take up to eight weeks.

 

  1. Flexibility

Advance Decisions only apply to the specific treatments and circumstances you write about in the document. It won’t apply if you find yourself in a situation that you didn’t include when you wrote it. Your Attorney in a Health and Welfare Lasting Power of Attorney can make any decision about your health and welfare on your behalf, regardless of whether or not you considered the situation at the time of writing.

 

  1. People involved

To complete your Advance Decision, you need one person to witness it (although it is highly recommended that you have 2 witnesses, and also getting your GP to sign to witness that you have mental capacity at the time of signing the document which can be critical in certain circumstances.

To appoint an Attorney in your Health and Welfare Lasting Power of Attorney, you need one or more people to act as your Attorney, as well as a witness, an independent person or relevant professional to ‘certify’ your application, and up to 5 persons to be notified of the application.

 

  1. Cost

An Advance Decision is free. A Health and Welfare Lasting Power of Attorney currently costs £110 to register, although those on a low income or certain benefits don’t have to pay.

 

  1. Accessibility

Healthcare professionals involved in your care need to know that you have made an Advance Decision or a Health and Welfare Lasting Power of Attorney. This happens in different ways:

Advance Decisions are not centrally registered anywhere but you can give a copy to your GP or local hospital. Some Ambulance Trusts are also happy to record that you have one. You can carry a Notice of Advance Decision card or join MedicAlert and wear a piece of jewellery that says you have an Advance Decision.

A Health and Welfare Lasting Power of Attorney is registered with the Office of the Public Guardian and then entered onto a register which is searchable by healthcare professionals caring for you.

 

Should I make both an Advance Decision and an LPA?

That depends on your circumstances and should be considered carefully with your lawyer in conjunction with your loved ones and your GP if necessary.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898