Sore winners in the probate court
by Fiona Dodd, May 23rd, 2012
You don’t need to understand the intricacies of our legal system to know the loser of a court case usually pays the fees. But exceptions to this rule are becoming more common as courts try to discourage “no holds barred” litigation.
Many courts now penalise those who act unreasonably, even if they go on to win the case. This is spreading to the probate court. A recent example began with the death of a wealthy businessman who left his second wife a small amount and passed the bulk of his estate to his children from his first marriage.
The wife made a legal claim for a greater share. Negotiations began and the sons made an offer which she rejected. Eventually the matter came to the probate court. The wife won her claim, but was awarded less than the son’s original offer.
Generally, when the court agrees litigation was necessary to achieve a fair outcome, the costs of the claim are borne by the estate of the person who died. This is because it is seen as their responsibility to provide for their loved ones, and they have not done this adequately, so they should pay for putting it right.
One significant exception is when the person who makes the claim succeeds, but receives less than was offered during negotiations. Under those circumstances, the costs are paid by the person who pursued the litigation and incurred costs needlessly. It follows that in this case the widow should have paid all the costs.
However, the question was put before a specialist judge, who decided that the conduct of the children had not been beyond reproach either. Instead he ordered a proportion of the costs should be borne by the sons as a warning to others. The hope is that the real threat of financial penalties will encourage both sides to conduct themselves, and their negotiations, in good faith.
Writing a Will that will prevent this kind of litigation is certainly more challenging when you have a complicated family structure.
In 1958 there were fewer than 23,000 divorces. At the peak in 2003 there were more than 153,000. As divorced individuals remarry, form new relationships and age, the question of how to provide for the whole family in a Will becomes fraught with complications. It can be hard to separate personal feelings from the legal question of whether “adequate provision” has been made for everyone, but as this case shows, unless the Will gets the balance right, there are no winners.
Advance decision to refuse life-sustaining treatment (“living will”) made by eye movements is upheld
by Rebecca Haywood, May 18th, 2012
The case of Re: XB (Court of Protection) has come before Theis J, sitting as a Court of Protection judge, as an application from an NHS Trust who challenged the validity of an advance decision to refuse life-sustaining treatment (sometimes referred to as a living will) made by a patient using eye movements.
The advance decision was made in November 2011 by a man aged 67 suffering from motor neurone disease and included a refusal of life-sustaining treatment, such as artificial breathing support and artificial nutrition (food and water by tube). MND is a progressive neurological disorder that causes the muscles to waste away, affecting movement, speech, swallowing and breathing, and is generally fatal within two to five years although Professor Steven Hawking is a noted exception. Actors David Niven and Cyril Cusack, and Group Captain Leonard Cheshire were also sufferers.
The patient had discussed making this decision with his wife many times in 2010 and 2011 and she had found a precedent on the internet. The patient then used eye movements to communicate his consent to the contents of the advance decision with family members, a carer, a social worker and a medical practitioner present. The patient subsequently lost all ability to communicate.
One of the patient’s other carers (who was employed by the NHS Trust in this case) challenged whether he had actually been able to communicate agreement to the contents of the advance decision at the time it was made. It was established that the carer questioning the position was not actually present when the advance decision was signed. Under the Mental Capacity Act 2005, Living Wills should be in writing. However, the documents are still recognised if the individual concerned indicates their decision in front of witnesses, and allows somebody to sign on their behalf, also in front of witnesses.
Mrs Justice Theis held that she was satisfied that the decision represented the patient’s wishes. In making her decision she stressed the importance of clarity when drafting an advance decision and the need for health authorities involved to investigate advance decisions urgently should they have any doubts about their validity. She also suggested that organisations offering template advance decisions should review them in the light of this case. The judge said that the patient’s life could now “peacefully end” and added “I hope the next stage proceeds as well as can be expected.”
The man’s wife told the court that he “wanted to be allowed peacefully to end his life.”
The lawyer representing the family said after the hearing that the case showed the importance of preparing advance decision documents carefully. He added: ‘XB was a proud and intelligent man living in the south of England suffering from the terminal illness motor neurone disease. He has fought a long battle against the disease and has now reached a stage where he can no longer communicate his needs. His family are pleased that the court were able to clarify that his wishes were made and set out in a valid advance directive. They would appreciate that their privacy is respected at a time of obvious grief.”
Living wills, or advance decisions, allow people with or without a serious illness to set down at what point they want their treatment to cease so they can die. They were given legal force by the Mental Capacity Act 2005. This landmark case is the first Court of Protection case on the validity of an advance decision to refuse life sustaining treatment since the Mental Capacity Act came into force in October 2007.
If you would like to speak to a member of the Probate, Wills and Trusts Team about advance decisions, Wills or Powers of Attorney, please do get in touch.
The risks of homemade Wills and DIY probate
by Rebecca Haywood, May 13th, 2012
A recent press release from tracing specialists Title Research confirms that in 2011, over 15,500* Wills failed to appoint an executor or the executor was unable or unwilling to administer the estate, which is a 5% increase on 2010. This means that someone else has to be appointed to the role – and the appointment must be in accordance with the law, not just someone who offers to step in!
Kevin Cole, Head of Research at Title Research said: “These figures highlight the need for regulation of Will writing. Thousands of people every year end up with poorly drafted Wills which do not even name an executor or do not make sufficient provision in their Will for a substitute executor if their executor dies or is unwilling to act. It is vitally important for the public to seek professional advice from a reputable well trained practitioner in Will writing to avoid these problems arising.”
The Legal Services Board announced plans on 23 April to press ahead with regulation of Will writing and estate administration.
The 2011 grant of probate statistics also reveal 86,470 grants were issued to private individuals. Mr Cole said: “The LSB’s plans to regulate estate administration will not affect the thousands of people who don’t use a probate service provider to administer an estate. The risks of mistakes will remain with complex DIY probate such as undervaluing the estate, underpaying tax or missing out entitled heirs.”
Some private individuals to whom grants are issued may require legal advice on the probate process at a later stage, when people realise that being an executor can be a complicated and time-consuming process.
The 2011 figures show that there were 148 more grants issued on solicitor applications compared to 2010, so people are realising that it is a sensible precaution to have professional assistance in regard to estate administration.
The 2011 Probate Service figures also reveal 19% of probates dealt with by the Probate Service involved estates where the deceased did not leave a Will at all. This is a 4% decrease in intestacies recorded by the Probate Registry compared to 2010 and so it seems that the message as to having an up to date and valid Will may be getting through.
If you need advice or assistance concerning drawing up or revising your Will, or dealing with administration of an estate, we are always happy to help.
Rebecca Haywood
• *15,553 grants of letters of administration with Will annexed were issued by Probate Registries across England & Wales in 2011. These grants are issued where the deceased made a Will but failed to appoint an executor or the executors named in the Will have died or are unable or unwilling to act
• Data included in this release only includes data from Probate Registries in England & Wales
Getting Wed? Get a Will!
by Rebecca Haywood, April 30th, 2012
I helped to man (woman? person?) the Mayo Wynne Baxter stall at a Wedding Fair held at the Amex Community Stadium in Falmer on Sunday 29 April, with colleagues from the Probate, Trusts & Wills and Family Departments.
It was surprising how many people stopped to look at our banners and asked whether we were there to offer divorce advice – how pessimistic!
Obviously, we do assist clients in divorce proceedings and mediation, but the real purpose of our presence at a fair promoting all sorts of services in relation to planning a wedding was to remind people of the legal matters that need to be considered when you get married or form a civil partnership (and all references to “marriage” hereafter include forming a civil partnership).
For example, did you know that if you already have a Will, it is very likely to be revoked by your marriage, unless it was specifically written to take that into account? If your Will is so revoked, that would then mean that if some dreadful accident befell you on your honeymoon you would die intestate and your surviving spouse or civil partner does not necessarily inherit your entire estate when the laws of intestacy come into effect. Alternatively, you may not actually want them to take everything, especially if it is your second marriage, in which case – without a valid and up to date Will – you will have no say as to who gets what, and who administers your estate.
You should therefore ensure that you both either make arrangements to update your Wills before your wedding and ensure that the lawyer advising you is aware of the forthcoming event so it is taken into account, or see a lawyer as soon as possible after the ceremony.
We also prepare pre-nuptial agreements for couples intending to marry (and post-nuptial agreements for those already married) who want to make sure that should things not work out, they have already agreed what assets belong to whom and how things are to be divided or retained. Case law suggests that pre-nups should be completed a certain period before the actual marriage takes place and so you should start the ball rolling with your legal adviser well in advance.
Marriage may also lead to joint property purchases and our Property Department are always happy to advise on the best way forward. This may also affect the devolution of your estate which could lead to further changes to your Wills.
I know these matters are nowhere near as exciting as cakes, dresses and flowers, but they are just as important and should be given a place high up your “to-do” list when planning the big day.
Five Reasons to Change Your Will…
by Rebecca Haywood, April 10th, 2012
I know I seem to be perpetually nagging people about their Wills, but there is absolutely no reason why every single adult in the country shouldn’t have an effective and up to date document.
Here are five good reasons why you should come and see me or one of my colleagues in Mayo Wynne Baxter’s Probate, Trust and Wills team to update your Will arrangements.
1. You don’t have a Will. Technically, I know this means there is nothing to update , but having one would be a change! If you die without a Will, or without a valid Will, the intestacy rules will come into play – in effect, the government has written your Will for you…
2. Your marital status has altered. Getting married or forming a civil partnership will automatically revoke any Will you already have unless it has been specifically written with that in mind, so it could be that you think you have a valid Will but in fact, you don’t! On the other hand, if you are getting divorced and you die before the Decree Absolute is issued, the law will pass some, if not all of your estate to your spouse. Writing a Will in anticipation of the divorce or separation may assist.
3. You’ve had a child / grandchild / some other new arrival and you would like them to benefit from your estate. If they are not mentioned in your Will, they may not inherit – another good reason to speak to an expert. If you’ve had a child, a Will is also the best place to appoint legal guardians to look after them should something happen to both parents before the child is 18, and avoid Social Services or the Courts deciding who raises them.
4. You’ve fallen out with someone – this is yet another reason to review your Will as often, people forget who they have left something to and are horrified when they are reminded of this.
5. You want different things to go to different people. If you don’t have a valid Will, the intestacy rules lay out who takes what, and that means that although you may have promised this painting to a cousin, that necklace to a niece, or some money to a charity, they are unlikely to receive what was promised unless the gifts are specified in your Will.
These are only five of hundreds of good reasons to have a professionally-drawn, up to date, valid Will. If any of them apply to you, come and see us now!
If you think you don’t need a Will because you don’t have any relatives to inherit your estate … read on!
by Rebecca Haywood, March 30th, 2012
I read an interesting piece recently by Kevin Cole, a case manager at Title Research who undertake (amongst other services) probate genealogical research – or “heir hunting”, as it is popularly known.
Herbert Roy Hilsdon (known as Roy), an Oxford stonemason and bricklayer, died in December 2009 aged 79. He left no Will (ie he was intestate) and had no children, just a few cousins of whom he was aware, and – as it turned out – a lot more cousins who were unknown to him. In fact, after Title Research had carried out their research, it turned out that there were 45 people entitled to a share of Roy’s estate, on both his mother’s and his father’s sides, many from Oxfordshire but some as far away as Australia and the United States. Who gets what depends on how closely related the beneficiaries were to Roy and how many children their parents and grandparents had. Drawing up Roy’s family tree was an enormous and costly task requiring professional probate genealogy to ensure that only the legally entitled heirs were located. Moreover, Title Research had to ensure that every relevant birth, marriage and death was identified and recorded, to avoid the risk of unknown beneficiaries coming forward after the estate had been distributed.
Now, this may be a feel good story on one hand, in that an estate was successfully distributed to the beneficiaries legally entitled under the intestacy rules, and it has brought people together who did not even know of each other’s existence. But it is unlikely that Roy would have wanted all these strangers to share his estate. Obviously, he should have written a Will to specify his wishes. Even if the people who will inherit your estate under your Will are the same as would share it by virtue of the intestacy rules, it is still much better to have that written down in a professionally prepared Will to prove that it was your intention, and to appoint competent and trustworthy Executors, and take into account any other requirements you may have. This will avoid the need for lengthy time to be spent in double-checking the position on an intestacy as described above, not to mention the cost of that work, which will come out of your estate.
Contact me or one of my colleagues in the Wills Team at Mayo Wynne Baxter now to ensure that your Will is still up to date and valid, or to prepare a new one to avoid this potentially costly problem.
How much do you know about Wills?
by Rebecca Haywood, March 12th, 2012
You may have a Will or you may not; you may have written it yourself or it may have been prepared by a lawyer; it may be recent or it could be many years old. When was the last time you reviewed it? Have things changed since it was drawn up? Can you answer the following questions?
- Do you actually need a Will, or is it OK for your family to sort everything out however they want when you die?
- What is a Codicil?
- Can an executor of a Will also be a beneficiary, or does that mean they lose out on any benefit under the Will?
- If you leave something to your child but they die before you, will that gift automatically go to their spouse/civil partner or somewhere else?
- Do you have to leave anything to your family or can you cut some or all of them out?
- How should you amend a Will?
- If you get married or divorced, move house, change your name or have children, how will these life-changing events affect your Will?
- How should a Will be signed?
- How are joint bank accounts treated?
- If someone is not named in your Will, might they still end up being a beneficiary?
- What is the difference between a Will and a Power of Attorney?
- Are my beneficiaries going to have to pay tax?
- If your Will just leaves everything to your other half, do you need to put any more than that in it?
If you do not know or are not sure of the answers to any of these questions, you should seek professional advice to ensure that your requirements are properly covered in a professionally-drawn Will. If you don’t have a Will at all then you are running a very real risk of your estate passing to people you may not even know on your death.
You should also consider preparing a Power of Attorney in case this is needed in the future – who would pay your bills if you got hit by a bus? The banks need specific paperwork before they will let third parties access your accounts – and rightly so.
We are experts in Wills and we know all the answers – contact our Probate, Trusts & Wills team.
Rebecca Haywood
A New Year resolution or two you may not have considered…
by Rebecca Haywood, January 3rd, 2012
The last mince pie has been eaten, the pine tree needles are wedged so deeply into the carpet that they’ll never come out, and the rosy glow of the Christmas and New Year holidays are mere memories which disappeared like size 12s in the sale following your return to work and seeing the 1378 spam emails that arrived in your absence.
Time to turn your thoughts to ways of improving life in the year to come.
2012 is, as we know, expected to be an exciting year, what with the Olympics and the Mayan prediction of the end of days. And although that last was obviously a joke, we do all need to face facts and admit that most of us don’t know when our days will end. Bearing this in mind, I would therefore suggest that at the top of everyone’s New Year resolutions list should be a reminder to see a member of the Probate, Trusts and Wills Team at Mayo Wynne Baxter to ensure that their Will is up to date, valid and comprehensive, and that they give some thought to putting in hand power of attorney arrangements.
You could even combine updating your Will with a donation to charity – see http://www.family-footprints.co.uk/ for more details.
Not only will you feel a warm glow of satisfaction as you tick it off your list, but your family and friends will thank you for being so organised should the worst happen.
We’re here to help – contact your nearest office now!
Professional Will writers, why bother?
by Jason Edge, December 16th, 2011
‘You get what you pay for’ is a saying that is as old as the hills and, with few exceptions, is as true today as the first time it was uttered and it applies to writing a Will too.
To make Will writing cheaper for people there are only a few variables that you can play with:
- Use cheap, unqualified or unskilled labour to bring your costs down.
- Cut corners
- Work for nothing
- Don’t adhere to all the guidelines and regulations
Our highly qualified, experienced and well trained legal advisors can produce a Will for you from just £150 + vat which most agree is a small price to pay to protect those that you leave behind. Yet surprisingly there are a number of Will writing services springing up that charge less.
It should come as no surprise that many of those getting their Wills written cheaply have come a little unstuck and their plight has reached the news:
Thousands ‘ripped off’ by unregulated will-writers – BBC
Unregulated will writers ‘rip-off thousands every year’ – The Guardian
Call for greater regulation of ‘cowboy’ will writers – Liverpool Daily Post
Unscrupulous: The disturbing industry profiting from our fear of death – This Is Money
Although a serious topic we have produced a short animation to highlight the benefits of using a regulated professional to write you Will.
It can be a false economy trying to save a small amount of money on something so important.
Playing Forfeits…
by Rebecca Haywood, December 12th, 2011
The new Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011 will come into effect from 1 February 2012.
The Act amends the current rules of succession in relation to both testate and intestate estates concerning who can inherit an interest forfeited by a beneficiary under the Forfeiture Act 1982. The forfeiture rule states that if a person unlawfully kills (or unlawfully aids, abets, counsels or procures the death of) another person they are prevented from taking any benefit under the deceased’s Will, and their own descendants may also be disqualified from inheriting. This is a longstanding common law rule in accordance with public policy – ie an offender should not be allowed to benefit from their crime.
The new Act states that if a person disclaims an inheritance or is prevented from receiving an inheritance on intestacy under the forfeiture rules, their issue can inherit as if the potential heir had died immediately before the intestate, rather than been disqualified through forfeiture. If there is a Will, the person entitled to the property instead of the person deemed to have died will depend on the terms of the Will. The Act also provides that surviving children of a minor will be able to inherit their parent’s interest in an intestate estate where that parent died before age 18 and was unmarried or had not entered a civil partnership.
If you have any queries over the implications of the above, your Will or the administration of an estate where you have an interest, do not hesitate to contact the Probate, Trusts & Wills Team at Mayo Wynne Baxter for advice.