Why using a regulated solicitor matters when making a will

Making a Will is one of the most important steps an individual can take to protect their loved ones and ensure that their wishes are carried out after death. However, many people in the UK remain unaware that outside of the legal profession the Will writing industry can be largely unregulated. Each year thousands of people prepare their own Wills without seeking legal advice or with the help of unqualified Will writers who might lack adequate legal training. This can leave individuals open to poor advice, invalid documents and devastating legal consequences.

The recent case of Tedford V Clarke & Ors heard in April; the High Court provides a stark reminder of what can happen when things go wrong. This case was brought by Mr Tedford, Mrs Veronica Clarke’s nephew, who was appointed as her Executor in order to seek clarity and an interpretation of the Will. The poorly drafted Will had been prepared by an unqualified person holding himself out as a Will writer.

Veronica’s Will, which revoked a previously professionally drafted Will was so badly written that it included references to Abbey National Bank which had ceased to exist long before the Will was written. In addition, some of the clauses in the Will appeared to contradict each other about who the actual beneficiaries were. This led to confusion as to whether the nieces and nephews of Mrs Clarke (including Mr Tedford) were entitled to inherit. Disagreements about this exacerbated the already difficult family circumstances, as there was also a separate case being brought for the removal of Mr Tedford as the Executor.

Judge Cadwallader who heard the case noted that the legal jargon used in the Will shows ‘a limited understanding of their meaning and function and of the underlying body of law’. He also summarised that the badly drafted Will had caused ‘untold anguish, substantial expenses and delay and destroyed family relationships’.

Partner Caroline Flint, from our contentious probate team comments that “The Executor had no choice but to make an application to the Court for guidance before he could proceed with the administration of the estate. This caused significant funds to be depleted from the deceased estate and the potential to generate a rift between the family for generations to come”. “This is why it is important to make sure that the person you instruct is suitably qualified to understand your wishes and advise accordingly”’.

Why use a regulated firm?

Choosing a legal adviser from a regulated firm to prepare your Will ensures:

• Legal accuracy
• Complicated family, business and personal circumstances are taken into account.
• Tax and financial implications are accurately addressed
• Valid execution
• Safe storage
• Recourse if something goes wrong and a record of the advice is available.

At Mayo Wynne Baxter, our experienced Private Client team can give you the peace of mind of knowing that this is all in hand.

When families are considering placing a loved one into a care home, the process can be emotionally and practically overwhelming. Among the many questions that arise, one that often causes confusion is why some care homes insist on a Lasting Power of Attorney (LPA) or deputyship order being in place before they can formally admit a resident.

This post sheds some light on this requirement and why it is not only common but often essential for the protection of both the resident and the care provider.

Understanding Legal Capacity and Decision-Making

Under the Mental Capacity Act 2005, individuals must be assumed to have capacity to make decisions unless it is established that they lack it. However, for many people entering care, particularly those with dementia, severe learning difficulties, or other cognitive impairments, there may be concerns about their ability to make complex decisions, such as entering into a contract with a care provider.

This is where an LPA or deputyship becomes crucial.

The Role of an LPA or Deputy

A Lasting Power of Attorney is a legal document in which a person (the “donor”) appoints one or more individuals (the “attorneys”) to make decisions on their behalf if they lose capacity. There are two types: one for property and financial affairs, and one for health and welfare. For care home admission and fee arrangements, the financial LPA is particularly relevant.

If the person has already lost capacity and no LPA was made in advance, then an application must be made to the Court of Protection for a deputyship order. This process can take several months and can be more costly and complex than setting up an LPA beforehand.

Why Care Homes Require Legal Authority

Care homes typically ask for proof of legal authority (either an LPA or a deputyship) for several reasons:

1. Contractual Agreement: Admission to a care home involves entering into a legally binding contract for services and payment. If the prospective resident lacks capacity, someone else must have legal authority to enter into the agreement on their behalf.
2. Financial Safeguards: Care homes need to ensure that the person managing the resident’s affairs has the legal right to do so. This helps prevent disputes about payments and financial responsibilities down the line.
3. Health and Welfare Decisions: In some cases, care homes may also need to liaise with attorneys or deputies about decisions relating to the resident’s care, medical treatment, or where they live.
4. Regulatory Compliance: Care providers are under increasing scrutiny to ensure they are acting lawfully and ethically. Verifying legal authority helps them meet their safeguarding obligations.

What Families Should Do

If your loved one still has capacity, the best course of action is to help them put in place a Lasting Power of Attorney as early as possible. It’s a relatively straightforward process but can be invaluable later on.

If they have already lost capacity, you should speak to a legal advisor about applying for a deputyship order. Be aware that this can take several months, so it’s important to begin the process early if care home admission is imminent.

Final Thoughts

Although it may feel like another administrative hurdle at a stressful time, the requirement for an LPA or deputyship is ultimately about ensuring that decisions are made lawfully and in the best interests of the person going into care. As a Court of Protection lawyer, I’ve seen firsthand how having the right legal authority in place can ease transitions, avoid disputes, and provide peace of mind for families and care providers alike.

If you need help setting up an LPA or making an application to the Court of Protection, don’t hesitate to get in touch with our team. We’re here to guide you through the process.

Blended families are becoming more common, with many people entering new relationships, marriages, or civil partnerships later in life, or ‘starting again’ and having more children with a new partner.

While these families bring joy and love, they also introduce unique legal and financial challenges that require careful planning. Without clear legal arrangements, your final wishes may not be carried out as expected, leading to unintended consequences for your loved ones.

Why estate planning is essential

Though it may be uncomfortable to plan for a time when you are not around to support your family, ensuring a solid estate plan offers peace of mind. Crucially, it can:

• Prevent family arguments
• Stop assets from falling into the wrong hands
• Minimise inheritance tax liabilities
• Avoid costly and time-consuming disputes

Despite the importance of estate planning, only 1 in 6 people have formalised an estate plan, and over a third haven’t drafted a will. And 1 in 5 people (22%) aren’t sure what a lasting power of attorney is.

Starting with a will

A properly drafted will is essential. Without one, the law dictates who inherits your estate, often prioritising your spouse or civil partner over children from previous relationships. Stepchildren are not automatically entitled to inherit under intestacy rules, meaning they may be left out entirely. By having a well-structured will, you ensure that everyone is provided for according to your intentions.

Setting up a trust

Trusts can be an effective way to safeguard your assets while ensuring fair distribution among your loved ones. A will trust, or life interest trust, allows your spouse, civil partner, or cohabitee to benefit from your assets during their lifetime, such as living in the family home or receiving income, while preserving the capital for your children in the future.

If you plan to include a cohabitee in your arrangements, it’s particularly important to seek expert legal and tax advice, as inheritance tax exemptions do not automatically apply to them.

Don’t delay on getting an LPA

Many people wrongly assume that your next of kin will be able to make decisions about your healthcare, or easily gain access to your finances, should you lose mental capacity. However, this is not the case. Only a nominated attorney using a Lasting Power of Attorney (LPA) document can do this.

Choosing the right attorneys is crucial, particularly in blended families where relationships may be sensitive. Without an LPA in place, your loved ones might face lengthy and expensive legal proceedings to gain the right to act on your behalf.

Open Conversations Matter

Estate planning doesn’t require unanimous agreement from all family members, but discussing your intentions can help set expectations and minimise surprises. Open communication fosters understanding and prevents future tensions.

Preventing Conflict

Inheritance disputes can arise, especially in complex family structures. Clear, legally documented wishes can help prevent misunderstandings and disagreements. Making fair, well-thought-out decisions, rather than trying to appease everyone, ensures clarity and reduces the likelihood of disputes.

When should you start estate planning?

Estate planning isn’t just for when you’re old and grey, it’s relevant for anyone who owns assets, has dependents, or runs a business. If any of the following apply to you, it’s time to consider putting plans in place:

• • You own property
  • You move in with a partner
  • You have assets to pass down
  • You have dependents
  • You run a business
  • You experience a life change

Can I do my own estate planning?

Navigating estate planning within a blended family can be complex, but with the right legal advice, it doesn’t have to be daunting. An Accredited Lifetime Lawyer can guide you through your options, helping you create a robust estate plan that protects the people who matter most.

How to start estate planning

Planning for your family’s future is not just about legal compliance, it’s about ensuring stability, financial security, and peace of mind for all involved. Seek legal advice now to create a well-structured estate plan that aligns with your blended family’s unique needs.

For more information, you can download our dedicated estate planning guide here.