Probate Fees Increase. Cancelled? Or Just Postponed?

Probate Fees Increase. Cancelled? Or Just Postponed?

A few of my recent Blogs have dealt with the proposed amazing increases in the fees to be charged for Grants of Probate.

At present the Government admits that the current fees (of £155 charged when a Solicitor lodges the application, or £215 when an applicant in person does so) are more than sufficient to cover the actual cost of running the Probate registry.

Nevertheless there are other areas of the Courts which are making a loss, and the idea is that probate fees should now be made to subsidise the loss making areas. And the new charge in the worst case, of a relatively wealthy couple dying together or shortly one after another, is up to £40,000.00.

Yes, I know.

Anyway, the news now of course is, there is going to be a general election.

And the Probate fees proposal, and several other tax raising initiatives, are all being postponed until after that.

I am seeing many commentators giving sighs of relief, saying what good news this is. As if the 9000 [Nine Thousand!] per cent increase has been consigned to history. Of course no such binding promise has been made.

Still I suppose, if Christmas were to be postponed until the end of January, the turkeys would feel cheered up.

As to the election, the newspapers are full of the results of the opinion polls, talking of a prospective landslide for the Conservatives.

But, was it not in November 2016, when Donald Trump became US President, and before that in UK in 2015, when the Conservatives won a majority of seats, that the papers were all running articles along the lines of – “Why were the Polls so wrong?”

You would have thought that opinion pollsters would have realised the futility of their calling, and all got other jobs, but here they are back again.

Have you ever spoken to an opinion pollster? Me neither.

So exactly whose opinions are they canvassing, and then extrapolating and publishing? At a guess, the opinions of people who are not bright or spry enough to spot a lurking opinion pollster in the street, and to cross the road to evade “thy long grey beard and glittering eye”?

We shall all know soon enough – interesting times, and it all just keeps coming.

In the meantime, a link here to a song The Future is Coming On.

And, as always, whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

The Latest in the Saga of Increasing Probate Fees – Perhaps The Increase Is illegal!

The latest in the saga of increasing Probate fees – perhaps the increase is illegal!

A year or so ago I wrote this Link here warning of the proposal for the worst case increase of probate fees from £430 to £40,000. Yes. Really

And then after the Government “Consultation” I wrote link here of the Government response which was in effect, “We will ignore the result of the consultation”

Now, this week the joint committee on Statutory Instruments, a cross party/cross house committee has raised the suggestion that the proposal may be illegal.

A basic principle of the British Constitution is that the Government cannot raise tax unless the measure is put before Parliament and approved. Exactly as with Brexit recently – and as the Courts confirmed – the matter has to go to Debate.

But, in the case of the Probate fees, the Government is presenting the increases as merely an upward adjustment to Court fees, and that therefore it has the right to proceed under Powers deriving from the somewhat obscure Anti-Social Behaviour, Crime and Policing Act, 2014, section 180 – Headed, “Court and Tribunal Fees”.

Somewhat ignoring the fact that that Statute is clearly intended to deal with the Court fees for contested cases.

Yes sometimes the grant of Probate can be contested. [Fred died leaving his money to say, the RSPCA and appointing it his executor, and Fred’s wife is objecting to the Grant of Probate as part of her objection to the implementation of the terms of the Will generally]

I have not been able to find the number of annually contested applications for Probate, the statistics must be out there. My guess is, it is a relatively trivial number compared to the over 250000 grants of Probate applied for every year.

In any case, the new fees are not relating to the contested cases only. They will relate to every application.

What the Government is doing, is calling a tax increase, a “fees increase”. And then claiming that this obscure Stature gives it the right to implement it.

Basically, attempting to use the letter of the law to justify something it was never intended to justify.

We do not know whether the views of the joint committee on Statutory Instruments will be implemented. Perhaps not, perhaps the Government will succeed in pressing on regardless.

But, does its behaviour remind you of the Government’s own wording in its pamphlet highlighted in my blog earlier, link here?

That, a citizen should not seek to avoid paying tax by “Using the Law of the Country to get a Tax advantage that Parliament never intended”.

And whilst this Government is a more or less different gang from last year, it has learnt nothing from Mr Cameron’s own egg-on-face scenario, – when he was revealed to have had his own offshore investments. This, of course, after he had taken the extraordinary decision to take time out of a G20 summit to voice his disgust at that kind of scheme and specifically describing as “Morally wrong” the action of Jimmy Carr in following the advice of his accountant and doing nothing illegal whatsoever.

Jimmy Carr, as comedians will, had the last laugh. He tweeted, when Mr Cameron was revealed to have his own tax-avoiding investments abroad, that “it would be morally wrong of me to comment on another individual’s tax affairs”.

Really, it is dangerous to seek to occupy the moral high ground, because when you behave exactly as those you seek to paint as villains, some people might take the view that your sense of morality leaves something to be desired.

Indeed some people may take that view, and express disapproval in rather stronger terms. Trust is hard to win, easy to lose in a moment. Ask United Airlines.

Some music – Hypocrites

And, as always, whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

Affairs in Spain? Poder? Louise Explains What Our Leeds Service Offers

Affairs in Spain? Poder? Louise Explains What Our Leeds Service Offers

Spain is a very popular country for us Brits to start a new life in. There are approximately over 300,000 British ex-pats residing in Spain alone. As Notaries we get to see many individuals who have interests in Spain and one of the most common documents we assist with is a “Poder”

A Poder is the equivalent of what we call in England a “Power of Attorney”.

A Poder is a legal document which authorises a person to deal with affairs in Spain.

Usually we see clients who are wishing to purchase, sell or transfer property ownership but are unable to get to Spain to deal with the necessary legal formalities and wish to instruct their Spanish adviser to deal with such formalities on their behalf.

Sometimes the Poder is to authorise Lawyers in Spain to deal with inheritances left by a deceased relative who lived in Spain.

It is usual that the Spanish adviser will draw up the necessary Poder and email direct to us for signature of it to be made in the presence of a Notary Public. It is the Notary’s job, and the Spanish procedure, to read the document out loud to the client before signature is made.

A Poder is a very powerful document and should not be entered into lightly and it is advised that you choose your Attorney very carefully.

Usually the Poder is not tailored to the individual requirement you are wishing it to be used. For example if you are purchasing a property in Spain then you might think the Poder should just authorise the attorney to deal with all legal formalities relating to purchasing a property – however this is not usually the case – we see many Poders that are very wide in authority and usually authorises the Spanish adviser to deal with all kind of matters – dealing with courts, selling of property, dealing with banks etc…

The main reason for this is the Poder is usually a standard precedent which is run off the attorney’s computer precedent bank and includes authority to deal with whole range of stuff.

By running off a Poder which is not tailored to the clients individual’s needs usually keeps the legal costs down by not having to alter the template in any way. We have seen many clients who have felt slightly uncomfortable with the wide range of authority they are signing away but you may perhaps be invited to take the view that if you do not trust your Spanish adviser then why would you give him/her authority to deal with anything full stop?

Once a client is happy and signs the Power of Attorney/Poder then the document usually would need to be sent to the Foreign Office in Milton Keynes for an Apostille stamp.

This stamp confirms that the Notary who has dealt with notarisation of the Poder is a genuine qualified Notary and carries the necessary insurance [see my earlier blog for further information about the Apostille stamp]. 

When the above has taken place then it is ready to be sent to Spain for your adviser to proceed forthwith in dealing with your legal affairs in Spain – negating the need for you to travel.

If you have affairs in Spain or in any country of the world then please do get in touch if you require any assistance in dealing with any Legal documents.

As always, you can contact me or Chris here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website www.atkinsonnotary.com.

Marriage Broken Down. Two Years Apart. But Refused a Divorce. Really?

Marriage Broken Down. Two Years Apart. But Refused a Divorce.

This week’s newspapers and specialist legal journals are full of the defended Divorce case of Owens v Owens.

Mrs Owens want a Divorce and Mr Owens won’t agree. After two years of living apart, she has failed to get the Divorce. Link here to the Court case, the actual decision.

The case is unusual because whilst Mrs Owens wants a Divorce – and therefore – and because of her actions in moving out of the family home over two years ago, and because she is adamant that she will not live with her husband ever again, the Courts have agreed with her that “the marriage has broken down irretrievably”.

It may come as a surprise to you if you are not a lawyer, that those facts alone are not sufficient in English Law, to entitle Mrs Owens to her divorce.

Because of the present Divorce Law, dating from 1969, she ALSO has to prove at least one out of the five following alternatives –
1. That Mr Owens has committed adultery and she finds it intolerable to continue to live with him. No, He hasn’t’ [NO – she has, by the way, but he hasn’t].
2. That Mr Owens has behaved towards her in such a way that she cannot reasonably be expected to live with him
3. That Mr Owens has deserted her for more than the past two years. [NO – He Hasn’t]
4. That having lived separate for over two years, Mr Owens consents to the Divorce [NO – Mr Owens does not give his consent]
5. That the parties have lived apart for more than five years [NO – They haven’t]

So four out of five options are unavailable to her, leaving the second one as her only chance. Which is, to repeat, “that Mr Owens has behaved towards her in such a way such that she cannot reasonably be expected to live with him”.

Problem is, the worst she can say about him is – Mr Owens is a bit grumpy, perhaps a bit pedantic and set in his ways, a bit autocratic. A bit prone to complain and nag. [Remind you of your Husband at all?]

But they married in 1978 and there is no suggestion that Mr Owens has suddenly changed from Prince Charming in 1978 into a combination of Victor Meldrew and Jack Manningham in 2017.

Basically he seems to be the same person now as he was then. Bit of a difficult chap. Like so many others of us.

And significantly perhaps, she began to see a lot more of him after his retirement, than during the first thirty years or more of the marriage, when he would spend long days at his work, attending to the business of earning money.

As the trial judge noted, each example cited in her divorce petition seems to amount in itself to very little that you would not find in any marriage.

Of course if you love your annoying spouse, that’s one thing. If you stopped loving him years ago, it’s quite another, when he sends you out into the garden to put out the recycling cardboard “properly” or has a fit of the shouty strops in an airport concourse.

The papers are all over this – Boo Hoo, basically. A couple of Links here and here

The newspapers are decrying the refusal of the Judges to grant the divorce, as evidence of the “stick in the mud” nature of Judges generally, and their refusal to “move with the times”.

But contrary to this and in spite of the newspapers which seem to think that Judges can decide every case as they might think the public would prefer, in fact the Judges’ job is to implement the actual law.

Which is as stated above.

And if, as they found, Mr Owens has not as alleged begun to behave in a manner such that Mrs Owens cannot be reasonably expected to live with him but has in fact merely continued to be the same rather difficult man he was in 1978 when she married him, then alternative No. 2 does not exist either.

So end result of the recent Appeal hearing, – the marriage has broken down, but it cannot be ended for a further three years – when option number five will be available.

What do you think?

On the one hand, Mrs Owens wants a “No fault Divorce” without waiting five years from separation.

On the other hand, taken to its extreme, a Law of “No – fault Divorce any time you like” will allow a spouse to flounce off to the Divorce Courts any time they choose because “I’ve been looked at funny and it’s all over between us”.

But no-fault no-waiting Divorce would seem to be a logical progression in the way in which Divorce law has evolved in England over the past couple of hundred years. And each change in Divorce law, has been made in order to accommodate changes in Society and public opinion.

Public Opinion now might well be that one party to a marriage, if s/he is unhappy, should have the right to end it. Unilaterally, to come into the kitchen and say “By the way, We are divorcing today, so that’s that, sunshine”.

A hundred or so years ago, happiness was probably considered a most unusual bonus in the rare instances of it in marriages, and the lack of it hardly worth comment. But that was then and the past is another Country.

So what do you think?

And what do you think “Marriage” is anyway? What, these days, is it for?

I mean, if you could end it anytime, easy, just like that, then how would it differ from just living together? Should it be any different? Why have gay couples fought so long and hard to be allowed to marry?

You don’t expect answers from me though, do you! It’s complicated, like this song

As always, whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com.

What’s The Point Of Making A Will? Or Would The Court Just Ignore It?

What’s The Point Of Making A Will? Or Would The Court Just Ignore It?

In July 2015 I wrote this Blog – Courts Ignore Your Will. – Link here

In brief, a lady had disowned her seventeen year old Daughter, because she married without her approval. Apart from a couple of failed attempts to reconcile, they had no contact again before Mother’s death when Daughter was aged 54.

During all that time Mother made no gifts to her Daughter of any kind, not even ten bob in a birthday card. Not even a birthday card come to that.

The Daughter and her husband have five children. They all live together with on very low income supplemented by state benefits. That is to say, by money paid by you and me, from our tax, which comes from our earnings, which comes from our hard work. At any rate, none of their support came from her Mother while Mother was alive, although she could have afforded it.

Now whether the Mothers’ behaviour was reasonable is open to discussion. Most would say it was not reasonable. What has that got to do with it? For so long as Mother was alive, there was no pressure upon her to give any financial support to her Daughter.

And if she didn’t want to give the time of day to her Daughter, there is no law to say otherwise.

It might be that some people would say that adults with substantial assets should be forced to assist children and grandchildren struggling on low income. But in England, [at present] that is not the law. Whilst Mother was alive there was no Court action which Daughter could have successfully brought against her to win a share of her money.

And yet after the death, and reading Mother’s Will which left all of Mother’s estate (£486,000) to charities, Daughter brought a claim for a share of the estate.

On one level it all seems a bit random. Mother is dead now so I want a share of the money. Yet when Mother was alive, there was no share. And if Mother had lived to be 120 and spent all her money on care home fees, there would be nothing to get a share of.

And the 1837 Wills Act enshrines the English principle that you can leave your money to whoever the hell you want to. Because, It’s your money, see, Sherlock?

By the way, this is pretty unusual around the World. In most countries, in fact you are not free to dispossess or ignore your family members in your Will. Even in Scotland just up the road, your children are entitled to share up to half your money after you die, even if you hated their guts.

Anyway, we are not in Scotland or Spain or anywhere foreign.

But there is a Law here which to an extent contradicts the Wills Act. The Inheritance (Provision for Family and Dependants) Act of 1975 says that as regards children [that is, issue, whether adult or minor], a child ignored by a Will can claim “reasonable financial maintenance”.

Ok, so we are faced with the word “reasonable”.

What in the world might that mean?

In this case, your view might be –

1 After thirty years of no contact, it is reasonable for nothing to be paid or
2 The Daughter is not starving, she has no claim upon any more money, but the estate should be ordered to pay enough to ensure that the State no longer has to pay benefits [out of our tax!] or
3 The Mother has an estate worth hundreds of thousands of pounds, the word reasonable should be interpreted in the light of the size of the Estate. So that a Daughter should receive more money from a multi-million pound estate. Which would put a strain on the word “Maintenance” but you might think that the provision of a higher standard of living is a reasonable interpretation in the context of a huge estate?

The fact is, the Law give no explanation of what its words “reasonable” or even “maintenance” actually mean.

This results in a situation where the trial Judge is on his own, and the decision will depend upon his human reaction to the facts of the particular case. So if he likes the Daughter, she wins? Not the best basis for the Law surely.

So, in the first instance, the Daughter was awarded £50,000.00. But when she appealed for more, to the Family Court, she got nothing at all. Link here

On the next appeal, the Court reinstated the decision of the first judge that there should be an award of something to the Daughter, and allowed an application that the actual amount could be reconsidered at a further hearing.

On her next Appeal after that, to the Court of Appeal, the amount of the award was increased to £163,000.00 link here . This was the point in 2015 at which I, like many lawyers, began to feel that making a Will is a waste of time if the Courts won’t take notice of my wishes.

It is reported that after this decision, with such a resounding success for the Daughter, there has been a rise in similar applications to dispute the terms of Wills. This is regrettable if you believe that the terms of a Will should actually be put into effect, not picked apart by the Courts for the next twenty years until the Lawyers have got all the brass.

In the final resolution, the Supreme Court Appeal Decision link here, has in essence said, stop all this messing about. Unless an original Judge has misunderstood the law, or applied it incorrectly, then his decisions must stand whatever other people and Judges would have decided if they have been in charge instead.

Much like football. Was it a goal? Well it was if the Referee said so, and if you don’t believe it, read the paper tomorrow. Don’t take it to the Court of Appeal.

So, the final upshot, we are back where we started, at an award capitalised at £50,000 for the Daughter in lieu of maintenance.

And it is 2017 today, and Mother died in 2004.

In that judgment this month, the Supreme Court Judge Lady Hale, also pointed out that it would have been helpful to everyone if the Law were more precise.

Use of words like “reasonable” and “factors to be taken into account” mean different things to different people. And once you have taken factors into account, the law gives no guidance as to what weight should be applied to each factor.

Lady Hale did not say, but did perhaps imply, that in this case, and given that England is a Country where property owners are understood to be able to dispose of their property on death however they jolly well please, it might have been easy to understand if the original Judge had dismissed Daughter’s claim entirely.

That is the outcome that most of us would probably think fair. Or does that depend upon whether
A. you own a lot of stuff, or
B. your Mother does?

At any rate, to answer my original question, this decision has gone a long way to reinstate the view that, yes it is worthwhile making a Will.

Many commentators are suggesting that if you intend to leave nothing to your children, and to leave large sums to charities which you have never seemed very interested in during your lifetime, perhaps you should write a letter of wishes and keep it with your Will. This could be a more detailed letter, written in non “Legal-Jargon”, in which you could make clear the strength of your feelings. Might help I suppose.

Families, eh? Here’s a Happy Song.

As always, whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

Documents For India Need Notarisation? Louise Helps You Through The Maze

Documents For India Need Notarization? Louise Helps You Through The Maze.

A high percentage of my workload relates to documentation prepared for clients with Indian connections. Typically this will be paperwork relating to Powers of Attorney or to the Administration of the Indian Estates of deceased relatives.

If there were only one message I could give, it is that it ultimately costs more to get it wrong than to get it right. Taking shortcuts in respect of legal documentation for any foreign Country is a recipe for wasting money.

Typical mistakes include the following:
1. Drafting the Deeds yourself.
2. Failure to Witness as required
3. Failure to Notarise
4. Failure to legalise

There are more mistakes which can result in rejection of your documents in India, but these four above are far and away the most usual.

To expand on these –

1. Drafting the Deeds Yourself.

Christopher Atkinson has been a Notary for over Twenty Two years and we have a copy of every Indian Power of Attorney that he has ever notarized. There are many hundreds of them and each one is different in words or in format. If you have any experience of India, you will know that nothing is standardized there. Most Indian Lawyers consider that their documents are the only correct ones. The Moral – Get your lawyer in India to draft your paperwork. If you draft it yourself, or even if we draft it for you, most probably they will reject it. It can be emailed over to UK and then I can print it at my office for you.

2. Failure to Notarise.

There are unfortunately many Solicitors who appear to be willing to countersign as the “Notary” witness on Indian Deeds. This is ALWAYS WRONG. A Solicitor who is not also a Notary, is not accepted in India as an appropriate Certifier for your Deeds.

3. Failure to Legalise

This is a tricky area. India has signed the 1961 Convention of The Hague and your Notarized documents should be legalised with the Apostille stamp. But, to muddy the waters, often documents will be accepted without this, and on the other hand sometimes Indian lawyers incorrectly ask for an Indian High Commission Stamp. This article is too short to give full details of all the problems, but I can explain if you phone or email me. Also we have written other blogs on the subject, if you use the index on our website searching for “India” or “Apostille”.

4. Failure to Witness.

With the exception only of some Bank Deeds, all Indian Deeds executed in England and particularly Powers of Attorney require that your signature is witnessed by two adults in addition to the Notary.

And do not do what we have sometimes seen. A client with a Deed for India requiring two witnesses and the notary, brings us a document already signed by two friends, who do not appear with him at our office.

“What are those signatures?” We ask – reply, – “those are the witnesses! They can’t get time off work, so they signed it last night, ready for me to sign with you today!”

No really, we have seen this several times.

There are so many ways to get this wrong, only one way to get it right. Again, I do explain what is needed whenever a new client contacts me, and in my Office I can provide these extra Witnesses.

There are of course other ways to get things wrong. Some Deeds will be rejected unless you add photographs. Some Indian Lawyers demand [wrongly] that you use pre-stamped paper purchased in India. Some insist on green paper, some insist on strange sizes of paper…

The message I am hoping to give, is that time spent on preparation, in contacting your foreign lawyers and quizzing them in great detail as to EXACTLY what they want from you in England, will not be wasted. Otherwise the experience can turn into a frustrating and expensive [in both time and money] series of trial and error experiments.

As I say, I shall be only too happy to assist you through the maze. You can contact me or Mr Atkinson here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website www.atkinsonnotary.com

Government Ignores Your Input. Surprised? New Probate Fees.

Government Ignores Your Input. Surprised? New Probate Fees.

Here is a link to my Blog a year ago. Probate, How Much Would You Like To Pay?

In Brief, The Government invited you to respond to its consultation as to whether you think an increase in Probate fees from, at their highest, £430 today [for a couple dying together, or one shortly after the other] to a new sum of £40,000.00, was about right.

Yes, seriously, the new fees will be more than 9300% of the old ones. Nine thousand three hundred per cent. This is not a bad dream, though it’s not a good one either.

The new scales are
• £300 for estates worth more than £50,000 and up to £300,000
• £1,000 for estates worth more than £300,000 and up to £500,000
• £4,000 for estates worth more than £500,000 and up to £1 million
• £8,000 for estates worth more than £1m and up to £1.6 million
• £12,000 for estates worth more than £1.6m and up to £2 million
• £20,000 for estates worth more than £2 million

As I said , This is after consultation.
So, clearly, the general public thought that the increased fees are a jolly good thing.

Actually, not exactly, no.

The results are here LINK

What do we see? – Out of 829 responses as to whether the fee for probate should be proportionate to the estate value? Bearing in mind that the actual work done, and the cost of it, is not proportionate to the estate value, not surprisingly,:-

695 said – No, it makes no sense.

So in the context of a referendum, the vote for the status quo, the “remain” vote if you like, was over 75%.

Over 75 per cent.

With 71 responses abstaining, the vote for changing the status quo was:-

7%. Seven percent.

So there you are, the Government ask for consultation. Their proposals are overwhelmingly rejected – let me rephrase that – are supported by 7%, and will proceed.

Makes you proud, innit. Can’t Afford to Live, Can’t Afford to Die. Song Link here

As ever, do contact me or Christopher Atkinson here at AtkinsonNotary [0113 816 0116 or notary@atkinsonnotary.com or www.atkinsonnotary.com ] where we shall be more than happy to assist and help you through the maze whenever you have paperwork to be processed for foreign countries.