“Deathbed Gifts” Really Don’t Work! Make a Will!

Deathbed Gifts Don’t Really Work! Make a Will!

In order for a Person in England to leave property on Death, the Law says, you must make a Will.

In order to make a Will then unless you are in the Armed Forces in “Actual Military Service” you need to have your Will in writing and not sign it until two other people are present, then you sign first and your witnesses each sign. Each of the three signatures must be made with the other two persons watching. There is one way of getting it right, and unlimited ways of getting it all wrong!

[Just one example – Will maker signs alone at home. Then goes next door to see the Neighbour – please will you sign here to “witness” my Will. Then gets the next signature from a work colleague the next day. Amazing – and wrong.

OK another one. W invites two neighbours round. “Watch me sign my will. OK, done that. Now whilst you both sign, how about I go to the kitchen where I can’t see you and make us all a nice cup of tea.” [Better, but wrong.]

There are more ways to get it all wrong. How about leaving “everything  to Bill” and  then you ask Bill, or his wife, to be one of the two witnesses. D’oh.

So maybe the message is clear, don’t make your Will on your own. Get your Solicitor to do it for you. If you don’t have one I can recommend a Solicitor. If you have a Charity you want to benefit from your Will after you die, the Charity might even be willing to pay your Solicitor’s fees now. Contact me.

I suspect that everything I have said, you already know.

If you are sensible, you know you need a Will. Just not yet, maybe? Hmm.

I have a client who genuinely (I think) believes that if he makes a Will he will die straight away. So in effect it’s not having a Will that is keeping him alive. In fairness, he is still alive so to that extent the plan is working!

For others who are delaying making their Wills, there is often the straw to be clutched at, of the so-called “Death Bed Gift”. Basically, the belief that “I can just gather the family round and dish out the goodies from my hospice bed, when my time comes”.

Leaving aside the obvious, that Death can come suddenly and unannounced, there is another flaw in this thinking. Which is that the Law in England has just taken a sharp turn against the whole concept of being able to make valid Deathbed gifts.

A couple of years ago there was a case where such a gift was found to be valid. A lot of learned Lawyers felt the case was wrongly decided, and have been waiting for another case to enable the Courts to review the situation.

“Donatio mortis causa” is the tag lawyers give it – literally, “Gift because of death”, from Latin, and the concept is one going right back to Roman Law of biblical times. I refer to it as, DMC.

Now, it seems to have been made much clearer with a case this year, that a DMC is becoming almost impossible.

If you are interested in the relevant law here is a link to the Court case this year where Mr King lost [on Appeal] his claim that his late aunt had before her death effectively bequeathed her house to him by DMC, without making a valid will.

The reasons the concept of DMC seems to be embedded in the public consciousness seem to me to be similar to that other general belief in something that doesn’t exist, the “common-law Marriage”.

People generally think it right that a person’s “dying wishes” should be honoured. But is that really anything more than a form of sentimentality? Why should someone who couldn’t be bothered to make a Will in the long years of their health have any notice taken of their last words, – the hard-hearted lawyers ask?

Problem with DMCs is, there is nothing in writing. The safeguards provided by disinterested witnesses are absent (usually the DMC is “All this is yours now Sonny Jim, I’m a goner” – said with no other witness to the words than SJ himself)

Also what if the deceased had earlier made a valid written Will and then on the deathbed overturned it by the spoken words of the claimed DMC? The Will was made after a couple of visits to Solicitors and after considered discussion, and it was witnessed, followed by a DMC spoken when perhaps in pain (or on morphine) or in a state of fear and with nothing written down and maybe even no other witnesses.

The DMC concept I suspect has run its course and English Law is leaving it behind. And in part it may be because of our digital age.

Another necessary element of a Valid DMC, is to hand over at least a symbol of what is being bequeathed. Typically – “Here you are, It’s the deeds of my house, I’m dying now, I want you to have it after I go.”

Well that’s not going to work in England thirteen years after Deeds were abolished. We are all virtual now. Maybe a key to a house would do it, but I doubt it. A key to a house isn’t ownership like Deeds are – it just enables you to get in to nurse the patient, that is to say, you need the key anyway but you don’t need Deeds for any purpose except for a DMC.

[I think that in Richard Thompson’s wonderful song link here , the DMC of the 1952 Black Lightning would be OK, “He reached for her hand and he slipped her the keys He said I’ve got no further use for these” because James handed Red Molly the keys when he knew he was dying and as she had never ridden the bike herself before except pillion, clearly it was a symbolic gift of the bike itself]

Maybe handing over the passwords to the Online Bank account could do it? Perhaps.

But it seems to me clear that the Courts think that DMCs as a legal concept belong to the past and we are all literate now and if we want to leave stuff after we go, we must make Wills. And since we don’t know when we will go, best make them today

Or tomorrow. Surely we’ve got until tomorrow? Again, Hmmm.

Please contact me or Louise, we are here to help. And in particular whenever you have a legal issue which has any foreign element – At notary@atkinsonnotary.com or phone us  +44 (0) 1138160116

Bribery. Don’t Let It Happen In Your Name.

Bribery is in the news, the papers are full of Sepp Blatter and the Fifa Gang. The investigations in USA and Switzerland are continuing and bringing into focus the fact that Bribery is a crime and those committing it can be prosecuted and fined and jailed.

I think it is fair to say that less Bribery occurs in business within UK than in many other Countries but that is nothing to be too smug about, there is no doubt room for improvement,

As to bribery abroad, a problem for many Businesses and their Owners who are contemplating doing ventures with international partners, is a perception that in many places around the world bribery is simply a part of the landscape. Without it no business can be done.

Certainly there will be no changes in the world if the attitude “We can’t change it, so we have to do it” simply continues unchecked. The relatively new Bribery Act of 2010 is the British response to the problem – the first time the issue has been addressed in UK in over one hundred years.

In a nutshell, if you are running a business and your employees agents or partners abroad are getting contracts and advantages by “greasing palms” then you, personally, can go to jail for ten years even if you did not know. You are the boss, you should have known.

Remember, the actual bribe could be paid in your name in a Country where its payment is not actually a Crime – and is even perhaps a commonplace and expected way of behaving there. Still a Crime in UK though.

It is a full defence for an organisation to prove that “despite a particular case of bribery it nevertheless had adequate procedures in place to prevent persons associated with it from bribing. “ Link here That’s worth reading twice. Because by the dictionary definition of “Adequate”, if adequate procedures were in place then Bribery could not have happened. And if it has happened then the procedures cannot have been adequate. So by the dictionary definition of the words there is no defence available to you. Off you go to start your porridge, if your agent turns out to have been paying a corrupt civil servant for “fast tracking” trading licences or whatever.

However it is apparently not the dictionary meaning of words that we are dealing with here. As so often, Parliament is taking the view that the words of the Act mean what they intend them to mean and not what they, umm, actually, as it were, mean.

Kenneth Clarke seeks to reassure, in the Ministry Guidance documents, link here
“The core principle the Act sets out is proportionality. It also offers case study examples that help illuminate the application of the Act. Rest assured – no one wants to stop firms getting to know their clients by taking them to events like Wimbledon or the Grand Prix. Separately, we are publishing non-statutory ‘quick start’ guidance. I encourage small businesses to turn to this for a concise introduction to how they can meet the requirements of the law. “

I am not sure that my own advice to you would be as relaxed. Indeed I think that the last thing you and your co-Directors should be doing is “Resting Assured”!

And if it is true that “The core principle the Act sets out is proportionality” [and to be fair, the Guidance note does seem to back this up] then I think it strange that the word “proportionality” is not written even once in the actual text of the Act of Parliament. Hmmm. And again, Hmmm.

If bribery in your name ever does take place and you are prosecuted, it is YOU who will be in the very difficult position of showing that your procedures were “adequate” – for preventing the very thing that has happened!

A short “Quick Start” Guide to the Act has also been published by the Govemment – link here

The published CPS [Crown Prosecution Service] guidance is “The statutory “adequate procedures” defence to a failure of commercial organisations to prevent bribery (section 7) encourages such bodies to put procedures in place to prevent bribery by persons associated with them. The Act is not intended to penalise ethically run companies that encounter an isolated incident of bribery. Section 7 and, to a degree, section 6 (bribery of foreign public officials) are designed to balance corporate responsibility for ensuring ethical conduct in the modern international business environment with the public interest in prosecuting where appropriate.” Here is the link – I am not sure that reading it thoroughly will help you sleep at night.

What it makes clear is that you are rather unlikely to start from the position that you are “Innocent until proven Guilty”. The burden is far more upon you, to prove that you are innocent, in a Courtroom where the jury will be starting from the simple thought– “S/He is the Boss, S/He knew all about it”

What have we learnt? It is obvious that international traders need to have procedures. [If that is you, then you MUST have “procedures”]

If they [You!] have none, they can have no defence that their procedures are “Adequate”. In the Bribery Act, the word “Adequate” must presumably mean, “reasonably to have been considered likely to be adequate – until this happened!”

So you need to be able to show that real serious thought has been given to the issue of Bribery, and that you regularly return to it, in your meetings, in your documentation and in the training and general ethos of your business.

Some free documents are here link here to get firms up and running on the topic. If you would like to contact me to discuss any of the points raised please do.

Here I am in Leeds, do get in touch whenever I can assist and in particular whenever you have a legal issue which has any foreign element – At notary@atkinsonnotary.com or phone me or Louise +44 (0) 1138160116

Revenue Tax Penalties. Bad News – It’s All Still “FINE”!

Revenue Tax Penalties. Bad News – It’s All Still “FINE”

For those of us who pay self-employed [Self-Assessment] Income Tax, the important annual deadline dates to remember are

  • Online tax return – January 31
  • First Instalment Payment of Tax – July 31
  • Second Instalment Payment of Tax [and balancing payment] – January 31

For years, the Revenue has stressed the importance of these dates, with advertisements across the media and also with warnings of high penalties if any date is missed.

Very recently the news media in particular the BBC has published stories that these fines will be waived.

A BBC website page link here currently is headed “No £100 fine for late tax returns, says HMRC”.

I have spoken to clients who have read no further than that kind of headline, and who have reached the conclusion that tax deadlines have been abandoned and that really there is no need to bother too much about meeting the dates any more. “After all, the Revenue is absolutely swamped by work so it makes sense if they relax the rules a bit, doesn’t it?”

With the greatest respect to the need to find a catchy headline – as you will note from my own header above – the actual message of the BBC headline is untrue.

In fact, it remains all too likely that the fine will be charged, and also an increased fine if the delay exceeds 3 months.

And the very worst thing the headline “No £100 fine for late tax returns, says HMRC” does, is to give the false impression that if you do miss the deadline, and get a penalty notice, you can ignore the problem. NO. YOU MUST APPEAL, AND GIVE YOUR EXCUSE.

Also there is a deadline for making that appeal.

Also, you will not avoid the penalty unless your excuse is reasonable [in the Revenue’s opinion!].

Here are some genuine responses given to the Revenue – all of them rejected – which I have taken from the Gov.uk website – Enjoy!

  • My pet dog ate my tax return…and all the reminders.
  • I was up a mountain in Wales, and couldn’t find a post-box or get an internet signal.
  • I fell in with the wrong crowd.
  • I’ve been travelling the world, trying to escape from a foreign intelligence agency.
  • Barack Obama is in charge of my finances.
  • I’ve been busy looking after a flock of escaped parrots and some fox cubs.
  • A work colleague borrowed my tax return, to photocopy it, and didn’t give it back.
  • I live in a camper van in a supermarket car park.
  • My girlfriend’s pregnant.
  • I was in Australia.

There are some more here

Remember, all of this blog relates only to the penalty for late submission of Tax Returns. I am not aware of any relaxation of penalties when the Tax [actual money tax payments] is late.

If you have any queries about tax matters in UK, please contact me. I have many accountancy contacts to whom I can refer you. And of course, if your concerns relate to foreign law or documents, we are here to help –

notary@atkinsonnotary.com or phone me or Louise +44 (0) 1138160116

Computer Hacking. New Laws, New Penalties.

“Computer Hackers”, in the 1970s used to be smart kids who could make a computer do new and surprising things. Now the words mean, “Computer Criminals”.

In a new Act of Parliament the maximum Prison sentence for the most serious computer hacking offences has increased.

The Serious Crime Act of 2015 came into force in May this year – it defines a new crime of doing an unauthorised act in relation to a computer, knowing it to be unauthorised and with an intention of causing serious damage [including, to National Security] of a material kind or a reckless disregard of such consequence.

Previously (from the law of 1990] the maximum sentence was ten years in jail and/or a fine, now the sentence as a maximum is increased to life imprisonment. Since that is the maximum prison sentence that the English Courts can impose, it follows that it is the view of the Government and therefore of the Courts that potentially, computer hacking is the equal of the most serious crimes that can be committed.

Computer Crime must be one of the most problematical areas of criminal law. Not least, the problem of finding the hackers. And then, to distinguish between criminals and the intellectually curious. Only police agencies with a deep understanding of how computers and programming works can hope to track down cyber-criminals. Or sometimes, children with computers and bright minds.

Or an autistic man so obsessive about alien investigations that he hacked into Pentagon computers in search of the “secret truth” – Gary Mckinnon would have faced 70 years in jail if he had been extradited to the USA. Doctors say he would probably have killed himself.

There are hackers everywhere and it is hard to call all of them criminals. Some of them are very bright children.

Back in pre-history when I was young, if a child was interested in rock music, the way to learn to play was to deconstruct a classic song. Johnny B. Goode link here and painstakingly, note by note, learn what to do, and voila years later to join the Rolling Stones!

So I presume it is with young computer programmers.

There are of course most youngsters, who are happy to play with a computer using programs already written for them, as most teenagers simply play music without wanting to write or play their own.

But the brighter ones [and maybe the oddballs] will want to write their own programs and again, the way they like to learn is to try to take apart other people’s programs, learn how they are made and how to do it for yourself. To hack them, in other words.

I suspect, for as long as there have been computers or indeed any kind of secret codes, there have been intelligent minds who want to hack, for the pure intellectual joy of being able to do so.

But on the other hand, there have always been dangerous criminals who will use any tools they can to reap havoc and/or turn an illegal profit. Remember the episode of Homeland where the murderer killed the Vice-President of the United States by sending a radio code to jam his heart pacemaker?

The technology is not fantasy, far from it – link here- to a suggestion that perhaps Pathologists and Coroners may soon need to have complex computer skills. Murder by hacking.

Where is the line between the criminal and the enthusiast? No doubt that will be a problem for the Courts rather than the police. And for parents, who as always never know what their teenagers are getting up to even when they are in the house!

Here’s what occurs to me – In the 1960s most telephone exchanges went automatic as the human operators were abandoned. Almost within weeks, teenagers began to play with the new systems, sending tones over the phone to fool the machinery into allowing free calls. The Phone Phreakers!

If you don’t know, take a guess as to the identity of the two leading phone phreakers of their day.

With a box of bits from Radio Shack, they managed to get free calls all around the world [crime of theft, or obtaining pecuniary advantage by deception] and they even made spoof calls in the name of Henry Kissinger [crime of reckless breach of national security] to the Pope and they got through to President Nixon having hacked his security code-words [they told him they had run out of toilet paper would he please get them some?].

All from ten dollar boxes they made and then sold at a profit around the University campuses to fellow students. They were the subject of an FBI investigation – though never caught.

How different would the world be today if they had been caught and jailed for life as criminals? – Steve Wozniak and the late Steve Jobs, two of the founders of Apple computers, now the richest company in the world.

How many teenage geniuses will now fall foul of the Serious Crime Act 2015 and spend their lives in jail rather than changing the world? Here is the link to the Home Office Guide

OK, back in the day-to-day, Do please get in touch whenever I can assist and whenever you have a legal issue which has any foreign element, in whatever language. We are here to help
notary@atkinsonnotary.com or phone me or Louise +44 (0) 1138160116

“Right To Die” and “Assisted Dying”. Debate Heightens.

“Right To Die” and “Assisted Dying”. The Debate Heightens.

The Newspapers are full of the debate about the so-called “right to die” which has been highlighted by the recent assisted suicide of Jeffrey Spector.

The debate is not actually about the right to die. We all have that. Suicide is not a crime in England, though it used to be before 1961. The debate is about the right of third parties to “assist” the suicide in bringing about death.

Mr Spector was a fully active man of 54, but diagnosed with a tumour on his spine. He feared this would eventually kill him, but not before a lengthy period of increasing disability pain and paralysis.

He knew that he did not want to live in a condition of helplessness, and he also knew that the law of UK might prosecute any family or friends who would help him to die, if he waited. So he did what he considered to be the sensible thing, and went to die at Dignitas whilst he was fit and able to do so on his own. [It cost him £8500.00]

One question is, would he have lived longer if the laws in UK would have allowed him to commit suicide later, when he needed help to do so, without the threat of prosecution of those helpers?

Well the answer to that is clear since he gave an interview before his death – Yes – I would not be doing this today if I knew that I could leave it until later without my family risking Criminal Trials for Murder and then maybe imprisonment.

It is not pedantry to point out that the word Suicide comes from the Latin “sui caedere”. The killing of “Oneself”. Not, the killing of “another person”. So the phrase “Assisted Suicide” is something of an oxymoron. For the Deceased it might be suicide, for the Assistant, it could well be Murder. And at present anyone who “assists” is very likely to face police investigation, prosecution and trial, criminal conviction and imprisonment.

Even if acquitted, they face complete disruption of their lives; Press and social media notoriety, loss of income, loss of job maybe loss of home – all the horrors of being the focus of the Criminal process.

The sad story of Mr Spector has resulted in emotional responses. Responses which are contradictory:- on the one side decrying the present Law as actually working to shorten lives [as in Mr Spector’s case] but on the other pointing to the safeguards inherent in denying anyone the right to kill – or assist the killing of – another human being.

The fear of those who oppose relaxation of the present rules, is the classic “thin end of the wedge” argument. That what used to be illegal (Suicide) became legal in 1961. The next step is that it becomes compulsory!

Most of us, knowing we will get old, realize that a day may come when our life depends upon caring family, nurses and doctors. We do not want to think that there will be any pressure at all on those carers to “assist” our dying against our wishes, in support of agendas of their own.

What about greedy relatives only too happy to assist the departure of their wealthy but inconveniently and obstinately ALIVE old Great-Grandma? Or Hospitals full to bursting with elderly patients who will never be able to leave except in their coffins – but who prefer life to death?

The views which are held on both sides are held sincerely and strongly.

The topic was debated in Parliament earlier this year. No conclusion was reached then because the date for the Election meant there was not enough time.

Lord Falconer said from the heart –  “Some say that the current law should just be allowed to continue. They are wrong. Without intending to be, and despite the very best efforts of those who seek to enforce it, the current law provides the option of an assisted death to those rich enough to go abroad; for the rest, it provides despair and often a lonely, cruel death — and no adequate safeguards”

Just as emotively, Baroness Campbell of Surbiton said: “First, I must declare a very important interest. THIS BILL IS ABOUT ME. I did not ask for it and I do not want it but it is about me nevertheless. Before anyone disputes this, imagine that it is already Law and that I ask for assistance to die. Do your Lordships think that I would be refused? No; you can be sure that there would be doctors and lawyers willing to support my right to die. Sadly, many would put their energies into that rather than improving my situation or helping me to change my mind. The Bill offers no comfort to me. It frightens me because, in periods of greatest difficulty, I know that I might be tempted to use it. It only adds to the burdens and challenges which life holds for me.”

There is a link here to the latest Parliamentary briefing note. From there you can download the full 26 page report which very clearly and in detail sets out history, issues and concerns.

A real problem here is that the concerns of both sides are so obviously sensible.

My view? Nobody will change the law because of what a Notary in Leeds thinks. But for what it’s worth, I do think there is a real risk of “Legislation Creep” and the law of unintended consequence. The best intentions can bring in  the worst results. Remember the Cobra effect? –

[The term cobra effect stems from an anecdote set at the time of British rule of colonial India. The British government was concerned about the number of venomous cobra snakes in Delhi. The government therefore offered a bounty for every dead cobra. Initially this was a successful strategy as large numbers of snakes were killed for the reward. Eventually, however, enterprising persons began to breed cobras for the income. When the government became aware of this, the reward program was scrapped, causing the cobra breeders to set the now-worthless snakes free. As a result, the wild cobra population further increased. The apparent solution for the problem made the situation even worse.]

Who would be a legislator! Good luck to them, they and we need it.

I hope I can find a more cheerful topic next week

Here I am in Leeds, for all your Notary needs. Do get in touch whenever I can assist  and  whenever you have a legal issue which has any foreign element notary@atkinsonnotary.com or phone me or Louise +44 (0) 1138160116