Courts say “We Will Ignore Your Will”. Bit Of A Surprise!

Making A Will – It’s Now Pointless? New Court Decision raises the Question – Is There Any Point Even Bothering To Make a Will!

Wills are in the News again. I hope I have persuaded you in my previous Blogs, of the wisdom of making your Will, and also the wisdom of thinking very hard before you do so.

I strongly advise that professional guidance is necessary. I don’t know why it is, but everyone seems to think that they can write their own Will and not make a hideous horlicks of the job. And yet, in now over 40 years in the legal profession, I have never yet seen a homemade Will which fully reflected the maker’s intentions AND was properly executed as required by the Law.

How difficult it is, for a Will to be signed properly. The Maker – A- needs to find two witnesses who are not his relatives and certainly not people who are intended to benefit under the Will and also who are not appointed as the Trustees of the Will. W1 and W2. Nor Married to them.

A and W1 and W2 need to be together in the same space, each in line of sight of the other two. Whilst W1 and W2 need to know that the paper is a Will, it is not necessary for them to read it.

A signs it. W1 and W2 watch this

A stays in the room watching W1 sign it. W2 watches this

A and W1 stay in the room watching W2 signing this.

Easy Peasy. And yet….

If I had a pound for every time a client brings me a Will, or any document requiring multi witnesses, which he has already signed, or which a “Witness” has already signed, but he hasn’t – “Well my friend agreed to witness it, but he can’t come to the office, so he signed it last night” then I would be writing my blogs purely for fun. [I do anyway]

What is it about the word “Witness”? I think it has lost its meaning. It used to mean “see something happen” Now it seems to mean “sign your name”. Really?

And if it is not properly signed and witnessed then it is not a Will. Simple as that.

But the fun really begins when a home-made Will has been correctly executed. Because then, nonsense or not, it is an actual legally enforceable Will.

And as I have said, home-made Wills are nearly always drawn up in words which mean either nothing at all, or something other than what was intended,

There is something about drawing up a legal document which makes folk use language they never use in everyday speech and which they do not really understand. Instead of using language which is simple English – say “When I die, I want all of my belongings to pass to my spouse if I die first” they tend to come up with something which seems to the writer somehow more “legal”.

I have seen one recently where both husband and wife wrote in their similar Wills:-
“I bequeath unto my spouse my share in our house, its contents, all assets and money in accounts either in my name or joint names FOR HER/HIS LIFETIME. Upon the death of my spouse, I leave …….”.[various gifts to various people]

Now, the husband has died and his wife explains to me that what they thought they were doing was writing Wills by which each would leave their belongings absolutely to the other if first to die, but if the other had died first, then disposing of their belongings to other people.

To a Lawyer it is obvious that the wording of the Wills does not do this at all. It creates a Trust, where the surviving spouse gets the use of the belongings, for life, but has to preserve them so that the eventual beneficiaries will get them, under the Will of the first to die, after the second death. So she can only use the interest earned by the money. At a time when interest rates are so low that they hardly exist, the first to die has left the other, nothing at all.

Where did the phrase “for her lifetime” even come from? The surviving spouse, whose Will contains the same phrase, has no idea; she says they just thought it sounded official.

I am currently trying to assist a person whose godfather wrote him a substantial gift in his homemade Will. But the Will said – “if I die first everything goes to my wife”. [She died first] and it continued “But if my wife and I die together, then my Godson gets ….. etc.”

He certainly meant that  if he was the second to die then the Godson should inherit. But he wrote “if my wife and I die together”. Whatever that even means, – die in the same second?, die as a result of the same car crash albeit one of us survives a couple of weeks? Well it doesn’t matter what it means because it certainly wasn’t what he meant.

He in fact survived his wife for years and had told his Godson every time they met, all about the fact that he had left him a substantial inheritance in his Will. The Godson I fear will receive nothing. His Godfather did not “die together” with his wife and his Will said that the gift would be made only in that event.

Because it is the words of the Will that count, the meaning of the words. Not the intention of the Will maker who wrote those words. That must be the law and it always has been.

At least, that’s what we all thought until the recent case of Ilott v Mitson which is all over the newspapers at present. Link here This is a case where a woman made a Will faultlessly. It was professionally drawn up, properly signed and witnessed, and said clearly what the maker meant to say. And yet, the Courts have substantially set it aside.

This result is so surprising that the lawyer for the animal charities who benefited under the terms of the Will but have now been substantially disinherited said, “Many are wondering whether it is worth bothering to make a will at all, if it can be overturned after your death by a judge who does not agree with the choices you have made or who does not share your view that your child can be expected to fend for themselves once they reach adulthood, if they are not mentally or physically incapable of finding work.” Strong words indeed.

The case is that of a mother who, outraged that her daughter at age 17 had eloped to marry against the mother’s wishes, by her Will left all of her estate to animal charities.

She had no particular love of animals, in her lifetime.

The daughter, now 54, has persuaded the Courts that her mother’s decision was motivated by “unreasonable spite”, and the Courts have decided that £164,000.00 should pass to the daughter. Which means, that the animal charities will not receive that amount in spite of the fact that it was clearly left to them in a perfectly valid Will.

Ok, I never said the law was easy to understand, did I?

Some commentators have said that the law in England now would make the plot of King Lear a nonsense. Because it now seem you can’t disinherit your daughter. This of course is wrong, but maybe a little bit right?

Wrong, because King Lear gave away his estate when he was alive. So far there is no basis for a sane person to be denied the right to give away everything whilst alive – which does mean of course that there will be nothing left for a daughter after death of said sane person.

But really if the Courts are interfering to this extent, why should we be surprised to be told that the next thing is, you can’t give away anything, unless your children say it’s OK? And then King Lear won’t make much sense, will it.

My view is that this is a bad decision and may yet be overturned on further Appeal. It seems to be a move towards the French and Spanish Systems, where children MUST receive a share of parents’ estates. That is why there are so many tiny little farms in France – imagine a farmer with seven children, each getting a seventh of his farm. And each child having seven children. Before long, the next generation will each have a farm the size of a parking space!

It has never been the English way.

Sometimes the Law is an Ass. Back to Mr Bumble – how truthfully he spoke. link here

If you still think that there is any point in making a Will [and really in spite of this, there certainly is], do get in touch and I will recommend a suitable solicitor in England or abroad. And, of course, if you have documentation requiring notarization for any foreign country, then please get in touch with me or Louise. 0113 8160116, and notary@atkinsonnotary.com.

Notary? There aren’t any in England are there? So Who are you?

Notary? There aren’t any in England are there? So Who are you?

Louise Morley Explains

What is a Notary?  – is a question that I get asked probably daily! – when I am first contacted by a new client they often say “I did not know what a Notary was – it was only when I contacted my solicitor to deal with my documents that they informed me that it is a Notary I need and not a Solicitor”.

So I thought I would issue a Blog with some examples of what it is I do on a daily basis.

In no particular order – just random examples:-

APOSTILLE [ see Chris’s earlier blog about them, and below]

I get asked on many occasions to obtain an “Apostille” on a Birth, Death or Marriage Certificate.  I am able to undertake this without having the need to notarise the document beforehand.  As long as the Certificate is an “original” certified copy then the Foreign Office are happy to put the Apostille on identifying the Registrar who has signed the document which confirms the certificate’s authenticity.

It is not possible to submit a photocopy of a British Birth, Death or Marriage Certificate for Apostille as the Foreign Office will reject this as an illegal document.  All Certificates issued by the General Records Office [GRO] are subject to “copyright” Laws.

If the original certificate you hold has sentimental value to you, for example, it was issued at the time of your birth or on the day of your marriage then do not worry, we can obtain our own new original certified copy direct from the GRO.

If you require any further information in relation to this service then please let me know.

SPANISH POWERS OF ATTORNEY [Poder] :-

We often get asked to attest, certify and witness execution of a Spanish Power of Attorney [Poder].  The usual reason for such a document is that a client in England is purchasing or selling a property in Spain or obtaining a Spanish NIE number [similar to our National Insurance number, for foreigners in Spain] then it is usual to instruct a Spanish Lawyer or family member to deal with legalities and documentation in Spain if you are unable to travel and deal with this.  It is always advisable that the Poder is drafted by a Spanish Lawyer and emailed to us or to you direct for this to be executed in Chris’s presence in Leeds.  The document usually is set out in two columns – one being the wording of the Power in Spanish and the second being the English translation.

It is the Spanish way that not only should a Notary witness the signature to the document but to also read the content of the Poder to the client “out loud” to make sure that it is fully understood before being signed.  Once the Poder has been executed correctly and notarised it is usual that the Spanish will then also require an “Apostille” stamp on the document.  The Apostille stamp is issued by the Foreign Office in Milton Keynes.  The purpose of this stamp is to confirm to the Spanish that the document has been dealt and sealed by someone who actually is a fully qualified and insured Notary Public. The Apostille stamp is usually placed on the reverse of the executed page of the Poder.  It usually takes around 4 days to obtain an Apostille.

CERTIFYING DOCUMENTS FOR USE IN AUSTRALIA

We see many clients – often Doctors, Nurses and Dentists and other “Medics” who are going to work in Australia.  The Australians usually require various documentation to be certified by a notary.  This usually includes copies of educational Certificates and copy identification.  The Australians do have specific wording which they require the Notary to write on the notarised copies and this includes the word “sighted” – for example “I certify that this be a true copy of the original sighted by me” – if this wording is not written then the likelihood is that the documents will be rejected.

It is also I fear quite usual for the Australians to request further documents after you have been to see the Notary, I often see the same client on more than one occasion with further documents requested which can be frustrating for the client taking up more of their time and of course further expense.

CERTIFICATION OF COMPANY DOCUMENTS

I am able to obtain Companies House documents e.g. Certificates of Good Standing – Articles of Association – Shareholder information etc.  We do have the facility to obtain Company House documents direct and notarise them as genuine for use in any country in the world.

You may need such documents notarising if you are registering a Company Trademark overseas or opening a new office abroad etc.. – there are many reasons why you may need notarised company documents and if you require any further information then please do not hesitate to contact me.

INDIAN POWERS OF ATTORNEY

We see many Indian clients who require us to assist with Powers of Attorney for use in India – India is a very big country and lawyers in different areas of India have different ideas on what the Power of Attorney should say.  So even though we have many hundreds of different Indian Powers of Attorney in our precedent bank, I always advise clients to instruct an Indian Lawyer in the city or village where the Power of Attorney is to be used and ask them email their preferred document wording directly to me.  We feel this is the only way to get the document accepted first time!

TRANSLATIONS

Please note that I have certified translators who can provide me with translations of any document into any language – if you have a document which requires translation then I can obtain a quote from my translator – once the translation has been obtained we are able to prepare a notarial certificate confirming that the translation is genuine.  If this is something that you would be interested in then please let me know.

Please note however, We will not prepare a notarised certificate on a translation that we ourselves have not obtained.  I have had clients who have brought in a translation they have obtained and asked if we can notarise this as a genuine accurate translation– please note we cannot.

I try not to make these Blogs too long – I don’t want boredom to set in!  I will write more Blogs from time to time [Give Chris a rest!] and refer to other aspects of our services.

Do Contact me or Chris if ever you have a need of Foreign Documentation or just want to discuss matters with us. 0113 8160116, my email is louise@atkinsonnotary.com

Making a Legal Agreement. Not Writing It Down. What Can Possibly Go Wrong?

Making a Legal Agreement. Not Writing It Down. What Can Possibly Go Wrong?

Here’s a Thought. If you are entering into a Business Relationship that is likely to last for years and upon which your livelihood depends, Why not write something down!

They say that Motor Mechanics never get round to servicing their own cars, because “I can do it anytime”. Painters and Decorators never re-decorate their houses. [I presume that Vets do get around to vaccinating their own pets, surely?]

But here’s two solicitors, who entered into a partnership agreement. The older solicitor Mr B had a sole practice and he invited a younger solicitor Ms H to become his professional partner. Some terms were discussed, when negotiated in 2001.

In 2005 Mr B wanted to retire.

The partnership accounts showed that Mr B had over £100,000.00 invested in the partnership in his name. He asked for the money. She said “No”.

So what would Mr B be expected to do next? Surely, refer to the written Partnership Deed and turn to the section about Partner Retirements, and see what it says.

A problem. The negotiations had taken place in the pub, sharing a bottle of red wine together.

To the extent that either of them could remember what they had agreed, they had different recollections.

About the only thing they agreed about, was that they had reached an agreement!

That’s the thing about a decent bottle of red. And not writing stuff down.

So remember, next time you see your legal advisor, do as he says, not necessarily as he does.

Here is a link to the case. Link Here

I am a Notary Public. That is, the kind of Lawyer who always writes things down!

Call me or Louise whenever you have documentation to deal with in England, for use abroad. 0113 8160116, and notary@atkinsonnotary.com and louise@atkinsonnotary.com

 

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More Travels with Children. Beta Testing by South Africa?

More Travels with Children. Beta Testing by South Africa?

Why does nothing new ever seem to work? Whenever a new Computer or software update is announced in any Business, I suspect that everyone working there fears the worst. And yes, of course, mostly they are correct. It’s all going to go wrong – now the printers won’t work like they used to and someone is near to tears because all of their work from last week seems to have been lost.

In so many cases, the purchasers of new systems and upgrades find that they are actually the “Beta Testers” of it, doing the quality control work that the developers themselves should have done.

Of course, Beta testing is difficult and expensive. How many ways are there to make a mistake in using a machine, for every single way to get it right?

Often software designers can’t even put themselves into the mental mindset of us poor computer illiterates – they are not called geeks for nothing, they would never even think of trying to do things the way the rest of us dullards do.

When I first got computer mice into my office in the 1980s or early 90s, some people picked them up and pointed them at the screens. Like ray guns.

Each Android update seems to generate complaints and tweets that “My tablet has been bricked”

Apple have just updated the iTunes software to version 12.2. In consequence, the internet is full with the complaints of iTunes Match and iCloud Music library users who say that the latest version of the iTunes program has more or less scrambled their entire music collections, mismatching the artwork and giving the wrong names to the tracks.

No doubt that will get sorted out, Apple are pretty clever.

But every time there is something new there are these problems it seems. The Beta Testing problem for the designers is always, – how will these changes actually work when we take them out of the lab and into the real world?

But if the biggest and richest company in the world can’t release even a new version of existing software without storms of problems and complaints, the question is, what are the chances of a bunch of Civil Servants and Ministers managing to formulate new legislation and get it right first time?

[Answer – Slim, really slim.]

I am referring particularly to the new rules from South Africa, about travelling with children.

In order to help to eliminate child kidnap, as I have blogged earlier, link here, the new rule is that any child not travelling into SA with BOTH parents, will need their accompanying adults to carry a signed and Notarised Affidavit of the absent parent/s, giving consent to the journey. A Consent over three months old is considered to have expired.

Seems reasonable if you say it quickly.

BUT, what about the case of the client of a colleague of mine, who lives in England and has an ex-partner (they were never married) by whom he had two sons (aged 12 and 10). The ex-partner and 2 sons all live in Mozambique near the South African border and have Mozambique passports. The relationship ended amicably and the English resident client is happy for his sons to live with their mother. No custody orders.

Previously to the new rules, the boys’ mother has regularly taken one or both boys in and out of South Africa for social, family and other reasons. Shopping trips. Several times a year.

Now, it seems that they will need the biological father’s consent to do this and each consent can only last for three months and will need to be certified with the relevant details and supporting documents and sent over to Mozambique each time.

Inconvenient and expensive. And unnecessary, wouldn’t you think?

The Regulations don’t include any exceptions for frequent visitors like this.

Is it really the intention of the South African Government to make work for Notaries, by requiring this Father to make a new affidavit of consent to travel, annexing all the notarised Birth Certificates and certified copy passports etc, every three months for the next eight years [thirty two sets of fees to pay] just so that the mother and boys can continue to make their regular shopping trips over the order from twenty miles away in Mozambique?

They haven’t thought it through. Quelle surprise, as we say in Leeds.

If you have any queries about travel abroad with or without children, please contact me. And of course, if your concerns relate to more general foreign law or documents, we are here to help –
notary@atkinsonnotary.com or phone me or Louise +44 (0) 1138160116

Don’t make a Will Thoughtlessly. Think Once, Think Twice.

Don’t make a Will Thoughtlessly. Think Once, Think Twice.

There seems to have been quite an unusual level of press reporting in the past couple of months about Wills and the problems that can arise by not making them. Last week I commented upon the real difficulty that can arise when a person hopes that their “deathbed wishes” will be binding as if they had made a Will. Bit of a forlorn hope, these days.

But then this week, two cases in the press about problems which have arisen even though Wills HAVE been made. Seems you just can’t win.

Case 1 – “Retired civil servant, 82, faces ruin and homelessness after being cut out of wife’s will.” Link here

Case 2 – “How a £90 will by Barclays lost half my house.” Link here

Both are cases where the Will maker had a child by a previous marriage; both are cases where that Will maker owned a house jointly with their present spouse and wanted to leave their own half of the house to that child.

Both in my opinion are Wills which should never have been made. Necessarily if you leave your house-share to a child, you deprive your Spouse of ownership of that half after you die. So where will that Spouse live? Doesn’t matter if you have several houses or millions in the Bank I suppose, but otherwise?

I am often amazed by how often people do not consider the simple meaning of the words in their Wills.

In the first case, Mrs Henein made a Will, seven days before her death. In respect of the house she owned with her husband, she left her share to her son (her husband’s stepson). Because the house had been owned jointly, she also prepared a Notice of Severance of joint tenancy. This converted the “joint tenancy” into a “tenancy in common” enabling her to leave her share of the house value to her son even though she died before her husband.

Her gift of the house was ”Successful”, in the sense that her share is now owned by the son. Is that really what she wanted?

In every case like this there is room to speculate.

Mr Henein told the court that he believes his wife was in no mental state to make a Will and that the stepson was the “driving force” behind the making of the new will, the terms of which were so very much in his favour. Mr Henein lost his case.

Now Mr Henein has to raise not only the court and legal costs but also enough money to buy his wife’s half share of the house from his stepson if he wants to stay living there. He hasn’t got that sort of money. Now in his eighties, he faces homelessness.

The second case looks just the same from the headline. ‘How a £90 will by Barclays lost half my house’

Just like Mr Henein the Plaintiff is complaining that a Will has wrongly cost her a half share of a house. The twist here is that it is the child who has “lost out”.

According to the Daily Telegraph, Court documents detail how in 2007 Ebenezer Aregbesola used Barclays’ £90 will-writing service to create a will dealing with his various assets including homes overseas and in London. His will instructed half of the London home to be given to his daughter, Tinuola Aregbesola, on his death.

The property was owned jointly by Mr Aregbesola and his wife – who was not Tinuola’s mother. Because of the joint ownership, on Mr Aregbesola’s death in early 2014, the property went wholly to his wife – in contravention of the wishes spelt out in the will.

This is because no-one owns a house which is “jointly owned”. So, just as Mrs Henein did, Mr Aregbesola should have severed the joint tenancy in order for his Will to work.

The Daughter is suing Barclays saying that its failure to advise the severance has cost her “Hundreds of thousands of pounds”.

I have nothing to comment about Barclays alleged behaviour.I wasn’t present when Mr Aregbesola gave his instructions. Maybe the Bank told him all about the need for severance, and he instructed there should be none. [That would enable him to tell his daughter he had “left the house to her” and stopped her nagging. It’s possible – I don’t have a clue.]

Or maybe Barclays did make a basic mistake which would not have been made by any young law student however stupid but D’ohh, surely none of my readers would use a Bank to write a Will for them in the first place so that doesn’t matter. You’re not idiots, I know.

What I am thinking is, that if the daughter has not got the house share, then the “mistake” has meant that the surviving spouse has not lost “hundreds of thousands of pounds”, as he ostensibly intended. Unlike Mr Henein, she now owns the house and is not made homeless.

Whilst the newspapers say that the second case highlights “the danger of popular, cheap wills which are often too simplistic to reflect accurately their owner’s wishes,” my view is that the real danger is that the Willmakers’ wishes are often not even clear in the mind of the Willmakers.

Time and again I have heard a client say either, “I want to protect my child and make sure that my share of house doesn’t all go to my new [second] spouse”. Or it might be, “I want to protect my second spouse and make sure my children don’t take the house off him/her when I go”.

And the measures which I am asked to write into the Will are completely thoughtless of the consequences so far as the disinherited party is concerned.

I guess there could be many clients in second marriages, like Mrs Henein, who might instruct lawyers to draw up a Will to “look after my son and leave him my share of the house”

How often, once the Will is drawn and approved, does the advising lawyer paint the real, complete, picture to the client, saying – “Look what you are doing here – Your husband aged 82 might now have to go and live in a hostel if you die first, is that what you want?”

I have a feeling that some, perhaps particularly the elderly, Willmakers enjoy a feeling of almost dreamlike power, when they write a Will. Dispensing largesse here and there, “looking after people”. Similar to the fancies we all have – What would I do if I won the Lottery – I’d give you a million and buy Jack a new ….

Wills can cause problems, no doubt of it.

I still think they are fewer than the problems which arise from making no Will.

But still, a perfect Will – just the same as a badly drawn Will, – and just the same as a thoughtless Will, – and just the same as a Will made in ignorance of the meaning of “joint” ownership – they all have one dreadful fact in common. Once the maker of it has died, a Will has fixed legal consequences which impact hugely on the lives of the survivors.

Only the person who has died will know whether those consequences were really understood and really intended. And he is not saying.

Please do get in touch with Louise and me, whenever we can assist. As always, its 0113 816 0116 or notary@atkinsonnotary.com