Bang the Drum. Make A Will. Number Umpteen.

Bang the Drum. Make A Will. Number Umpteen.

There are one or two drums that I have banging from time to time in my Blogs. It may be that my readers have taken on board all that I have been saying about – Consents for your Children to travel abroad without you, or The Need to get your prescriptions notarised if you are taking your medication with you on holiday, particularly to Russia, – or How to ensure that deeds and papers are properly expected by companies so that the Company is bound and the Director is free from personal liability, and so on.

And quite often I try to encourage you to MAKE A WILL.

Even so, I bet that every one of you has either not made your own Will or else knows a friend who has not.

Apart from one person I know who appears seriously to believe that he is being kept alive only by the magic of not having made his Will, everyone else I speak to does acknowledge the importance of having made a Will. Being “testate”. At least, in principle they do.

But it seems that being fully aware of the importance of something is for many of us not the same as actually doing it.

So if you haven’t – do it today.

If your friends haven’t, urge them to do it today. Not to wait until they feel a bit poorly. I think the idea of – yes I know its’s important but I’ll do it later, – is as inexplicable as the reasoning of  the US motorbike riders who carry a crash helmet on the back rest, not on the head. Do they think – if anything dangerous starts to happen, I’ll put the hat on?

The main problem with making a Will perhaps other than a failure to prioritise, is that sometimes it can be quite difficult to decide what to write. Not the technical writing, I trust you will use a Solicitor for that (see earlier blogs about homemade Wills, there is one – link here –), but actually deciding upon your wishes.

For single persons, or couples in a first relationship whether married or not, matters may be straightforward. But increasingly nowadays, people may be in a second or later marriage, and each party may have children to earlier partners.

And that causes problems. Years ago when I was newly qualified I sat in on a meeting between a solicitor partner and his married clients who were in their sixties and each had children by deceased former spouses. Their first marriages had lasted for decades, the present marriage was very recent.

Each of the clients was very concerned that if they died first, the surviving second spouse should not be in control of all of the money which they presently owned separately. Neither of them wanted to say so out loud. It is embarrassing to say in effect “I don’t trust you”.

But each of them had children, and they clearly wanted to ensure that the matrimonial pot did not end up in the hands of the other spouse’s children to the exclusion of their own, after the death of the second of them to go.

And they both knew from their own experience that – if I die tomorrow my second spouse might marry again. And his/her new spouse might already have kids too. And they might live together another 20 years – people live a long time these days. And my kids might be forgotten by then.

Perhaps not so much of a problem if they had millions to dispose of. But if they had a house and a hundred thousand or so, it’s a poser. Because no one knows how long they will live. Will my spouse need all of the money? –  Answer – Yes s/he will if s/he lives to be a hundred. So we need to leave our money to each other. But what if I die next week and then s/he makes a new Will and cuts out my kids?

Making a Will makes you address this sort of questions, and the fears behind them, and it nearly caused that couple to split up, right there in the office.

Very difficult, and one can see why so many people, even if they do address the question, end up by deciding –  it’s just too difficult let’s pretend we are going to live for ever.

So here is a search you can google – Link Here – it will show you a choice of several newspaper articles and commentaries.

In this case, on purpose or not, Mr and Mrs Scarle had not made Wills. Each had been married before and each had living adult children. Exactly the circumstances in which it can be difficult to decide how to write a fair Will which looks after each other and also shares any money left over after the second death between all of their children and step children.

Tragically the unfortunate Mr and Mrs Scarle were found in their house, both dead. Apparently they froze to death; at any rate the deaths were natural. But they were not discovered until they had been dead for a week or so and in circumstances in which medical experts appear unable to say who died first.

If you haven’t a Will, it is important to know when you died.

Say Mr Scarle died first. OK, his estate if he had less than £250,000.00 (bit more complex if he had more) will pass to his widow. She has afterwards died too, so all of that money plus all of her own money will pass to her surviving children

And contrariwise, say Mrs Scarle died first. OK, her estate if she had less than £250,000.00 (bit more complex if she had more) will pass to her widower. He has afterwards died too, so all of that money plus all of his own money will pass to his surviving children.

Long story short, the children of whoever died first get nowt.

In the very unusual case of not actually knowing who first died, the Law reverts to a “legal fiction”. Called the “Commorientes Rule”, it says, generally speaking and according to the laws of nature, older people have fewer years of life in front of them than have younger people. Old people reach old age and death first, then it is the turn of younger people.

So if someone is 79 (Mr Scarle was 79) and is found dead with someone aged 69 (Mrs Scarle was 69), the legal fiction says that Mr Scarle shall be presumed to have died first

The trouble, or one of all of the troubles, in all of this is that whatever Mr and Mrs Scarle  “would have wanted” for their children if they had made wills, and for whatever reason they neglected, or decided not, to do so, they certainly could not have guessed their cruel fate.

If they had left a will, each to each other, they could at least have hoped that the survivor would have “seen their children right”.

In the absence of Wills, not only shall one set of children definitely not inherit, but a jolly big chunk of their joint money will be spent on Courts solicitors barristers and the whole legal folderol.

I started by saying I’ve said all this before – but I think it’s worth repeating.

Make a Will. Now, preferably.

Here’s a link to a soothing song – I’ve said it once before but it bears repeating, Now –

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com  and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747.  Please also feel free to visit our website http://www.atkinsonnotary.com

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Notary Advice. Worth the Fee?

Question :- It is the job of Notaries to make the preparation and execution of documents for use abroad, as easy as possible. True or false?

Well, true I suppose but sometimes it is the “as possible” bit which needs to be emphasized. Sometimes stuff just is complicated.

Take Limited Companies. Who can be a Director?

At present s. 155 of the Companies Act 2006 says that at least one of the directors of a Company must be a “natural” person. (A natural person is a human being, a corporation is a legal person but not a human being so not a natural person.)

Yebbut, the Government has created the “Small Business, Enterprise and Employment Act 2015” which is not yet the law, but presumably will be one day.

S87 of the 2015 legislation says that “The Companies Act 2006 s. 155 shall be omitted and the following added
“156A Each director to be a natural person
“(1)A person may not be appointed a director of a company unless the person is a natural person.”

So it is clear that the days of Corporate Company Directors are numbered. But today they are fine.

My point is, there is no “common sense” here. You cannot guess what is OK and what is not with Company Law, you have to read the law – and the law can change anytime. What is right today is wrong tomorrow.

Also and perhaps especially in the case of Company Documents there are rules which need to be followed, and you won’t be able to guess what they are. Or if you can once then you are lucky, but you won’t be lucky three times in a row if you are guessing.

It is rare for a successful business Director to be too interested in the detailed requirements of the thousands of rules and regulations which govern the activities of their Companies: no doubt it can be the bane of their lives to be told by their Notary that a document cannot be executed by Fred because Fred is not an authorised signatory.

But if Fred is in charge of supervising the Dubai office, they say, who else should sign a Power of Attorney to assist in the Dubai operation? No. Fred may have a job description as “Middle Eastern Affairs Director” or some such. And the young school leaver may call himself the “Director of Paperclip Procurement”. But these are just job titles. And only Officers of the Company, as defined in the 2006 Act, are authorised signatories.

So the Notary will have to tell that successful business Director [the sbD] that because Fred is not actually a Company Board Director, therefore he must not sign the Deed, because it will expose him to personal liability and will not bind the Limited Company to its terms anyway.

And egos come into this. Sometimes sbDs may consider that their godlike status within the organisation is being challenged rather than enhanced, when being told that Plan A is unworkable.

A fellow Notary has written to say that he recently “had the European Head of a global enterprise email me to ask me what I was going on about when I had suggested to the UK people that they were proposing to execute a Power of Attorney incorrectly.”

He felt as if he was being invited onto the naughty step.

“What are you going on about?”, – bit alarming?

Not quite the same as, “Thank you very much, I nearly made an expensive blunder, you have saved my expensive bacon”.

Here is a case link – click here – to the Katana case.

Basically, a contract was entered into which included an agreement that any dispute arising would be dealt with by English Law.

Trouble was, it eventually was discovered that none of the parties or their advisors actually knew any English Law.

One of the companies involved purported to sign the contract by using as its signatory a person who had been appointed an Attorney of it, under what everyone believed to be a Deed of Power of Attorney. The Power of Attorney however was not a Deed. It was not properly witnessed as a Deed.

No English Notary was involved.

Because the “Deed” was defective, the Claimant’s case was dismissed.

If an English Notary had been consulted, it might have taken half an hour of reading the papers to see that the Deed was defective. I charge £120.00 plus vat for half an hour.
The Claimants dismissed claim was for €65 million

Perhaps I don’t charge enough? HMmm. Only me then?

At any rate, I promise to charge less than €65 million, so Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.
Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com