I’m a Notary. What does He Do All Day?

I’m a Notary. What does He Do All Day?

Many of my Blogs have been commentaries upon legal news, or amusing cases, rather than an indication of what a Notary Public actually does apart from drinking coffee all day..

I have written this one in an attempt to give a flavour of one or two of the issues which are on my desk this month. (No two months or days are ever the same, of course)

First one :- A couple have property in Spain, but they can no longer go there due to their advanced ages and medical problems so now it must be sold.

The wife W wrote a Notarised Power of Attorney for use in Spain to her Husband H in 2019. It was not a “Lasting” or “Enduring” Power. Unfortunately, she has now lost mental capacity to manage or understand her affairs and this fact means that the 2019 Power of Attorney is no longer valid.

Both H and W also made Lasting Powers of Attorney but did not make them in favour of each other. They made them in favour of their sons. Lasting Powers were primarily an idea of Parliament to enable persons of sound mind to appoint people to look after their affairs for them in the event of mental incapacity – so this kind of Deed “comes to life” upon loss of capacity, where a standard Power of Attorney “dies” when that happens.

So now H, who enjoys full legal capacity, can give a Power of Attorney to Spanish lawyers as to his own share of the Spanish Assets, but he cannot give Power of Attorney for W. She lacks the capacity to create a Power of Attorney.

Her sons do hold her authority as Lasting Attorneys. But the Lasting Power is a creature of English Law and the first job is to ensure that the Spanish Lawyers will accept it. And when they do, still it does not give the son the ability to “transfer” her Power of Attorney to Spanish Lawyers since there is no authority in the Lasting Power of Attorney to assign or sub delegate it.

They can of course go to Spain but if they do that, they first need to obtain NIE (Número de Identificación de Extranjero).

We will get it sorted out, but it all seems a lot harder than it needs to be.

And, it is very ironic that it is so much harder for this couple to sell their property now when they need the money, than it would be if W had already died and would no longer need any money for her care.

Onward to number two:- Another job this month illustrates that even though disposal of foreign property even after death might be easier, it is still not a walk in the park.

Here, a married couple W and H were British passport holders living in Portugal. She died first and had not made a Will. He died just a couple of months after her.

He had made a Will, but strangely it did not extend to deal with his “Real Estate” which means Land and Buildings, leases etc, or “immoveable” Property. 

The Will looks home-made, as if H had surfed the internet to get the wording and had not instructed a Lawyer who knew what legal words actually mean. Usually, they mean, quite literally,  “not what you think”.

So H wrote “……(My Will) concerns the whole of my personal estate whatsoever and wheresoever situate which may belong to me …..(when I die)“.

What did he mean? Probably, that his will should deal with all the property that he owned by himself, so not shared property, but “my personal property”. MY OWN STUFF.

No doubt H thought that his house was the most valuable thing he possessed and so if his house was worth £1m, his “personal estate” would include that million.  

Not a bit of it. Property is in fact split between “Real Property” see above, and “Personal Property” which is everything EXCEPT houses and land etc.

No, by sticking the word “personal” into his Will H had just excluded his house. If he had simply said “my estate” it would have been fine.  

Homer Simpson has a word for it. “DOH”! Which translated from the American language means in English – DO NOT MAKE YOUR OWN WILL – USE A LAWYER.

So in respect of the Portuguese house, H died intestate.

And whilst the Portuguese lawyers are getting guidance from English lawyers as to the meaning and extent and validity of the Will and as to the meanings and consequences of the different Nationality (British) and Residence (Portuguese) and Domicile (Portuguese) regimes of H and whether English Law or Portuguese Law should apply, (and with full reference to EU Succession Regulation, the law of lex situs in England, the acceptance of the renvoi by Portugal the lex domicili of England and s46 of the Administration of Estates Act 1925) and on and on it goes  – the sale of the house is delayed and the estate is effectively frozen….

Again, it will all get sorted out, but a proper Will would have been so much cheaper and with it the value of the house would have passed to the persons that H intended. 

There we are then, that’s a bit of what a Notary does. Right – back to the desk!

And, of course, Please do contact us whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone us on 0113 816 0116 (internationally 0044 113 8160116)