Make a Will – Or – Fighting With The Family (not the film)

A month or so ago I wrote, as I often do, that everyone should make a Will.

I presume, if you have not made your Will by now, that you did not read the Blog – so here it is –

If you did read it, no doubt you have made a Will. Good. I do not think that there has ever been a case where the distribution of a person’s Estate (their belongings after death) has been rendered more complicated by the fact that they left a properly thought-out and properly worded Will.

Whereas of course, the law reports over the centuries provide hundreds of examples of the confusion and stress and bizarre consequences that can be the result of failing to do so.

Which is not to say that I advise you to get out your pen now and write your will on your own without good legal advice. Obviously a stupid will is stupid. I wrote about that too! Link here

Anyway the case I wrote about in June has now reached a Court decision. This is a very tragic case and a stark if extreme illustration that failure to make Wills can drive families apart.

Mr Scarle and Mss Scarle owned their house and money together. The legal term is “as joint tenants”. A feature of a joint tenancy is that the first joint owner to die is presumed by a “legal fiction” to have given (do the children say “gifted” these days? Why?) their share in the joint property to the other joint owner/s at the moment of death.

So if Mr Scarle died first, then Mrs Scarle owned everything previously owned by both of them, and if not, not. Contrariwise, if Mrs Scarle died first, then Mr Scarle owned everything previously owned by both of them, and if not, not.

Most unusually, the Scarles died in circumstances in which the order of death was not obvious.

There was no incontrovertible evidence. There had, for example, been no 999 call for the ambulance saying “My husband/wife has collapsed and died”. No CCTV indoors, no internet-linked Alexa or other devices listening to everything.

They were found, both dead, in their bungalow. Mrs Scarle was younger but had been frailer. Mr Scarle was ten years older but had been his wife’s carer, although evidence suggests that he was seriously declining in health just before his death.

An unusual state of affairs. Unusually these days that is. In wartime, not unusual when bombs were falling and whole families killed in an instant.

A serious problem in this case was, each of the Scarles had children of earlier marriages. So if Mr Scarle died first, the estate passed to his widow as surviving joint tenant, then to her child or children; but if Mrs Scarle had died first then it would be her husband’s issue who would inherit.

There had been cases before in English law when this set of circumstances had arisen.

Ironically a century and a half ago, the case of Mr Wing was a case where Wills had actually been made.

Mr and Mrs Underwood had made wills, leaving everything to each other if they should die before the other. But if they should be second to die then in their Wills they each left everything to Mr Wing.

They died in a shipwreck in the 1850s; it was not possible to say who drowned first.

In order to get his money from Mr Underwood’s estate, Mr Wing had to prove that Mrs Underwood had died first. And/or in order to get his money from the estate of Mrs Underwood, he had to prove that Mr Underwood died first.

So because he could not prove who died first, though one of them must have, and both of them had left him all the money if they died second, Mr Wing got nothing.

Was the law an ass? It was precise to the point of pedantry, I’ll give it that. A Notary loves a pedant.

At any rate it took 75 years for the law to change. In 1925 the following paragraph was enacted, s184 of the Law of Property Act

184 Presumption of survivorship in regard to claims to property.

In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

So now the present law provides the solution to the conundrum which flummoxed the claim of Mr Wing in 1855. If it is uncertain who died first then the law will tell you that the older person died first.

So Scarles’ case, Mr Scarle is 79 years and has died and Ms Scarle is 69 years and been found dead with her husband. Death had clearly taken place days before they were discovered. The manner of their last moments showed distressing turmoil, it may be that Mr Scale had collapsed and his wife had fallen in her rush to go to his aid. Or vice versa that Mrs Scarle had collapsed and Mr S. had collapsed in shock. Then the unfortunate couple could not move and in due course both froze to death

When found, both bodies were decomposing. There were different stages of decomposition reached but medical experts did not feel able to reach certain agreement based upon that, or based upon the effect of the different temperatures of the different rooms in which their bodies were found, as to the crucial question, who died first?

To my simple mind, it seems that in a case where doctors cannot agree with each other, (and in this case whilst the doctors called as expert witnesses reached different conclusions as to who may possibly have died first nevertheless each of them said that they could not be certain beyond reasonable doubt), then the condition of section 184 above is met. “Circumstances render it uncertain …..”

The value of the main asset, the bungalow, is reported in the papers to be around £250,000.00; the whole estate perhaps £300,000.00

The full report of the Court hearing is – HERE -.

Is it just me who finds that the whole esoteric exercise of arguing and discussing what is the “standard of proof” that something is uncertain which must be met by the parties is a bit of a waste of time? The daughter of Mr Scarle, in order to win the claim, had to show that s184 did not apply. To do this means she has to show that the circumstances of the deaths do not “render it uncertain” as to which spouse survived the other.

But how can you disprove that a state of affairs is uncertain? Presumably, by proving that Mr Scarle died second. But there was no witness who found it possible to say so with certainty. So if that is not a definition of being uncertain then I ask, what might be? And that was her own expert witness.

And whilst it is all very well and good as an abstract discussion of the law to suggest that Mr Scarle might have died second, and for the court to discuss in the abstract whether such a hypothesis, in order to succeed, would need to be “probably” correct – which is the “civil standard of proof”, or “correct so that we are sure” – which is the “criminal standard of proof” or something more or something in between – still it seems to me an exercise in hugely expensive futility.

Here we have two doctors saying they cannot be sure who died first. And if they both say that, then whether one of them tends towards a feeling that A died first, whilst the other thinks that perhaps the more likely is that B did, what they are both saying is that they are not certain.

And of course if there is no certainty, then s184 says that Mrs Scarle died first. Which is where we started.

So how this got all the way to Court appears to me to be an encapsulation of all that is wrong with not making a will. Because children do not want to miss out on £300,000.00, and they will fight lost causes, and fight each other even at the risk of spending all the money on lawyers. And then never speak to each other again.

Oh you say – our family is not like that.

Time for a song Link here  – Siblings song –

Remember, 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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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

Make a Will. Are Friends Electric?

Make a Will. Are Friends Electric?

I have blogged several times about the wisdom of making a Will. Everyone who is an adult with at least a bank account to pass on, should do so..

I suspect that everyone reading this does already understand and agree, but there is often a marked reluctance about actually taking the step.

I will probably blog again and set out once again all of the compelling reasons for making Wills.

But perhaps if I do list all of the good reasons, I still won’t identify the new trend recently identified in China as one of them.

According to a report in the Chinese Global Times, Lily Tong has prepared her new Will and presented it the local Notary so that her son will be cared for after her death.

Lily is only 25 so there is every reason to hope that she will be around for a long time yet, but she believes you can’t be too careful and I would agree.

Except that in this case her “son” is virtual. And, by the way, a Frog.

So her concern is that should she die then her digital frog – which only exists in a video game – would itself “die” without someone to log in and recharge its virtual life support.

At first glance, and perhaps at second and third, there is plenty to laugh at. There was the craze of Tamagotchi in the 1990s, digital creatures hatched from eggs on your keychain fob which also needed regular attention or they would “die”. I don’t remember anyone wanting to make provision in their Will for the long term care of a Tamagotchi.

But at a fourth glance, perhaps there is something about the immersive nature of the video game, of the virtual reality, which speaks to the human brain particularly of teens and young adults.

And if what really matters to you in your life should not be the subject of your Will, then what should?

And then again, there have been science fiction stories from the 1960s or earlier suggesting that one day a human’s mind, its experience, memory and personality could be downloaded and stored into a computer. So then, the person will die, but will live on forever in the computer, continuing to think, make decisions – be “alive”. Even more alive in a way than Lily’s frog, but still only virtual.

And those virtual persons will need maintenance and care. Someone to keep the computers on and backed up.

Or then again, again, when robotics goes further, perhaps it will be the robots and the computers, and the virtual personalities which used to be humans, who become the carers for the humans?

So that before the time that Lily does die after several decades, perhaps it might be her virtual frog who has actually taken over her care?

Is there anyone else who feels that the pace of life is accelerating beyond the ability of the law to keep up?

Here’s the song – link here-

In the meantime, and until then, 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

Challenging A Will. Three Recent Cases

Challenging A Will. Three Recent Cases

I don’t know whether there has been a big increase recently in the number of Court cases where disappointed family members are challenging their Late Parent’s or Partner’s Wills, but it does seem like it.

Since 2015 when the case of Ilott v Mitson was decided – I wrote a Blog about that – link here –there has been a rash of similar challenges. Perhaps because the challenge in Ilott was successful, that might have encouraged family or dependents to have a punt at Court when they feel a bit short changed by being left out of an expected inheritance.

So the next one in 2016, was the case of Ames. Again I Blogged -here – that If Ilott v Mitson had turned over a perfectly valid will in favour of an estranged daughter then surely Ames would do the same, since in Ames the daughter was not estranged and had been living off her father right up to his death.

But no.

So far, so inconsistent.

Both of those cases were brought on the basis of the Inheritance (Provision for Family and Dependant) Act 1975 claiming that the deceased had failed to provide “reasonable financial maintenance” – in other words that the person making the Will and leaving out the claimant was ignoring a proper duty to make financial provision in favour of a person who was lacking financial means and was dependent upon their support.

This claim seems to me to be very weak in the Ilott case. That claimant had not received a penny from her mother in 37 years, so whilst she was in considerable financial difficulty I do not understand why the law says that mother’s money should support her after mother’s death when it could not be claimed before the death. The law says among other things, that “reasonable” financial provision must be made for adult children. I suppose, one person’s “reasonable” is another person’s “tenuous” possibly.

The claim seems to me stronger in the Ames case. There the daughter had been in receipt of money from her father right up to his death.

But the weak claim was a success, and the strong one failed.

The failure of the strong one had the merit though, that it failed because the Judge decided that it is the law of England that a person can make a will and dispose of his/her property freely and hooorah for that.

So now, three more. Is sanity and, even more importantly, consistency, prevailing?

The case of Habberfield from January 2018

The case of Thompson v Ragget from March 2018

The case of Nutt, hot off the press from April 2018

Taking them in order, what is the law telling us now about contesting Wills?

Firstly, although each of them is indeed a contest and, as they always are, based upon a perceived failure to give reasonable provision in the Will of the deceased person, only the second case is specifically claiming that the claim is one which should be allowed  because of the provisions of the 1975 Act.

The first case invokes the Act as a fall-back, but the gist of the claim in Habberfield is that it falls within the doctrine of the law invented by Lord Denning, called proprietary estoppel. Or as the layman might describe that doctrine – “Fairness”.

It’s not fair, says the claimant Lucy Habberfield, that because my father promised me that I would be able to succeed him when he retired, I have therefore worked for more than twenty years in his dairy farm. Working there through my pregnancy, working long hours, working for low pay, and working with very little time off.

And yet, her father left the farm and everything he owned, to his widow and left nothing to Lucy.

The full judgment confirms that because this is not fair, Lucy shall receive over a million pounds now from the estate.

So this was a case in which the 1975 Act did not come into the Judge’s decision. He found that a person may not expect the Courts to give effect to a Will which disregards a promise, when the person to whom the promise was made has relied upon it and spend some thirty years of hard graft on low pay because of it. Thank you, Lord Denning. Fairness.

Full report of Habberfield, click here

In the second case, Thompson v Ragget the deceased had made a Will in which he said “I have specifically made no provision for my partner Joan ……” and “I confirm Joan has her own finances and is financially comfortable, she has her own money and her own savings”.

Long story short: Joan, who was Mr Hodge’s “common-law wife” (there is no such thing) for forty two years, and at the time of his death so far from being financially comfortable, she was living in a care home with a total of £2,500.00 in the Bank.

Clearly, said the Judge, Mr Hodge was quite wrong in his statement that Joan had plenty of money. After 42 years together this was a clear case where the terms of a Will should be overturned, under the 1975 Act.

The advice which lawyers always give to someone who is making a Will and wishes to leave out a person whom one would usually expect to be included is – make sure that your Will explains that you are leaving X out of your Will on purpose and explain why.

Clearly, Mr Hodge did exactly this, but it was therefore possible to see that his stated reason was absolutely mistaken. This helped the Judge to put matters right.

Law Report of that case – click here –

Finally, the case of Nutt. The report of it is – click here –

After the above two big wins for the claimant, perhaps the applicants here were thinking, maybe all you have to do to get a Will turned over in your favour, is go to Court and say “It’s not fair”?

[Actually that can’t be right because the third claim was first made in 2005 but hey, don’t spoil a good story]

In this case Mother was a widow with three adult children. As the Judge heard, mother had clearly decided, – two of my children have their own houses, the youngest does not.

Also, the youngest did her gardening and helped her more in the house and overall spent rather more time with her than the others did. The upshot was that Mother left her money to him and not to the other two. Her Will was made in 2010.

So when she died, here was a Will which the two disappointed children did not like. They were not in need of financial provision, they had adequate assets and income so the 1975 Act was not the basis of the claim. They just weren’t happy.

The claimants asked the court to say that their mother’s earlier will of 2005 should be accepted to probate. In that Will she had left her property equally between all three children. The children liked that Will better.

They claimed in respect of the 2010 Will that
1. Mother hadn’t signed it in the presence of two witnesses or
2. If she had, then she did not have mental capacity to make a Will or
3. If she had, then she did not know what this Will actually said or
4. She had been brainwashed or unduly influenced by the youngest child.

Did they leave anything out?

At the actual hearing, it turned out that they were unable to produce anything along the lines of real evidence for any of this.

As an example in respect of ground 4 undue influence, they claimed that their younger brother was a “domineering personality” who dominated his mother.

As evidence to support that claim, they told the Court how he had told his mother once to change her coat before going out because the one she was wearing would not keep her warm enough. Well, really, was that the best they could do?

And at the end their claim was unsuccessful. As the Judge explained and in my hope may all Judges say the same “My task is not to decide whether the last Will was justified or fair. I am only required to say – “Is It Valid?””

So hooray.

What have we learned?

• That if you make a Will and its terms break promises you have made to someone would has relied to their disadvantage on that promise being kept, you can expect the Will to be set aside.
• That if your Will makes it clear that you have decided the terms of your Will upon mistaken facts, you can expect the Will to be set aside.
• That if you don’t like your Mother’s Will, but she hadn’t made any promises, nor based her decisions on mistaken beliefs, then don’t think the Judge will agree with you just because you make a fuss about it.

So in all three cases, ten out of ten to the Judges.

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

Make a Will. Make a List. Think Digital.

Make a Will. Make a List. Think Digital

If you die …….. – perhaps I should start again.

WHEN you die.

Yes that has a better ring to it. Because, you will. Sorry about that.

Some folk obsess about their coming deaths, some are terrified. Philip Larkin was the expert -Link Here-

It seems to me that unlike Larkin most folk put the matter at the back of their minds and concentrate on choosing a new car.

The fact is, we are all of us in a short term period and when it’s over it’s over. During our short lives, we tend to accumulate STUFF. For thousands of years this has been going on, and accordingly there has been plenty of time for the law to grow and take account of this human state of affairs.

There is a plentiful case-law and statue basis to regulate how we can make our wills and how the STUFF we leave behind is to be valued and what tax is to be paid on it and who can be “executors” appointed to deal with all this work. There are rules about Trusts, and estate management and the giving of gifts and surviving seven years and different inheritance tax rates for gifts to spouses and on it goes, and the lawyers have done it all before.

A problem arises however when a new technology disrupts all the previous ways of doing things.

For example, first mobile phones came into existence, and then the law noticed and regulation was invented to deal with it. Thirty or so years ago I was an “early adopter” of a Motorola mobile phone with perhaps thirty minutes talk time – ten hours to charge.

I used to dread it ringing if I was on a train, – embarrassing or what?

So that’s something that has swept the world – the phones arrived first, then the law caught up to deal with it.

Now someone invents Digital Currency, that’s Bitcoin right? Up to a point, Lord Copper. The internet carries a Digital Currency index of 1372 entries. Should you buy Bitcoin? But what about Pirl? Or Crypto Bullion? What what?

This seems to be an areas of assets which most of us have never heard of and people who probably don’t understand it (and if they think they do perhaps that’s only what they think) have nevertheless invested millions of real pounds into buying and selling it.

So in the last few years, millions, billions of pounds of value, exists ONLY inside computers.

So after thousands of years of folk being born and accumulating STUFF and then dying in a regulated world where the transmission of STUFF [less tax] to the next generation is clearly choreographed, now folk are dying as the owners of NEWSTUFF.

It’s STUFF, but it can only be found inside a computer. The law has not caught up.

And now when you die, your family or whoever goes into your study and can’t find a safe or a filing cabinet with a paper file list of all your investments and of where they are, what Bank, what sort code. Instead they find your iPad. And that’s it. And they don’t know how to open it and have a look.

Now if you were still alive, you could enter the locking password, and see what secrets the iPad holds.

If you are dead and have not told anyone at all what your password is, that might be the beginning of a world of pain for your loved ones.

If you have made your Will [You have made your Will, Haven’t you?] then you will have named your choice of persons to act as your Executors. Their job is to ascertain all of your assets, and realise them and pass them across to their new owners in accordance with your Will.

On the other hand, if all they have to start with is the knowledge that on your iPad is a document called “Open this when I am Dead” – but the iPad is locked ……

It seems that it is possible for Apple or the FBI to open a locked iPad. But they won’t do it for you. There are ways to get the iPad going again, but they involve restoring the device, and thereby wiping all of its previous contents so that you start again as if it were new. Not too useful.

So at the very least, put your Will in a drawer in your house and in the same envelope put in the necessary codes to open your computer.

And if you are the Executor, once you are inside the computer, take care. The on-line “assets” of the deceased computer-owner will be held on the basis of the terms and conditions of the relevant on-line provider. You know, those boring pages full of stuff we never read before we tick the button that says ”I have read and accept these terms”.

So bear in mind that it is not necessarily a matter of logging in to those assets using the i/d and password of the deceased. That might be a criminal office. If you find my i/d and password details for my bank and use them to log in – that is a crime whilst I am alive. And likely enough, whilst I am dead also.

And if the deceased has an Amazon prime or Netflix or Spotify account, can anyone continue to use them after his/her death? If s/he has ten children can s/he leave all the Kindle electronic books collection to each of them? You can’t do that with real books.  And an iTunes music collection? It might have cost thousands of pounds for a huge collection of music, but the right to listen to any of it dies with the deceased.

It is a minefield and the law is not yet up to speed with the issues.

The best you can do I suggest, is make your Will with a Solicitor who is alive to all of these issues [see what I did there?] and make specific provision for each of your digital assets.

And don’t forget, tell them the unlock code for your device!

In the meantime –Link Here- Life’s A Gas

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

 

 

………………….Before I Get Old.

Lasting Powers of Attorney v Court Appointment of Deputy.

I have already written more than one blog in which I seek to encourage the making of Powers of Attorney, specifically ”Lasting Powers”.

Those are the ones which remain in force after the person who made it might have lost their “mental capacity”, and with it the ability to look after themselves. To look after their own needs in terms of food, cleanliness, money management and so on. Sadly, we are all aware that there is the chance of terrible illness in older age, and the creation of a Lasting Power is a hope that arrangements can be put into place now, to take effect if the worst happens.

As I have explained, the overall supervisor of anyone who is appointed as an Attorney by one of these Deeds, is the Office of the Public Guardian. Created in 2007, it does the work previously done by the Court of Protection. Nowadays the labels “Guardianship Office” and Court of Protection seem to be interchangeable.

The Ministry of Justice and the Public Guardianship Office have been promoting their message – “Make a Lasting Power” – for years now. – LINK HERE -.

They make the point that a person who does not, but then later needs a specific carer for making financial decisions, would otherwise face the refusal of Banks and Care Homes and other parties to deal with anyone who had not applied for and obtained a Court Order.

The Court Order is an appointment of a suitable person as a “Deputy”. Part of the message of those encouraging the use of lasting Powers, is that the Deputyship alternative is slow and costly and difficult.

Presumably, on the basis of a shared assumption that fast and cheap and easy is a good thing.

Well, up to a point Lord Copper.

I was rather taken aback to read this week in several newspapers of a the stated views of Senior Judge Denzil Lush – until last year sitting at the Court of Protection. He says he would never sign his own Deed of Lasting Power of Attorney. – LINK HERE –

Although the present Lasting Power regime is subject to more scrutiny in its creation than the earlier “Enduring Power” still he says his view is based upon case after case of financial misuse by the appointed attorney.

In his stated view, the more onerous requirements of the Court regarding a deputyship application are a “Good Thing” – that a process which is “too easy” may well be “too dangerous”, and that the checks and restrictions imposed by the Court work entirely for the benefit of the person being cared for.

It is all so difficult. Who is right?

I think there may be a case for preferring the checks and balances the Court of Protection seeks to provide in appointment of a Deputy, where there are large values involved. If a person has millions of pounds, temptation to be dishonest can be high and anyway the patient can afford to pay the Court its fees.

But many of the elderly ill may have very little money and just need someone to be there for them, which is what the lasting power system may be easier to achieve.

And then again, the journalist Christopher Booker has often highlighted horrible failures of the Court and accused it of an obsessive secrecy and thoughtless siding with misguided social workers. An example, – LINK HERE -.

Judge Lush has perhaps based his opinion upon his experience of having to deal with case after case where the appointed Lasting Attorney has proven to be dishonest and greedy, stealing from the patient and putting the patient’s interests well below their own, if anywhere. And he is presumably right, that a Lasting Power in the hands of a crook, is a terrible thing and the damage it can enable the crook to achieve may be irreversible.

After all it was Judge Lush who heard the case of a man who charged his mother £400.00 for every visit he made to her care home – LINK HERE –

So his opinion is formed from first hand knowledge of the worst behaviour imaginable.

I suppose none of us know who we can really trust until trust is put to the test.

But whether the answer is truly that people should stop making Lasting Powers and instead rely upon the wisdom of the Court of Protection – what do you think? Toss a coin and make a wish?

Here’s the Song – LINK HERE –

As ever, for documents for use around the world do 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

Wills by Text? Legacies by Voicemail?

Wills by Text? Legacies by Voicemail?

Apparently, Wills written on paper, signed by the Testator and two witnesses and dated, is all a bit last century.

Here is a link to a recent article in the Daily Telegraph –Link Here –

With the headline “Could a Text become your Will?” the newspaper is referring to a newly released report of the Law Commission.

According to the Telegraph, the Commission calls for the law to be relaxed to allow notes, emails and voicemail messages to be used in place of a written will.

The Law Commission has been set the task of considering whether the modern rules of will making in 2017 should remain the same as those which have been in place since 1837.

The reactionary response would be, why change what works? The revisionist response would be, Yebbut, is it working though innit? [Revisionists speak like that, I feel sure]

The fact is that whilst most people in England would probably agree that making a Will is important and something that they should do, in fact less than half of the adult population has done so. Should the making of a will therefore be “easier” than it is at present?

The link to the Law Commission report is here – Link Here – at first glance the newspaper report seems alarmist. Do a word-search [control;+F] through the report and there is no specific mention of email or text as being the suggested basis of a valid will.

There is no specific recommendation that the creation of a valid will made in England should in future abandon the use of pen and paper and witnesses, in favour of a quick text.

Rather, the report seeks to recognise that the true purpose of the law should be to ensure that the wishes of a person making a will can be put into effect after death, even if some oversight has been made in the formalities of the will.

It says, the rules about making wills, are a “means to an end, not an end in themselves”.

So, if someone has made it very clear what their wishes are, does it truly matter whether the record is on paper or hard disc or Facebook? Thus the Commission seems to recommend that in such a case, the absence of an actual paper Will should not stop a Court form being able to operate a “dispensing power” in order to ensure that those wishes come into effect.

My own view is that whilst the Law Commission is not recommending that Wills should no longer be on paper, there is a big risk here. The Law of Unintended Consequences. Or in other words, most changes make stuff worse. You can quote me on that.

In this case I predict the thinking will be “if the Courts are to be give a dispensing power, why go to the expense of making a “proper” Will?”

And Cynics will say, there is nobody as inventive as a disappointed person left out of an inheritance, trying to find a basis for a court case.

The report itself admits that an earlier report from 1980 which considered relaxing the rules, in the end decided against doing so, reaching the conclusion that this could lead to “more expense, litigation and delay in cases where it can least be afforded, noting that the homemade wills are the ones which most often go wrong.”

More expense delay and litigation? Seems to me that as soon as there is a chink in the armour, just as soon as there is even a notion in the mind of a disappointed non-beneficiary that the Court might deem an email or an unprinted computer document or diary entry to be sufficient evidence of intent as to amount to a legal Will, here comes argument and there goes certainty.

And when certainty is out of the window, litigation lawyers make money! See the Bleak House Jarndyce v Jarndyce extract below*.

And this even this new report does articulate [and then argues against!] the thoughts which most lawyers will have had upon first reading the Telegraph article, – it says, I paraphrase “the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives  … who may be tempted to sift through huge volumes of texts emails and other records trying to find one to put forward as a record of intent – as a Will”.

You really think so, Sherlock?

Here is a link to be downloaded at the foot of this internet page  – Link Here – a response form which you can complete then print and post, or email.

You have until 10th November to tell the Commission your own view.

Link Here –Put It In Writing – (It’s a song)

And as always, please do remember 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

* “Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.”

Charles Dickens