………………….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

The Latest in the Saga of Increasing Probate Fees – Perhaps The Increase Is illegal!

The latest in the saga of increasing Probate fees – perhaps the increase is illegal!

A year or so ago I wrote this Link here warning of the proposal for the worst case increase of probate fees from £430 to £40,000. Yes. Really

And then after the Government “Consultation” I wrote link here of the Government response which was in effect, “We will ignore the result of the consultation”

Now, this week the joint committee on Statutory Instruments, a cross party/cross house committee has raised the suggestion that the proposal may be illegal.

A basic principle of the British Constitution is that the Government cannot raise tax unless the measure is put before Parliament and approved. Exactly as with Brexit recently – and as the Courts confirmed – the matter has to go to Debate.

But, in the case of the Probate fees, the Government is presenting the increases as merely an upward adjustment to Court fees, and that therefore it has the right to proceed under Powers deriving from the somewhat obscure Anti-Social Behaviour, Crime and Policing Act, 2014, section 180 – Headed, “Court and Tribunal Fees”.

Somewhat ignoring the fact that that Statute is clearly intended to deal with the Court fees for contested cases.

Yes sometimes the grant of Probate can be contested. [Fred died leaving his money to say, the RSPCA and appointing it his executor, and Fred’s wife is objecting to the Grant of Probate as part of her objection to the implementation of the terms of the Will generally]

I have not been able to find the number of annually contested applications for Probate, the statistics must be out there. My guess is, it is a relatively trivial number compared to the over 250000 grants of Probate applied for every year.

In any case, the new fees are not relating to the contested cases only. They will relate to every application.

What the Government is doing, is calling a tax increase, a “fees increase”. And then claiming that this obscure Stature gives it the right to implement it.

Basically, attempting to use the letter of the law to justify something it was never intended to justify.

We do not know whether the views of the joint committee on Statutory Instruments will be implemented. Perhaps not, perhaps the Government will succeed in pressing on regardless.

But, does its behaviour remind you of the Government’s own wording in its pamphlet highlighted in my blog earlier, link here?

That, a citizen should not seek to avoid paying tax by “Using the Law of the Country to get a Tax advantage that Parliament never intended”.

And whilst this Government is a more or less different gang from last year, it has learnt nothing from Mr Cameron’s own egg-on-face scenario, – when he was revealed to have had his own offshore investments. This, of course, after he had taken the extraordinary decision to take time out of a G20 summit to voice his disgust at that kind of scheme and specifically describing as “Morally wrong” the action of Jimmy Carr in following the advice of his accountant and doing nothing illegal whatsoever.

Jimmy Carr, as comedians will, had the last laugh. He tweeted, when Mr Cameron was revealed to have his own tax-avoiding investments abroad, that “it would be morally wrong of me to comment on another individual’s tax affairs”.

Really, it is dangerous to seek to occupy the moral high ground, because when you behave exactly as those you seek to paint as villains, some people might take the view that your sense of morality leaves something to be desired.

Indeed some people may take that view, and express disapproval in rather stronger terms. Trust is hard to win, easy to lose in a moment. Ask United Airlines.

Some music – Hypocrites

And, as always, 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

Government Ignores Your Input. Surprised? New Probate Fees.

Government Ignores Your Input. Surprised? New Probate Fees.

Here is a link to my Blog a year ago. Probate, How Much Would You Like To Pay?

In Brief, The Government invited you to respond to its consultation as to whether you think an increase in Probate fees from, at their highest, £430 today [for a couple dying together, or one shortly after the other] to a new sum of £40,000.00, was about right.

Yes, seriously, the new fees will be more than 9300% of the old ones. Nine thousand three hundred per cent. This is not a bad dream, though it’s not a good one either.

The new scales are
• £300 for estates worth more than £50,000 and up to £300,000
• £1,000 for estates worth more than £300,000 and up to £500,000
• £4,000 for estates worth more than £500,000 and up to £1 million
• £8,000 for estates worth more than £1m and up to £1.6 million
• £12,000 for estates worth more than £1.6m and up to £2 million
• £20,000 for estates worth more than £2 million

As I said , This is after consultation.
So, clearly, the general public thought that the increased fees are a jolly good thing.

Actually, not exactly, no.

The results are here LINK

What do we see? – Out of 829 responses as to whether the fee for probate should be proportionate to the estate value? Bearing in mind that the actual work done, and the cost of it, is not proportionate to the estate value, not surprisingly,:-

695 said – No, it makes no sense.

So in the context of a referendum, the vote for the status quo, the “remain” vote if you like, was over 75%.

Over 75 per cent.

With 71 responses abstaining, the vote for changing the status quo was:-

7%. Seven percent.

So there you are, the Government ask for consultation. Their proposals are overwhelmingly rejected – let me rephrase that – are supported by 7%, and will proceed.

Makes you proud, innit. Can’t Afford to Live, Can’t Afford to Die. Song Link here

As ever, do contact me or Christopher Atkinson here at AtkinsonNotary [0113 816 0116 or notary@atkinsonnotary.com or www.atkinsonnotary.com ] where we shall be more than happy to assist and help you through the maze whenever you have paperwork to be processed for foreign countries.

House Buyers’ Blues – This Horse Won’t Stand Still.

House Buyers’ Blues – This Horse Won’t Stand Still.

The ideal to which the Law of England aspires, or used to, is to be clear and understandable. A dependable and predictable framework of rules and consequences within which we can all exist and operate.

Hmm. So last week what was going on? – As I blogged, link here , the case of “Ames” has completely turned a 360 degree spin round an earlier decision of “Ilott”.

Still, perhaps that previous case was a one-off and after all it did put us lawyers all into a bit of a flap. Because if the [now discredited?] case of Ilott -v- Mitson was really the law, it was pretty much a slap in the face for the idea that if you are an English Citizen then you are free to make the Will of your choice, even “leave it all to charity” if you want.

So now what this week? It seems to me, another 360.

I wrote a Blog in May this year about the case of PURRUNSING – link here – in which I highlighted a recent case of property theft.

As so often since the abolition of title deeds in England in 2003, this was a case where a person, who turned out to be a Crook, successfully pretended to be a genuine property owner and managed to escape with the value of a house.

In that case, the Judge heard that the “purchaser” [P] had instructed solicitors to ensure that he would become the owner of the house he was paying for, and decided that P should be reimbursed.

Clearly he [P] had placed the transaction into the hands of professionals who were charging professional fees, and yet he had received nothing for his £470,000.00. It had been stolen.

The Judge said that the solicitors involved, both those acting for P, and those unknowingly acting for the crook, must pay half each of the lost money.

So this seemed to be a warning to all Solicitors, that the Court will view them as absolutely liable to provide the service they advertise, and the intended result of those services. By the use of the word “absolutely” I mean, regardless of fault.

Again, like Ilott, this decision was seen as a pragmatic result in so far as a victim [of a cheat – or of an “unreasonable mother”] obtained compensation. But it was also seen by many as a completely unpredictable decision of the kind described by Lawyers as a “Hard case”.

And as the saying goes, it is the hard cases which result in Bad Law.

The Judge was clearly sorry for Mr Purrunsing. Mr P was not a young man and was now faced with the loss of life savings which had been accumulated after “many years of hard work … and careful management of his limited resources” and which he was investing because “his family’s welfare was of the first importance to him”.

And Yet – And Yet.

Neither set of Solicitors had been reckless or negligent in doing what Solicitors are required to do in Conveyancing matters. Everyone involved had been tricked and conned by a crook. Why should two innocent firms of Solicitors be required to provide full indemnity at their own expense, to a victim who has suffered at the hands of a criminal?

Well why indeed? Here -link here- is the recent case of P&P Property Limited. Almost identical facts – a conman impersonates a property owner, and gets away with over a million pounds paid to him by the defrauded purchaser [P&P].

To twist the knife further, the purpose of the transaction, from P&P’s point of view, was to refurbish and improve the property for sale at a profit. So when they were told they had completed and bought the place, in they went with diggers and teams of builders. By the time the fraud was discovered, their uncompleted building work had reduced the value of the house by £34,000.00 which the true owner now wanted from P&P.

OK so we know from Purrunsing what the Court would do, don’t we? The two firms of Solicitors involved must refund everyone 50-50?

Guess what, not a bit of it.

No, we now find that this time the Purchaser must bear the financial burden of the con. In essence, the Court is saying that The Buyer and the Seller [the Thief] have done a deal and the Solicitors and Estate Agents were merely putting that deal into effect. Which is no doubt a comfort for Solicitors and Estate Agents everywhere.

But is there a thread here? Surely the Law ought to be at least a little bit predictable? If it isn’t, then in what sense is there actually “a Law”? As opposed to, let’s see whether the Judge feels sorry for our client today. [Remember, when you get into Court – let’s see some real tears please]

To recap : –

Ilott. Hardworking Daughter with five kids and a disabled husband is left out of mother’s Will. Hard Case. Result – Mother’s Will must be disregarded
Ames and Jones – Excluded Daughter has a closer relationship with late father than in Ilott, but is a “Feckless daughter for whom unemployment is a lifestyle choice”. Result – No change to Father’s Will.

Purrunsing. Hardworking family man cheated out of life savings. Hard Case. Result – Solicitors have to get their hands in their pockets and reimburse the poor old bloke.
P&P. Property speculators cheated out of £1 million [twice as much as Purrunsing] in pretty much a repeat of the Purrunsing scenario. Result – live with it Speculators, you’ve been cheated. You speculated and you lost.

Long term, it seems to me that the Judges need to be a bit more hardnosed if the idea of jurisprudence is to decide cases on the basis of the Law, that is to say on an analysis of the facts within a clearly understood framework of rules and precedents rather than – “who do we feel most sorry for today”. Or is it just me? Because if cases are to be decided on the basis of “who is making me cry” then surely that’s the end of Jurisprudence. What’s the use of law, if no-one knows what it is?

If there is any good news about this, perhaps it is that both the recent cases of Ames, and P&P, are correctly decided and properly in line with what most Lawyers had always understood the Law to be. Each of them have now corrected the Bad Law of their respective Hard Cases.

Let’s hope that’s the case. Because otherwise we may be better off to stop bothering the Courts for Justice, and just toss a coin instead? Do you feel lucky? – song link here

And please remember, do call me or Louise here at AtkinsonNotary whenever you have business documentation for foreign countries. Our number, 0113 8160116, and emails to notary@atkinsonnotary.com. Website http://www.atkinsonnotary.com

Probate Fees Consulting. How Much Would You Like To Pay?

Probate Fees Consulting. How Much Would You Like To Pay?

So last week your bag of bits from the shop cost £430.00. Round you go again to the shops this week for another bag of bits. “We’ve changed the price this week, it’s £40,000.00 – is that OK?”

Really? Seems a little steep.

Yes, it’s the Government’s Probate fees consultation.

Have you heard about it: is it just me living a sheltered life or has the media ignored it? I honestly thought it was a joke – the internet is full of lies after all. But no.

Seems that the Court system is going bust on present projections of costs against fees, and Probate fees are the soft target. Never mind that actually, according to the Law Society, the present level of fees for Probates “fully covers” the costs of the Probate registry.

So yes, How does a £40,000.00 Probate fee sound? Up from £430? Admittedly the worst case, but, if a Husband who owns property worth over £2million leaves it all to his wife, at present she will receive £2 million, or the property title, tax free, after paying £215.00 to the Probate registry.

If these proposals go through, she would receive the £2 million tax free, but have to pay £20,000.00 for the Probate fee. There is no extra work to be done by the Probate Registry, no pretence is made that this is so. Simply the Government says, the Courts need this money.

If the £2million property is the family home, and she hasn’t got £20,000.00 to pay to the Probate Registry just after her husband has died, she can jolly well sell the place. Imagine the cheek of her, not wanting to move out of a place full of memories of her recently deceased husband. Come on old lady, the Courts need the brass.

Of course all this stress and upheaval may kill her. Excellent. A house that is far too big for an old lady is back on the market and of course, if she is dead, but now with an estate worth over £2million, that’s another £20,000.00 for the courts. Before inheritance tax, obviously. Just gets better and better.

Given that it was a central tenet of Karl Marx’s social ideal, that inheritance down the generations would become impossible when there is no private wealth, does it seem odd that the present proposals come from a Tory Government?

I do have one thought from a Notarial viewpoint. Imagine the same couple, with £2 million assets in England, but in joint names. Now, when Husband dies, there is no need to get a grant of Probate. £20,000.00 saved.

But, hang on, imagine Husband has a holiday flat or time-share in Turkey in his own name. Worth £10,000.00. And he has £10,000.00 worth of South African Rand in his foreign Bank account. How is the widow going to get those assets worth £20,000.00?

It’s not too hard, the Turks and the South Africans will send me the money, if I prepare the necessary certificates together with an English Grant of Probate.

That Grant of Probate costs £215.00 to get today. Oh, crikey. Next year it will cost £20,000.00 if the proposals go through. Just to get £20,000.00. She can’t just walk away, there are likely to be penalties from Turkey if she doesn’t sort it out. Bit of a problem.

The Official consultation ends after this month so if you have any opinions, get them in. Here is a link https://consult.justice.gov.uk/digital-communications/fee-proposals-for-grants-of-probate

Some might say, if you don’t like these proposals, but do think that the Courts system should not be allowed to go bust, then what is your alternative? OK, you have rather got me there, I do admit. Good job I’m not the Government.

Take it away Johnny Cash AFTER TAX

As ever, Please do contact me and Louise whenever you need Notarial certification or Legalisation – at http://www.atkinsonnotary.com or phone me on 0113 816 0116 (internationally 0044 113 8160116)

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.