From Fish Fingers to Fortune

Charity Wins in Unusual Will Case

A recent High Court case involving a Will written by hand on the back of two food boxes (one that had contained Young’s frozen fish and the other Mr Kipling’s mince pies) has resulted in a significant windfall for a charitable organisation. This unusual case highlights the importance of clear testamentary intentions and the potential pitfalls of unconventional Will writing.

The Case of the Food Box Will

The estate of Malcolm Chenery, the deceased, included a three-bedroomed semi, jewellery, cash and an extensive collection of ornaments and pottery. He wrote his Will, shortly before his suicide in 2021, on the back of two food boxes, leaving his entire estate, valued at £180,000, to Diabetes UK. He had a strained family relationship with his sisters and niece and excluded them from any inheritance.

This unusual choice of writing material prompted questions about the Will’s validity. This concern was further compounded because Mr Chenery had written the Will in capital letters. Furthermore, only the second page of the two-page handwritten ‘document’ had been witnessed by his neighbours.

What Makes a Will Valid?

In England and Wales, a valid Will must comply with section 9 of the Wills Act 1837 to qualify. It must be:

• In writing
• Signed by the person (over 18) whose will it is (known as the testator)
• It must be clear that the individual wants this document to be the official instruction for what happens to their belongings after they die.
• Witnessed by two people in front of the individual

High Court Decision

In this case, Diabetes UK’s claim was challenged because the informal handwritten Will was spread across two separate pieces of packaging. The details could not automatically be read as the same document.

Nevertheless, various family members supported Mr Chenery’s bequest, explaining that diabetes ran in the family. According to Diabetes UK’s barrister Sam Chandler, “the principal issue for the court to consider” was whether the two pieces of cardboard “can be admitted in solemn form to probate.”

The court upheld Mr. Chenery’s wishes, as he clearly intended the writing on the food boxes to be his Will. The fact that both pages were written with the same pen supported this, suggesting they were written together.

Consequently, acknowledging she was “satisfied that the two documents should be admitted in solemn form to probate as the last Will of the deceased”, Judge Katherine McQuail ruled that the Will was valid.

The Risks of Unconventional Wills

This case shows that even though the court upheld Mr. Chenery’s wishes, writing your Will in an unconventional way can cause problems. It can lead to more scrutiny, delays in estate distribution, and extra costs.

Our Advice

Preparing and executing a homemade, handwritten Will poses a genuine risk of challenge. If the Will is ruled invalid, an earlier will can be admitted to probate. Alternatively, if no earlier Will exists, the estate is administered according to intestacy rules.

Furthermore, there could be unintentional financial ramifications, from unnecessary inheritance tax liabilities to costly litigation. Perhaps most importantly, the estate risks being distributed contrary to the testator’s wishes. However, taking specialist legal advice when making a Will can help prevent the problems of homemade, handwritten, or DIY Wills.

If you have any questions about making a Will or any issues we’ve raised here, please get in touch. We’re here to help.

Is a Will Trust Right for You?

Protecting Your Family and Legacy

Planning for the future can be daunting, especially concerning your loved ones. How can you ensure they are provided for after you’re gone? Establishing a Will trust is becoming increasingly popular, but is it the right choice for you?

What is a Will Trust?

A Will trust functions as a set of specific instructions within your Will. It allows you to designate particular assets, such as your family home, and outline precisely how you want your trustees to manage and distribute them after your death.

Benefits of a Will Trust

1. Safeguard Your Legacy

A Will trust ensures that your trustees manage your assets according to your wishes, even if your surviving partner remarries or faces financial difficulties. For example, if you have young children, a Will trust can protect their inheritance should your partner’s circumstances change.

2. Inheritance Tax Planning

Inheritance tax can significantly diminish your family’s inheritance. For instance, a couple with a valuable estate can use a Will trust to ensure that their share of the assets passes into the trust when the first partner dies. This can utilise both partners’ inheritance tax allowances, reducing the overall tax burden on the estate and potentially saving significant amounts for beneficiaries. 

3. Protect Vulnerable Beneficiaries

If you have young children or beneficiaries with disabilities, a Will trust allows you to safeguard their inheritance. Parents of a child with special needs, for instance, could set up a trust to manage their child’s inheritance, ensuring access to necessary funds for care and well-being throughout their life while preventing exploitation or poor financial decisions. 

4. Speed-Up Probate

Probate can be lengthy and stressful for grieving families. Suppose a couple’s main asset is their home, held within a Will trust. In that case, the surviving partner may, depending on the circumstances, avoid the delays and costs associated with probate, allowing them to remain on the property without disruption. This is especially important when dealing with complex estates or when beneficiaries require immediate access to funds.

Potential Drawbacks

1. Complexity

Establishing and managing a trust can be complex and requires professional guidance. The trust must be correctly drafted within the will, and it’s essential to understand the legal and administrative implications. Mistakes in drafting or managing the trust can lead to unintended consequences.

2. Potential for Disputes

Mistakes and ambiguity can cause issues. Clear communication and careful planning are crucial. Misunderstandings or disagreements among trustees or beneficiaries can lead to complications and potentially costly legal battles. This is where specialist legal and financial advice is essential.

3. Cost

Establishing and managing a trust involves legal fees. It’s essential to weigh these costs against the potential benefits to determine if a trust is right for you.

Trusts involving Property 

It’s important to note that the specifics of your situation matter significantly. Whether probate is required depends on how you own your property and the wording of your Will trust.

Joint Tenancy

If you own your property as joint tenants, the surviving partner automatically inherits the entire property due to the right of survivorship. Probate may not be necessary for the property itself, but it might be required for other assets in the deceased’s estate. For example, if a couple owns their home as joint tenants and one partner dies, the surviving partner automatically becomes the sole owner. However, if the deceased partner also had significant savings in their name alone, probate would be needed to deal with those assets.

The Land Registry should also be updated to reflect the names of the trustees and the surviving co-owner on the title. Ultimately, this will simplify the process when the life tenant passes away, allowing the trustees to control those assets without relying on another grant of probate.

Tenants in Common

If you own your property as tenants in common, each of you owns a defined share. When the first ‘tenant’ dies, the Will trust holds the deceased’s share. Here, probate is usually required to deal with the deceased’s share of the property. For instance, if a couple owns their home as tenants in common and one partner dies, their share will pass into the Will trust. The trustees must go through probate to formally transfer that share to the trust, even though the surviving partner may continue to live in the property.

Key Questions to Consider 

What are your long-term goals? What do you hope to achieve with a Will trust?

How is your property owned? Is it joint tenancy or tenants in common?

Who will be your trustees? Choose reliable individuals or professionals.

What are the trust’s terms? Understand the conditions for distributing assets and terminating the trust. 

Our Advice

Deciding whether a Will trust is right for you is a significant step. Our expert Wills, Trusts, and Probate team can guide you through the process, ensuring your wishes are protected and your loved ones are cared for. Contact us to learn more. We’re here to help.

Lack of Capacity and Undue Influence in Oliver v Oliver

Family Feud Leads to Overturned Will

A recent decision in the High Court case, Oliver v Oliver [2024] EWHC 2289 (Ch), highlights the complexities of inheritance disputes, the critical importance of testamentary capacity, and the absence of undue influence, even when a solicitor drafts a Will and a medical professional witnesses it.

Background of the Case

The case centred on the estate of the late William Oliver, who had made three wills during his lifetime. Two of his five children, Jane and Kevin, made competing claims.

William and his wife, June, made mirror Wills in 1985 and 2009, broadly dividing their estate equally between their five children. June passed away in 2014. However, in 2015, William made a new Will that changed this distribution.

This new Will placed the entire estate into a trust and appointed his eldest son, Rodney, as the sole trustee. Rodney had complete discretion in managing the estate, and the other children did not receive any direct inheritance under this Will. A solicitor drafted this new Will, and a medical professional witnessed it.

More than six years after William’s death, the executors had not distributed the estate, and none of the children had received an inheritance. This inaction led to two significant legal claims.

The Claims

Jane made the first claim. She challenged the validity of the 2015 Will and argued that the executors should use the 2009 Will to apply for probate. She claimed that William lacked the mental capacity to execute the 2015 Will and that Rodney, her eldest brother who had been living with him in the intervening years, unduly influenced him.

Jane’s argument was based on two elements of the Banks v Goodfellow test for testamentary capacity. Essentially, a person making a Will must know who their dependents are and know the individuals they are morally or legally obligated to include as beneficiaries. Jane maintained that her father’s cognitive issues, which were exacerbated by his ill health, distorted his perspective, impairing his judgment regarding the needs of his other children.

The second claim involved Jane and her brother, Kevin. Their claim was brought under the Inheritance (Provision for Family and Dependants) Act 1975. They argued that the 2015 Will did not make reasonable financial provision for them as adult children. However, this claim relied on the 2015 Will being held valid, so it would only come into play if their first challenge were unsuccessful.

The Court’s Decision

The High Court ruled in favour of Jane and invalidated the 2015 Will. It is worth noting that Rodney did not actively defend the claim, so Jane’s arguments went unchallenged. The judge’s decision was reached without any counter-arguments from Rodney, who did not engage in the proceedings by defending the claim against the validity of the 2015 Will. This lack of defence likely significantly affected the case’s outcome.

The judge determined that despite the seemingly robust process of drafting and witnessing the will, sufficient evidence suggested William Oliver did not fully understand its contents and the implications of his actions. The court also found that Rodney played a significant role in creating the 2015 Will, raising concerns about the possibility of undue influence.

Ultimately, declaring the 2015 Will invalid, the judge granted probate on the 2009 Will: this nullified Jane and Kevin’s Inheritance Act claim.

Why is this case important?

Oliver v Oliver highlights several crucial points regarding contested Wills:

1. Testamentary Capacity

Even with professional drafting and witnessing, a will can be challenged if the person making it lacks the mental capacity to do so. This case emphasises the need to thoroughly assess testamentary capacity, especially when cognitive decline is a concern.

2. Undue Influence

The court’s finding of undue influence demonstrates that such pressure need not be overt or forceful. Subtle manipulation or coercion can invalidate a Will, particularly when someone targets a vulnerable individual.

3. Medical Evidence

Expert medical testimony was pivotal in this case. If you have concerns about a loved one’s capacity to make or change a will, seeking professional medical advice and documentation is essential.

4. Uncontested Claims

The fact that Rodney did not contest the claim highlights the importance of actively participating in legal proceedings. Had Rodney presented a defence, the outcome might have been different. This underscores the need for legal representation and active engagement in inheritance disputes.

5. Timing

It is advisable to seek professional advice early, gather evidence, and promptly assess the merits of a claim. In this case, Jane and Kevin brought their claims six years after William’s death, which complicated evidence and witness gathering and ultimately made the process more time-consuming and costly.

Our Advice

Oliver v Oliver is a stark reminder of the importance of careful estate planning. To minimise the risk of disputes and ensure your executors follow your wishes, you should:

• Regularly review and update your Will, as changes in your circumstances may warrant amendments.
• Keep a detailed record of your assets, including any discussions regarding your Will.
• Choose your executors carefully. Appoint trustworthy individuals who will act according to your wishes.

Don’t leave your loved ones vulnerable to Will disputes. Our specialist lawyers have years of experience advising clients about inheritance disputes, wills, trusts and probate. If you have concerns about a Will’s validity or believe undue influence may have been involved, please contact us. We’re here to help.

Need a Notary? Understanding This Essential Legal Service

Have you ever wondered what a notary public actually does? You may be surprised to learn that it involves more than just stamps and signatures! Notaries are highly trained legal professionals who provide peace of mind by verifying your documents and ensuring they meet legal requirements wherever you need them.

Who Needs a Notary?

Individuals and businesses require notarial services more often than you might think. Here are some examples:

Notary Services for Individuals

Are you planning a wedding abroad? Are you purchasing property overseas? We assist individuals with various personal matters, including certifying copies of passports and academic transcripts and witnessing signatures on powers of attorney and Wills.

Notary Services for Businesses

Whether you are a small business exporting goods or a large corporation involved in international transactions, notaries can help ensure your dealings run smoothly. They verify company documents, certify the origin of goods, and prepare documents for complex trade agreements.

Navigating the Complexities of International Law

In an increasingly interconnected world, documents frequently require cross-border validity. We understand the intricacies of international legal frameworks and ensure clients execute documents correctly for use in various jurisdictions. This includes:

• Guiding clients through the intricacies of obtaining apostilles from the Foreign, Commonwealth & Development Office (FCDO) and embassy legalisation, ensuring documents meet the specific requirements of foreign governments and legal systems.

• Responding (appropriately) to significantly varied notarial practices across legal systems. Notaries are adept at researching and applying the specific notarial requirements for different foreign jurisdictions, ensuring compliance and preventing potential legal complications.

Beyond Witnessing Signatures

While witnessing signatures and affixing notarial seals remain fundamental to our notarial practice, we provide a broader scope of services. We:

• Draft bespoke notarial certificates that confirm the authenticity of documents and the identity of the signatories, providing an irrefutable record of the notarial act.

• Provide specialist legal advice on various notarial matters, helping you understand the implications of different documents and navigate the complexities of international legal requirements with confidence.

• Maintain impeccable records and secure notarial register, meticulously recording all notarial acts to provide a comprehensive and auditable trail. 

Commitment to Professional Excellence

We are committed to professional excellence and continuous development. We stay current with legal developments to provide the most accurate and effective service. 

How Can We Help?

Whether you’re an individual planning a trip abroad or a business with international dealings, our experienced notaries are here to help. If you need any information or advice, please contact us today or click here for an instant online quotation.

What to Do When a Bank Account is Frozen After a Death

Losing a loved one is always challenging, and dealing with their affairs afterwards can add to the stress.  Many people encounter a common problem: the deceased’s bank accounts are frozen, even with a financial Lasting Power of Attorney (LPA) in place. This can be challenging when you face immediate costs like the funeral.

Why Accounts are Frozen

Banks typically freeze accounts as soon as they learn of a death. This is standard practice, regardless of an LPA. The LPA ends when the person dies, so the bank account essentially enters a holding pattern until the will’s executor obtains a Grant of Probate.

Locate the Will

To proceed with the deceased’s affairs, you’ll need to locate their Will if they had one. It might be stored with a solicitor, bank, or at home. The Will names the executor and provides instructions for distributing the estate, essential for obtaining a Grant of Probate.

Applying for Probate

Probate is the legal process by which the court authorises the executor of a Will to manage and distribute the deceased’s assets according to their wishes. It is the court’s seal of approval for the Will and the executor’s right to act. After submitting an application, a grant of probate or letters of administration usually takes up to 16 weeks. However, the process can take longer without a will, inheritance disputes, or complex estate.

Do You Need Probate?

Probate isn’t always necessary. It depends on the type and value of the assets. You’ll likely need it for:

• Property and land owned solely by the deceased.
• Banks invariably require probate for more significant sums.
• Investments, including stocks and shares, usually require probate.
• Some life insurance policies (not written in trust).

When Probate Is Not Needed

• Small estates under £5,000.
• Jointly owned assets where ownership passes automatically to the survivor.
• Assets in trust are handled by trustees outside of probate.

First Things First: The Death Certificate

Before you can even consider probate or accessing funds, you’ll need a death certificate. Here’s how that process works:

1. In England and Wales, a medical examiner reviews the circumstances of the death to ensure accuracy. This relatively new process aims to improve scrutiny.
2. Once the medical examiner is satisfied, you can register the death. You must do this within 5 days in England and 8 days in Scotland.
3. Once the death is registered, you will receive a death certificate. This official document confirms the death and is essential for various legal and administrative tasks.

Tell Us Once: Simplifying Notifications

The UK government offers a helpful service called “Tell Us Once.”  This allows you to notify multiple government departments about a death with a single notification. These include HMRC for tax affairs, DWP for benefits, your local council, the Passport Office, and the DVLA. The registrar usually introduces this service when you register the death, and they may even help you complete the process or provide a unique reference number for online or phone access.

Covering Funeral Costs

With a frozen account, paying for the funeral can be tricky. Here are some options:

1. If the deceased had a pre-paid funeral plan, it would usually cover most, if not all, expenses.
2. Family and friends may help with the costs.
3. Some funeral directors offer payment plans or may agree to wait for payment until after probate is granted.
4. If you apply, the bank often releases funds to cover funeral expenses.

Example: Mrs. Smith

Imagine Mrs Smith, an elderly care home resident, passes away. She had a valid will, a valid LPA, and £50,000 in savings. However, her bank account is frozen upon her death. Her executor, her daughter Sarah, must pay for the funeral and apply for probate.

What Can Sarah Do?

1. Obtain the Death Certificate: First, Sarah must register her mother’s death and obtain the certificate.
2. Use Tell Us Once: This service will help Sarah notify all relevant government agencies.
3. Contact the Bank: Sarah should inform them of her mother’s death and inquire about releasing funds for the funeral.
4. Contact the Funeral Director: Sarah should discuss payment options, including possibly delaying payment until after probate is granted.
5. Instruct a Solicitor: While Sarah can apply for probate herself (there’s helpful guidance on the government) seeking advice from a specialist lawyer can be immensely helpful during a difficult time. A probate lawyer will help her through the process, assist with the probate application, and advise on accessing funds. Legal fees are regulated by the Solicitors Regulation Authority (SRA) and should align with the size and complexity of the estate.

Our Advice

Our specialist team has many years of experience helping bereaved people. Please contact us for advice or information about probate, Intestacy, property matters, or inheritance disputes. We’re here to help.

Key Takeaways from the Autumn Budget for Your Estate

The Chancellor unveiled some significant surprises in the Autumn Budget 2024, particularly for those engaged in estate planning. While Inheritance Tax (IHT) thresholds remain frozen, substantial changes to pensions and Capital Gains Tax (CGT) could dramatically impact your estate planning. Here, we look at the key takeaways from the Budget and examine what measures you can adopt to help you safeguard your assets and protect your loved ones.

Wills, Trusts, and Estates: Understanding the Continued IHT Freeze

The government’s decision to maintain the nil-rate band at £325,000 and the residence nil-rate band at £175,000 per person has significant implications. As property values continue to rise, more estates are likely to exceed the current thresholds, causing a larger portion of the estate to be subject to IHT. This is particularly relevant for those living in areas with high property prices, where even modest family homes can exceed the limits.

It’s worth noting that married couples and those in civil partnerships have a significant advantage regarding IHT. Transfers between spouses or civil partners are exempt from IHT, meaning the surviving partner inherits the entire estate tax-free. Furthermore, the survivor can inherit any unused portion of their deceased partner’s nil-rate band, potentially doubling their IHT allowance.

Key Changes: Property

The budget increased the SDLT surcharge on second homes and buy-to-let properties from 3% to 5%, effective 31 October 2024. This measure aims to curb investment in the property market and make homeownership more accessible for first-time buyers.  If you’re considering downsizing or investing in property, it’s crucial to factor in this increased surcharge and seek advice on structuring your purchase to minimise your tax liability.

Key Changes: Pensions

The budget brought about a major shift in how pensions are considered within the context of Inheritance Tax (IHT). Starting from April 2027, the value of your pension pot will be included in your estate for IHT purposes. This means that if the total value of your estate, including your pension, exceeds the IHT threshold, your beneficiaries could face a substantial tax bill.

Here’s a breakdown of the fundamental changes and their potential implications:

• Inclusion in IHT calculation. From April 2027, the value of your pension pot at the time of your death will be added to your other assets (property, investments, etc.) to determine the overall value of your estate for IHT purposes.
• Potential loss of Residence Nil-Rate Band (RNRB). If the inclusion of your pension pushes your estate value over £2 million, you may start to lose the RNRB, which can provide up to £175,000 of IHT relief per person. This could result in a significant increase in your IHT liability.
• Combined IHT and Income Tax charges. In addition to IHT, your beneficiaries may also face Income Tax charges on inherited pension funds, depending on their circumstances and how they access the funds. This combined tax burden could reach up to 67% in some cases.

Example: Before Pension Inclusion

Pension – Scenario 1: 2024 

John and Anne are married, and their estate comprises:

• £1 million in investments
• £0.9 million house
• £0.8 million pension pot

Total estate value (excluding pension) = £1.9 million

IHT Applicable = £1.9 million – £650,000 (combined nil-rate band for a couple) – £350,000 (combined residence nil-rate band) = £0.9 million taxable

Inheritance Tax (at 40%) = £360,000

Currently, the pension is outside of the IHT calculation

Example: After Pension Inclusion

Pension – Scenario 2

John and Anne are married, and their estate comprises:

• £1 million in investments
• £0.9 million house
• £0.8 million pension pot

Total estate value (including pension) = £2.7 million

IHT RNRB = £2.7 million exceeds the £2 million threshold by £700,000, so RNRB is lost, and an additional £350,000 of the estate is taxed at 40%.

IHT Applicable = £2.7 million – £650,000 (combined nil-rate band for a couple) = £2,050,000 taxable

Inheritance Tax Payable (at 40%) = £820,000

Here, including the pension in the IHT calculation from 2027 onwards results in an additional £460,000 in IHT payable, highlighting the significant potential impact these changes can have.

Key Changes: Capital Gains Tax (CGT)

The Autumn Budget also increased CGT rates for most individuals. Effective immediately, as of 30 October 2024, the lower rate has risen from 10% to 18%, and the higher rate has risen from 20% to 24%.

While the main rates of CGT were increased, the residential property surcharge was not. This now brings tax on assets like shares and managed funds in line with property gains. The capital gains annual allowances, which remain at £3,000 per person and £1,500 for trusts, remained unchanged.

Understanding how these increased CGT rates might impact your financial and estate planning is crucial. For example: 

• Disposing of Assets. If you’re considering selling assets that would incur a capital gain, you must factor in the higher CGT rates and assess the overall tax implications.
• Timing of Disposals. You should review the timing of any planned asset disposals, considering the potential benefits of realising gains before further increases in CGT rates.
• Interaction with IHT. While disposing of assets during your lifetime may trigger CGT, it can also reduce the value of your estate for IHT purposes. It’s essential t

Proactive Steps to Take

While the lack of changes to IHT might seem discouraging, the significant changes to pensions and CGT highlight the importance of proactive estate planning. Here are some key strategies to consider:

1. Utilise Your Annual Gifting Allowance

You can gift up to £3,000 each tax year free of IHT, and any unused allowance can be carried forward for one year. Making small, regular gifts can significantly reduce your estate over time.

2. Consider Larger Lifetime Gifts

Gifts exceeding the annual exemption may be subject to IHT if you die within seven years. However, they can effectively reduce the value of your estate in the long term. For married couples and civil partners, remember that transfers between spouses/civil partners are IHT-free.  Utilising the transferable nil-rate band can be vital for estate planning. Combining this with lifetime gifting strategies can substantially lower the potential IHT liability on the surviving partner’s estate.

3. Explore the Benefits of Trusts

Trusts can be valuable tools for protecting assets and managing IHT liabilities. They allow you to control how your assets are distributed and can offer tax advantages depending on the type of trust used.

4. Review Your Life Insurance Policies

Life insurance can provide a lump sum to cover potential IHT liabilities, ensuring your loved ones inherit your assets without a significant tax burden.

5. Don’t Forget Charitable Giving

Leaving a portion of your estate to charity can reduce your IHT liability. This approach supports causes you care about and helps mitigate tax implications.

6. Review Your Pension Beneficiary Designations

Given the changes to how pensions are treated for IHT, ensuring that your pension scheme has up-to-date beneficiary nominations to express your wishes regarding pension distribution on your death and potentially pay them into trust for IHT planning for future generations is crucial.

7. Consider Alternative Investment Options

Explore investment vehicles that offer more favourable tax treatment for your beneficiaries. This is especially important considering the changes to CGT rates and the inclusion of pensions in IHT calculations.

8. Gift from Surplus (Pension) Income

One often overlooked strategy is gifting from your surplus income. This would involve drawing an income from your pension and gifting any amount exceeding your living expenses.  This type of gifting is not subject to the 7-year rule, meaning it immediately falls outside your estate for IHT purposes.

While you may need to pay income tax on the pension income, this strategy can reduce your estate’s value for IHT and potentially mitigate the impact of the upcoming pension changes. However, seeking professional advice is essential to ensure this strategy aligns with your circumstances and financial goals.

Our Advice

Estate planning can be complex. Moreover,  the recent budget changes have added further layers of complexity. So, it’s better to plan and not wait until it’s too late. Our team of specialist lawyers can provide expert advice tailored to your circumstances. We can help you navigate these changes, understand your options, and develop a robust estate plan tailored to your circumstances.

Please don’t hesitate to get in touch if you need further advice or information. We’re here to help.

Deathbed Drama: Will Revoked, Fortune Up for Grabs

Torn-Up Will Revoked? The recent High Court case of Carry Keats, a 92-year-old woman who tore up her Will on her deathbed, highlights the legal requirements for validly revoking a Will in England and Wales. This case is a stark reminder of the importance of clear intentions and testamentary capacity when making or changing end-of-life decisions.

Carry Keats: The Facts of the Case

Carry Keats, who owned a valuable caravan site, had a 2020 Will that left most of her £800,000 estate to her cousins. However, reports indicate she fell out with them in her final weeks and decided to change it.  In January 2022, she summoned her solicitor to her hospital bedside and, with the solicitor’s assistance, partially tore up the document, intending to revoke it.

Unfortunately, Ms Keats lacked the strength to destroy the Will completely and asked her solicitor, Hafwen Webb, to finish the job. Shortly after, she lost capacity due to the administration of painkillers. This led to a legal dispute between her cousins (beneficiaries under her 2020 Will) and her younger sister, who could inherit the entire estate under intestacy rules if the court deemed the Will revoked. With an estate worth £800,000, this case raises a critical legal question: can destroying a Will genuinely nullify its effect?

Legal Implications

1. Intention to Revoke

Section 20 of the Wills Act of 1837 states that you can revoke a Will by “burning, tearing, or otherwise destroying” it with the intention of doing so.

2. Testamentary Capacity

To validly revoke a Will, an individual must possess testamentary capacity, meaning they understand the nature of their act and its effects.

Awaiting the High Court’s Decision

The High Court is currently considering whether Carry Keats validly revoked her Will.  This case hinges on her intention and mental capacity. The court heard testimony from her solicitor, who described Carry’s desire to revoke her Will and then tear it, although she could not entirely destroy it. He then completed the act at her request.

However, Ms Keats’ cousins argued that due to her illness, she lacked the mental capacity to make this decision. The court must now determine whether Ms Keats intended to revoke the Will and had the testamentary capacity to do so when she instructed her solicitor to tear it up. This decision has significant implications and could set a precedent for future cases. We await the judgment and will provide an update.

Key Takeaways

Above all else, this case underlines the importance of keeping your Will up-to-date to ensure it reflects your wishes. Here are a few additional points to bear in mind:

1. Timing: Don’t put off making changes or making your Will. Life is unpredictable, and acting sooner rather than later is crucial.

2. Security: Store your Will securely but ensure someone you trust knows where to find it.

3. Keep Records of Your Wishes: It’s helpful to record your wishes and any changes you make so your loved ones know your intentions.

4. Talk to Your Loved Ones: Open communication with family and friends about your wishes can help prevent misunderstandings and challenges after you’re gone.

5. Review Your Will Regularly: Reviewing your Will might seem like a lot of work, but it matters, especially after significant life events like marriage, divorce, or the birth of a child. 

Our Advice

This case demonstrates the complexities that can arise even in seemingly straightforward situations. To avoid potential disputes, it is vital to seek specialist legal advice on Will drafting, execution, and revocation.

If you have any questions about making a will, estate planning, or the issues raised in this case, please do not hesitate to contact us. We can provide expert advice and guidance tailored to your specific circumstances.

Can Regular Gifts Really Lower Your Inheritance Tax Bill?

Inheritance Tax (IHT) is a critical consideration in estate planning. While established strategies like utilising the nil-rate band and potentially exempt transfers (PETs) are widely employed, a lesser-known yet highly effective approach involves gifting from surplus income. This method presents a unique opportunity to manage IHT liability while proactively providing beneficiaries with financial support.

Advantages of Income-Based Gifting

PETs are subject to the 7-year rule and may become chargeable to IHT if the individual (known as the donor) passes away within that period. However, gifts made from income are immediately exempt. This distinction offers a compelling advantage. Regular gifts enable individuals to reduce their taxable estate and provide timely financial assistance to loved ones. By consistently gifting a portion of surplus income, a gradual reduction in the value of the estate can be achieved, culminating in substantial IHT savings over time.

Conditions for IHT Exemption

To make the most of this exemption, it’s crucial to understand (and meet) HMRC’s specific conditions:

1. Genuine Source of Income

The gifts must come from your regular income stream, including income such as your salary, pension, or dividends. Importantly, gifts from capital assets, like savings or property sales, are not eligible. They fall under different IHT rules.

2. Established Pattern of Giving

The gifts must appear as ‘normal expenditure’. This means you should make them regularly and consistently. Sporadic or one-off gifts may not qualify for this exemption.

3. Maintaining Your Lifestyle

After making these gifts, you should be able to maintain your current lifestyle comfortably. Maintaining financial stability after making the gifts is paramount to ensuring the exemption remains valid.

Optimising the Benefits

Utilising this strategy is inherently flexible. For example, individuals may establish a pattern of regular gifts to children or grandchildren to assist with educational expenses, property acquisitions, or ongoing financial support. Alternatively, contributions to a beneficiary’s pension scheme can be valuable, providing a long-term investment in a loved one’s future.

Furthermore, utilising surplus income to fund life insurance policies written in trust presents another effective strategy. This approach enables the provision of a substantial lump sum to beneficiaries upon the donor’s death while ensuring the proceeds remain outside of the estate for IHT purposes. 

Meticulous Record-Keeping

Comprehensive records of income and expenditure must be kept. These records indicate that the gifts originated from surplus income and did not impact the donor’s standard of living. This documentation is invaluable in substantiating the claim for exemption should the estate be subject to IHT scrutiny.

Our Advice

While gifting from income may seem straightforward, navigating the complexities of IHT planning can prove challenging. Seeking professional advice from an experienced lawyer and/or tax advisor is highly recommended. If you need advice or further information about gifting or other estate planning matters, such as wills or trusts, please don’t hesitate to contact us. We’re here to help.

The Importance of Time When Challenging the Validity of a Will

Inheritance disputes are, unfortunately, all too common. If you believe a Will is invalid, you can challenge it in court. However, acting quickly is crucial. While no strict deadline exists for contesting a Will, delaying your challenge could seriously harm your chances of success.

Grounds for Contesting a Will

Unlike many other countries, the law in England and Wales doesn’t dictate who must inherit (forced heirship) after you die. Therefore, you can make a Will leaving your property and other assets (your estate) to any person, charity, or other organisation you wish to if you meet specific requirements under the Inheritance (Provisions for Family and Dependants) Act 1975 (often called the Inheritance Act.

Valid Will

To make a valid Will, you must be 18 or older. The Will must be in writing, and you must sign it in the presence of two witnesses, who must also sign in your presence.

Several factors can invalidate a Will. These include:

1. Lack of testamentary capacity
2. Undue influence or coercion
3. Lack of knowledge or approval
4. A poorly prepared or incorrectly executed document
5. Fraud or Forgery

Inheritance Act

Even if a Will is valid, specific individuals may still have the right to challenge it under the Inheritance (Provisions for Family and Dependants) Act 1975 (often called the Inheritance Act). This act limits your freedom to some degree by giving certain people the right to challenge your Will. These people include your spouse, civil partner, former spouse, children, stepchildren, and anyone you financially supported. A claim under the Inheritance Act 1975 must be submitted to the court within six months from the date of a grant of representation or letters of administration (if there isn’t a Will).

Legal Time Limits & Doctrine of Laches

There is no specific time limit for challenging the validity of a Will, but it’s important not to wait too long. The legal principle of “laches” applies, meaning that if you unreasonably delay acting and this puts the other party at a disadvantage, the court may refuse to hear your case. This means it’s up to the defendant to prove that the delay has caused them a significant disadvantage.

James v Scudamore [2023] EWHC 996 (Ch): A Cautionary Tale

Background

This case involved a dispute over the validity of a codicil (an amendment to a Will) made by the deceased, Ivor Percy James, in 2002. The codicil benefitted his second wife, Christine.  The claimant was Martyn James, one of the deceased’s sons from his first marriage.

Martyn challenged a change to his father’s Will that benefited his stepmother. He claimed it wasn’t correctly signed and witnessed, raising questions about his father’s testamentary capacity and whether undue influence was exerted.

Key Issue

However, by the time the claim was filed, both Christine and one of the attesting witnesses to the codicil had died. The court was faced with deciding whether the claimant’s delay in bringing the claim (he first sought legal advice in 2013 but didn’t file a claim until 2020) barred him from pursuing the case.

Outcome

The court held that the claim was barred by the “probate doctrine of laches,” a legal principle that prevents a claim from proceeding if there has been an unreasonable delay in bringing it and that delay has prejudiced the defendant.

Significance

This case is significant because it highlights the importance of acting promptly in probate disputes.  It serves as a warning that delays can have serious consequences, potentially leading to claims being dismissed even if they have merit. The case also underscores the importance of seeking legal advice as soon as possible when there are concerns about the validity of a Will or codicil. 

The Importance of Acting Quickly

This may sound unfair; however, consider the consequences of delay.  Crucial evidence can disappear. Memories fade, documents get lost, and witnesses can become impossible to find.  Moreover, distributing the estate makes it much harder to recover those assets if you successfully challenge the Will later.

It’s also essential to think about the impact on the beneficiaries. They may have already made significant life changes based on their inheritance, so waiting to challenge the Will can create real hardship for them. Finally, remember that taking prompt action shows your commitment to your claim and strengthens your position from the outset. 

Our Advice

By law, there is no strict time limit for bringing a claim to challenge the validity of a Will. However, acting as quickly as possible is essential, as bringing a claim can become more challenging if the estate has been distributed.

If you have concerns about a Will’s validity, gather any relevant documentation, such as previous wills or medical records, and keep detailed notes of your concerns. Please don’t hesitate to contact us for further information or advice. Our specialist team is here to help.

Living Together? Don’t Rely on “Common Law Marriage” Myths

A new poll from the UK’s national will-writing campaign reveals a worrying misconception. Almost two-thirds (64%) of the estimated 3.4 million cohabiting couples in the UK wrongly believe their partner will automatically inherit their estate if they die without a Will. Younger couples are particularly prone to this misunderstanding, highlighting a critical need for greater awareness about unmarried partners’ legal rights (or lack thereof).

The Reality of Intestacy

The myth of “common law marriage” persists, leading many to believe that living together for a certain period grants them the same legal rights as married couples. This isn’t true.  In the UK, if you die without a Will, a situation known as ‘intestacy ‘. The intestacy rules govern the distribution of your estate. These rules prioritise spouses and civil partners. Next on the list are children and other relatives. Unmarried partners, regardless of the length of their relationship or whether they have children, have no automatic inheritance rights.

The Risks for Cohabiting Couples

This lack of legal protection can have severe consequences for cohabiting partners:

1. Loss of Your Home

 The stark reality is that if your deceased partner solely owned the property, other family members could force you to sell it to satisfy their claims or even evict you. Even if you jointly own a property, understanding how you hold it is crucial:

• Beneficial Joint Tenants: This is the most common type of joint ownership, where each of you owns 100% of the property. If one partner dies, the surviving partner automatically inherits the whole property, regardless of what their will says. This is known as the “right of survivorship.” However, this automatic inheritance only applies to the property itself. Other assets, like savings and pensions, are not covered.

• Beneficial Tenants in Common: Couples often use this type of ownership when they have unequal financial stakes in the property. If one partner dies, their share does not automatically pass to the survivor. Instead, their Will dictates the distribution, or the intestacy rules apply if they don’t have a Will. This could leave the surviving partner with a smaller share than expected or even force them to sell the property.

• Warning: It’s essential to be aware that a County Court Judgment (CCJ) against one joint owner can sever the joint tenancy, turning it into a tenancy in common. This eliminates the automatic right of survivorship.

2. Financial Insecurity

The potential loss of your partner’s assets, including savings, investments, and pensions, could leave you in a precarious financial position.  Furthermore, unlike married couples and civil partners, cohabiting couples do not benefit from inheritance tax (IHT) exemptions. This means you could face a substantial inheritance tax bill on your partner’s estate, significantly reducing your inheritance.

3. Complications with Childcare

Decisions about your children’s future can become complex and legally challenging if you are not their legal guardian. Proper planning can avoid this situation. 

4. Secure Your Future

A Will sets out your wishes and ensures your partner is provided after your death. With a Will, you can:

• Ensure Your Partner Inherits. Name them as your beneficiary to prevent them from being left with nothing.

• Protect Your Home. Specify how to divide your property to ensure your partner can remain in the family home.

• Appoint Guardians for Your Children. Gain peace of mind about their future care.

• Minimise Inheritance Tax. Explore options to reduce your tax liability and maximise the inheritance for your loved ones. 

Our Advice

As this recent research shows, there’s a widespread and dangerous misconception about the rights of cohabiting couples. The current legal landscape in the UK places cohabiting couples at a significant disadvantage compared to married couples.  For cohabitees, especially those with children, making a Will is critical. Without one, your rights are limited, and navigating the complexities of property ownership, finances, and childcare can become a minefield if your partner dies.

Please don’t hesitate to contact us today for advice about any issues raised here. We’re here to help.

The Gathering Inheritance Tax Storm

Why Your Will Matters More Than Ever

The financial landscape of inheritance in the UK is on the cusp of change. Whispers of potential reforms to inheritance tax (IHT) are escalating, and the steady rise in contested Wills highlights a growing issue. With a significant proportion of the population depending on inheritances to secure their financial future, the importance of having a meticulously drafted Will has never been more pronounced.

The Growing Prevalence of Contested Wills

Statistics show a worrying trend. An alarming 75% of individuals will likely encounter at least one Will dispute during their lifetime. One factor contributing to this surge is the increasing reliance on inheritances, with one in three individuals depending on them to achieve major financial milestones such as retirement or clearing debts. The stakes are higher than ever before.

Inheritance Tax Reform: What Lies Ahead

Should the government implement IHT reforms, the net value of estates passed on to beneficiaries could be significantly impacted. This, combined with the increasing prevalence of contested Wills, underscores the necessity of a well-structured estate plan.

Any changes to IHT, whether targeting reliefs or raising the tax rates, could necessitate early and thorough estate planning. This proactive approach, which could involve gifting assets during your lifetime or setting up trusts, ensures your intentions are unambiguous, minimises the chance of future disagreements, and gives you a sense of control over your financial legacy.

The complexities of inheritance tax, particularly around gifting, can be challenging to navigate.  Professional guidance from a qualified financial or specialist lawyer can be invaluable in ensuring your estate plan is tax-efficient and aligned with your wishes.

Safeguarding Your Legacy

In this evolving landscape, a meticulously drafted Will is not just important; it’s paramount. It provides legal clarity, minimises the risk of disputes, and offers reassurance to your loved ones during a difficult time.

The intricacies of estate planning and inheritance tax can be daunting. Seeking expert legal advice ensures your Will accurately reflects your intentions and safeguards your legacy for future generations.

Our Advice

Many believe that the potential for IHT reform is real. Coupled with the rise in contested Wills, the importance of taking proactive steps to protect your legacy has never been stronger.

By seeking professional guidance and ensuring your Will is comprehensive and up-to-date, you can navigate these complexities with confidence. Please don’t hesitate to contact us for help and advice with any aspect of making a Will or Estate Planning. We’re here to help.

Unlocking the Power of Will Trusts

Will Trusts are a step beyond standard Wills, offering unique and often powerful benefits. Trusts can provide enhanced control and protection for your assets, potentially reducing inheritance tax and safeguarding your loved ones’ inheritance. This additional layer of control can give you greater peace of mind and ensures that your wishes are carried out even after you’re gone.

Understanding Trusts

So, what is a trust? At its core, a trust is a legal mechanism where one person (the settlor) entrusts assets to another person or group of people (the trustees) to manage on behalf of someone else (the beneficiary).

What is a Will Trust?

A Will Trust is a special provision within your Will that allows you to specify how certain assets (like money or property) will be managed and distributed to your chosen beneficiaries after you pass away.

Who Should Consider a Will Trust?

If you have a clear idea of who you want to inherit your wealth and are comfortable with assets transferring to beneficiaries immediately upon your passing, a well-drafted Will may suffice. In such a scenario, there would be little need to draw up a Trust. However, Will Trusts can be advantageous in various circumstances:

1. Where you need to protect young beneficiaries, a Will Trust can maintain responsible management of your children’s inheritance until they reach adulthood.

2. Suppose you want to safeguard a vulnerable Individual. A Trust can shield the inheritance of beneficiaries with special needs, disabilities, or those susceptible to financial difficulties.

3. Where you or your partner have a complex family dynamic, blended families, second marriages, or situations involving estranged relatives may benefit from the targeted control that a Will Trust offers.

4. While Will Trusts don’t eliminate inheritance tax, they can be incorporated into a broader strategy to reduce its impact.

5. If you have specific wishes for how an asset should be used after your death, a Trust can help ensure those wishes are carried out. For instance, you may want your family business to continue operating under the management of a trusted individual, or you may want your property to be used as a residence for a specific family member.

Considerations When Using Will Trusts

It’s essential to be aware of specific considerations associated with Will Trusts. The role of a trustee is critical, as they are responsible for managing the Trust’s assets and ensuring that the trust is administered following the settlor’s wishes and the law. This role carries significant responsibility, often without any financial compensation.

The laws governing trustees are intricate. Without professional guidance, trustees can inadvertently breach regulations and become personally liable for specific acts of negligence. Administering Will Trusts can be time-consuming, as they have legal and tax implications.

Important Note: Avoiding Care Fees

Be aware that you must refrain from using a Will Trust to avoid paying for care home fees or other necessary support. If a local authority believes you’ve done this, they might assess your fees as if you still had those assets. When an individual intentionally reduces their assets to avoid paying for care, this is known as ‘deprivation of assets.’

Types of Will Trusts

Several types of Will Trusts exist, each designed for a distinct purpose:

1. Discretionary Trust: Trustees can decide how and when to distribute assets to the beneficiaries.

2. Interest in Possession Trust: The beneficiary is entitled to the income generated by the trust assets, but the capital remains under the Trustees’ control.

3. Bare Trust: The beneficiary has an absolute right to the Trust’s income and capital.

4. Life Interest Trust: The beneficiary receives the income from the Trust during their lifetime, with the capital passing to other beneficiaries upon death. 

Plan Ahead

When creating a Will Trust, it’s essential to plan carefully. Choose trustworthy people to be your Trustees. After all, they’ll be responsible for managing your assets. Will Trusts can be complex. However, expert legal advice ensures it’s set up correctly for your situation. Remember, life changes. Marriage, divorce, the birth of a child, or significant changes in financial circumstances can seriously impact a Will. So review your Will Trust regularly to keep it up-to-date.

Our Advice

A Will Trust gives you control over your legacy, even after you’re gone. You decide how your assets are managed, ensuring your loved ones are protected and your wishes are honoured. From safeguarding your children’s future to minimising inheritance tax, a Will Trust can offer powerful benefits for your estate plan.

Please contact us with any questions about Will Trusts, Wills, or estate planning. We’re here to help.

Who Decides What Happens to Your Body After You Die?

Your Body, Their Decision?

Many people mistakenly believe their wishes in a Will are legally binding when it comes to what happens to their body after death. This misunderstanding can lead to unexpected and sometimes painful disputes among surviving family members. While the Law Commission may have started a long overdue review of the “ancient laws” over what happens with a deceased’s remains, the current reality is more complex than many realise.

The Power of a Will

A Will isn’t just a legal document; it’s your voice beyond the grave. While your funeral wishes aren’t legally enforceable, they carry significant weight. Expressing your preferences in a Will helps minimise family conflicts and provides a sense of relief and peace of mind.

No, Will? No Say?

Dying without a Will (intestacy) complicates matters. The law dictates a hierarchy of decision-makers, starting with the spouse or civil partner and then the next of kin. This can lead to disputes, particularly in blended families or strained relationships. However, planning ahead with a Will empowers you to prevent such heartache.

The Legal Framework

The UK has no single law on body ownership after death. Instead, a patchwork of legal principles and case law guides decisions. Here’s the gist:

• No one “owns” a dead body.
• The person responsible for disposal has the right to possession.
• Crematoriums must give ashes to whoever delivered the body for cremation.

Who’s in Charge?

The Executor (if there’s a Will): The executor is not just a legal figure but =someone you trust. An Executor carries out the deceased’s wishes, including funeral arrangements. Though these wishes aren’t legally binding for body disposal, they hold significant moral weight and should be considered. The executor’s role is not just about legality but respecting the deceased’s wishes, making it a crucial part of the decision-making process.

Next of Kin (no Will): If there is no will, the deceased’s next of kin decides. However, this right is not absolute and can be challenged.

Hospital/Coroner: If a person dies under specific circumstances (e.g., in a hospital or requiring a coroner’s investigation), the hospital or coroner has temporary custody until release arrangements are made. They’ll usually consult with the next of kin or Executor. 

Spouse/Civil Partner: A surviving spouse or civil partner usually has a strong claim, even if not the next of kin. However, their wishes can be contested, especially in strained relationships or with competing claims. Notably, these rights don’t extend to unmarried cohabiting partners.

Key Legal Precedents

Williams v Williams (1882): This case established no one “owns” a body. However, the Executor or Administrator has the right to possess and control it for burial or cremation, considering the deceased’s wishes and public health/decency.

R v Kelly (1998): This case clarified that cremated remains are considered property, especially if kept instead of scattered or buried. This highlights the legal implications of handling ashes without proper consent.

Our Advice

Disputes over remains are more common than you’d think. A Will lets you express your preferences, minimising conflict and easing the burden on your loved ones.

If a dispute arises, seek early legal advice. An experienced lawyer can help resolve it sensitively, ensuring the deceased’s wishes are honoured as much as possible. Please don’t hesitate to contact us for help and advice with all aspects of Will and Probate disputes. We’re here to help.

Beyond Bereavement: The Executor’s Burden

Being appointed as an Executor is an honour. It signifies a deep trust and respect from the deceased. Yet, amidst the grief and remembrance, it’s vital to recognise this role’s potential challenges and personal liabilities. These challenges can range from navigating complex legal obligations such as probate and tax filings and managing potential disputes among beneficiaries to fulfilling fiduciary duties with the utmost care. The emotional weight of making decisions on behalf of a loved one can be significant, often compounding the grief already being experienced.

Challenges from Beneficiaries: Upholding the Will and Managing Expectations

While beneficiaries are the intended recipients of the deceased’s generosity, they may not always agree with the Executor’s decisions or the terms of the Will itself. This can create a delicate balance for the Executor, who must uphold the Will’s provisions while also addressing the concerns and expectations of the beneficiaries. Open communication, transparency, and a willingness to consider all perspectives are not just strategies but crucial elements that can help mitigate disputes and keep everyone informed. Sometimes, seeking independent legal advice becomes necessary to navigate complex or contentious situations, and this, too, should be communicated openly.

Discretionary Powers: Balancing Flexibility with Accountability

Executors often have granted discretionary powers. These allow them to make certain decisions regarding the estate’s administration. For example, they may be able to choose which assets to sell to pay off debts or decide how to distribute personal belongings. However, these powers come with the expectation of responsible and informed decision-making. Beneficiaries are legally entitled to request full transparency and a detailed account of the Executor’s actions. Any perception of the Executor abusing their discretion or acting imprudently could lead to legal challenges. This emphasises the importance of documenting decisions and seeking professional advice when necessary.

Personal Liability and Fiduciary Duty: Protecting the Estate and Beneficiaries

As a fiduciary, the Executor owes the beneficiaries the highest duty of care, loyalty, and good faith. Duties include prudently managing the estate’s assets, avoiding conflicts of interest, and prioritising the beneficiaries’ interests above their own. The Executor’s role extends beyond simply following the deceased’s wishes; it also encompasses acting in the best interests of the beneficiaries, even if those interests occasionally diverge from the strict letter of the Will. Failure to uphold this fiduciary duty can result in personal liability for any losses the estate suffers, underscoring the importance of seeking professional guidance when dealing with complex financial arrangements or potential conflicts.

The Importance of Diligent Record-Keeping: Transparency and Accountability

Thorough and organised record-keeping is paramount for Executors. They must meticulously document every financial transaction, asset valuation, distribution to beneficiaries, and decision made during estate administration. This not only ensures transparency and accountability but also provides a crucial defence against potential challenges or accusations of mismanagement. It’s important to remember that these records can be requested by beneficiaries or the court, so maintaining accurate and detailed records is essential.

Addressing Conflicts of Interest: Maintaining Impartiality

Situations where an Executor or a close relation is also a beneficiary under the Will, require special attention. In these cases, transparency is not just important; it’s paramount. Any conflict, such as a decision that could benefit the Executor personally, must be disclosed to all beneficiaries. Additionally, it is sometimes advisable for an executor who is also a beneficiary to step down from their role, allowing an independent party to administer the estate and avoid any perception of bias or self-dealing.

Our Advice

The complexities of estate administration and the potential personal liabilities for Executors can be significant. There’s a lot of paperwork involved, as well as financial and tax work. However, the role can also be incredibly rewarding, especially if you are carrying out the wishes of a dear friend or loved one. The sense of accomplishment and the knowledge that you have helped fulfil someone’s final wishes can be a powerful motivator. However, the job is often challenging and invariably time-consuming, so ensure you know what’s involved before you take it on.

Professional legal advice is a prudent step that can provide support and confidence. An experienced lawyer can provide invaluable guidance. They will help you understand your obligations and navigate potential challenges. They will administer the estate effectively and follow the deceased’s wishes and the law.

If you need further information or want to discuss a probate matter with our specialist team, please contact us. We’re here to help.

Smooth Sailing: Make Your House Move Stress-Free

Buying or selling a property is exciting, but the conveyancing process can sometimes throw a few curveballs. Pitfalls can still arise along the way, even when everything looks straightforward. An experienced property lawyer will ensure all legal aspects are handled correctly and on time. They will do everything possible to ensure the transaction runs smoothly for you. However, from time to time, conveyancing problems do pop up. So, it pays to be prepared so you can take the necessary steps to avoid them where possible.

Here, we look at some of these common issues and explore how to navigate them successfully.

1. Not Instructing a Legal Professional Soon Enough

Delaying the instruction of a legal professional can lead to missed deadlines, rushed decision-making, and potential complications at a later stage. We strongly recommend you take proactive steps and instruct specialist lawyers when your offer is accepted. This early action is vital to being prepared and can help avoid delays. Your lawyer will need proof of ID and address at the outset, so having this ready will further expedite the process.

2. Delays in Obtaining Documents

Missing paperwork, slow responses from third parties (like lenders or management companies), or local authority searches taking longer than expected can all cause frustrating delays. Be organised and gather all the necessary documents as soon as you can. Maintain regular communication with your lawyer and respond promptly to any requests for information. Also, instructing your lawyer to start local authority searches as soon as possible can help the process move quickly, keeping you reassured and informed.

3. Issues with Property Title

Unexpected restrictions, covenants, or disputes about property boundaries can cause complications and delays. An experienced lawyer will conduct comprehensive title searches and raise any concerns with you early in the process. They will address any title issues with the seller’s lawyers and explain the implications for you.

4. Problems with Surveys and Property Condition

One essential element of the conveyancing process is the instruction of professional surveys and searches on the property in question. A survey might reveal unexpected structural issues or other defects not apparent during viewings. It’s advisable to get a comprehensive survey, even if the property seems to be in good condition. If the survey uncovers significant issues, discussing options with the seller, such as negotiating repairs or a price reduction, is crucial. If you have specific concerns, consider additional surveys (e.g., damp or timber surveys) to clearly understand what you’re dealing with.

5. Issues with the Chain

Delays or complications further up or down the property chain can have a domino effect on your transaction. It’s crucial to stay informed about the progress of other parties in the chain. Be prepared to be flexible and maintain open communication with all parties. This open dialogue can help prevent misunderstandings and keep the transaction moving. In extreme cases, explore options like bridging finance or ‘chain repair’ services, which are designed to help resolve issues within the property chain, such as a party pulling out or delays in their transaction, to keep your transaction moving.

6. Gazumping and Gazundering

• Gazumping occurs when a seller accepts a higher offer from another buyer after already accepting your offer. 
• Gazundering is when a buyer lowers their offer just before exchanging contracts, hoping the seller will accept to avoid further delays. 

While these situations can be stressful, open communication with your lawyer and estate agent, being prepared to act decisively, and exploring options like lock-out agreements, which prevent the seller from accepting other offers for a specified period, can help mitigate the risks.

7. Property Fraud

Unfortunately, property fraud is on the increase. These crimes can involve the theft of identity documents, impersonating solicitors, or intercepting communications between the parties involved. The large sums of money involved in transactions can result in significant financial loss.

Experienced lawyers ensure all necessary checks are done, including Anti-Money Laundering Checks. They identify any red flags, offering peace of mind. In addition to professional assistance throughout the conveyancing process, don’t trust unsolicited communication. Never disclose any personal information online, and always verify the identity of other parties involved.

8. Changes in Personal Circumstances

Unexpected events like job loss, relationship breakdown, or illness can affect your ability to proceed with the transaction. It’s essential to be prepared for such situations. Inform your lawyer immediately of any changes in your circumstances. Discuss alternative solutions with them so you can make an informed decision.

Our Advice

Conveying property doesn’t have to be a headache. With professional legal support and proactive planning, you can navigate the process smoothly and achieve a successful property transaction. Since the 1970s, our practice has helped many families and individuals complete the sale or purchase of their homes with minimal disruptions or delays.

We offer a full range of conveyancing services, including buying and selling a property, equity release, tenancy agreements, freehold reversions, and lease extensions. Please get in touch for further information or advice about buying or selling a property or any other property matter. We’re here to help.

LPAs: Removing or Appointing Replacement Attorneys

When you make a Lasting Power of Attorney (LPA), you entrust the management of your affairs to individuals you trust implicitly. But what if life throws a curveball, and you need to replace an existing Attorney or clarify the role of replacement Attorneys?

Circumstances can change unexpectedly. The person you appointed may have passed away, developed health issues that prevent them from acting, or your relationship with them may have deteriorated. Perhaps they’ve moved away, you’re experiencing difficulties in your interactions, or you have concerns about how they’re managing your affairs.

If you still have mental capacity and find yourself in such a situation, you have the power to remove and replace your Attorneys.

Replacing an Existing Attorney

The flexibility to replace an existing Attorney is a valuable aspect of LPAs, but it hinges on your current mental capacity. If you can still make informed decisions, you can execute this change by completing a specific form and registering it with the Office of the Public Guardian, the government body responsible for safeguarding the interests of individuals who lack mental capacity. However, if you’ve lost mental capacity, amending the LPA in this manner is unfortunately not possible.

Legal intervention might be necessary if an Attorney acts contrary to your best interests. In such cases, you should seek guidance from the Court of Protection.

Appointing Replacement Attorneys at the Outset

Designating replacement attorneys when initially drafting your LPA is a prudent step. This proactive measure offers peace of mind, knowing you’re prepared for any eventuality, and it ensures the continued management of your affairs according to your wishes, even if unforeseen circumstances affect your original choices.

When Can Replacement Attorneys Act?

Your LPA details the specific situations in which replacement Attorneys can assume their responsibilities. Generally, they can act if an original Attorney:

• Loses mental capacity
• Passes away
• Becomes bankrupt
• Is unable or unwilling to act for another specified reason 

Do Replacement Attorneys Step Back?

In most scenarios, the role of a replacement Attorney is temporary. Once the original Attorney regains their ability to act, the replacement Attorney typically steps back, allowing the original Attorney to resume their duties.

Our Advice

Proactive planning is crucial when it comes to LPAs. These are complex legal documents with significant implications for your future well-being. To ensure your LPA is robust, accurately reflects your wishes, and provides for any potential changes in circumstances, seeking advice from a legal professional is highly recommended.

If you need further information on creating or reviewing your LPAs, writing a Will, or an instant quotation, please don’t hesitate to contact us. We’re here to help.

Housing Reform: A New Landscape for Homeowners and Renters

The UK housing market is undergoing a significant transformation, with several key pieces of legislation to create a fairer and more transparent system for homeowners and renters. The recently enacted Leasehold and Freehold Reform Act 2024 (LAFRA), the forthcoming Leasehold and Commonhold Reform Bill (LCR Bill), and the proposed Renters’ Rights Bill (RR Bill) collectively signal a new era of housing reform in the UK.

Leasehold and Freehold Reform Act 2024 (LAFRA)

LAFRA passed on 24th May 2024, introduces crucial reforms that benefit leaseholders:

• Abolishing Ground Rent for New Leases. New leases will no longer be burdened by escalating ground rents, providing financial relief for future homeowners.

• Extending Lease Terms. The standard lease extension is significantly increased from 90 to 990 years, offering greater security and stability to leaseholders.

• Removing ‘Marriage Value’. Leaseholders will no longer have to pay a premium when extending their lease with less than 80 years remaining, making lease extensions more affordable.

Important Note: While LAFRA has been passed, most of its provisions are not yet in force. The new government is responsible for implementing the necessary secondary legislation to bring these changes into effect.

Renters’ Rights Bill (RR Bill)

In addition to leasehold reform, the government underlined its determination to proceed with the Renters (Reform) Bill. Included in the King’s Speech, the Renters’ Rights Bill (RR Bill) aims to improve the treatment of tenants in the private rented sector. Moreover, it also safeguards the rights of responsible landlords. This bill will apply to England and Wales. The proposals include:

• Rent increases. The bill aims to end rent review clauses that allow landlords to automatically increase rent in ways that may not reflect market rates. Instead, landlords can raise rent once a year in line with market rates.

• Section 21 evictions. The bill will abolish Section 21 notices, also known as ‘no-fault’ evictions, which allow landlords to evict tenants without providing a reason. This practice has been criticised for leaving tenants vulnerable to sudden and unjust evictions.

• New property ombudsman. The bill will introduce a new ombudsman for private landlords. This independent body will help resolve disputes between landlords and tenants without costly and time-consuming court proceedings. The ombudsman will also ensure that landlords take action to address complaints from residents, thereby improving the quality of rental accommodation.

• End of fixed-term tenancies. The bill will replace fixed-term tenancies with periodic tenancies, which allow tenants to give notice at any time after the agreement begins. The bill also bans notice periods longer than two months. 

• Property portal. The government will launch a new property portal to help landlords understand their obligations and to give tenants more insight into their landlords’ compliance.

• Decent Homes Standard. The bill will apply the ‘Decent Homes Standard’ to the private rented sector for the first time to provide renters with safer, higher-quality homes.

Leasehold and Commonhold Reform Bill (LCR Bill)

The upcoming LCR Bill builds on the foundation laid by LAFRA and the RR Bill. The proposed reforms aim to empower leaseholders further, increase transparency, and provide more secure and affordable homeownership options. The proposed changes include:

Leasehold Reforms 

• Lease Extensions & Enfranchisement. Streamlining and reducing costs for leaseholders to extend their leases or collectively purchase the freehold of their building, implementing recommendations from the Law Commission. 

• Ground Rent: Abolishing ground rent for new residential leases, effectively setting it at a peppercorn (zero financial value) and exploring options to regulate ground rents for existing leaseholders.

• Right to Manage. Enhancing the Right to Manage, making it easier for leaseholders to take control of their building’s management.

• Forfeiture Abolishment. Removing the threat of forfeiture (losing your home) as a means for landlords to enforce lease terms, protecting leaseholders from disproportionate penalties.

• Freehold homeowners on estates. Implementing new protections for freehold homeowners on private or mixed-tenure estates, ensuring fairness and transparency in shared cost management. 

Commonhold Reforms 

• Commonhold Modernisation. Reinvigorating commonhold by updating the legal framework and making it a more attractive alternative to leasehold.

• New-Build Flats. Consulting on potentially restricting the sale of new-build flats as leasehold, encouraging the adoption of commonhold.

Additional Measures

• Leasehold Ban. Banning the sale of new leasehold property. 

 Key Takeaways

• Future Homebuyers. You can anticipate a fairer and more transparent housing market, with a focus on commonhold ownership for new flats and houses and the elimination of escalating ground rents.

• Existing Leaseholders. The combination of LAFRA and the future LCR Bill brings hope for greater control over your property and more affordable options for extending your lease or buying your freehold.

• Renters. The RR Bill could provide greater security and protection against unfair eviction and ensure better-quality rental accommodation.

The Path Forward

The implementation of this legislation signifies a significant shift towards a more equitable and secure housing market in the UK. While the full impact of the changes is unclear, nonetheless, the proposed reforms demonstrate an intention to tackle the housing crisis head-on.

Our Advice

We’ll continue to monitor developments and provide updates as legislation passes through Parliament. If you have any questions about how these reforms may affect you, please contact our specialist property team. We’re here to help.

Deathbed Gifts – Last Wishes or Legal Limbo?

The concept of deathbed gifts, known legally as donatio mortis causa (DMC), is a centuries-old tradition in English law. It allows individuals to bequeath assets outside the formal Will-making process. It provides a way to express final wishes directly to loved ones in anticipation of death. However, while the concept seems simple, DMCs often entail complex legal considerations.  A clear understanding of the strict requirements for a valid DMC is crucial to prevent potential disputes among family members and beneficiaries. This need for clarity was recently underscored in the High Court case of Rahman v Hassan & Ors [2024], which emphasised the significance of even informal communication, such as text messages, in establishing the individual’s intentions and the potential for disputes if these requirements are not met.

What Exactly is a Deathbed Gift (DMC)?

A DMC is a unique form of gift made when someone is anticipating their imminent death, typically due to illness or old age. Unlike testamentary gifts made through a Will, a DMC takes effect immediately, even before the individual’s death. However, it’s important to note that this gift is conditional: if the individual unexpectedly recovers, they retain the right to revoke it. The gift only becomes absolute and irrevocable when the individual dies from the anticipated cause.

Legal Requirements: A Delicate Balancing Act

To ensure a DMC is legally sound and to avoid potential disputes, specific stringent requirements must be met:

1. Contemplation of Death: The individual must genuinely believe their death is imminent. This does not necessarily mean death is expected within hours or days; it could be weeks or even months. The key is that death is a foreseeable reality, not a mere possibility.

2. Conditional Nature: The gift must be explicitly stated as conditional, becoming absolute only if the individual dies. This distinguishes it from an outright, irrevocable gift.

3. Delivery: The individual must deliver the gift to the recipient or take decisive steps to transfer ownership. This could involve physically handing over possessions, providing keys to a property, or transferring legal documents such as share certificates or bank account details.

4. Acceptance: The recipient must accept the gift expressly or through their conduct. Silence or inaction may not suffice as acceptance.

Lessons from Recent Case Law

Rahman v Hassan & Ors [2024] EWHC 1290 (Ch) revolves around a dispute over the £1.4m estate of Al-Hasib Al Mahmood, who died during the COVID-19 pandemic in 2020. Mr Mahmood had a 2015 Will leaving his estate to his wife’s relatives in the US. However, in the days leading up to his death, he sent text messages to a friend and a Will writer, stating that his friend, Masudur Rahman, was to be the “absolute owner” of all his assets.

The court ultimately ruled in Mr Rahman’s favour, recognising the text messages as valid deathbed gifts (DMCs). Judge Paul Matthews concluded that Mr Al Mahmood genuinely believed he was dying and had intended to create a new Will. Pandemic-related delays led him to use text messages to express his clear intention to gift his assets to Mr Rahman.

This landmark case demonstrates that DMCs can be valid even through informal communication like text messages. It highlights the importance of considering context, the donor’s intentions, and the evolving nature of communication in assessing deathbed gift validity.

Our Advice

Deathbed gifts invariably occur when a person is at their most vulnerable. And while DMCs are rare, they have become more common since the pandemic. Indeed, DMCs have provided flexibility in expressing an individual’s final wishes. However, the Rahman v Hassan case is a stark reminder of their inherent risks and the potential for disputes if not handled carefully.

We strongly recommend comprehensive estate planning during your lifetime. This will ensure your legacy is protected and your intentions are carried out accurately. If you have questions about deathbed gifts or are involved in a challenge, please don’t hesitate to get in touch. Our specialist lawyers have many years of experience in advising clients about planning their estate; We’re here to help.

Over 127k Lasting Powers of Attorney Rejected – Get Yours Right

The importance of Lasting Powers of Attorney (LPAs) is gaining traction, as evidenced by a 37% increase in LPAs registered in 2023. While this trend is reassuring, the overall picture remains concerning. Less than 1% of the adult population has LPAs in place, and 60% of individuals over 75 still need to make these crucial arrangements. Furthermore, over 127k LPAs were rejected over the last five years, highlighting the critical need for accuracy and understanding throughout the application process.

Why are LPAs so Essential?

LPAs are legal documents that allow you (known as the donor) to appoint trusted individuals (your attorneys) to make decisions on your behalf if you can’t due to illness or incapacity. Your attorneys can be anyone you trust, such as a family member, friend, or professional advisor. So, choosing someone who understands your wishes and is willing to take on the responsibility is vital.

Types of LPAs

There are two types of LPA:

1. Property and Financial Affairs. This covers your finances, property, bills, and investments. Notably, you can use a Property and Financial Affairs LPA as soon as it’s registered, with your permission or only if you lose mental capacity.

2. Health and Welfare. This addresses decisions about medical care, living arrangements, and daily routines. Conversely, a Health and Welfare LPA can only be used if you no longer have the mental capacity to make these decisions yourself.

If you lose mental capacity without LPAs in place, your loved ones will need to apply to the Court of Protection to manage your affairs. This process can be costly, time-consuming, and emotionally draining.

Critically, you cannot create LPAs after you lose mental capacity. Therefore, it’s essential to put these arrangements in place while you can still make your own decisions. 

Common Mistakes and the OPG’s Rejection Rate

The Office of the Public Guardian (OPG) rejected nearly 30,000 LPAs between 2022 and 2023, primarily for financial and property matters.  Furthermore, since 2018, errors have caused the rejection of a staggering 127,848 LPAs.

These errors range from simple oversights, such as incorrect witnessing, to misunderstandings about legal requirements, including:

• Incorrect Form
• Incorrect Page Order
• Using Pencil, Tippex, or Photocopies
• Incorrect Signing & Dating Order
• Missing Signatures or Incomplete Names
• Using Family Members as Certificate Providers
• Contradictory Instructions
• Confusing End-Of-Life Treatment 

Unforeseen Risks of Making Mistakes

While creating LPAs is crucial, it’s equally important to know that registration can take up to six months. If your application is rejected due to errors, you’ll need to start the process again, which could take additional months. In a worst-case scenario, if you lose mental capacity during this extended period, your loved ones would be forced to seek deputyship through the Court of Protection.

The court is more likely to grant deputyship for finance, but it’s often reluctant to grant it for health and medical matters.  This can leave your medical care in limbo at a critical time. Additionally, applying for a deputyship is complex, time-consuming, and costly, with financial deputies required to keep meticulous records and submit annual returns. 

Benefits of Using a Lawyer

The OPG is the government body that oversees the registration and use of LPAs. While the OPG provides guidance and support throughout the process, getting help from a specialist lawyer will ensure the documents are prepared, registered correctly, and drafted in the individual’s best interests. Additionally, if appropriate, lawyers will administer the LPA on an ongoing basis.

Our Advice

Creating LPAs isn’t just about planning for the worst-case scenario; it’s about empowering yourself and your loved ones to make informed decisions in the future. Making and registering LPAs sooner rather than later removes a massive potential headache for those close to you. You also have the comfort of knowing that if you do lose mental capacity, the people you trust will be able to step in to help without delay.

If you’re considering making a Will, creating LPAs, or need a quote, don’t hesitate to contact our expert team. We can help you navigate the process and put your mind at rest.

Supreme Court Uproots Landowner Rights in Knotweed Case

This year’s weather patterns – a wet spring followed by intense summer heat – have created a perfect breeding ground for the rapid spread of Japanese knotweed. This invasive plant, known for its destructive capabilities and the costly legal disputes it can spark, thrives in these conditions. It has grown at an alarming rate, posing a significant threat to property owners nationwide.

The recent Supreme Court ruling in Davies v. Bridgend County Borough Council [2024] UKSC 15 has added another layer of complexity to an already challenging situation. This landmark decision reshapes the legal landscape for landowners grappling with knotweed infestations, raising essential questions about liability and compensation.

Case Summary: Davies v. Bridgend County Borough Council

Mr Davies, a homeowner in Bridgend, discovered Japanese knotweed encroaching onto his property from a neighbouring land owned by the local council. He sued the council for damages, arguing that their inaction in controlling the knotweed decreased the value of his property. Lower courts initially ruled in favour of Mr Davies, but the Supreme Court overturned their decision.

The Supreme Court ruled that while a neighbouring landowner can be liable for physical damage caused by encroaching knotweed and the cost of its treatment, they are not liable for the residual decrease in property value caused simply by the plant’s presence.

Key Takeaways from the Supreme Court Ruling

1. Limited Damages. The Court clarified that while landowners can be held liable for physical damage caused by encroaching knotweed and the cost of treatment, they are not liable for the decrease in a property’s value solely due to the plant’s presence. This significantly narrows the scope for financial compensation in such cases.

2. Early Action is Crucial. The ruling, coupled with the accelerated growth spurred by this year’s weather, underscores the need to address Japanese knotweed infestations Early detection and treatment can minimise damage, control costs, and potentially avoid legal disputes.

3. Open Communication. Being open with neighbours is vital. Furthermore, it’s also a source of reassurance. Addressing knotweed issues collaboratively can be more efficient and less costly than legal action. 

4. Proactive Management is Essential. Regular property inspections, professional knotweed treatment, and preventative measures are more crucial than ever. These measures protect your investment and minimise risk in the face of unrestrained knotweed growth.

5. Proper Disposal: Whilst land or property owners do not legally have to remove Japanese knotweed from their land unless it’s causing a nuisance, they are responsible for ensuring its safe and legal disposal. This often requires professional assistance. There are strict rules regarding its disposal. Due to its invasive nature, it’s classified as controlled waste and cannot be disposed of with regular garden waste.

Our Advice

Japanese knotweed, along with other invasive species, continues to pose challenges for land and homeowners, especially with the plant thriving in the current UK climate. The Davies v. Bridgend decision provides much-needed clarity around Japanese knotweed and its impact on property values. The case also highlights the legal complexities involved and underscores the importance of getting specialist advice early when dealing with such issues.

If you are concerned about any of the issues raised here, including Japanese knotweed at your property, need advice about a property dispute, or have questions about any other property-related matter, please contact us. We’re here to help.

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