Happy Christmas/New Year

Cleaner fails to clean up Will properly!

A CLEANER who faked her landlord's will to make herself the sole beneficiary of his £125,000 estate was last night behind bars. Ilona Zimon, of Oxford, faked Dusan Duvnjak's will to eliminate his two children and make herself the only heir to his three houses, car and other belongings.

The 50-year-old also changed all references to herself in the will as Mr Duvnjak's "beloved partner" and ordered her name should be the only one included on his headstone.
Mr Duvnjak's family became suspicious after Zimon faxed them a copy of the will shortly after his death in January 2006 showing his two children - Marko, 23, and Mara, 25 - had been disinherited.

They employed a handwriting expert who examined the document and found Mr Duvnjak's signature was an exact copy of the one on the original will - something that is impossible to recreate naturally and could only be done by photocopying or tracing. Mr Duvnjak's ex-wife Diane, the mother of his two children, said her former husband's houses had been worth about £650,000 but were heavily mortgaged. he 51-year-old, of Shelford Place, Headington, said it had been a battle to prove the will was a fake. She said: "It is an embarrassment to have to go through all of this. It is very personal. It is a disbelief that somebody would take a person that is so vulnerable and say that they cared for him and yet hurt the people that he actually cared most about. People do make ad-hoc wills, but this was a document of such appalling taste that it actually made some members of the family feel like they were going to vomit."

Builder and decorator Mr Duvnjak, known as Denis, died in January 2006 from a fall after a long battle with alcoholism. His brother David, 62, added he believed Zimon had been planning the will forgery for years. He said: "I thought that was the only reason she was living with him. I am pleased justice has been done." Zimon had denied forgery but was convicted by a jury after a trial at Oxford Crown Court last month.

Alistair Grainger, defending, said Zimon had no previous convictions and was believed by many of her employers to be trustworthy. Sentencing her to 12 months' jail, Judge Patrick Eccles said: "What is plain is that the family were deeply distressed at having their names taken off the headstone. The court has to take a serious view of this offence because a will is a public document in which the public have to have trust. You photocopied the signature on the original will. You were due to inherit 20 per cent but plainly were not satisfied. You were not under financial or psychological pressure and therefore, based on the jury's verdict, I must find that you did it out of greed."

The jury cleared Zimon's co-accused, Soossapillai Ramesh, 44, of Peckham Rye, London, of forging a will. Speaking after the case, Det Con Mark Lacey said it was the first case involving a forged will that anyone at Oxford CID could remember. He said: "I think the sentence shows that the courts have taken attempts to forge wills very seriously."

The amount of money a spouse receives if their partner dies without making a will could increase, the government announced in 2005.

If a person with children dies without leaving a will, their surviving spouse will receive only the first £125,000 of their estate. If there are no children but there are surviving parents or siblings the spouse will receive £200,000.

The Department for Constitutional Affairs (DCA) estimates that under the intestacy rules, in up to 9,000 cases each year a surviving spouse will not receive all of their partner's estate.

In 4,000 of these cases, the family home may have to be sold, so that money from the estate can be paid to the children or other relatives.

A consultation paper published in 2005 by the DCA proposed that the limits be increased so that, where children are involved, a spouse can receive £350,000 of an estate and where there are no surviving children they can receive £650,000.

"The death of a spouse is always a traumatic event, but can be particularly so where they die without leaving a will," said the minister for civil justice, Baroness Ashton in 2005. "In these cases, the financial future of the widow or widower and any children will depend on how much money they can inherit under the intestacy rules."

The consultation paper suggests that the payment levels in 2005, which were set in 1993, may now be out of date, primarily due to the increase in house prices. According to 2005 figures the average house price now stands at £162,411 - some way above the £125,000 limit.

However, the DCA is concerned about cases where the legacy paid to the surviving spouse could mean that there are no funds left to distribute to any children. This can be particularly contentious when the deceased has children from an earlier relationship.

In 1993, more than 90% of estates were worth less than £125,000 and 98% of estates were valued at under £200,000. In 2005 these figures are 59% and 79% respectively.

Research carried out in March 2005 by insurer Standard Life suggested that 57% of adults in the UK had not drawn up a will, including 40% of people with homes worth more than £150,000.

So what has happened since this was proposed in 2005. Alan Porter, of The Will Centre, says “Nothing at all has changed! The levels set in 1993 and that were being reviewed in 2005 still apply! If you consider it is almost impossible to buy a house for under £125,000 you can see that there is a real problem. The best way to avoid any problems is to make a Will.”

Appointing Guardians

The provision for a guardian in a Will is something which should be considered by all parents with children under the age of 18. The law relating to Guardianship, contained in the Children Act 1989, is concerned with the welfare of a child whose parents have died. The law allows a parent with parental responsibility, or anyone who is a guardian of a child already, to appoint a guardian in the event of their death.

This means that a father without parental responsibility (PR) cannot appoint a guardian, neither can a person with PR who is not a parent.

The appointment must be made in writing, dated and signed and is most commonly done under a Will.

When the guardianship comes into effect depends upon whether or not a residence order is in place when one of the parents dies. Where an order has been made in favour of the parent who has died the guardianship will come into effect on their death, even if they predecease the other parent who has PR. Where there is no residence order in place the guardianship will only come into effect when the last remaining parent with PR dies. Any appointment by the first parent to die will not come into effect until the second parent has died.

The distinction between the above is based on the fact that a court, when making a residence order, may have decided that the other parent is unsuitable and enabling the parent with the order to appoint a guardian may in effect protect the child.

Where more than one guardian is appointed, and any decisions relating to the child cannot be resolved between the parties, they can apply to the court for a residence order.

The person appointed as a guardian is not subject to approval by the court or a local authority, in fact, there is very little control over the appointment. A marked contrast with the rigorous checks carried out for fostering or adoption. The court does have the power to revoke a guardianship and this power can be used where the guardian is unsuitable. It is still debateable whether this power to revoke offers enough protection and whether a more effective measure would be for potential guardians to undergo some kind of vetting process.

Where both parents die without appointing a guardian (i.e. intestate or without provision in their Wills or other documents) the court can appoint a guardian for the child. The court will also appoint a guardian where the one appointed by the parents is unable or unwilling to act. This will usually follow an application to the court by the proposed guardian although the court may act of its own motion as well. In deciding who to appoint the child’s welfare is the paramount consideration.

The appointment can be revoked by a subsequent appointment (unless it is clear that the second appointment is in addition to the first), revocation by a signed and dated document, revocation of the Will in which the appointment is made or, where a spouse is appointed, by divorce. The appointment may also be revoked by the court on application by anyone with PR or the child themselves.

A guardian may disclaim the appointment within a ‘reasonable time’ which must be in writing.

Although a guardian can be appointed in any written document there are certain advantages in appointing in a testamentary document as these documents are more likely to be preserved, easily identifiable and will be under consideration by those dealing with the estate on the death of the parent.

Negus v Bahouse

The lover of a wealthy business man who committed suicide before fulfilling a promise to marry her on the QM2 has won a High Court battle with his family over his £3 million estate.

Multimillionaire Henry Bahouse and former dental nurse Cyd Negus had a ‘flamboyant lifestyle’ before his death in 2005. His Will didn’t provide for 50-year-old Ms Negus, who therefore claimed for financial provision to be made for the rest of her life from his estate.

Mr Bahouse’s family contested the claim, arguing that Ms Negus had already received the proceeds of a life assurance policy, taken out by Mr Bahouse for her benefit, and a half share in a Spanish property. Together, these were worth in excess of £600,000. According to Ms Negus, she and Mr Bahouse were intending to get married and even hoped to start a family.

According to Mr Bahouse’s family, the couple were on the verge of breaking up and Mr Bahouse had no intention of marrying Ms Negus.

In the view of Deputy High Court Judge Roger Kaye QC, they had lived together as husband and wife and she and had a reasonable basis for believing that her future financial needs would be met by Mr Bahouse. He awarded Ms Negus the ownership of the flat she had shared with Mr Bahouse (valued at approximately £400,000) and a lump sum of £240,000. The balance of the estate, worth about £2m, went to Mr Bahouse’s family – mainly to his son Gordon.

Alan Porter of The Will Centre said, “The case raises some interesting points. The first and most obvious is that this kind of stress and heartache could be avoided if people make a Will and keep it up to date. That way they can ensure their estate is divided according to their wishes. The other point is that it is possible in certain circumstances to successfully challenge a Will if a person feels their reasonable expectations to inherit have not been met, using the Inheritance (Provision for Family and Dependants) Act 1975 as amended.”

The world’s strangest laws 2

It is illegal to die in the Houses of Parliament (even though you might think it’s a good idea for some/all politicians).

Documental evidence is common in courts but remarkable exhibits also occasionally feature in cases of probate.

In Los Angeles, before the Second World War, George W. Hazeltine, 86, lay ill in hospital. He decided that he wanted to make a new Will and leave $10,000 to his nurses, Lillian Pelkey and Madeline Higgins. Being a matter of urgency and there being no paper to hand, Miss Pelkey pulled up her dress, placed a board under her petticoat, and the Will was pencilled on her undergarment.

After much deliberation the petticoat was eventually admitted to probate. Unfortunately the nurses were prevented from benefiting from the Will because they were the attesting
witnesses of it.


Alan Porter of The Will Centre warns “Many home made (or ‘hospital’) Wills are often found to be invalid because the deceased has not done it correctly and this includes the witnessing. A person who benefits from the Will cannot be a witness and neither can the spouse or civil partner of a beneficiary. It’s an expensive mistake to make.”

With inflation the $10,000 would now be worth approximately $149,166 or £76,055 at today’s rates. A very expensive mistake!!!!!!

IHT Exemption for War Veterans

This exemption is contained in section 154 of the Inheritance Tax Act 1984 and applies where a person was a member of the armed forces and was on active service. It provides that there will be no Inheritance Tax charged on the estate of a person certified by the Ministry of Defence or the Secretary of State as having died from a wound inflicted, accident occurring or disease contracted while on active service, or a disease contracted at some previous time, the death being due to or hastened by the aggravation of the disease during active duty.

World War veterans are not the only possible claimants. There are many families who have had relatives who have served in other conflicts such as Aden, Malaya, Korea, Northern Ireland, the Falklands and more recently in Kuwait, Iraq and Afghanistan.

A slightly bizarre side to all this, is that it is impossible for any potentially eligible ex servicemen and women to know whether their estate will be exempt. The decision will be made after their death and for this reason it is extremely important that their death certificates should list all causes of death. To ensure that this is done, the family doctor should be informed about this issue and veterans should put together a dossier of medical evidence and a detailed statement of wounds and/or diseases and keep records. With these documents, beneficiaries will be able to appeal to the MOD to get the Inheritance Tax refunded.

In most cases the Inheritance Tax will have to be paid in order for the family to get probate. The appeal comes after that. It must be made clear that this exemption only relates to Inheritance Tax payable on the estate of the deceased veteran; it does not relate to any other tax or duty payable for example on a lifetime transfer or when a discretionary trust comes to an end on death.

To claim the exemption, it is essential to obtain a certificate. There are two forms of certificate: a simple one for deaths of currently serving individuals where there is no doubt that section 154 is satisfied and one for other deaths.

By concession, the exemption has been applied in the past to the estates of members of the Royal Ulster Constabulary who died from injuries caused in Northern Ireland by terrorist activity.

Alan Porter, of The Will Centre, was in HM Submarines during the Falklands in 1982.

The world's strangest laws

In France, it is forbidden to call a pig Napoleon!

Unmarried Couples

With the changes to Inheritance Tax leading most married couples to debate changing the provisions in their Wills (whether it be recommended or not) it is worth remembering the provisions relating to unmarried couples are completely different and that the new ‘sharing’ of nil rate bands DOES NOT apply.

It is essential that couples living together consider the financial implications of their circumstances. Partners need to consider carefully what arrangements they want to make regarding their home, its contents, the mortgage or rent and life assurance.

Partners should make such written arrangements and agreements as are necessary to define the position as clearly and accurately as possible. As part of this documentation it is essential that couples living together have Wills.

Areas for particular attention include:

1. A husband or wife who dies without a Will are intestate and the estate will be divided by the rules of intestacy. However, the survivor of an unmarried couple does not come within the intestacy rules and may be entirely dependant on the discretion of the Court for their protection.

2. Gifts between husband and wife during lifetime or on death are exempt without limit. The same exemption does not apply to unmarried couples. This can result in a significant inheritance tax liability on the separate deaths of the couple, and a sizeable reduction on the estate passing to surviving children.

3. The legal ownership of the home requires serious consideration so that an appropriate arrangement is made for the survivor’s continued occupation of the original property or alternative accommodation if the former is sold.

4. They must also consider guardianship for any children.

5. The remainder of the estate will also pass under the rules of intestacy meaning the survivor of the couple will inherit none of the personal chattels of the deceased.

6. Any court action taken by a survivor could be time consuming and stressful and there is no guarantee that the action will succeed.

“More and more people are living together either as man and wife (but not legally married) or as civil partners,” says Alan Porter of The Will Centre. “This can create real problems if a Will is not made to reflect their circumstances. We have seen instances at The Will Centre where real financial hardship has resulted because a Will has not been done. It’s such a shame when this happens as making a Will is not a difficult task.”

For further advice contact The Will Centre on 01752-607040 for details of how to avoid this avoidable situation.

Family Lawyers welcome Divorce Day

Every year UK family lawyers enjoy D Day (Divorce Day). This year it was on 7 Jan 2008. D Day is the day of the year where more divorces are expected to be filed than on any other day of the year.

The post-Christmas divorce boom, said leading family lawyers, comes as spouses begin the New Year with a fresh outlook. Christmas is a stressful time, and there is often too much alcohol. Then there are people who have been considering a divorce who will use Christmas as a time of reflection and January as a time to make hard decisions. Couples with children are more likely to wait for the end of the festive season before launching a petition.

If you decide to divorce your spouse (or civil partner) then they may still inherit from you while the divorce is going through! If you have an existing Will naming your spouse/civil partner then you need to change this immediately and not wait for the actual Decree Absolute to come through (this can take several years in some circumstances). Once the Decree Absolute is made your spouse/civil partner is treated as if they had died before you and cannot inherit from your Will. If you do not have a Will then your separated spouse/civil partner may inherit under the law of intestacy!

Alan Porter of The Will Centre says, “It is amazing that couples who split up do not even take the basic precaution of changing or making a new Will straight away. Most people split up because they have usually decided they don’t want to be with their previous partner any longer, yet they don’t take steps to make sure their assets go to their children instead or even their new partner. There have been instances where we have seen a separated partner inheriting from their previous partner and the deceased’s children losing everything.”

Call The Will Centre on 01752-607040 if you are subject to the D Day blues.

The danger of Home Made Wills!

There are two well known rules in this area of law. The first is that people who attempt to write their own Wills without obtaining professional advice are asking for trouble. The second is that a solicitor who acts for himself has a fool for a client. One solicitor who drafted his own Will provides a clear demonstration of both of these rules in practice!

In Anthony and another v Donges et al (Times July 22nd 1998) the testator (a solicitor) drafted his own Will in which he stipulated that his widow should receive:

‘such minimal part of the estate as she might be entitled to under English law for maintenance purposes’

The clause was clearly uncertain in its effect and suggested that the Court must decide the value that she was to receive. The only way of deciding the value of the gift was to make a formal application to the Court. An application was made but the judge refused to set the requested figure and declared the clause void for uncertainty. The judge stated that there was no way he could validly specify such an amount. He applied the rule in Re Hooker’s Settlement [1995] which prevents a judge being forced to become an arbitrator. Once it became clear that the Court was unable to set an amount, and there was no other way to establish the value of the inheritance, the clause was deemed as unenforceable. It was struck out and the Will was only effective in passing the residuary estate to the testator’s children.

The initial impact of this was that the widow received nothing however it was clear that she would be able to make an application under the Inheritance (Provision for Family and Dependents) Act 1975 and would receive a considerably greater share of the estate.

When drafting Wills issues such as this do arise, particularly where second marriages are bought into the equation. Clients can often be disappointed with the uncertainty and lack of freedom to make provisions in their Will that they wish to. This case certainly reinforces the need for clients to seek professional advice in making a Will….maybe this solicitor should have done the same.

The Will Centre offers a FREE ‘Home Made Will’ review service at its office. If you want to take advantage of this service then please telephone 01752-607040 to make an appointment.

Legal Battle Won to Inherit Farm!

A man won his legal battle to inherit a farm where he worked without pay for 25 years.

The 57 year old spent most of his adult life helping out on his cousin’s farm in Somerset. During that time he agreed not to take any wages on the understanding that he would inherit the land, which was worth £2 million, when his cousin died. A Will was made out to this effect but could not be found at the date of the death. In the absence of the Will other members of the deceased’s family claimed the estate. The case went to the High Court which recognised the man’s remarkable commitment to his cousin and awarded him the farm, the remainder of the estate going to other members of the family.

“Proper advice is needed when making a Will and also the Will needs to be kept securely”, said Alan Porter of The Will Centre. The anecdotal evidence of ‘lost’ Wills is legendary. “It seems crazy that people go to all that effort to make a Will and then leave it lying around! At The Will Centre we offer a storage facility for clients. Its better to be safe than sorry, besides by the time it becomes known that a Will is lost it’s far too late to make a new one!”

Thousands wasting almost £1 billion on Inheritance Tax (IHT)

Nearly £1 billion is being needlessly thrown away by individuals who fail to write life policies in trust. By writing such a policy in trust, where the proceeds of life insurance are excluded from the overall estate of the deceased, the IHT liability can be dramatically reduced. In addition, writing a policy in trust also ensures money is paid out quickly and to the right people. Otherwise, payouts will be subject to a lengthy delay, regardless of whether or not there is an IHT liability.

Any assets over the nil rate band (currently £300,000 for individuals or up to £600,000 for married couples and civil partnerships using the unused transferrable Nil Rate Band option) that are not in trust could be subject to IHT at 40%, the proceeds of which may have been immune from IHT if they had been held in a trust.

For example, take a married couple with £700,000 worth of assets, including a life insurance policy worth £400,000, which is not written in trust. On the first death, the assets would pass to the surviving spouse tax-free but on the second death, anything over £600,000 would be subject to IHT at 40% - the £100,000 above the threshold would be subject to a £40,000 IHT bill. However, if the policy had been written in trust, it is likely there would be nothing to pay.
Writing life polices in trust can be of considerable benefit to the person who is meant to benefit from the policy.

For a free financial review and advice on this please contact The Will Centre on 01752 607040.

HMRC expected to raise £3.89 billion from Inheritance Tax

The Treasury expect to bring in an extra £400million in Inheritance Tax (IHT) when compared to last year, according to figures released by the HM Revenue & Customs (HMRC). This is despite the recent proposed changes in IHT, whereby the unused portion of the Nil Rate Band (currently £300,000) can be transferred between spouses/civil partners. In total the Treasury is expected to receive £3.89 billion from the tax – an increase of 10 per cent on the last financial year, with the average family affected having to hand over £111,000.

For advice on how to reduce the amount of IHT payable, contact The Will Centre on 01752 607040.

Funny Wills . . .

Number 1:
An Irish Will: 'To my wife, I leave her lover, and the knowledge that I was not the fool she thought me; to my son I leave the pleasure of earning a living. For 20 years he thought the pleasure was mine; he was mistaken.'

Number 2:
Income from a cash bequest left to Jesus Christ should he make a second coming was handed to the Crown in 1997. The bequest, made by Ernest Digweed, stipulated that the income from his investments should be paid to the Crown after 21 years should the second coming not occur. The executors of the Will have three volumes of files containing many claims to the bequest. One of the most memorable was an American door to door salesman who felt he had a claim to the money since every time he knocked on someone’s door he was met by the phrase ‘Jesus Christ, not you again’!