The Will Centre

Law Commission - Intestacy Reforms

2012-01-04T18:40:00.003Z

In December 2011 the Law Commission published its long awaited report into intestacy and family provision claims on death. The report contains recommendations for reform of the law in these areas following responses to the consultation paper published in 2009.

The largest part of the report focuses on the area which causes the most significant problems under current legislation. Where a couple live together, but are unmarried, the current law dictates that the survivor is not automatically entitled to inherit any part of the deceased’s estate. This is the case regardless of the period of time the couple have ‘cohabited’ or whether or not they have had children together. According to the report; research suggests that there are 2.3 million cohabiting couples within the UK and that the current trend means this figure will be closer to 4 million within the next 20 years.

The Law Commission recommend reform of this current legislation but with limited scope. They recommend that a bereaved, unmarried, partner should not need to go to Court in order to inherit a share of their partner’s estate where the couple has cohabited for at least 5 years prior to death. This period is reduced to two years where the couple have had children together. Although the Commission are reluctant to lower this period of time to include all cohabiting couples, regardless of the length of the cohabitation period, it recommends that the period required before a claim against an estate can be made is lowered from the current two year period.

These changes would bring English law into line with the current law in other Commonwealth jurisdictions.

The report contains a draft Bill, the Inheritance (Cohabitants) Bill, which has been deliberately separated from other recommendations. The proposals have prompted lively debate; the focus being on how a ‘cohabitant’ should be identified and how
it is possible to establish that someone was, or was not, living in accordance with the provisions of the Bill at the time of death. It does not state at what point the status of an ‘unmarried partner’ is acquired or lost and the vagueness of the definitions has been criticised. The new legislation, if it is enacted, could cause problems for those dealing with an intestate estate.

Aside from cohabitation the report also reaffirmed the automatic right of spouses to inherit, but discussed proposed changes to how the current intestacy rules deal with the estate. They recommend that, where a spouse dies leaving no children, the surviving spouse should inherit the entire estate. This contrasts with the current provisions that provide a surviving spouse with the first £450,000 of an estate with the rest being shared with the deceased’s parents or siblings.

Where a spouse dies leaving children the current £250,000 statutory legacy will remain but the Commission have recommended that the current complex trust and life interest provisions relating to the rest of the estate are to be simplified. Instead, the spouse will split the remaining estate with the children outright. This view was highly supported in the consultation however ideas to deal with the family home separately received little support and have been shelved.

The full report can be downloaded from http://www.justice.gov.uk/lawcommission/publications/intestacy.htm

Alan Porter, of The Will Centre, said after the release of the report, “Whilst these proposals are welcome, there is NO substitute for a professionally drafted Will. To leave things to chance is not really an option. These proposals will take some time to be discussed and brought into law so in the meantime you have no or very limited protection if you cohabite.”

To make sure your loved ones inherit as YOU want and NOT as the LAW decides call The Will Centre Team on 01752-607040 or email Alan at alan.p@thewillcentre.com

Anyone making a Will in January 2012 will be able to benefit from a minimum discount of £25 of the price of making a Will by quoting ‘Blog Jan 2012’ Offer.

Do I need a cohabitation agreement?

2011-08-12T17:02:00.001+01:00

It would hardly surprise you to know that most cohabiting couples who live together don't have a written agreement governing their rights. But do you really need too?

If you are living with, or are deciding to live with your partner but are unmarried, then no matter how long you have been together, you don't have the same rights as married couples and you may have little legal protection in the event that you split up. There is no such thing as ‘common law wife/husband’, well not since 1753 and I don’t mean 7 minutes to 6pm!

In the case of property, for example, if you have a joint rental agreement or mortgage, it's up to the both of you to decide what will happen if you break up. However, if you've been living in your partner’s house, then it will not be as easy and you may be left without a place to live, even if you have been contributing to the mortgage, paying rent or paying your way in other ways (e.g. paying the utility bills, staying at home to look after the children, caring for your partner, etc.). If your name is not on the deeds then you have no right to the property!

This is where a cohabitation agreement can help. This is a contract, between two people who live together, which sets out their agreement on the division of their combined assets. It is essential for people who live together but are without the protection afforded by marriage or civil partnership. The agreement states who owns what and who contributes what and is not only important if the relationship ends, but also if one partner dies. Having a cohabitation agreement makes the consequences of splitting up a lot easier to deal with and a LOT CHEAPER without having to incur expensive legal bills!

In England and Wales there is no formal legislation which makes cohabitation agreements legally enforceable, but given that a cohabitation agreement is a contract existing between two parties, so long as it complies with the basic requirements of contract law, it should be legally enforceable. Therefore, each member of the couple is advised to take independent legal advice as to the terms and conditions of the agreement before signing it.

A cohabitee or civil partner who was in some way financially dependant upon their partner and who finds themselves without adequate provision, either because their partner died without making a Will or because a Will was made but left insufficient provision to the partner, has a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975.

A person wishing to make a claim under the Inheritance Act must do so in very strict time limits. The person applying asks the Court to investigate the assets left by the deceased and the provision made for the applicant. The applicant will ask the Court to find that insufficient provision was made and that this should be rectified.

How much better it is to avoid all that hassle and make a cohabitation agreement.

Contact us for more information.

Twitter

2011-01-13T08:48:00.003Z

You can now follow us on Twitter by texting:

follow thewillcentre

to 86444

Son Contests Millions left to Chihuahua

2011-01-05T19:56:00.004Z

The son of millionaire socialite Gail Posner has launched a challenge against the distribution of his mother’s estate after claiming that she was manipulated into changing her Will in 2008 to leave her fortune to her dogs and hired help.

The Will gives her three dogs the right to live in her seven bedroom Miami mansion until they die. It also leaves $27 million to her maids, bodyguards and personal trainers and allows them to remain in the house rent free.

Her son claims that his mother ‘would never have done this unless she was under extreme influence’. Ms Posner was a victim of childhood incest and spent her life battling addiction to drugs and alcohol. Court documents describe her as being ‘a deeply disturbed recluse with serious emotional and psychological problems stemming from her history of being sexually abused’.

There were allegations that, as her health deteriorated following her diagnosis with cancer in 2005, she was imprisoned in her house and cut off from her family. Her son alleges that when the changes were made to her Will shortly before her death she wasn’t mentally capable and was blackmailed by her employees. Her son has produced video evidence from his last visit to his mother’s house where she claimed that her staff were trying to kidnap and kill her and asked her son to get her away from them.

Her son is also claiming against the loss of a $100 million trust fund that was designed to pay the income only to Ms Posner during her lifetime, leaving the capital to her children. At the time of her death she had received the money from the fund and the trust was closed in 2008. He is claiming that distributions made to his mother were not in accordance with the terms of the trust or in accordance with the wishes of the settlor. The company concerned intend to vigorously defend themselves against any allegations. Further hearings are scheduled for later in the year.

Choosing Executors Carefully

2010-01-07T17:24:00.002Z

A recent case has once again highlighted the importance of clients choosing their executors with care. The case involved an executor who ‘went too far’ and was sued by the beneficiaries for failing to administer the estate.

The executor was a friend of the lady who died in 2006. Under the terms of the Will she gave a right of occupation of her property to another friend then left her estate to be divided between three animal charities.

The charities, on becoming aware of their entitlement under the Will, made enquiries of the executor to establish their entitlement. The executor supplied them with a copy of the Will and a letter apparently signed by the life tenant expressing that she wished to stay in the house. The charities made repeated enquiries but the executor provided incomplete responses and a valuation that was much lower than those carried out by the charities.

Now suspicious by the executor’s actions they made further enquiries and were shocked to find out that the life tenant had actually lived in sheltered accommodation for quite some time and that the executor was currently residing in the property. As beneficiaries, the charities applied to have the executor removed by the court and replaced with a professional executor. Not only did the court agree but also ordered the executor to pay the costs incurred by the charities in sending repeated solicitors letters and obtaining valuations.

Although clearly within their rights in this case charities are notoriously aggressive where they are appointed beneficiaries of an estate. Leaving a fixed sum to a charity is preferable however caution should be exercised when deciding the amount as a specific bequest is paid in preference to any residuary payment meaning that, potentially, they may be nothing left for the ultimate beneficiaries.

The case also highlights the benefits of having a professional executor appointed, even if it is alongside the clients chosen lay executors. Using a professional dispels the possibility of leaving an executor open to aggressive tactics used by charities and any potential claim against them personally, even for innocent mistakes.

At The Will Centre, we offer the service of being appointed as a professional executor, and therefore we can administer the estate quickly and efficiently for clients. If you would like The Will Centre to act for you in the administration of an estate, including a person who had died, then please call us on 01752-607040.

Happy New Year

2009-12-31T10:27:00.003Z

As 2009 draws to a close and we head into 2010, The Will Centre Team would like to wish you a Happy New Year.

We have some very exciting developments to announce in 2010 but in the meantime we hope you enjoy the remainder of the festive break.

Alan, Barry, Mandy & Ray.

A New Tax Year, a New IHT nil-rate band

2009-04-06T09:45:00.005+01:00

The 6th April 2009, is the start of the new tax year. The Inheritance Tax (IHT) Nil-rate Band increases from £312,000 to £325,000 per individual.

An increase of £13,000 in the band at an IHT rate of 40% means a potential additional IHT saving in the new tax year of £5,200 for an individual and £10,400 for a married couple or registered civil partnership where the survivor is able to claim both their own and the transferable nil-rate band.

The nil-rate band is due to increase to £350,000 per individual on 6th April 2010, but with the current economic situation and a budget due soon it may be that this increase is under threat.

For advice on saving IHT or using the transferable nil-rate band option please contact The Will Centre on 01752-607040.

Probate Scams

2009-03-31T15:06:00.005+01:00

Please be aware that there are currently several Probate scams in operation via the Internet. Many of these will inform the recipient that they are the beneficiary of a substantial legacy but will ask for fees and/or taxes in advance of sending more information or the release of funds.

These will always be fraudulent and on no account should you make any payment or transfer any funds. You can obtain further information and advice concerning such scams on www.met.police.uk/fraudalert You will also find information about reporting such activity to the police, as the police may be able to close down the e-mail accounts concerned.

Alan Porter, of The Will Centre, says this follows the typical scam tricks of enticing you to part with money up front. Of course you never should have to pay up front as a reputable firm will take any fees from the estate of the deceased. The Office of Fair Trading also has information on scams at http://www.oft.gov.uk/oft_at_work/consumer_initiatives/scams/

If you need advice on Probate then please call The Will Centre on 01752-607040. We offer a FREE, no obligation, 30 minute interview at our offices.

HMRC Phishing Attack

2009-01-15T09:41:00.002Z

Banks have been made aware of the following phishing attack on HM Revenue & Customs (HMRC).

A bogus email claiming to be from HMRC is telling recipients they are due a tax refund and asking for account or credit card details so that a (fictitious) tax refund can be paid.

HMRC have confirmed that they will only ever contact customers in writing to confirm tax refunds.

Should you receive such an email, do not open, click on the website link or provide any confidential details and immediately forward it to phishing@hmrc.gsi.gov.uk for investigation.

Happy Christmas/New Year

2008-12-21T12:21:00.002Z

Cleaner fails to clean up Will properly!

2008-05-23T16:02:00.002+01:00

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."

2008-03-26T13:14:00.002Z

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

2008-03-19T12:20:00.002Z

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

2008-03-05T12:10:00.002Z

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

2008-02-25T11:02:00.002Z

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

2008-02-18T15:48:00.004Z

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

2008-02-07T15:20:00.000Z

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

2008-01-23T12:19:00.000Z

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

Unmarried Couples

2008-01-16T10:44:00.000Z

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

2008-01-14T17:45:00.001Z

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!

2008-01-11T12:26:00.000Z

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!

2008-01-09T18:30:00.000Z

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)

2008-01-04T15:35:00.000Z

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

2008-01-04T15:28:00.000Z

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 . . .

2008-01-02T15:14:00.000Z

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’!

Thanks a Million

2007-10-08T15:20:00.000+01:00

At their annual conference, the Conservatives proposed cutting inheritance tax (IHT) by raising the threshold to £1,000,000 but you don’t have to wait for them to win an election to escape death duties. Originally intended as a tax on the rich, 2,300,000 homes are now above the current IHT limit of £300,000 and the IHT net is expected to catch more families as assets continue to grow faster than the indexation of the threshold or Nil Rate Band. The current IHT rules mean you can still pass substantial amounts of wealth to chosen beneficiaries – providing of course your estate is arranged in a tax-efficient way.

Many married couples leave their assets completely to their surviving spouse when they die – there is no IHT between UK domiciled spouses – but by doing this a nil rate band is wasted on the first death, resulting in up to £120,000 IHT being paid unnecessarily. Using a will trust arrangement can ensure that, for married couples (or registered civil partners), up to £600,000 can be passed on tax-free. Making gifts is a good way to reduce a taxable estate – the annual allowance is £3,000 per person so over a twenty-year period a married couple (civil partners) could gift another £120,000 tax-free. Investing in shares listed on the Alternative Investment Market (AIM) can lead to 100% Business Property Relief after two years of ownership, so removing the value from the estate and there is no investment limit. There are many other arrangements that can save tax without impinging on your own financial security so with the prospect of any early election now over (for the time being), now seems a good time to review one’s plans.

Alan Porter, of The Will Centre says, “IHT is a tax that can be erased from most estates by either a Nil Rate Band Discretionary Will Trust or careful lifetime planning. We help a lot of clients in this situation who have a house that puts them into the IHT risk zone of £300,000 to £600,000 when added to other assets.”

For help and advice if you are in the IHT Risk Zone call The Will Centre on 01752-607040.

Enduring Power of Attorney (EPA) Deadline Looms!

2007-09-06T20:05:00.000+01:00

The last day for signing an EPA is 30th September 2007, only 24 days away!

The length of the EPA form is 4 pages if you make an EPA with 2 Attorneys. From 1st October if you make a Lasting Power of Attorney (LPA) using a Power and Affairs LPA it is 25 pages long and a Personal Welfare LPA is 24 pages!

So you can see why an LPA is going to be MUCH more expensive than an EPA. Plus with an LPA a registration fee of £150 has to be paid to the court.

So why make an EPA or LPA:

There are 3500 dementia sufferers in Plymouth alone.
This is expected to rise by 43 per cent by 2020 according to recent research.
It costs roughly £25,000 to provide care for each sufferer per year.
Dementia affects one in 20 people over the age of 65 and one in 5 over the age of 80.
The Alzheimer’s Society estimates that there are over 70,000 people in the UK with dementia.
There are over 100 different types of dementia; the most common are Alzheimer’s disease, vascular dementia and dementia with Lewy bodies.
Symptoms include loss of memory, confusion and problems with speech and understanding.
Most forms of dementia cannot be cured. There are some drugs available that appear to alleviate some of the symptoms of Alzheimer’s disease in some people.

Alan Porter of The Will Centre says, “So LPA or EPA? An EPA is much cheaper and easier to do but you only have 24 days left to make one! The last day for making one is a Sunday (30th September)! An LPA is longer, much more complex and will cost a lot more. The simple choice is make an EPA NOW! Call The Will Centre for more details, before it’s TO LATE!”

Scams - If it doesn't sound right it probably isn't!

2007-08-31T13:43:00.000+01:00

The Office of Fair Trading (OFT) has been made aware of a scam involving consumers being telephoned by people, alleging to be from the OFT, asking for personal and financial information including their bank account details in order for the OFT to reclaim bank charges on their behalf. These callers have no connection with the OFT, and their intention is to use the information for identity theft or to run up bills or commit crimes using stolen details. The OFT will never contact consumers asking them for personal bank details.

The OFT is warning consumers not to pass on personal or financial information to cold callers either over the phone or via email, and if they have already done so, to contact their bank as soon as possible and review their credit card and bank account statements to see if there have been any unauthorised transactions. For full deatils go to http://www.oft.gov.uk/news/press/2007/125-07

Alan Porter of The Will Centre says, "NEVER disclose personal information. There are several websites that contain information such as 'Get Safe Online' and 'Bank Safe Online'. Log on to these and get wise to the scammers".

Lasting Powers of Attorney

2007-08-14T19:32:00.000+01:00

On 1st October 2007 a new regime comes into force that was designed to protect the elderly.

Currently a person (called ‘the donor’) can make an Enduring Power of Attorney (EPA). This will be replaced by a new document called a Lasting Power of Attorney (LPA) as laid out in sections 9-14 of the Mental Capacity Act 2005. However EPA’s made before 1st October will still be valid and continue after 1st October. After this date you will only be able to make an LPA. There are two types of LPA: one for property and finances and the other for personal welfare. This is a key change: the attorney will be able to make decisions about the person’s welfare, health and housing – even if life-sustaining treatment is to be refused.

But lawyers still have concerns. It is felt that the new regime (which does not affect existing EPA’s) will be more difficult, costly and be subject to greater delays. There must also be a certificate to state that the donor knows what he or she is doing.

Alan Porter of The Will Centre says, “This is still a lot on confusion about LPA’s. The legislation was supposed to start earlier this year but was put back to the 1st October. Our advice is to make sure you have an EPA before the deadline of 1st October. If you already have one then make sure it is updated if it does not make your current wishes. And don’t forget EPA’s aren’t just for the elderly or infirm – they are for everyone!”

Call The Will Centre on 01752 607040 for free impartial advice.

Will Awareness Week - 24th to 29th September

2007-08-12T14:50:00.000+01:00

The Society of Will Writers estimates that currently 70% of the UK adult population don’t have a Will or, they have an old Will that does not account for changes that have been made in their lives, in an increasingly complex society it is our role to educate on the benefits having a Will and ensuring that it is up-to-date. ‘Will Awareness Week’ is a National campaign that is being run by The Society of Will Writers to raise awareness of the importance of having a Will. The campaign will take place from the 24th – 29th September 2007.

The campaign will tour 6 cities in 6 days: Lincoln, Leeds, Manchester, Birmingham, Bristol and Milton Keynes. The aim of the road show will be to raise awareness as to the significance of a Will and its importance to everyone regardless of age, gender or fortune.

We will be supporting this campaign with events in Plymouth. Do you have any ideas how we can support or publicise Will Awareness Week?

Daughter Jailed for using DIY Will Kit to forge her dying Mother's Will

2007-08-09T13:13:00.000+01:00

By Alan Porter of The Will Centre.

Doing your own Will is often fraught with difficulties but as the following shows there are greater dangers than just not doing it right . . .

"A DAUGHTER has been jailed for forging her dying mother's Will to cheat her family. The woman was in line to get a quarter of her mother's £70,000 estate, sharing it equally with her three step-siblings.

Instead she ignored her mother's last wishes, invented a second will making herself the executor and decided to give her step brother and step sisters £2,000 each and keep the rest for herself. With her mother dying of cancer in Hospital and unable to move let alone write her name, she forged a cheque and took £8,000 from her mother's bank account. She made plans to transfer the remaining £7,000 in the account into her own name and contacted an estate agent to sell her mother's home.

Her mother died three days later, aged 79, unaware of how her daughter had defied her. The
woman used the £8,000 cheque she had forged to pay off her step-siblings, telling them in letters that her mother had written a new Will and she was the major beneficiary. But they questioned the new Will with a solicitor and the police, and the scam began to unravel.

A handwriting expert found that the signature on the cheque had been forged. The deception was carried out with a £9.99 Will kit bought from W H Smith.

Despite repeated denials of wrongdoing before the trial she pleaded guilty to obtaining a money
transfer by deception, using a false instrument and making a false statement on oath."

Don’t leave things to chance. A Will is probably the most important document you will ever make so do it properly. Call us on 01752-607040. We offer a FREE review service for Home Made or DIY Wills.

Smoking Ban Days Away

2007-06-11T12:38:00.000+01:00

From 1st of July 2007 virtually all enclosed public places and workplaces in England will become smokefree. The blurb on the Smike Free England website says that "A smokefree England will ensure a healthier environment, so everyone can socialise, relax, travel, shop and work free from secondhand smoke."

This website provides you with information about the new legislation and lets you know how you can play an important part in creating a smokefree England.

http://www.smokefreeengland.co.uk/

The Will Centre will become a smoke free zone on 1st July 2007.

HMRC denies crackdown on buy-to-let investors

2007-06-11T12:35:00.000+01:00

HM Revenue and Customs (HMRC) has played down press reports this week suggesting that buy-to-let landlords face a campaign to reclaim unpaid taxes. The reports said that HMRC has identified some 80,000 buy-to-let investors who may be liable to extra tax payments on their properties. One reason for the failure to pay the correct amount of tax is that some investors may have believed mistakenly that the whole of a mortgage repayment can be offset against profits on rental income for tax purposes. In fact, it is only the interest payable on the mortgage, not the capital repayment, that is deductible. A piece in The Times said that HMRC would be drawing on information from banks, tenants and letting adverts as part of its campaign. HMRC, however, has issued a statement denying that it is planning a tax crackdown in the way implied by the reports. Instead, it is intending to provide landlords with guidance and help. The statement said: “HMRC is planning to take a concerted approach to helping landlords of all descriptions (not just in the buy to let market) to understand and comply with their tax obligations in what they recognise to be a complex area. In taking this approach the explicit presumption will be that the majority of landlords want to make a correct return but that many may need some help to understand exactly how to do so. The approach, which was outlined to agent representatives in a recent workshop, will focus on giving landlords improved access to guidance and support so that they can understand how to calculate their own tax liabilities and, where there is tax to pay, using the lightest possible touch to ensure that the correct amount is paid.” The buy-to-let market has mushroomed in recent years as more people have taken advantage of a relaxing of the rules on purchasing rental property as an investment. It is estimated that there are now some 400,000 buy-to-let landlords in the UK.

The Will Centre Blog Launched

2007-06-06T17:55:00.001+01:00

Launching a blog isn’t like launching a ship. No bottle of champagne to smash against the computer screen (far too messy and such a waste of champagne) and no boring speech (just a boring introduction like this one).

Here goes and make your god bless all who join in with her.

Alan Porter