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STEP Advanced Certificate in Will Preparation (England and Wales)

Congratulations to Alan Porter of The Will Centre on passing STEP Advanced Certificate in Will Preparation (England and Wales).

STEP is a unique professional body, the leading representative and training body for solicitors, barristers, accountants, will writers and other professionals who specialise in trusts and estate planning. STEP provides members and those affiliated to STEP with a local, national and international learning and business network focusing on the responsible stewardship of assets today and across the generations.

Now, more than ever, clients need properly qualified and capable will draftsmen to prepare their wills. Family structures have become increasingly complex over the years and private wealth has grown significantly. These factors are beginning to focus the spotlight on the competence of will writers and the threat to the public of poorly drafted wills. The client, or the client’s family, may not appreciate the risk until it is too late.

Even well drafted wills may not reflect the circumstances or real needs of the individual unless the will draftsman possesses the breadth and depth of knowledge to ask the right questions and to advise the client appropriately. To be a truly “trusted advisor” the practitioner needs a holistic knowledge across a range of technical areas and the client-facing skills to apply that knowledge in the right way.

This Advanced Certificate, the first of its kind at this level in will preparation, has been designed with this aim in mind: to develop the trusted will draftsman who can demonstrate through qualification that they have the knowledge and skills to provide an excellent service to their clients, whatever the client’s needs and circumstances.

Launched in 2011, the STEP Advanced Certificate in Will Preparation has been developed at the level of the STEP Diploma, the gold standard in the field of trusts and estates education. The core text has been written by Martyn Frost TEP and Toby Harris TEP, well-known writers, presenters and practitioners in the field of wills, estates and taxation. The Advanced Certificate is appropriate for professionals who have existing experience in will preparation.

Law Commission - Intestacy Reforms

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?

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.

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Son Contests Millions left to Chihuahua

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

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.