Making a Will

Wills2.jpg

We all know the saying, ‘Life is what happens when you’re busy making other plans’. However, with the hustle and bustle of everyday life, it is sometimes difficult to make any plans at all!

Few people would deny the sense in making a Will, and most of us have at one stage or another considered it, but many of us just don’t get round to the task. Everyday life seems to get in the way and besides, talking about death is a little depressing don’t you think?!

Why should I make a Will?

Well, there is nothing morbid about making a Will – you can rest assured that it does not hasten the event! In reality, taking a little time to plan how you would wish your assets to be distributed upon death and knowing that your family and children have been properly provided for as per your wishes goes some way to relieving the stresses and worries that many of us may have about death, particularly as we get older. Essentially, by making a Will, you control who inherits and how much of your estate each of your chosen beneficiaries receive.

What if I have not made a Will?

If you have not made a Will, then laws made many years ago (which many people feel are now outdated) direct who the recipients of your estate will be. In today’s world, the patterns of family life are much more diverse and a family may include the following:-

  • Children by more than one partner
  • Step-children
  • Long-term unmarried partners.

If you have not made a Will, these are all complicating factors. For example, if you are unmarried but have a long term partner and child together, your child will inherit your estate if you die without a Will and NOT your partner. Yet most unmarried couples would wish, and expect, that their partner would be first in line to inherit, and their child second. If married, your partner moves to first in line but does not necessarily take all of your estate. Therefore, if you wish to have the reassurance that each and every member of your family is accounted for upon your death, making a Will is the best option for you.

Planning ahead can save you money and heartache, and most importantly will ensure YOU are in control of what happens after your death.

For more information on how to make a Will, please feel free to contact us here or alternatively leave your details below. 

 

World Elder Abuse Awareness Day 2018

elderabuse

The United Nations designated 15th June 2018 as ‘World Elder Abuse Awareness Day’.

This is an occasion to recognise and highlight the issue of elder abuse in the world and for each country to vocalise its opposition to the abuse and suffering inflicted upon some members of our older generations

Here in Northern Ireland, elder abuse is widely considered as being ‘a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person’.

Action on Elder Abuse (AEA) Northern Ireland is the only charity in Northern Ireland working exclusively to safeguard and protect older people from all forms of abuse.

On their website, the charity aims to prevent the abuse of older people by working on 4 main goals:

  1. By raising awareness of the various strands of elder abuse and harm older people experience including physical, sexual, emotional/psychological, financial abuse and neglect
  2. By providing advice, guidance and support to both older people at risk of abuse or in need of protection and those concerned about them
  3. By engaging with older people, practitioners and policy makers to improve prevention and protection through delivery of conferences, seminars, information materials and policy briefings
  4. By campaigning for the best possible support and prevention frameworks.

Action on Elder Abuse NI operate a specialist and confidential helpline (080 8808 8141) for older persons who are suffering with or affected by abuse or for those who may have concerned about an older person in their lives being treated badly. This is a free helpline and is available Monday to Friday, 9am to 5pm.

If you require legal advice with regards to an issue involving elder person abuse or any other issue regarding elder person care and needs, you will be able to access specialist solicitors via the Solicitors for the Elderly (SLE).

This is an independent, national organisation of lawyers who provide specialist legal advice for older clients, their families and carers. Members of SLE cover advice in many areas of law tailored to elder client needs, including Wills, Powers of Attorney, Living Wills, Trusts, Probate, care funding, along with matters involving the Office of Care & Protection and elder abuse.

If you require any further informaiotn, please do not hesitate to conatct us here or leave your comments below

Home-Made Wills – Are They Worth the Risk?

wills

In an age where everything seems to come with a price tag, most of us in one way or another will try and find cost-effective ways in which to handle our affairs in an effort to save some money.

A popular money-saving exercise that seems to have caught the attention of the thrifty amongst us is the option of writing your own Will.

On the face of it, writing your own Will appears to make sense – if you go to a solicitor, a basic Will may cost you between £100-£150 and by contrast, writing your own will could cost you nothing.

There is no obligation to instruct a solicitor when making a Will, and it is so often presumed that it is easy to leave written instructions to say who is to get what after your death.   Surely you can simply write your wishes on a piece of paper and sign it and it will be legally binding, right?

Wrong!  It may easy to write out your wishes and directions, but it is dangerous to presume that this expression of wishes will be legally binding after your death.

Making a Will yourself comes with an array of risks – if mistakes are made, or if the strict witnessing rules are not followed correctly, your Will could be deemed invalid.  If this happens, it could affect the way in which your assets are divided up – this could mean that someone who you wished to benefit from your Estate may not do so.   There can be further serious implications – you risk leaving your family with a financial and emotional mess, and there is also the potential of your assets being eaten away by legal bills or unnecessary tax.

Two recent cases decided by the High Court and Court of Appeal in England highlighted the dangers and concerns around homemade Wills:-

Watts v Watts

Valerie Watts died of cancer in 2011 – she was survived by her two adult children who were not close and who had fallen out during their mother’s final illness.  Valerie made a Will in 1999 which favoured both children.  After her death, a Will dated 2011 (alleged to be have been written by Valerie whilst she was terminally ill in hospital) was produced and this second Will excluded her daughter.  Upon Valerie’s death, the 2011 Will was challenged.  The Court heard arguments as to whether Valerie’s signature on the 2011 Will had been forged and if not, whether the Will had been validly executed by two witnesses signing the Will in Valerie’s presence and in the presence of each other.

The Court decided that Valerie’s son had forged her signature, and that two witnesses had not been present as required.  On both counts, the Will was deemed to be invalid.

Re: Wheelan

This case involved an estate worth £1.8 million.  Mrs Wheelan and her husband had made Wills through a solicitor in 1982.   Mr Wheelan died, and Mrs Wheelan thereafter signed a document in 1999 without legal assistance, purporting to be a Will.  Questions arose after Mrs Wheelan’s death as to whether the 1999 Will was properly executed in the presence of two witnesses.  Ultimately, the Court found that it was not, and despite taking the view that Mrs Wheelan intended the contents of the 1999 Will to prevail, the Will could not be considered to be valid.

As a consequence of this formal flaw, a lot of money was spent on Court proceedings and Mrs Wheelan’s  testamentary wishes could not be acted upon.  If Mrs Wheelan had spent a very modest sum of money engaging a solicitor, her £1.8 million estate would have been given to those she intended to receive it.  The fatal formal flaw in her Will however denied this inheritance to her intended beneficiaries.

The reality is that after your death, it is too late to fix any problems there are with your Will.

If the validity of your Will is challenged after your death, the Court will make an initial presumption that the Will was validly executed but it will listen to evidence to decide if this presumption should be over ruled.  Academic opinion suggests that the strength of the presumption that a Will is validly executed unless proven otherwise is weaker where the Will is homemade and a lawyer has not been involved in the process.

Wills govern the destiny of all of your assets and possessions.  It is a false economy to risk making a homemade Will.   If your personal circumstances are straightforward,  making a Will via a solicitor is a relatively inexpensive exercise and will provide you with reassurance that it is has been done the right way.   If, on the other hand, your circumstances are complicated or your assets are substantial, it is imperative that you seek full legal advice to avoid any future legal challenges or hefty tax bills.

LJohnstonLINDA JOHNSTON is a Partner in FRANCIS HANNA & CO SOLICITORS Private Client department specialising in ESTATE PLANNING, LONG TERM CARE ISSUES and DISPUTED WILLS.  If you require any advice or assistance in making a Will or challenging the validity of a Will, please contact Linda on lj@fhanna.co.uk

LIFE BITE : Ilott v Mitson: Inheritance dispute case goes to the UK Supreme Court

apple-150579_1280The UK Supreme Court has granted permission for a challenge of the decision of the England & Wales Court of Appeal in the inheritance dispute case of Ilott v Mitson.

This case made media headlines last year following a Court of Appeal decision regarding the estate of the late Melita Jackson.   Ms Jackson, who died in 2004, had expressly stated in her Will that she did not wish her daughter, Heather Ilott, to receive anything from her estate upon her death. 

Ms Jackson went so far as to have a letter of wishes professionally drafted and placed alongside her Will explicitly discouraging her daughter from making any claim on her estate.   Among the reasons stated by Ms Mitson for disinheriting her daughter were that they had been estranged for many years after Ms Ilott had left home at 17 to live with (and later marry) a man her mother did not approve of.

Following Ms Jackson’s death, her daughter did make a claim on her estate under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that she was on a very low income of state benefits and required reasonable financial provision to be made to her from her  late mother’s estate.  This claim was opposed by the three charity beneficiaries named in the Will.

The Court upon hearing the case initially awarded Ms Ilott £50,000 from her mother’s estate however this award was later overturned by the High Court.   Ms Ilott subsequently appealed this decision to the England & Wales Court of Appeal and in July last year, she was awarded an increased share of £163,000.   In the Judgment, the Court found that Mrs Jackson had acted in an ‘unreasonable, capricious and harsh way’ towards her daughter.

Lady Justice Arden said Mrs Ilott’s income was so low that it overrode the 1975 Act’s usual requirement that the applicant was dependent on the deceased. The award given was to facilitate Mrs Ilott in purchasing her housing association house and it was structured by the Court in a way that would allow Mrs Ilott to preserve her state benefits.

The charity beneficiaries have now obtained leave to appeal to the Supreme Court. In the appeal the Supreme Court will consider whether the Court of Appeal’s approach to providing Ms Ilott with maintenance was wrong and also whether the Court of Appeal was flawed in its decision to structure Ms Ilott’s award in such a way that she would keep her entitlement to state benefits.

This is an important case which raises questions about the extent to which the Courts should be permitted to interfere with testamentary freedom.   It will also be interesting to see the Supreme Court’s view on structuring an award to ensure that the recipient retains access to state benefits.

For more information on Wills or on Inheritance Provision Claims, please feel free to contact us at kconnolly@fhanna.co.uk or on the contact form below

Enduring Powers of Attorney – All Your Questions Answered

 

elderclientNone of us like to think of the possibility as we grow older of getting too ill, either mentally or physically, to manage our property and finances ourselves.

We can all easily assume that, somehow, we will be able to manage our affairs throughout our lives – that we will always, for example, be physically capable of getting to the bank or post office to withdraw money or pay bills, or that we will always be mentally capable of understanding and signing documents connected to our property.
Whilst many of us will throughout life be able to look after our affairs as independently as ever, the sad truth of the matter is that for others, the ability to be physically or mentally capable of managing property or finances can be unexpectedly lost through accident, injury or the onset of illness such as dementia.

It is therefore reassuring to know that there are things that you can do to help you plan for the future should the worst happen.  You can plan for these possibilities by taking sensible precautions whilst you are mentally and physically capable of doing so.

 How? 

By executing a document known as an Enduring Power of Attorney (EPA)

So, what exactly is an Enduring Power of Attorney?

An Enduring Power of Attorney is a Deed by which you can give authority to another person (your “Attorney”) to act on your behalf in relation to all or specified property and financial matters.

An EPA is not a Will.  A Will is only relevant after your death.  An Enduring Power of Attorney deals with the management of your property and finances when you are alive, but unwell.

Do I lose control when I sign an EPA?

By executing an EPA, you are potentially sharing control of your property and finances with your Attorney.

You can however state that the EPA is not to come into operation unless you become mentally incapable.   Some people prefer to keep the EPA restricted in this way.  Other people choose not to, as they wish their EPA to be effective if they remain mentally capable but become physically incapacitated and unable to manage their banking etc.  This is an important choice which should be carefully considered before executing an EPA.

Who should I appoint as my Attorney?

You can technically appoint anyone to be your Attorney however it is important that you ensure that you appoint someone that you trust completely, whether a family member, friend or professional advisor.   An EPA gives your Attorney complete control of your property and finances (unless restricted) and so you must be confident that your Attorney will have your best interests at heart.

It is also important that you discuss your intentions with any Attorney you intend to appoint as an Attorney must accept such an appointment, and sign the EPA form after you.

Can I have I have more than one Attorney?

Yes, indeed it is often practical to have more than one Attorney. If you choose to appoint more than one Attorney, you must decide whether they can act independently of each other or whether they must always act together.  This choice is not entirely straightforward you may need legal advice to guide you in this regard.

What Powers would my Attorney(s) have?

Subject to the terms of the particular EPA, an Attorney has wide authority to stand in the Donor’s shoes and make all decisions about your property, income and finances, which you could have made, with a few exceptions.

An Attorney cannot do the following:-

  • Make a Will for you
  • Sign an affidavit
  • Perform any act which you were authorized to do because of personal appointment, personal skill or a statutory direction.
  • Make medical or personal welfare decisions for you.
I don’t have assets or property of my own – is there any point in signing an EPA?

Regardless of whether you own property or have assets, someone will need to manage your pension or benefits if you cannot do so yourself. This will be made much easier with an EPA in place.

All of my assets are jointly owned with my spouse/partner – would I still need an EPA?

If it became necessary for your jointly owned house to be sold and you were not mentally capable of signing the deeds yourself, only a person with authority (such as an Attorney) can sign on your behalf.  One joint owner cannot sign deeds for all co-owners.

Often, joint bank accounts are frozen if a bank becomes concerned that one party is no longer capable and there is no EPA is in place. This can cause cash flow problems for all of the account holders. This can be avoided with an EPA.

What responsibilities would my Attorney have?

At all times, your Attorney must act in your best interests. Your Attorney must apply to register the EPA with the High Court if you have become or you are becoming mentally incapable of managing your financial affairs.  During the registration process, the authority given to your Attorney is effectively “on hold” until the process has been completed and the original Deed is issued bearing the court registration stamp.

Your Attorney is obliged to give you formal notice if steps are being taken to register your EPA.  As an added protection, your Attorney is also obliged to give notice to a number of your next of kin.  You, or family members notified can lodge an objection with the High Court, if you or they consider the registration of the EPA to be inappropriate.

Can I change my mind and revoke an EPA?

Yes, you can revoke an EPA while you remain mentally capable, and your EPA has not been used.  You should give notice of revocation to your Attorney.  However, once an EPA has been registered, it can only be revoked by the High Court.

If I recover my capacity, who is in charge of my affairs then?

There is a procedure to de-register an EPA which would allow you to resume control of your affairs yourself.  It would be important to seek legal advice to guide you on this process.

Is it expensive to make an EPA?

No. Legal costs are modest as the paperwork is not complicated once the important decisions have been made with professional help.  In fact, it would be much more expensive NOT to have an EPA should you have the misfortune to lose your capacity.

LJohnstonThis article was provided by LINDA JOHNSTON, Partner at FRANCIS HANNA & CO SOLICITORS.  Linda has a significant experience in the areas of FUTURE PLANNING.  For further information on this area of law, feel free to CONTACT US HERE AT LIFE LAW NI or contact Linda at lj@fhanna.co.uk