Bank of Mum and Dad: A Blessing or Inheritance Curse?

The dream of homeownership is increasingly challenging, prompting many parents to become a “Bank of Mum and Dad” and offer financial support. While generous, these financial gifts can become an inheritance curse, leading to tax issues, family disputes, or resentment among siblings. This impacts not only future inheritance but also emotional well-being and fairness.

Presumption Against Double Portions

The “presumption against double portions” is a legal principle stemming from common law. It states that it’s unfair for a child to receive the same inheritance twice. If a parent gives a significant gift and then leaves a similar gift in their Will, others might challenge the Will.

The Potential Impact on Inheritance

Courts presume a parent wouldn’t favour one child, but this is rebuttable. The parent’s intention behind the gift is critical. Court cases illustrate this: 

Case Law Examples

Phillips v Cameron [1999] Ch 386. In this case, the son received substantial sums from his mother during her lifetime. The court considered deducting these gifts from his share of her estate. Ultimately, the court decided that the gifts were not advancements but rather acts of “pure bounty” or spontaneous generosity from the mother. The court took several factors into account. Including the mother’s affection for her son, her financial circumstances at the time of the gifts, and the lack of evidence suggesting she intended them to be part of his inheritance.

In Race v Race [2002] EWHC 1868 (Ch), a father made a Will granting his daughter the right to live rent-free in a pub he owned. Later, he gifted her half the pub. The court ruled that this gift was an advancement of her inheritance, as it fulfilled part of the provision in the Will. This meant that the value of the half-share in the pub would be deducted from her overall inheritance upon the father’s death to prevent her from receiving a “double portion.”

Barraclough v Mell [2005] EWHC 3387 (Ch) involved a father who gifted his daughter £20,000 to help her buy out her husband’s share in their family home. The court ruled that this gift was a “portion” and should be considered an advancement of her inheritance. A document signed by the father two months after the gift confirmed his intention. This case shows that even gifts not explicitly linked to inheritance can be considered advancements if the giver’s intent is clear.

Kloosman v Aylen & Ors [2013] EWHC 435 (Ch). In this case, a testator had made lifetime gifts to two of his children. After he died, the court ruled that lifetime gifts to children did not need to be considered when distributing the remaining estate, as there was evidence that the gifts were intended to supplement their inheritance. This case demonstrates the importance of clearly documenting your intentions, such as through a detailed Will or other legal documents, to avoid ambiguity and potential disputes.

Protecting Your Intentions

Ensure your intentions are clear by:

1. Talk openly with your children about your intentions regarding their inheritance. Being frank can help them understand your decisions, avoid misunderstandings, and potentially prevent disputes in the future.
2. Clearly outline your wishes in your Will. Specify whether lifetime gifts are additional or part of their inheritance.
3. Consult a legal professional specialising in estate planning. They can provide tailored advice and draft legally sound documents.

Our Advice

Don’t let a gift become a burden. The Bank of Mum and Dad can be a lifesaver, but navigating legal complexities is crucial. Understanding the presumption against double portions and taking steps to protect your intentions ensures your generosity is a blessing. Our experienced estate planning team can help you create a comprehensive estate plan. This will safeguard your assets and respect your wishes. Contact us today. We’re here to help.

Can I Keep My Will Secret?

Usually, a Will become public after a Grant of Probate is issued. However, to protect the “dignity and standing” of the late Queen, the High Court ordered Prince Philip’s Will to be kept secret for 90 years. Since then, following the judgment of the President of the Family Division in the case of Prince Philip’s Will, nine original royal wills, envelopes, and seals have recently been released for public access.

This begs the question: can an average person keep their Will secret? After all, you may not want everyone to know your estate’s details or who inherits what.

Privacy and Your Will

Your Will is a private document. Even if family members pressure you to disclose its contents, you’re not legally obliged to show anyone. Only named executors are entitled to read the Will.

However, you can’t keep the terms of your Will private after you die. When the Court issues the Grant of Probate, the authority of the executor(s) is confirmed, the estate is distributed according to the terms of the Will, and any Will registered with the Probate Registry becomes a public document.

That said, when a Grant of Probate isn’t required, the Will can remain private. While it’s common for beneficiaries to ask to see a copy of the Will, it’s at the discretion of the executor(s) whether they provide one, and they are only entitled to information related to them.

Secret Trusts

A secret trust can be used to conceal the identity of a beneficiary. Two types of secret trust exist a half-secret and a fully secret trust. A fully secret trust makes no mention in the Will whatsoever; a gift to a person is made in the Will on the understanding that the person passes it on to an unnamed beneficiary. This agreement is made outside the Will entirely.

A half-secret trust names the trustee in the Will but does not give the trust’s terms, including the beneficiary.

While secret trusts can be useful for maintaining privacy, certain criteria must be fulfilled. Furthermore, unless the trust is set up correctly, the secrecy surrounding this type of trust will likely complicate matters for your executors. It may lead to disputes and delays in administering your estate.

Also, if the person holding assets in a secret trust dies or loses capacity before communicating the terms of the trust to anyone else, or written evidence isn’t easily available, there will likely be issues. Recent case law has also shown a difference between intending to create a trust and informally expressing wishes in the hope that they’ll be carried out.

Role of Discretionary Trusts

Often, the motivation behind setting up secret trusts is a moral obligation. In this context, one option is to make a Will leaving assets in a discretionary trust. In terms of privacy, A discretionary trust can include several beneficiaries, giving the trustees discretion on who should benefit and when.

Letter of Wishes

As mentioned earlier, a letter of wishes can offer privacy and is often used with discretionary trusts. Drafted alongside your Will, it provides additional context and guidance to your trustees on how to make decisions.

While not legally binding, a letter of wishes remains confidential. This is helpful for including sensitive information. It’s also easier to change or update than a Will.

However, your Will must be drafted correctly, especially if trusts are involved. A letter of wishes should not contain anything that could conflict with the contents of your Will. After all, it may create a strong moral obligation for the executors to follow its contents, but it’s not legally binding.

So, in summary, while it’s frequently recommended as an accompaniment, the Will itself (including appropriate trusts) should do the heavy lifting for your estate planning.

Updating and Keeping Your Documents Safe

Alongside your Will, a letter of wishes should be reviewed and updated regularly to account for any changes in personal circumstances – or preferences.

Of equal importance is where you keep these documents. Quite apart from the safety aspect (risk of damage and so on), it’s vital that your executors can easily find your Will and letter of wishes. In 2019, Lloyds failed to pass on over 9,000 Wills of deceased customers, leading to hundreds of families distributing assets incorrectly. This alone highlights why knowing where the Will is held is so important.

You have a few options for storing your Will, such as keeping it at home or with your solicitor. The best choice depends on your circumstances.

Any letters of wishes should be stored with your Will. Furthermore, it’s crucial not to attach them physically, as this could invalidate the Will. Keep these documents together. Your executors and trustees need them to understand and fulfil your wishes.

Finally, consider registering your Will with the National Wills Register for a small fee. This can help ensure your Will is found and followed after your death.

Our Advice

Creating a Will involves many important decisions. Our specialist team has extensive experience drafting Wills, letters of wishes, trusts, and other estate planning documents.

We also assist those responsible for administering estates. In addition, we act as professional executors and trustees for clients who prefer an independent expert. Contact us for more information or advice. We’re here to help.

What Happens if an Executor Dies?

The unexpected death of an executor can introduce a significant level of stress and emotional burden into the probate process, particularly during an already emotionally challenging time. However, what happens if an executor dies, including when the death occurs, can significantly impact how the estate is managed moving forward.

Understanding the Administration of Estates Act 1925

The Administration of Estates Act 1925 (AEA 1925) is the legal foundation of estate administration in England and Wales. It outlines the procedures for asset distribution, appointing personal representatives (executors or administrators), and settling debts and taxes. Crucially, the AEA 1925 also addresses the legal steps to take if an executor dies, including appointing administrators, following the chain of representation, and distributing assets when an executor cannot fulfil their role.

Example 1: Executor Dies Before the Will-Maker

If the executor passes away before the person who made the Will (the testator), the following steps depend on whether an alternate executor was named:

1. An alternate executor is named. The alternate seamlessly assumes the role, ensuring a smooth continuation of the probate process.

2. No alternate executor is named. If there is no alternate and the sole executor passes away, a beneficiary can apply to the court to appoint an administrator. While this ensures the estate is handled according to the testator’s wishes, it’s important to note that the process can be time-consuming and may cause significant delays, underscoring the need for proactive estate planning. 

Example 2: Executor Dies After the Will-Maker, But Before Probate Is Granted

In this example, probate, the legal process of validating a Will and granting authority to the executor, has yet to begin.

1. There is a sole executor. As in the previous example, if the sole executor dies, a beneficiary must apply to the court for an administrator.

2. There are multiple executors: The surviving executor(s) can continue the probate process and estate administration without interruption.

Example 3: Executor Dies After the Will-Maker and After Probate Is Granted

With probate granted, the executor holds legal authority over the estate. However, their death at this stage can lead to complications.

1. Sole executor. If the deceased executor left a will, a “chain of representation” may be employed, allowing the executor named in their will to step in. Otherwise, an administrator must be appointed.

2. Multiple executors. The remaining executors continue administering the estate as initially planned.

Our Advice

Planning is key! While the law provides solutions when an executor dies, proactive planning can save time and avoid potential disputes. Naming multiple executors in your Will creates a backup plan, ensuring the process can continue if one cannot act.

Regularly reviewing your Will is not just a task but a responsibility. Life circumstances change, and it’s crucial to ensure your Will remains updated, including confirming the named executors are still willing and able to serve.

If you’re considering making or amending a Will, our specialist lawyers can help. They have many years of experience advising clients on Wills, trusts, and probate matters. Please contact us for further information or advice on this or any other related issue. We’re here to help.

Navigating Probate Delays

The loss of a loved one is a difficult time, and the legal process of probate can add an extra layer of stress. Probate, the court-supervised process of administering a deceased person’s estate, can often be long and complicated, leading to unwelcome delays during an already emotionally challenging period.

Although there have been some improvements, the Ministry of Justice (MoJ) and HM Courts & Tribunals Service (HMCTS) still face criticism for delays and inefficiencies in the probate process.

Indeed, senior politicians have joined professional bodies in raising serious concerns that these issues create financial hardship for grieving families in the lead-up to the general election.

However, understanding the common pitfalls and taking proactive steps to navigate these delays can make the probate process smoother and less stressful.

Common Causes of Probate Delays

Several factors can contribute, but the most common include:

1. Incomplete or Incorrect Documentation. Complete and meticulously check all forms. Submit all necessary documents, such as the Will, death certificate, proof of identity and address, property deeds, and financial records. Incomplete or inaccurate information unnecessarily lengthens the process.

2. Family Disputes. Disagreements among beneficiaries about the validity of the Will or the distribution of assets can lead to lengthy legal proceedings. Open communication and, if necessary, mediation help to resolve family disputes.

3. Complex Estates. Probate could become intricate if the deceased had substantial assets, foreign holdings, or business interests. An experienced probate lawyer can effectively navigate these complexities.

4. Difficulty Locating Heirs or Assets. If beneficiaries are challenging to locate or the full extent of the deceased’s assets is unknown, it can significantly impede the probate process. Maintaining organised records of assets and beneficiaries during the deceased’s lifetime is highly beneficial. 

Gathering Essential Documents

Before initiating probate, pull together the following essential documents:

1. The Original Will. This outlines the deceased’s wishes, including the distribution of their assets.
2. Death Certificate. This provides official proof of death, an essential requirement before the process can begin.
3. Proof of Identity and Address. This is needed for the individual who handles the probate (not the deceased’s details).
4. Inventory of Assets and Liabilities. Compile a comprehensive list of the deceased’s assets and debts.
5. Financial Records. Gather bank statements, investment accounts, and other financial records that clearly show the deceased’s financial situation.
6. Deeds and Titles. These provide required proof of property ownership, vehicles, and other valuable assets.
7. Tax Documents. Recent tax returns are crucial in assessing the estate’s tax liabilities.
8. Insurance Policies. Gather life insurance policies and other relevant policies like home or car insurance.

Our Advice

Start the probate process as early as possible. Don’t delay. The sooner you start, the sooner you can finish. Be very careful with the details and keep all probate-related documents together. Create a timeline with important deadlines to help you stay on track.

You can go through probate without a lawyer, but having one can give you peace of mind. Probate lawyers know the rules and regulations inside out. They can make sure you meet all legal requirements and avoid costly mistakes.

If the estate is complicated, they can also help resolve family disputes and take some burden off grieving family members. Their expertise can save you time, money, and stress, allowing you to focus on what truly matters during this difficult time. If you need more advice or information about Wills, trusts, or probate, please contact us. We’re here to help.

Safeguarding Your Investment by Extending Your Lease

Leasehold properties are a common form of home ownership in the UK, especially for flats and apartments. However, a lease has a fixed term, and as this term gets shorter, the property’s value may decrease. This is where lease extensions come into play, allowing leaseholders to extend their ownership rights and safeguard their investments.

Benefits of Extending Your Lease

Extending your lease isn’t just about legal mumbo jumbo. There are several compelling reasons to consider extending your lease. Those at the top of the list include:

1. Maintaining your property’s value. As the remaining lease term shortens, the property’s value can decrease significantly. Extending the lease can help maintain or even increase the property’s market value.

2. Securing a mortgage or remortgage. Lenders get nervous about short leases. Extending yours gives you more options when you need a mortgage or want to remortgage with better terms.

3. Gaining peace of mind. Knowing you’ve got a long lease means you can relax and enjoy your home without worrying about time running out.

Legal Framework for Lease Extensions

The Leasehold Reform, Housing and Urban Development Act 1993 provides leaseholders of flats with the statutory right to extend their lease by 90 years, provided they meet specific criteria. The main criteria include:

1. Qualifying Tenant. The leaseholder must have owned the property for at least two years.
2. Long Lease. The original lease must have been granted for a term of more than 21 years.

Informal vs. Formal Options

There are two main routes to extending a lease:

1. Informal Lease Extension. This method involves direct negotiation with the freeholder (landlord) to agree on the lease extension terms. If both parties are willing to cooperate, this can be a faster and more cost-effective option.

2. Formal Lease Extension. If an agreement cannot be reached informally, the leaseholder can serve a formal notice on the freeholder to initiate the statutory lease extension process. This process is more regulated and involves a formal valuation to determine the premium payable.

The Lease Extension Process

Extending your lease can seem complicated, so getting advice from a legal professional who knows leasehold law is a good idea. Here are the basic steps:

1. Initial Valuation. A valuation determines the premium payable to the freeholder for the lease extension.

2. Serve Notice. The leaseholder serves a formal notice on the freeholder stating their intention to extend the lease.

3. Negotiation (if applicable). If an informal agreement is possible, negotiations take place to finalise the terms.

4. Valuation (if applicable). If an informal agreement is not reached, a formal valuation is conducted.

5. Lease Extension Granted. Once the premium is agreed upon or determined, the lease extension is granted, and the lease is extended by 90 years.

Our Advice

Extending your lease on a leasehold property in the UK is a crucial step in protecting your investment, securing a mortgage, and ensuring peace of mind. Our property team can guide you through the process, explain the legalese in plain English, and ensure you get the best deal possible. If you want to extend your lease or need advice about any property matter, please don’t hesitate to contact us. We’re here to help.

Disinherited Granddaughters Face Hefty Legal Bill

Frederick Ward’s five granddaughters, disinherited in his will, now face a large legal bill after losing their High Court case, Gowing v Ward. They had claimed undue influence, alleging their grandfather was coerced into disinheriting them after their father’s death.

Unravelling the Dispute

Frederick Ward’s estate became a point of contention after he made a new Will following the death of his son, Fred Junior. This new Will drastically altered the distribution of his assets, leaving the entire estate to Frederick’s surviving children, Terry and Susan. It excluded Fred Junior’s five daughters.

Believing their uncle and aunt had unduly influenced their grandfather, the granddaughters challenged the Will’s validity. The High Court was tasked with determining whether the new Will was a genuine reflection of Frederick’s wishes or the result of undue influence. This involved scrutinising the evidence, including witness testimonies and any documentation surrounding the creation of the new Will.

The High Court’s Verdict

Despite their heartfelt pleas, the High Court found no evidence supporting the granddaughters’ undue influence claims. The judge ruled that that Mr Ward was “entirely rational” and had testamentary capacity when he made the second Will in 2018 Will. Furthermore, he emphasised the minimal contact between the deceased and the grandchildren in his final years.

As a result, the court upheld the second Will and ordered the granddaughters to bear the burden of their legal costs, adding another layer of emotional and financial hardship to their loss.

Key Lessons and Implications

Gowing v Ward demonstrates the difficulties and potential for family strife when challenging a Will due to undue influence. Strong evidence of coercion is essential to overturn a Will; mere suspicion is not enough. Legal battles can cause lasting harm to relationships, and alternative solutions like mediation may be a better approach.

The case also emphasises the importance of legal advice when creating or changing a Will, especially for complex situations. Lawyers ensure proper documentation and can help prevent future disputes. They also must assess a client’s mental capacity and, if in doubt, seek a medical opinion. While such views are influential, they are not definitive. A lawyer’s testimony and file notes provide crucial context for the court to assess capacity.

Our Advice

Planning for the future can bring peace of mind to you and your loved ones. Our specialist wills, trusts and estates team can help you create a comprehensive estate plan that clearly outlines your wishes and minimises the risk of future disputes.

If you are concerned that your Will may be challenged after you die, or you are worried about the validity of a loved one’s Will, please contact us. We’re here to help.

How Revoking Your Will Can Affect You

Your Will is a vital document that outlines your wishes for the distribution of your assets after you pass away. But life circumstances change, and what you wanted ten years ago might reflect something other than your current priorities. In such cases, consider revoking or destroying your existing Will.

When Should You Revoke or Destroy Your Will?

There are many reasons why you should revoke your existing Will. These are some of the most common:

1. Change in Family Circumstances: Life changes such as marriage, divorce, the birth of children, or estrangement from beneficiaries can all necessitate changes to your Will. For instance, if you’ve recently divorced and want to remove your ex-spouse as a beneficiary, you may need to revoke your existing Will.

2. Acquisition or Disposal of Assets: Significant changes in your financial situation, such as inheriting property or selling a business, might warrant an update to your Will.

3. Impracticable Existing Will: If you think the terms of your current Will are no longer practical, revoking it becomes necessary.

4. Creating a New Will: A new Will automatically revokes any previous Will, ensuring your latest wishes are met.

How to Revoke Your Will

The Wills Act of 1837 governs how Wills are revoked in the UK. There are three recognised methods:

1. Making a New Will: Drafting a new Will is the most straightforward way to revoke a previous one. A well-drafted new Will typically includes a clause revoking all former Wills. This ensures clarity and avoids confusion. The process involves reviewing your current assets, considering your beneficiaries, and clearly stating your wishes for their distribution.

2. Creating a Codicil: A codicil is a legal document that amends an existing Will without revoking it entirely. However, if the codicil significantly alters the original Will, it might be considered a new Will, revoking the previous one.

3. Physical Destruction: You can revoke your Will by physically destroying it with the intention to do so. This can be done by burning, tearing it into pieces, or shredding it. However, this method carries some risks:

• The destruction must be intentional. Accidental damage or loss won’t revoke the Will.
• Having witnesses present during the destruction can help establish your intent if challenged later. These witnesses can attest that you destroyed the Will intentionally and not accidentally, which can be crucial in legal proceedings.
• If you have multiple Wills, destroying one might not revoke all of them, especially if the others have yet to be explicitly cancelled.

Cautionary Tale – Jones v Tracey & Ors

Is a lost Will revoked?

In Jones v Tracey & Ors, the dispute centred on the estate of the late Mr Turner. After the original document was lost, the validity of his Will was contested. Mr. Jones, named as the primary beneficiary in a copy of the will, asserted its legitimacy.

However, Ms. Cano, Mr. Turner’s sister, argued that the absence of the original Will indicated its revocation, which would result in her inheriting under intestacy laws. The court had to determine whether the presumption of revocation due to the missing Will applied or if the copy held by Mr Jones could be accepted as valid for the distribution of Mr Turner’s estate.

This case is a good example of why not dealing with revoking or destroying a Will, and seeking professional advice can have serious consequences.

Essential Considerations When Revoking or Destroying a Will

Ensuring your intentions are clear when you revoke your Will is crucial. If you opt for destruction, it’s best to do so in the presence of witnesses who can later verify your intent.

While the methods mentioned above are legal, consulting a specialist lawyer ensures you follow the correct procedure and avoid potential complications.

Once you’ve revoked your old Will, ensure your new Will is properly stored in a safe and accessible location. Many people choose to store their original Will with their solicitor. This ensures it is kept safe and means that if the original is lost or destroyed, a copy can be proven in court, which would be much harder if the Will were solely in the client’s possession.

Our Advice

Revoking or destroying a Will is a serious decision.  Understanding your options and the potential implications is crucial. For instance, if you revoke a Will without properly drafting a new one, your estate may be distributed according to intestacy laws, which may not align with your wishes.  While this blog provides a general overview, it’s not a substitute for professional legal advice.

If you’re considering making a Will or revoking your Will, our specialist lawyers have many years of experience advising clients on wills, trusts, and probate matters. Please contact us for further information or advice on this or any other related issue. We’re here to help.

Building Societies Step Up to Aid Victims of Philips Trust Collapse

The collapse of Philips Trust Corporation (PTC) in 2022 sent shockwaves through the financial lives of thousands of building society customers. PTC, responsible for managing numerous trusts holding assets totalling £138 million, fell into administration amidst allegations of mismanagement, leaving over 2,300 individuals facing the devastating loss of their life savings. However, several building societies have stepped up to provide financial aid to their affected customers in a positive turn of events.

Voluntary Aid for PTC Victims

Participating societies include Leeds, Newcastle, and Nottingham building societies, which have jointly pledged a multi-million-pound compensation scheme. The initiative aims to fully reimburse PTC victims for lost savings investments and contribute to property title restoration costs. The Building Societies Association (BSA) has welcomed this move and remains committed to supporting its customers during challenging times.

Legal Ramifications

The PTC collapse has affected the victims and sparked a broader discussion on legal considerations. Victims of the scandal have raised valid concerns about the lack of regulation for trust management companies and are calling for stricter rules to protect consumers in the future. This incident has served as a wake-up call. It highlights the need for individuals to conduct thorough due diligence before entrusting their assets to third-party providers.

While the voluntary compensation scheme is a positive step, the long-term legal ramifications of the PTC collapse are yet to be fully understood. Affected individuals are still seeking legal recourse to recoup their losses. Importantly, this incident could serve as a catalyst for regulatory changes, potentially strengthening consumer protection within the trust management sector.

Our Advice

This case reminds us of the risks inherent in financial investments—even those as seemingly secure as trusts. It underscores the crucial role of professional advice and thorough research in making sound financial decisions.

It’s important to understand that misleading promises often persuade many people to choose schemes like PTC. Unscrupulous companies often tout trusts as solutions for asset protection, for example, against care home costs. Avoiding probate fees, safeguarding inheritances, and reducing inheritance tax (IHT) have also been added to the list.

If you’re considering a Trust or have been impacted by the Phillips Trust Corporation situation, our Private Client Team is here to help. We provide expert guidance on tailoring Trusts to your needs and navigating the processes. Get in touch with us today. We’re here to help.

Critical Steps for a Smooth Property Transaction

Buying or selling a house is a significant milestone filled with excitement. However, there are often potential legal complications with any property transaction. Luckily, there are steps you can take to smooth the process – whether you’re the buyer or the seller.

Critical Steps for a Seamless Deal

For Buyers

• With mortgage pre-approval, a process where a lender reviews your financial information and determines the maximum sum they would be willing to lend you, you can demonstrate your financial readiness to sellers and streamline the offer process. With rising interest rates, pre-approval strengthens your position as a buyer.
• Empower yourself by thoroughly understanding the market. Conducting comprehensive research on platforms like Rightmove and Zoopla will equip you to make informed offers and avoid overpaying.
• Choosing a reliable team for the transaction is invaluable, especially in a slower or more volatile A skilled agent and experienced property lawyer will ensure your interests are protected.

 For Sellers 

• Gather title deeds, surveys, and maintenance records to facilitate the buyer’s due diligence process. Delays here can frustrate potential buyers.
• Consult your estate agent to help set a realistic price that reflects current market conditions. Overpricing can lead to properties sitting on the market longer.
• Comply with disclosure requirements and be forthright about known property defects or potential issues. Hiding problems can lead to costly disputes later.

Offer, Negotiation, and Due Diligence

Buyers

• Make a clear offer that includes the purchase price, preferred completion date, and any specific requests. It is also important to include contingencies, which must be met for the sale to go through.
• Negotiate strategically, especially in a cooler market – you may have more negotiation power. However, balance your interests with the seller’s to reach a mutually beneficial agreement.
• Inspect thoroughly, engaging professional surveyors to examine the property’s condition. Talk to the seller about any significant issues you uncover.
• A title search will verify the seller’s ownership of the property and check for charges or encumbrances on the property.

Sellers

• Review all offers but prioritise buyers with solid financials and pre-approval. This will minimise delays.
• Clearly outline any amendments to the buyer’s offer or accept it as is.

Closing the Deal

Your lawyer will meticulously review all the documents ahead of completion, including title deeds, surveys, and maintenance records, to ensure your interests are properly protected and to facilitate the buyer’s due diligence process. This step is crucial as it helps identify any potential issues or liabilities associated with the property.

Factor the costs involved in buying or selling a property into your budget. These include mortgage or loan fees, valuation and surveyor’s fees, property tax (such as Stamp Duty Land Tax), estate agents fees, removal costs and legal fees. Property professionals such as solicitors and estate agents are legally and ethically obligated to provide clear and transparent information about service costs (upfront), including potential disbursements or additional charges. For example, disbursements could include fees for searches, land registry fees, and bank transfer fees.

Additional Tips for a Smooth Transaction

Ensure your voice is heard throughout the process. Prioritise clear and open communication, pay meticulous attention to detail and always read and understand all legal documents before signing.

Our Advice

In the UK’s property market, using a specialist lawyer to buy or sell a property is wise. The conveyancing process, which involves the legal transfer of property ownership, is complex and involves significant sums.

If you’re buying a property together, seeking professional advice early can save you time and money in the long run. Experienced lawyers handle title checks, contracts, and financial transfers, protecting clients from mistakes and future problems and relieving the stress of a tense situation.

If you would like to talk to one of our property team members or receive a quote for your conveyancing, please contact us. We’re here to help.

Choosing the Right Executor

It’s Not Just About an Executor’s Skills

When you write a Will, selecting an executor is one of the most critical decisions. This person has the crucial responsibility of overseeing the administration of your estate after your death. While competence is essential, other qualities matter a great deal when choosing your executor.

What An Executor Does

Executors carry out the wishes expressed in your Will. Their duties can include:

• Locating and securing assets by identifying all accounts, real estate, valuables, etc.
• Managing liabilities. This includes paying outstanding bills and taxes and resolving any disputes with creditors.
• Distributing property and assets to beneficiaries under the terms in the Will.
• Legal and administrative tasks, including handling probate court proceedings and filing necessary legal documents.

Key Traits an Executor Needs

• An executor handles an individual’s assets, including property, so they must be trustworthy. Potentially, this involves large sums of money. Executors must be honest beyond question for the protection of the beneficiaries.
• The administration of an estate involves meticulous record-keeping, paperwork, and deadlines. So, an executor must be organised, detail-oriented, and able to manage a complex process.
• Being an executor is a time commitment. They must have the time and mental bandwidth to handle the added responsibilities on top of their own life.
• If the terms of the Will are complex or there is potential for family disagreement, the executor must remain emotionally detached and strictly follow the written wishes.

Choosing the Right Executor(s)

As you’d expect, there’s no one-size-fits-all solution, but common choices include:

• A family member or close friend. However, they need a suitable skill set, and there’s a chance that being an executor could strain relationships within your family circle.
• Professional executor(s). Lawyers, accountants, or banks provide the right expertise and neutrality. Professional executors charge fees but can save money in the long run by preventing costly legal errors and maximising tax efficiency.
• Co-executors. Appointing multiple executors can ensure a division of labour and a balance of skillsets. However, it would be best if you considered whether the executors can work effectively together. 

Important Considerations

• Your chosen executor(s) must be willing and prepared to accept the responsibility.
• Consider potential tensions or conflicts between executors and beneficiaries. A neutral (professional) person(s) might be better in certain situations.
• Consider the geography. If an executor lives far away, this can create unnecessary logistical difficulties.
• Choose someone young and healthy enough to see the process through. 

Our Advice

Choosing an executor is a decision as important as making the Will itself. It’s much more than merely finding someone wise or good with numbers. Choosing the right person ensures an estate is handled efficiently, an individual’s wishes are respected, and their beneficiaries avoid unnecessary conflicts.

For more information or advice about creating a Will, identifying suitable executors, or any other estate planning matter, please get in touch with us. Our specialist lawyers will work with you to understand your specific needs and goals, offering personalised advice to ensure your assets are distributed according to your wishes and your loved ones are protected.

Court of Appeal Finds No Undue Influence in Will Dispute

Inheriting after someone close to you has died can be a bittersweet experience. However, when the terms of a Will seem unfair or unexpected, suspicions of undue influence may arise. Undue influence is when someone pressures or manipulates the individual into making a Will and leaving their assets in a specific (often unexpected) way. However, a recent case, Rea v Rea, in which the Court of Appeal overturned a High Court decision, finding no undue influence happened, highlights how complex Will disputes can be. While challenging a Will on these grounds is possible, proving that undue pressure has been applied is invariably daunting.

Rea vs Rea 2024

Background

This case is a stark reminder of how difficult it is to establish undue influence. Anna Rea, a woman who had previously divided her estate equally among her four children in a 1986 will, left her house (most of her estate) to her daughter Rita in a new Will drafted in 2015. This significant departure from the previous Will sparked suspicion in Anna’s sons, Remo, Nino, and David. They argued that Rita, who lived closest to their mother and handled some of her financial affairs, had unduly influenced Anna into changing the Will, particularly given Anna’s advancing age and reliance on Rita for specific daily tasks.

Initial High Court Judgment

The sons presented evidence that Rita was heavily involved in arranging the drafting of the 2015 will. They also pointed to their mother’s declining health and suggested her mental capacity may have been compromised at the time the new Will was signed. However, the High Court initially sided with the sons, raising concerns about the lack of documented reasons for the significant change in beneficiaries and the potential for Rita’s influence to have been undue.

Court of Appeal February 2024

However, the Court of Appeal overturned the High Court’s decision. The appellate judges found that the sons hadn’t presented enough concrete evidence to prove coercion.  While the court acknowledged the close relationship between Rita and Anna, they also highlighted the presence of a solicitor during the drafting of the 2015 Will.  The solicitor testified that Anna appeared to understand the Will’s contents and made her decisions freely. Additionally, medical records indicated that Anna possessed the mental capacity when the Will was made.  Ultimately, the Court of Appeal concluded that the sons hadn’t met the burden of proof, and the 2015 will was deemed valid.

Comment

This case illustrates the complexity involved in undue influence claims. Although the sons presented a narrative suggesting potential manipulation, more was needed to overcome the presumption of a valid Will, especially with evidence of independent legal advice present. This case highlights the importance of considering the testator’s relationship with the beneficiary and the presence of safeguards like a solicitor’s involvement during the will-drafting process.

Critical Aspects of Proving Undue Influence

The Deceased’s Voice is Absent

Sadly, the person best placed to explain their intentions is no longer around. Establishing their true wishes and whether outside pressure has influenced their decisions is difficult.

The Burden of Proof

The person contesting the Will must provide evidence to convince the court that it’s more likely than not that the individual making the Will was pressured.

Coercion, not Persuasion

Undue influence goes beyond mere persuasion. It involves a degree of coercion or manipulation that overrides an individual’s own choice. Courts consider factors like the testator’s vulnerability, the beneficiary’s dominant position, and the unnatural nature of the Will’s provisions.

Independent Legal Advice

A Will drafted by a solicitor experienced in estate planning strengthens the case for validity.  The solicitor acts as an independent witness, ensuring the person making the Will understands its contents and makes decisions freely.

Our Advice

Proving undue influence can be complex. Evidence is often circumstantial, and the deceased can’t testify. While undue influence remains an option to challenge a Will, the bar for proving the case is exceptionally high—and costly! In Rea vs Rea, the judgment highlighted the concern that the legal costs could exhaust the entire estate, leaving nothing for the beneficiaries.

Our specialist lawyers have many years of experience advising clients about Wills, trusts, and probate, including inheritance disputes. If you are concerned about a loved one’s Will or need advice on any other matter, please get in touch with us today. We’re here to help.

Using Life Interest Trusts to Safeguard Your Legacy

Ensuring your wishes are carried out after you’re gone can be tricky, especially for blended families. But using life interest trusts can safeguard your legacy. So, consider them alongside other potential strategies, such as lifetime gifts, but seek professional advice to ensure the trust functions as intended.

Creating Life Interest Trusts

A life interest trust is a legal arrangement that can be set up in a Will to manage the distribution of assets after death. It allows a person to provide for someone (like a spouse or partner) during their lifetime while ensuring their assets eventually go to other beneficiaries they choose. One or more trusted individuals are appointed to manage the trust and ensure the terms are followed.

Benefits for Blended Families

The concept of ‘certainty of destination ‘ is particularly important in blended families, where children from a previous relationship may be involved. A life interest trust with ‘certainty of destination’ ensures that on the death of a spouse, a pre-determined share of the asset (typically half the house) goes directly to named beneficiaries (usually children), bypassing any new partners the spouse might have in the future.

Safeguarding Capital

Life can be unpredictable. A well-drafted trust can include a clause safeguarding the asset’s value. If your spouse needs long-term care, only the income generated (rent from the house) can be used for these costs. The remaining capital (the house value) stays untouched, ensuring your children’s inheritance remains secure.

Example: John’s Plan

John has children from a previous marriage and is married to Sarah. He wants Sarah to live in their house after he’s gone, but his children will eventually inherit half of it. Here’s how a life interest in his Will,  trust helps:

• Sarah (life tenant) has the right to live in the house for life.
• John’s children (remaindermen) inherit half the house after Sarah passes.
• “Certainty of destination” ensures this half goes to John’s children, regardless of Sarah’s future marital status.
• “Capital protection” guarantees the house value. If Sarah needs care, only rent income can be used, preserving the inheritance for John’s children.

Deprivation of Assets

Local authorities in England and Wales assess an individual’s ability to pay for care. When someone chooses to reduce their assets (money, property, etc.) to avoid having them included in a financial assessment, this is known as ‘deprivation of assets’.

If a local authority concludes someone deliberately reduced their assets to avoid fees, they may still calculate the fees as if the person still owned the assets. However, Local authority interpretations and rules often vary. They will consider the timing and motivation behind the actions, and with a clear beneficiary identified under a ‘certainty of destination clause’, they may be less likely to view the trust assets as readily available to fund care costs.

Our Advice

Life interest trusts can be valuable in estate planning, especially for blended families. However, proper legal guidance is crucial. Specialist lawyers will ensure the documents are drafted correctly, the full implications (such as inheritance tax) are explained, and the trust is tailored to you.

Our specialist team has extensive experience advising clients about making Wills and setting up trusts. For further information, advice, or an instant quotation, please contact us on 0115 964 7740.

Understanding Statutory Wills

Will is a cornerstone of estate planning. It ensures your chosen executor carries out your wishes after you die. But what happens when someone lacks the mental capacity to create or change a Will? In these circumstances, someone can apply to make a Will (or statutory Will) on behalf of someone else.

Their Function

In England and Wales, the Court of Protection (CoP) authorises the execution of statutory Wills. Under the Mental Capacity Act 2005, the CoP makes decisions regarding an individual’s property and financial affairs when they can’t do so themselves.

The function of a statutory Will is the same as that of a ‘regular’ Will. As a legally binding document, it outlines how an individual distributes their assets after death. However, the critical difference lies in the creation process of a statutory Will. It bypasses an individual’s direct involvement due to their mental incapacity.

Applying for a Statutory Will

The CoP considers applications from various parties with a legitimate interest in an individual’s well-being. These include:

• Family members, including spouses, civil partners, children, or other close relatives.
• Appointees such as individuals with a Lasting Power of Attorney (LPA) for the person’s property and financial affairs.
• Court-appointed deputies. When no LPA exists, the Court may appoint someone to manage the individual’s financial affairs.

When They Are Used

There are several situations where a statutory Will becomes necessary, including:

1. Without Existing Will – A statutory Will documents an individual’s wishes even if they lack capacity and do not have a current Will.

2. Outdated Will – An existing Will might become unsuitable due to changes in circumstances, such as births, deaths, marriages, or significant fluctuations in the estate’s value. A statutory Will can update estate distribution.

3. Beneficiary Predeceased – If a beneficiary named in an existing Will dies before the individual, a statutory Will can address this change and name a new beneficiary.

4. Tax Planning – In some cases, statutory Wills minimise inheritance tax.

The Process

The application for a statutory Will involves several steps:

1. Application Submission – The interested party completes an application to the CoP. This should include details of the proposed beneficiaries and reasons for a statutory Will. Supporting evidence regarding the individual’s mental incapacity is crucial.

2. Court Assessment – The CoP assesses the application, including medical reports from qualified professionals confirming the individual’s lack of mental capacity. The Court might also consider any previously written Wills or wishes expressed by the individual.

3. Public Notice – It may be necessary to issue a public notice, inviting objections from anyone with a potential claim on the estate.

4. Court Decision – If the CoP approves the application, the applicant can then make a statutory Will based on the information presented. In some cases, this may include the individual’s known wishes.

5. Will Signing—An authorised person, typically the court-appointed deputy or an individual authorised under existing Powers of Attorney, signs the statutory Will on the individual’s behalf in the presence of witnesses. The CoP seals and then finalises the document.

Critical Considerations for Statutory Wills

The application process for creating a statutory Will can be expensive, involving court fees and potentially legal representation. Also, the process can be lengthy and take several months, depending on the case’s complexity and potential objections.

Loss of mental capacity may be temporary or permanent and can arise from lifelong disability, life-altering accidents, or progressive illnesses such as dementia. Whatever the circumstances, the Court’s primary concern is acting in the individual’s best interests and involving them wherever possible.

In light of the Re P [2009] case (a significant precedent), the Court may consider whether it’s important for individuals to be perceived as doing the ‘right thing’. However, the ‘right thing’ for many is often contentious. Indeed, one of the most challenging aspects of creating a statutory Will is when there is a disagreement. Family conflicts are invariably emotional and legally complex, making the role of the Court of Protection even more crucial.

Our Advice

Statutory Wills are valuable documents for ensuring a clear plan for asset distribution when someone lacks the mental capacity to create a regular Will. While it’s often a complex and time-consuming process, it’s reassuring for many to put into effect what they believe their loved ones would have wanted.

We have many years of experience advising clients about a wide range of Wills, trusts and estate matters. Please contact us for further information. We’re here to help.

What Happens When a Beneficiary Can’t Be Found?

The smooth administration of an estate hinges on identifying and distributing assets to rightful beneficiaries. But what happens when a beneficiary can’t be found? In England and Wales, there’s a legal framework for handling situations like this. This ensures a fair outcome for missing beneficiaries and the estate.

Due Diligence is Key When Tracing Beneficiaries

The executor or administrator of the estate (depending on whether there’s a Will) holds the primary responsibility for locating beneficiaries. They must make every reasonable effort, including:

1. Consulting the Will or Intestacy Rules

Wills often provide clues about the beneficiary’s whereabouts, such as past addresses or names of relatives. If there’s no Will (intestacy), the rules dictate inheritance based on family relationships.

2. Searching Public Records

Birth certificates, marriage licenses, electoral rolls, and social media platforms can offer valuable leads. Placing a ‘Statutory Advertisement’ in local media close to the beneficiary’s last known residence is also beneficial. Also known as Section 27 Notice, any potential creditor or beneficiary is given two months to make a claim on the estate. This doesn’t eliminate the risk of a claim but offers some protection.

3. Engaging Professional Tracers

Specialised firms with expertise in locating missing persons can be invaluable, especially for complex cases.

4. Presumption of Death

If, despite these efforts, the beneficiary remains untraced for a significant period, the executor/administrator can seek a court order known as a Benjamin Order. This order presumes the missing beneficiary is deceased, allowing the estate to be distributed to the remaining beneficiaries.

Benjamin Order

1. Threshold for Application

There’s no fixed timeframe for applying. Courts consider the beneficiary’s age, last known contact, and evidence suggesting they might be alive.

2. Protection for the Executor or Administrator

Once granted, the order shields the executor or administrator from future claims by the missing beneficiary, who is presumed dead.

3. Beneficiary’s Right to Claim

Should the missing beneficiary resurface later, they can still claim their rightful share from the remaining beneficiaries who received the inheritance under the Benjamin Order.

Alternatives to a Benjamin Order

1. Holding Funds in Trust

If the executor or administrator is unsure about what has happened to a beneficiary, they can set up a trust to hold the inheritance for a set period. This provides a safety net for uncertain situations and allows time for the beneficiary to come forward.

2. Paying Money into Court

Under section 63 of the Trustee Act 1925, it’s possible to pay money into court to be later claimed by missing beneficiaries. The court will typically require evidence that you’ve made reasonable efforts to find the missing beneficiary (adverts, genealogist, etc). However, court fees are applicable, and this option might only be practical for smaller estates, as it can delay its finalisation.

3. Insurance

Specialised missing beneficiary insurance can provide some protection. If the missing beneficiary resurfaces later, the insurance company reimburses the estate for the claimed inheritance.

Our Advice

Navigating the legalities of unlocated beneficiaries can be complex. Engaging a professional, experienced probate specialist can undoubtedly help. They will guide the executors or administrators through the appropriate steps, including assessing the evidence, preparing a Benjamin Order application, or representing the beneficiaries in court.

We have many years of experience advising clients about a wide range of Wills, trusts and probate matters. For more information or advice, please get in touch. We’re here to help.

Selling Smart: What You Must Disclose When Selling Your Property

Selling a home is exciting, but the process can feel overwhelming. Between cleaning, decluttering, viewings, and navigating the legal hurdles, it’s easy to forget some crucial steps. One aspect that’s often overlooked is disclosure.

Understanding what you must disclose (legally) when you sell your home is vital. Not only does it protect you from potentially serious legal repercussions, but it also encourages trust and transparency with your potential buyers.

So, what do you need to disclose?

Title and Ownership

Who owns the property is the foundation of any property sale. You’ll need to provide documents proving your legal ownership, such as the Land Registry Title Deeds or lease agreement (if your property is leasehold). Additionally, you must disclose any outstanding mortgages or charges on the property.

Property Information Form (TA6)

This standardised form, completed with your lawyer’s guidance, is a comprehensive disclosure document. It covers various aspects, such as:

• Property details: The number of bedrooms, bathrooms, square footage, etc.
• Energy Performance Certificate (EPC): This document rates the property’s energy efficiency, impacting potential buyers’ decisions and mortgage eligibility.
• Boundaries: Clearly defining the property’s physical boundaries helps to avoid future disputes with neighbours.
• Building Regulations and Warranties: Disclose any building regulations and permits you’ve obtained, including ongoing warranties associated with the property.
• Planning permissions: All past or ongoing planning permissions for extensions or alterations must be disclosed.
• Defects and Problems: Be upfront about any known structural issues. This includes plumbing problems or significant repairs you have undertaken.
• Neighbours and Disputes: Disclose any ongoing disputes with neighbours or potential issues like noise complaints or boundary disagreements.
• Insurance: Provide details about current insurance coverage and any claims made in the past.

Additional Disclosures

While not covered in the official TA6 form, ethically, you should disclose the following information:

• Presence of hazardous materials: If you’re aware of asbestos, lead paint, or other dangerous materials, you must disclose them.
• Environmental concerns: Be upfront about environmental issues like flooding risks or contaminated land.
• Deaths in the property: While not legally required, disclosing knowledge of past deaths within the property can be considerate and avoid upsetting buyers later.

Beware

The purchase of a home is the largest financial transaction that most people will make. While the principle of caveat emptor or “let the buyer beware” places the buyer under an obligation to discover any physical defects in the property they buy, leaving something out or misrepresenting the facts can come back to haunt you. As the following cases illustrate.

Morrell v Stewart [2015] EWHC 962 (Ch)

This case involved issues around foul water drainage. The seller failed to disclose problems affecting the drainage and subsequent remedial works. The seller argued that they did not disclose those matters because they thought the remedial work had cured the problem. However, the court felt this left the buyer disadvantaged because they could not check if the problems were fully resolved. As a result, the sellers were ordered £33,000 compensation to the buyers.

Downing v Henderson (2023)

2018 Jonathan Downing bought a 3-bedroom house in SW London from Mr Henderson for £700k. He found Japanese Knotweed was growing in the garden shed, even though Mr Henderson had confirmed in the TA6 form that the property was unaffected. Mr Downing sued the seller for misrepresentation, challenging the ‘no’ response on the TA6 form. While the seller said he’d lived in the property for three years and wasn’t aware of the weed, the court ruled in Mr Downing’s favour, relying on Mr Downing’s expert evidence. The ‘no’ on the TA6 form was deemed fraudulent, leaving Mr Henderson facing costs. This case highlights the importance of only answering “no” to the presence of Japanese Knotweed if you are certain there is none.

Our Advice

Always be honest and transparent in your disclosures. Withholding information can lead to legal repercussions, including fines, buyers cancelling the contract, and potential compensation claims.

Consult specialist lawyers to ensure you understand your disclosure obligations and complete the TA6 accurately. By following these guidelines and embracing transparency, you can confidently navigate the property sale process, fostering trust with potential buyers and achieving a smooth and successful transaction.

For further information or advice about selling a property or any other property matter, please contact us. We’re here to help.

The Importance of Side Documents Alongside a Will

Memoranda of Wishes, Letters of Guidance and Side Letters sit alongside a Will. These side documents guide executors, trustees, and those managing an estate or trust after death. While they are not substitutes for making a Will, they are valuable. They give you a voice after death that even a properly prepared, structured Will may not. They are not part of a formal Will, so they remain confidential and are not part of the public probate record when a grant of representation is acquired.

Memorandum of Wishes

Gifts and personal belongings

Provided the Will includes a reference to a separate side document, it’s perfectly acceptable (and standard practice) to include small bequests. This can avoid complications should an item no longer exist or one of the intended beneficiaries dies.

Beware, a Memorandum of Wishes isn’t suitable for specifying significant or valuable gifts (such as valuable artwork, shares, or property).

Additionally, as mentioned, a Memorandum of Wishes isn’t a substitute Will. It can’t be used as a codicil to amend an existing Will. Amendments must comply with the Wills Act (1837) and be formalised in a Will.

On the plus side, a vital benefit of a Memorandum of Wishes is its informality. It can be changed before death and doesn’t need to be witnessed. But remember, the most recent Memorandum should be kept with the most recent copy of your Will so executors know your final wishes.

Tread Carefully

While a Memorandum of Wishes supports the Will, it must be carefully worded and not contradict it.

Letters of Guidance

Trusts and children

If a Will contains trusts, a Letter of Guidance is an excellent way to explain how the trustees should manage them. Nobody knows a child better than a parent. So make sure you include details about how to raise the children, including more information about their likes and dislikes, in the letter.

You can update a Letter of Guidance without changing the Will, and it can be used to give trustees discretion on managing money and property for the beneficiaries.

Additionally, Letters of Guidance are valuable where beneficiaries cannot manage their finances, are vulnerable or need help managing their affairs. For example, if a beneficiary receives means-tested benefits, a carefully worded Letter of Guidance can ensure that the individual is not adversely affected.

However, because the document isn’t legally binding when executors and trustees are chosen, they must be individuals who can be relied on to follow the wishes as written.

Additional Side Letters

Funeral wishes

Under current law, the executors appointed in a Will are technically the decision-makers regarding funeral arrangements. By setting out personal funeral preferences in a side letter, those dealing with your estate can informally read what’s important. While it’s advisable to keep the letter brief, details about the type of service, favourite hymns, flowers, and music, including who should be notified about the death and invited to the funeral, can be included.

Controversial bequests and explanations

As well as explaining why individual gifts have been made, a sealed side letter can explain why a Will is structured a certain way. For example, if a more significant share of an estate is left to one child or a charity, it can be used to explain in detail why this decision was made. This can help to avoid family disagreement and mitigate against inheritance claims after death.

Our Advice

Side documents are valuable if used appropriately. They give an individual a voice after death. But remember, they’re not all legally binding. So, ensure you understand the legal (and any other) implications by seeking professional advice before writing. That way, your Will and accompanying letters will be fit for purpose and fully compliant.

Our specialist lawyers have many years of experience advising clients on wills, trusts, and probate matters. Please get in touch with us for further information or advice on this or any other related issue. We’re here to help.

Is The Will a Forgery?

Disputing a Will because you believe the Will is a forgery takes a lot of work. Challenges are often made based on lack of testamentary capacity, undue influence or lack of knowledge and approval. But contesting a Will based purely on forgery is less common, even if there’s a genuine concern. You may think you have solid evidence, but putting your argument together isn’t always straightforward.

What Constitutes Fraud or Forgery?

Examples include when an individual hasn’t signed their Will, and someone else has copied their signature (forgery), or an individual signs the document thinking it’s something else, not realising it’s a Will (fraud).

Committing fraud or forging a Will is both a criminal and civil offence. For a successful civil claim, an applicant must convince the court that it’s more than 50% likely that forgery or fraud has happened. In a criminal case, the burden of proof is considerably higher. The court must be convinced (beyond reasonable doubt) that forgery or fraud has occurred.

Key Evidence

The quality of the independent forensic analysis determines whether the Will is invalid due to fraud or forgery.

Expert Evidence

Depending on the circumstances, specialist reports include: 

• Signature analysis
• Handwriting analysis
• Paper examination
• Forensic ink analysis
• ESDA (an electrostatic detection device) 

Witness Evidence

Additionally, individual witness evidence about relevant issues is also vital. This covers: 

• When, where, and how the Will was discovered
• The individual’s history of making Wills
• Known facts about the individual’s wishes
• The conduct of those allegedly involved in the forgery/fraud 

Cautionary Tale

Watts v Watts [2023] EWHC 679 (Ch)

This recent case concerned Eustace Fitzgerald Watts, who died in 2008, leaving a Will dated 8 February 2000. His Will appointed his wife, Jobyna, as his executor and sole beneficiary of his estate. The Will was executed and witnessed by a local firm of solicitors.

Carlton, one of the couple’s sons, challenged this Will, alleging (through an expert report) that his father’s signature had been forged. Carlton also stated that his late father had made a Will in 1994 under which he was due to inherit a third of the estate, leaving the remainder equally to his mother and brother.

The 2000 Will under scrutiny included a valid attestation clause. This meant that Carlton was legally obliged to prove the forgery claim. The report Carlton’s expert produced only included one example of Jobyna’s handwriting and no samples of Eustace’s signature and handwriting.

Jobyna’s expert was experienced and referred to 18 handwriting and signature samples (for Eustace and Jobyna) over 65 years. Additionally, Sarah Evans, the solicitor who had arranged and witnessed the 2000 Will, appeared as a witness.

The Judge dismissed Carlton’s claim because he had failed to establish that his mother had forged the Will. He accepted the evidence of the solicitor witness and the mother’s expert, concluding the Will was not a forgery.

Comment

Challenging a Will based on forgery is difficult because the standard of proof required is exceptionally high. And in this case the burden of proof in this case rested with Carlton, whose expert failed to impress. Whilst Jobyna’s expert provided a convincing (and very detailed) report, it’s clear that the witness testimony given by Sarah Evans, the solicitor who prepared Eustace’s Will, proved crucial.

Our Advice

Asking a solicitor to draw up your Will creates an auditable paper trail, making contemporaneous notes and invariably stores the original Will for safekeeping (invaluable in cases of alleged fraud or forgery). Furthermore, a solicitor is legally bound to ensure no undue influence or coercion, that capacity isn’t an issue, and that wording is unambiguous. 

If you have any concerns that a Will may have been obtained by fraud or forgery or is invalid for any other reason or would like to make a Will or LPA, contact us. We’re here to help.

Probate Can Be Tricky, So Make Your Executor’s Job Easier

None of us can know what tomorrow will bring. However, those who plan for what happens after they die typically rest much easier at night. Administering a person’s estate after they die (known as probate) can be tricky and costly, especially if things aren’t carefully organised beforehand. So, make your probate run smoothly and your executor’s job easier by taking estate planning seriously.

Effective Estate Planning Makes Your Executor’s Job Easier

1. Make a Will!

It may seem obvious, but if someone dies without a Will or if their Will is not valid, they die ‘intestate’. What relatives or beneficiaries inherit is affected by the intestacy rules and distributed according to a fixed order of priority. When there isn’t a Will, the probate process can be complex. With a Will, it’s clear who manages the estate and who inherits what.

2. Choose Executors Carefully

Executors are responsible for dealing with the administration of the deceased person’s estate. This involves gathering all the assets, including sorting out property, money, personal possessions, and settling debts. This is a serious job and one that carries personal risk. So, executors must be chosen because they’re right for the job, not just because they’re close friends or relatives. Consider the benefits of appointing a professional executor; they’re impartial and expert in handling probate matters. 

3. Make a Detailed List of Assets

Make sure to delve into the details. It’s surprising how much value people place on personal possessions. A detailed asset list (including all your financial records, property deeds, pension, and insurance policies) ensures nothing is missed or crucial for tax calculations.

4. Consider the Benefits of Trusts

Trusts often form part of estate planning. Used to protect assets (valuable, for example, when there are children from a first marriage), provide for (vulnerable) beneficiaries, and sometimes save inheritance tax (IHT). Trusts are also helpful in probate, as the assets are often held outside the estate, so distribution is not subject to the same delays.

5. Keep Your Will Updated

You may already have a Will in place. Still, it’s essential to keep it updated, particularly when significant life events occur, such as marriage, divorce, births, property sale or purchase. Also, executors grow old, as we all do. Sometimes they die and are not replaced. As time passes, views about beneficiaries may change. By reviewing a Will regularly, there’s greater clarity, and disputes during probate are less likely.

6. Take Professional Advice

Estate planning and probate can be complex, time-consuming, and stressful (emotionally and financially). However, specialist lawyers have many years of experience navigating the intricacies of the legal system, including devising strategies to minimise the impact of IHT on an estate. Furthermore, regulated professionals ensure a Will is valid and properly executed to avoid complications during probate.

Our Advice

Making a Will is much more about taking care of those close to you than thinking about dying. By planning your estate effectively now, you can rest easy knowing that things will run smoothly (and as you’d like) after you’re gone. Please contact us for further advice or information about any Wills, trusts or probate matters. We’re here to help.

Make A Will This New Year, But Avoid ‘Cowboy Will Makers’

Writing a Will is not a regulated service. This has led to many disreputable – or ‘cowboy’ companies springing up on the web. However, in most cases, a price that looks too good to be true is often just that. If one of your New Year’s resolutions is to make a Will, avoid ‘Cowboy Will Makers’ (as described in STEP’s 2023 report) and seek qualified professional advice.

Risks From Unqualified, Incompetent Practitioners

Last year, due to public concerns about consumer protection breaches, the Competition and Markets Authority (CMA) investigated risks from unregulated will-writing, pre-paid probate plans, and online divorce.

STEP, a professional body for inheritance advisors, shared its report with the CMA, detailing real-life cases of unscrupulous will-writing services reported by its members. The report highlighted the harm caused by “dishonest, unqualified, and incompetent” practitioners.

Primary concerns include:

1. False claims by ‘cowboy’ firms resulted in significant tax bills, with examples of tax charges in the tens or hundreds of thousands of pounds and, in a few cases, up to £2 million.
2. Companies often quote fees for writing a Will but then charge additional costs not covered within the business terms.
3. Firms frequently make false claims about the Will they sell to clients, including being advised that care home fees can be avoided by either putting their home and other assets into a trust during their lifetime or gifting their house during their lifetime. Both are deliberate deprivation of assets, ineffective for care assessment, and with profound financial implications.

Why You Should Use a Lawyer to Make a Will

1. They Know What to Ask

Specialist solicitors advise hundreds of clients a year and are trained in this complex area of law. They guide every client through the whole process, taking their assets and everything that makes up their estate into account. As a result, they ensure the Will genuinely reflects their client’s intentions. This is especially important today, where more complex, blended family structures are common.

2. Accuracy

Specialist lawyers ensure the wording of a Will is clear, properly drafted and legally valid. Many disputes over Wills come from ambiguous wording or poorly executed documents, but using a lawyer removes this risk, ensuring everything is explicit and fully compliant.

3. Minimise Inheritance Tax

Comprehensive legal experience counts for straightforward and complex Wills. Experienced lawyers examine all legitimate and current reliefs and exemptions, and the Will is structured to mitigate Inheritance Tax (IHT) liability.

4. Protection & Accountability

Solicitors in England and Wales are fully regulated by the Solicitors Regulation Authority (SRA) and are bound by a strict Code of Conduct. “Cowboy’s will-writers are unregulated, don’t have a complaints body, and are not required to carry insurance.

5. Comprehensive One-Stop Shop

Specialist lawyers can help set up Lasting Powers of Attorney, safely store the Will, and often act as executors.

Our Advice

Don’t leave anything to chance, and make or revise your Will. Be mindful of the genuine risks involved in choosing what appears to be the cheapest option. A process-driven online form is rarely a substitute for a face-to-face discussion with a qualified person with a wealth of training and experience.

Drawing up a Will can seem morbid, scary, or even unnecessary. But once your Will is sorted, you’ll have the peace of mind that your affairs are in order, you have an executor of choice, and those closest to you will be taken care of. Please contact us if you’d like to update your Will, need an instant quotation, or start from scratch. We’re here to help.

What to Do When Someone Dies

We know that the death of a loved one is very traumatic for families. As well as dealing with the loss, it’s tough to think about practicalities and even harder to know who is responsible for what. So here are a few pointers to help you understand what to do when someone dies.

Registering the Death

By law, a death must be registered within five days, so one of the first things is to obtain the medical death certificate from the hospital or GP surgery. It’s a good idea to take other identification with you, such as birth and marriage certificates, driving licences, NHS cards, and further proof of address. You can then make an appointment with the Registrar for births, deaths, and marriages to obtain the full death certificate.

Who To Inform After Someone Dies

Tell family members and friends about the death. Next, contact ‘official’ organisations, including the person’s employer, HMRC, DVLA, Passport Agency, and local services such as libraries, electoral, and council services. If it’s available in your area, the government’s ‘Tell Us Once’ service will contact all relevant organisations immediately.

Funeral Arrangements

A funeral can take place any time after death. However, the person may have left instructions. While the family is not obliged to follow funeral wishes, the executors are technically the decision-makers regarding the arrangements if there is a will. That said, the funeral directors will need a green form from the Registrar before proceeding.

The Will

Suppose there is a Will, one or more Executors are named. They are responsible for handling the next steps. If there isn’t a Will, the person dies ‘intestate’. The law of Intestacy sets out who deals with the person’s affairs and who inherits their estate (property, personal belongings and money). If the estate is complex or you need help, it’s a good idea to talk to a solicitor as soon as possible.

Financial Information

This list includes bank and building society statements, information about shares and investments, credit card statements, utility bills and pension information. This will help your solicitor if you use one.

Probate

Generally, it would be best if you had a Grant of Probate or Letters of Administration when a person’s estate includes property or is made up of significant other assets. For example, if:

• There is an interest in land that does not pass to someone automatically:
• A bank account, insurance policy, investment or shares, etc., where the provider requires it;
• A trust has been created under the Will;
• Someone is challenging the Will and is bringing a claim to court;
• Legal authority is needed for someone to act on behalf of the estate or
• Someone has died without leaving a valid Will.

There can be many other reasons why it is required. Whether simple or complex, we can help you with this process.

Take Note

When making an application where Inheritance Tax (IHT) is a consideration, correct claims must be made for Inheritance Tax. These allowances include:

• Nil Rate Band
• Transferable Nil Rate Band
• Residence Nil Rate Band
• Transferable Nil Rate Band

There are time limits for claiming. Failure to claim in time will result in allowances being lost. No one wants to pay more tax if it can be avoided. Our specialist team can help you with this, too.

Our Advice

We have many years of experience in helping bereaved people. Please contact us for advice or information about probate, Intestacy, property selling, or inheritance disputes. We’re here to help.

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