Sharon Bell, Partner and a member of MWs Estate and Trust Dispute Team outlines the role of the Court of Protection and the circumstances when a Statutory Will may be necessary.
Statutory Wills are made by the Court of Protection. The Court of Protection is a specialist court set up to protect the interests of those who cannot make financial and welfare decisions for themselves because they lack mental capacity.
A person who lacks mental capacity, by definition, is not in a position to make a Will or make any amendments to their existing Will. However, if the making of a Will or an amendment to any Will is considered necessary then the only way someone can make a Will on behalf of a person who lacks capacity is by making an application to the Court of Protection for a Statutory Will.
A Statutory Will may be considered necessary if:
The Court of Protection is most likely to allow a Statutory Will if the person who lacks capacity has never made a Will or there has been a significant change in their circumstances.
The Court will consider whether or not it is in the vulnerable person’s “best interests” for a Statutory Will to be made. It is usual that the Official Solicitor will be appointed as an independent party to represent the interests of a vulnerable person.
The Court will always try to encourage the vulnerable person to be a participant in the proceedings if possible and the court will look at the criteria laid down in Section 4 of the Mental Capacity Act 2005 as to deciding what is in the vulnerable person’s best interests. The court will look at:
The court will also take into account how the vulnerable person may wish to be remembered after their death. It is arguably in their best interests that they are remembered with fond memories and affection.
Every case will be different and the court has a wide discretion as no one factor in the Section 4 criteria will outweigh any other. The court just has to be satisfied that the making of a Statutory Will is in the best interests of the vulnerable person.
At MW, Our Mission is “to make quality legal services accessible to everyone” including those who lack the capacity to act for themselves. Our Specialist Estate & Trust Dispute Team have extensive experience handling Statutory Will applications.
If you would like more information on a Statutory Will could be in the best interests of a family member who lacks capacity then take advantage of our FREE CASE REVIEW; call us today on 020 3551 8500 or email us at firstname.lastname@example.org
Solicitor and member of MW's Estate and Trust Dispute Team, Jane Flaherty, discusses the Governments recently announced plans to increase probate fees.
On 18th February 2016 the Government launched the Consultation - Fee Proposals for Grants of Probate canvassing public and professional opinion regarding an increase in fees when making an application for a Grant of Probate.
As a general rule, any estate which includes property requires a Grant of Probate, and most estates with shares require a grant of probate. The current fee is £155 where you obtain a grant through a solicitor and £215 where a personal application is made. Where an estate is below £5000 there is no fee.
Despite an astounding 97.5% of respondents expressing that they were against the proposed increases, the Government has announced its intention to proceed with its plans to increase the fees at some point in May 2017.
A date has not yet been set and any changes which come into force will effect applications in accordance with the date the application is lodged with the probate office and not by date of death.
The fees will be charged in accordance to the size of the estate as follows:
|Value of estate (before Inheritance tax)||Proposed fee|
|Up to £50,000||£0|
|Over £50,000 but under £300,000||£300|
|Over £3000,000 and up to £500,000||£1,000|
|Over £500,000 and up to £1 million||£4,000|
|Over £1 million up to £1.6 million||£8,000|
|Over £1.6 million up to £2 million||£12,000|
|Over £2 million||£20,000|
The government claim that the majority of estates, those being valued at less than £50,000, will not be charged at all. In practice, most estates valued in that threshold do not include property and therefore would not require a Grant of Probate in any event.
The reality of the changes to costs is that most estates requiring a grant will see a huge increase in the probate fees. Beneficiaries will see costs escalate sharply between £300 and £20,000 despite there being no link between the value of the estate and the amount of work involved.
A really good analogy that has been put forward is to consider the cost of a passport. We all pay the same price for a passport because the same amount of admin is required for each application. Could you imagine the uproar if passport costs were based on each applicant's income?
We have been informed that the changes will be in force in May 2017. The probate registry is set to raise £300 million pounds of revenue to support the costs of the wider Court and Tribunal services. The increases are being labelled as ‘stealth tax’ or a ‘death tax.’
Whereas the Office of the Public Guardian announced that their fees are going to be reduced from April 2017.
The cost to register a single lasting power of attorney or enduring power of attorney will fall from £110 to £82 pounds. The reason given for this reduction is that due to the increased amount of applications it is receiving it does not need to charge as much per application to be fully self funding.
We believe that parliament should reject this unreasonable tax by the back door and start again in its consideration of increasing the probate fees.
To sign the petition please click on the link below https://petition.parliament.uk/petitions/188175
Kristi Ashworth, Trainee Legal Executive in the Estate and Trust Dispute Team discusses how paternity tests play a role in Inheritance claims.
Thanks to great crime dramas, it seems that we are all familiar with DNA and have some idea of how it works. Questions of paternity can often arise after someone dies, and frequently do when there is a child or other relative claiming to be entitled to a share of the deceased’s Estate. What you may not know, are the different types of DNA tests that are available to help determine parentage and other familial relationships.
If your paternity, or that of other family relations, is being disputed there are several DNA tests that can be undertaken which could assist with your claim and thus help you succeed in securing your rightful inheritance as follows:
DNA tests are painless and can be undertaken using saliva swabs or hair samples; blood tests are not necessary. If other family members who could participate in DNA testing refuse, it may be possible to ask the Court to make an adverse inference (that the DNA test is likely to result in your favour) as a result of that refusal or, in extreme circumstances, it can be arranged for DNA samples to be taken from the remains of the Deceased.
A Y-Chromosome test is a much more recent development in the science of DNA testing which can be used as an alternative to the more traditional options listed above if you have male heirs in the family willing to participate in a test to assist your case. It can also be performed in conjunction with one or other of the more traditional tests to support the findings. The Y-Chromosome test doesn’t show direct paternity but it shows with certainty whether two individuals share the same male lineage – which can amount to the same thing if you are sure, for example, that a grandfather or uncle couldn’t be the father.
If family members continue in their refusal to accept the result of the test(s) then an application to the Court can be made for a Declaration of Parentage under section 55A of the Family Law Act 1986 which is binding on all institutions, and thus would bind a Personal Representative of an Estate to distribute inheritance according to the findings of the Court as to your paternity.
In the very interesting case of the Baronetcy of Pringle of Stichill (referral under section 4 of the Judicial Committee Act 1833) UKPC 16, the Privy Council considered the reliability of a Y-Chromosome DNA test to determine the rightful heir to the Baronetcy of Pringle of Stichill. Although decided in the context of Scottish law the Privy Council made clear throughout the judgment that the outcome would have been no different under English law.
In this case, there were two claimants, Simon Robert Pringle (“Simon”) and Norman Murray Archibald MacGregor Pringle (“Murray). Each maintained that he was the rightful heir to the Baronetcy. Following a Y-Chromosome test (which was conducted for unrelated reasons), the results showed that the profile of Simon’s father Steuart (and his brother) did not match that of the profiles for Murray and all of the other male heirs tested in the family. As such, Murray claimed that Simon was not the rightful heir because Simon’s grandfather Norman (who was enrolled as the ninth baronet) was not the son of the eighth baronet. This meant that the baronetcy had, up to that point, passed down incorrectly to unrelated males since the 8th baronet. Murray claimed that his father was the rightful male heir of the first baronet (the test for enrolment as the current baronet) and, as a result, upon his father’s death it was Murray who was now the male heir of the first baronet.
The diagram below illustrates the male lineage of the Pringle family.
The Court accepted expert evidence presented at trial as to the accuracy of Y-Chromosome testing and ruled that the DNA test showed a “high degree of probability” that Norman H Pringle, was not the son of the eighth baronet. On 27th June 2016 Sir Ronald Steuart Pringle and his son Sir Norman Murray Pringle were admitted onto the Official Roll of the Baronetage, as the rightful 9th and 10th Baronets of Stichill respectively.
The case confirms that the Court will accept the reliability of Y-Chromosome DNA testing (even in the absence of other forms of DNA testing) to make an order relating to an inheritance.
At MW, our mission is “to make quality legal services accessible to everyone” ” including those who seek to prove their entitlement to an inheritance via DNA tests.
Our specialist Estate & Trust Dispute Team are currently assisting several clients in relation to inheritance claims where parentage is being disputed. If you would like more detailed advice on whether a DNA Test and a Declaration of Parentage could help you with your inheritance or would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8500 or email us at email@example.com.
In the recent High Court case of Seery v Leathes Prior (A Firm) Judge Sir David Eadya judge has thrown out a professional negligence claim lodged against a law firm by a former client.
On the 24th January 2017, the Judge said "he had ‘no alternative’ but to dismiss the claim, brought by the former client against a full-services firm".
The former client brought the claim against the firm after a settlement agreement that stemmed from a dispute with two colleagues.
Among the claims made by the Claimant was that the Solicitor with conduct of the matter could have encouraged litigation, which might have led to a more favourable outcome. However, the judgment said that although the option would have been considered by the firm, it would have been ‘a costly, acrimonious, long-drawn-out fight’, which was exactly what the former client wanted to avoid.
The Court said there was no evidence that the former client would have received a better outcome had he been encouraged to sue.
Importantly, the former client also suggested that he had suffered from stress and was unable to take on board the legal advice he was given, in particular, that which he had previously received from his former Solicitors (which pre-dated the defendant firm).
However, the Court said the former client did not tell his Solicitor at the time that he did not understand the advice and that much of the advice was in writing and could have been re-read at any time.
He added that a Solicitor will have fulfilled his duty of care to his client if he gives an explanation in terms the client reasonably appears to him to be able to understand, and to have understood, even if the client later alleges that he did not in fact understand what was said.
Concluding, the Court said that there was nothing to be gained by exploring the case on contributory negligence by the former client, or entering further into the arguments about expert evidence, an exercise which would have been in its view too speculative to have been of much practical use anyway. The Court added that the former client received a ‘very good service from the firm in the difficult circumstances in which he found himself’.
At MW, our mission is is "To make quality legal services accessible to everyone" and we strive to ensure that clients have complete understanding of what can in some cases be complicated advice. A client who does not understand the advice given to them will place themselves at risk in litigation in particular.
If you or anyone you know has received advice on a critical matter that they have not understood or has left them confused, call our specialist professional negligence lawyers today on 0203 551 8500 or email us at firstname.lastname@example.org.
Despite what some media outlets might suggest, UK detention facilities are no holiday camp for those spending time inside.
Whilst images have surfaced in the media showing inmates playing computer games and taking ‘group selfies’ that could well fool us into believing that there is enjoyment amongst those on the inside, no one has considered what it is like for those that are mistreated and harmed when their care is within the hands of the state, and what it would be like to loose the basic human rights that we are all granted.
When detention facilities start to reach capacity, in a similar way to any institution that is designed to house human beings, the pressure on that institution, and the staff that work within it, increases. When capacity turns into over crowding, the ratio between the supervisors and the supervised becomes disproportionate, unsafe and creates an environment such that incidents occur which would normally have otherwise been prevented.
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. Whilst those that are detained may have to suffer the curtailment of certain rights, such as personal freedom and the right to vote, they are still entitled to share the benefit of and receive the protection of all other basic human rights, and in particular the rights to life and prohibition of torture. We must consider whether we are doing enough to protect the human rights of some of the most vulnerable people in our society.
The issues surrounding the mistreatment of detainees was brought into the centre of media storm in April 2004 when Gareth Myatt, at the age of 15 years, became the first child to die in a privately run Secure Training Centre (a young offender’s institution equivalent to a prison). Gareth died after being restrained by three adult officers, under a Home Office and Youth Justice Board approved restraint technique known as the ‘seated double embrace’. Gareth weighed a mere six and a half stone. The restraints system, introduced in 1998, came with a promise that the use of it would be constantly reviewed, however a medical review into the use of restraints was ordered after Gareth’s death, and the ‘seated double embrace’ technique was withdrawn.
In August 2004 Adam Rickwood became the second individual to die in a privately run Secure Training Centre. Adam hanged himself, taking his own life, after being restrained by centre staff.
The mistreatment of detainees, especially those under the age of eighteen, is not a subject that has been greatly reported on, nor is it considered to be one of the major pressing issues of today’s society, a troubled child is more easy to pass by, Oliver Twist, and not Artful Dodger, got the happy ending.
Following the tragic deaths of Gareth Myatt and Adam Rickwood, reports were commissioned and opinions were sought. One such report was the Independent Review of Restraint in Juvenile Secure Settings, commissioned in 2008. This was carried out by two social workers with many years’ experience in practice and management, and they attended, quite freely, many Secured Training Centres to speak directly with the children and staff on the topic of restraint.
The Ministry of Justice, followed up on the recommendations with a new behaviour management and restraint system known as Minimising and Managing Physical Restraint (MMPR). The aim of MMPR was to provide staff with the knowledge and ability to recognise certain behaviours in young people, and to use de-escalation and diversion strategies, through the application of behaviour management techniques to minimise the use of restraint. The report also highlighted that staff must be able to clearly demonstrate why restraint was necessary.
We have also seen the introduction of the Criminal Justice and Courts Act 2015, which brings in the construction of ‘Secure Colleges,’ in place of the Secured Training Centres, where the emphasis is on greater education for the young offenders for rehabilitation purposes.
The introduction of the MMPR, together with the Act, arguably demonstrates that the Government has recognised the need to overhaul the rehabilitation of young offenders. It paints a picture that there will not be a reoccurrence of the tragic events that led to the death of the two young individuals.
However, when a copy of the MMPR was requested by charity Article 39, a largely redacted version was provided. The reasoning given for the large redaction was that the techniques used on young offenders, are also used on adult prisoners, and it was argued that disclosure of the manual will allow adult prisoners to develop counter measures against the techniques.
The report stated that ‘it is recognised that the required cultural change is expected to take a sustained period of time.’ However, many would argue that there has been no significant change in the way in which the human rights of detainees are being safeguarded and that the Secure Colleges are merely a cheaper and easier to run alternative to the Secured Training Centres as they are intended to house more offenders in one location than their predecessors.
Some believe that the new systems, and not the actual restraint techniques themselves, are what have been specifically designed for children. It certainly raises the question “have we honoured the deaths of Gareth Myatt and Adam Rickwood?”.
Only time will tell.
At McMillan Williams, we strive to uphold the rule of law and challenge any abuse to the human rights of those who have been detained. We believe that as a nation, we must protect each other from those who seek to harm us or prevent us from enjoying all civil liberties, and whilst Government reports bring much needed public scrutiny and awareness of the issue, there is still a way to go to ensure that we are fully protecting those that are detained by the state.
A special consideration should apply to those most vulnerable, such as the youth members of our society.
At MW, our mission is "To make quality legal services accessible to everyone" including vulnerable young people who find themselves detained in Secure Training Centres.
If you believe that your or a family members Human Rights have been breached and you wish to discuss the case with one of our experienced and dedicated Civil Liberties Lawyers, call us today on 020 3551 8500 or email us at email@example.com.