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 email@example.com
Local solicitors Katherine Carroll and Jane Flaherty, based at MW Wimbledon and MW Devon, have joined a number of organisations representing older and vulnerable people to raise serious concerns around the Government’s online tool for creating Lasting Powers of Attorney (LPAs).
An LPA is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about care and finances on their behalf, in the event of a loss of mental capacity through an accident or illness such as dementia.
In May 2014, the Government’s Office of the Public Guardian (OPG) launched its online LPA tool, which it claims allows people to create the documents without the need for professional advice from a solicitor.
But a new report, published by a coalition of organisations led by SFE, warns that anyone creating an LPA without taking specialist legal advice faces a significantly higher risk of being left with an ineffective legal document, incurring additional application fees, and even becoming a victim of fraud or coercion.
The report also raises concerns around the potential of a completely digital system proposed by the OPG, whereby ‘wet signatures’ – the physical signing of the document – would no longer be required.
Katherine and Jane are both Full Accredited members of SFE. Jane Flaherty said:
“The prospect of being able to submit an LPA application entirely digitally is extremely concerning, and raises some serious questions around the potential for fraud and financial abuse.”
During a study conducted for the report, participants were invited to create LPAs using the OPG’s online tool and other ‘DIY’ methods. The study revealed that:
June McSparron, a 75-year-old who participated in the study, said: “You’re exposing yourself to a lot of risk by filling this form in on your own. There are so many bits that you can get wrong, and you can easily be pressured into making choices that you’re not entirely comfortable with.”
The number of LPAs being registered has increased steadily since the launch of the online tool, with over half a million registered in 2015/16 alone. The OPG is actively trying to convince more people to apply for LPAs online, having set a target for the service to comprise 30% of all applications from April 2016 to March 2017. In its latest Annual Report, the OPG even admits it is willing to take ‘risks’ in striking a balance between ‘empowering and safeguarding’.
With the OPG already receiving over 1,000 calls to its contact centre every day, the organisations behind the campaign say the Government body is potentially exposing people to unacceptable levels of risk and in doing so may be compromising its ability to safeguard those who are most vulnerable.
Katherine Carroll said:
“An LPA is by far the most powerful and important legal document an individual can have, because it allows you to pass potentially life-changing decisions about your affairs on to a third party.
It’s absolutely right that people should be planning ahead for the future with LPAs, but granting someone this sort of authority over your affairs is an extremely big responsibility for all parties involved. This is a specialist area of the law, and we recommend that anyone considering an LPA goes to a legal expert to ensure they get the right advice, consider all the options, and safeguard themselves for the future.”
To download the report ‘The Real Cost of DIY LPAs’ go to: http://www.sfe.legal
At MW, our mission is “to make quality legal services accessible to everyone” including those who cannot act for themselves. If you are in any doubt that you may need to establish Power of Attorney either for yourself or a loved one call us today on 0203 551 8500 or email us at firstname.lastname@example.org.
MW’s Head of Estate and Trust Disputes Team, Hayley Bundey, discusses the sad state of affairs which Lynda Bellingham’s sons have been left in following her death and their exclusion from her Will.
As most people are aware, Lynda died from cancer in 2014 and shortly before her death she executed a Will providing for her entire estate to be left to her husband Michael Pattemore. Her children from an earlier marriage, Robert and Michael Peluso, are now bringing a claim against Lynda’s Estate in an attempt to restore their mother’s Estate to its rightful heirs.
Her sons claim the sole reason for Lynda leaving her Estate to her husband of some 6 years was for inheritance tax saving and she trusted him to provide for her children once she was gone. Unfortunately, as is often the case in step-families, this did not transpire after Lynda’s death and instead Mr Pattemore is alleged to have spent thousands of pounds on several lavish holidays as well as several hundreds of thousands on a mansion. At the same time he is stated to have provided little provision for Robert and Michael (some £750) and instead is seeking to evict them from their home.
Robert and Michael are now understood to be bringing a claim against Lynda’s Estate under the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”). They are eligible to bring such a claim under section 1(1)(c) of the 1975 Act as children of the deceased. If successful, the Court could redistribute Lynda’s Estate according to what it considers is reasonable financial provision for Robert and Michael according to the maintenance standard (which doesn’t place them on the breadline but tries to provide them with what they may reasonably need now and in the future from the Estate).
Robert and Michael have openly said that they have invited Mr Pattemore to resolve the claim amicably through mediation but so far he is reported to have refused their invitations. This is an unfortunate position for Mr Pattemore to adopt given how keen the Courts are now for parties to attempt Alternative Dispute Resolution (ADR – including mediation) of such claims and it is likely that if he continues to adopt this position he will be penalised on costs at a final trial if and when Robert and Michael succeed on their claim.
The whole situation is a stark reminder for parents, particularly parents in second and subsequent marriages, to ensure that their Wills reflect their true wishes without relying on their spouses to “do the right thing” by their children. Inevitably such trust is often misplaced and parents will therefore leave their children with the very daunting and distressing task of facing legal proceedings against their step-parent at the very time when they should be grieving their parent’s loss.
Thankfully, the 1975 Act is there to protect such children in the event that things don’t go as planned.
At McMillan Williams, our mission is "to make quality legal services accessible to everyone", including step families who feel they may have been wrongly excluded from their parent's Will. Our Specialist Inheritance Disputes Team are here to help and can provide information about any type of inheritance dispute or claim.
A recent article in the Daily Mail has highlighted the plight of Grandmother Joy Williams, who may lose her £355,000 home because her "common law" husband's estranged wife inherited half the property she lives in.
The facts of this matter were that Ms Williams, 69, had lived with her partner Mr Norman Martin for 18 years after he split from his wife. Unfortunately, Mr Martin never divorced from his wife and never updated his Will, so when he died of a heart attack in 2012 his half share in the house that he shared with Ms Williams and his assets went to his estranged wife, Mrs Martin. Ms Williams then launched an application in the Courts to have “common law” spouses officially recognised. This case has yet to be determined but Ms Williams is seeking an award that Mr Martin’s share of the home should pass to her so she has some security for the future.
This case highlighted a need for the cohabitation laws to be reformed and in particular, emphasised that the commonly held belief that a couple who are cohabiting as common law “husband and wife” is a complete myth and there is no legal status for “common law marriage”.
Prior to cohabiting together or immediately following the purchase of their home together Ms Williams should have sought legal advice. She would have been advised that as Mr Martin had never divorced his wife nor changed his Will, his wife as a beneficiary under the Will, would on Mr Martin’s death inherit his assets which would include his interest in the property jointly owned by Mr Martin and Ms Williams.
The Government has launched a consultation document with the intention of changing the tax status of distributions made in a solvent liquidation. Their aim being to close the tax "loophole” that allows individual shareholders being paid their capital monies via a solvent liquidation to take advantage of lower tax rates.
The Government’s intentions are to change the status of any distribution from being a capital payment to being an income payment. This could see individual tax payers seeing a rise in the tax from as little as 10% up to more than 35%. Furthermore there are threatened proposals that will set minimum conditions, which if met, will force the payments to be treated as income and not capital under general anti-avoidance rules.
Recent reports in the press have highlighted the case of Eastenders actress Gillian Taylforth who will receive nothing from the Estate of her ex-fiancé as he had not written a will. It is often the case that celebrity Wills and those of their partners often catch the media’s attention. The deaths of George Best, Bernard Matthews and Jade Goody have all raised inheritance issues. Most notable was the case of Peter Sellars whose fortune eventually passed to the children of his estranged wife, leaving his own children with almost nothing at all.
The simple fact is that if you are in a relationship, but not married or in a civil partnership with that person, then if you die without a will your partner has no automatic right to receive any of your Estate.
The concept of common law spouse is all but a myth and exists, in legal terms, in very limited circumstances with no guarantee that a common law spouse will receive anything from their deceased partner’s Estate.
There are a number of other common misconceptions about what happens to your estate if you don’t have a will; including that your estate will all automatically pass your spouse or, in some circumstances, that it all goes to the Government!
A Bankruptcy Petition can be used by a creditor as a tool to recover money owed to them by forcing a debtor into bankruptcy.
The Law changes on the 1st of October, increasing the minimum level of debt for which an individual can be forced into bankruptcy from £750 to £5,000.
The new proposals are regarded as long overdue by many as the creditor’s petition has not been considered for 29 years. Inflation has had an undoubted influence on the change and debtors will be afforded more protection this this new minimum level of debt. The Government are seeking to improve the help available to people struggling with debt and allow them to be safeguarded against life-changing debt recovery petitions for very small debts.
It is important to note that the law remains with respect to debtors who wish to voluntarily place themselves into bankruptcy and they need only have debts of £750 or above.
Whilst bankruptcy can be the best solution for some creditors, it is not always suitable, particularly where debts are low in value and the debtor has little or no assets remaining. The aim of the new threshold is to renew the balance of interests between creditors and debtors.
MW’s specialist Inheritance Disputes Solicitor and Head of Contested Probate, Hayley Bundey, discusses the recent landmark decision by the Court of Appeal in the long running case of Ilott v Mitson. The decision will inevitably improve the chances of adult children succeeding in their claims against their parents’ Estates, as well as the value of those claims, even when they have been specifically cut out of their parents’ Wills.
Heather Ilott pursued her claim against her mother’s Estate pursuant to section 1(1)(c) of the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”). She argued that, as a child of the deceased, she did not receive reasonable financial provision from her mother’s Will from which she was specifically excluded.
Heather’s mother, Mrs Jackson, had left a side letter with her Will explaining that she had specifically excluded Heather because of her choice of husband many years previously which had caused their estrangement (of some 26 years) and for which Mrs Jackson had never forgiven Heather. Mrs Jackson instead left the majority of her £486,000 Estate to three Charities.
Heather’s case has been ongoing for many years (her mother died in 2004) and has been before various Courts on different issues relating to her claim.
Yesterday (27th July 2015) the Court of Appeal allowed Heather’s appeal on the value of her claim, replacing the £50,000 award with one for circa £164,000 (nearly 1/3 of the Estate).
The Court of Appeal felt that reasonable financial provision for Heather could only be made by giving her enough to purchase her housing association property (said to cost £143,000), with some money on top to cover the costs of purchasing it, plus an additional cash sum of £20,000 to provide for her future income needs. This sum was calculated on the basis that it would not impact her state benefits.
There were two errors in the law which the Court said the original Judge had made when valuing Heather’s claim as low as £50,000. The first error was that the original Judge should have verified the impact of an award on Heather’s state benefits, rather than just assuming what the impact would be. The second error that the original Judge made was to limit Heather’s award because she had no expectation of provision from the Estate (she accepted that she didn’t expect her mother to leave her anything in her Will).
The Court of Appeal Judges went on to confirm that:
Hayley Bundey, comments that
"This is likely to be a watershed in the pursuit of 1975 Act claims for adult children who for too long have had barriers placed in the way of the pursuit of their claim by the Courts which do not exist in the legislation itself. Adult children should be treated in the same way as other applicants under the Act who are judged on the maintenance standard and the Court of Appeal has now firmly confirmed this so that there should be little doubt going forward that if an adult child is unreasonably excluded from their parents’ Wills (even if they were estranged) the Court can correct this injustice and substitute a just award in its place."
Hayley leads a team of specialist inheritance disputes who can help with a wide range of inheritance dispute claims. If you are an adult child who believes you have a claim for reasonable financial provision from your parents’ Estate under the 1975 Act then take advantage of our free case review by contacting Hayley Bundey or Sharon Bell on 020 3551 8500 or emailing us at email@example.com.
You may have heard someone refer to making a “Joint Will”, whilst this is possible in many other spheres, in Law there is no such thing.
A Will is a legal document that applies to a single person. In many cases what the person is actually referring to is either a Mirror or a Mutual Will.
Our Inheritance Disputes Solicitor, Sharon Bell, explains the differences between Mirror Wills and Mutual Wills.
MW’s specialist Inheritance Disputes Solicitor, Sharon Bell, discusses Promissory Estoppel in the context of a recent case.
The basic principle of Promissory Estoppel is that a promise is enforceable by law. If a promise is made to a party and they act upon that promise to their detriment they can make a claim promissory estoppel. For a claim to be successful the Claimant must show that:
The above elements must be present to such a degree that it would be unfair not to grant relief. The Court will take into account the degree of detriment suffered and make an order which is appropriate.
In this recent case Mrs MacArthur made a Will in 1983 leaving half of her estate to her cousin Mrs Lothian and half of her estate to her sister, Mrs Webb. In 2010 Mrs MacArthur was diagnosed with terminal cancer and asked Mrs Lothian to stay with her in her hotel in Scarborough. Mrs MacArthur told Mrs Lothian and her husband that, in return for them looking after her and helping her to run her hotel, she would leave her entire estate to them.
In the two years preceding Mrs MacArthur’s death, Mrs Lothian spent some nine months of each year caring for Mrs MacArthur and running the hotel. Similarly, her husband would visit most weekends.
Following Mrs MacArthur’s death it transpired that she had not updated her will to reflect her promise and the couple were due to receive half of the net residuary estate under the 1983 will. Mr and Mrs Lothian brought a claim for proprietary estoppel on the basis that they had relied upon promises made by Mrs MacArthur to their detriment.
However, Mrs Webb contested that claim on the basis that, the outright transfer of the net residuary estate to Mr and Mrs Lothian was excessive and not reflective of the detriment that they had suffered. Mrs Webb’s defence was that Mr and Mrs Lothian should be awarded an additional £40,000 plus travel expenses to reimburse them for the two years of care and management of the hotel.
His Honour Judge Roger Kaye QC, sitting as a High Court judge, disagreed saying that:
“detriment is not a narrow or technical concept but must be judged in the round” and that it “need not be expenditure of money or other quantifiable financial detriment but it must be substantial”.
The case demonstrated that:
It was then left to the discretion of the judge to consider the appropriate relief.
He found that Mr and Mrs Lothian had suffered detriment of a substantial kind in that they had altered their entire lifestyle in the run up to the deceased’s death and, although they had free board and lodging whenever they were at the hotel, the judge held that this was not meaningful compensation in the circumstances.
Judge Kaye also ruled that Mrs MacArthur's promise was
“clear, certain and continued up to her demise”
"there was a clear expectation that Mr and Mrs Lothian would inherit the entire estate."
The judge awarded the entire net residuary estate to Mr and Mrs Lothian.
The case demonstrates that the Court has a wide discretion when considering what awards to make in promissory estoppel cases and will consider all the factors.
Our Specialist Inheritance Disputes team can help with a wide range of inheritance issues. If you think you have a claim for promissory estoppel or would like to take advantage of our free case review contact Sharon Bell or Hayley Bundey on 020 3551 8500 or email us at firstname.lastname@example.org