In England and Wales, unlike other countries, a person can leave their estate to whomever they choose. Therefore, if you want to leave your whole estate to Charity and not to your spouse or children, you have every right, legally, to do that. This right is known as Testamentary Freedom.

Adult Child Claims


Wendy Rixon
Wendy Rixon
Associate – Estate & Trust Disputes Specialist

The Inheritance (Provision for Family and Dependants) Act 1975 allows for certain people to bring a claim against the estate if they can show that reasonable provision was not made for them under a Will or an intestacy.
The 1975 Act widened the scope for adult children to make such claims, albeit that they have to show a real need for maintenance from the estate. Therefore, if they are capable of earning a living and have no real mental or physical disabilities they would, you would think, find it difficult to mount a claim.

The long awaited and widely reported judgment from the Supreme Court of Ilott -v- Mitson has made people question if it is still worth writing a Will if the terms of that Will can be so easily overturned.

3 Ways You Can Protect Your Testamentary Freedom

If you are intending to omit a child from your Will, you should think very carefully about how you document your decision.

  1. Leave a Note - It is sensible to leave a note with your Will explaining your reasons for not leaving them anything. The note should be a true and accurate record of the reasons but should not take the form of throwing everything at it. It should be remembered that the Will may be made many years before the death (and Inheritance Act awards are subject to the facts at the time of the court hearing, not at the time the Will was made or even on the death). Therefore, just because you think, today, that your son or daughter is doing very well for themselves and does not need your help thank you very much, does not mean that this will be the case at the relevant time. If there has been a fall out, this should be documented, emotionally, and the reasons or perceived reasons given. The letter will not prevent a claim, but it will provide background as to whether leaving your child out of your Will is reasonable, which is the basis of the 1975 Act.

  2. Leave a Small Legacy - Some testators are encouraged to leave a small legacy rather than nothing. This shows that they have considered any moral claim that they may have and, again, can go some way towards indicating that you have left reasonable provision (in all the circumstances) for your child.

  3. Add a No Contest Clause - You can put a no-contest clause into your Will which states that if the legacy left to them is challenged, they forfeit the right to anything. Although not legally binding, it can have the effect of making the challenger think twice before taking the risk of losing whatever legacy they were left. This can particularly be the case if the legacy left to them is significant enough to make them think twice about challenging it.

It is important to appraise your will writer fully and comprehensively about your family background and family members, particularly if you are not intending to leave them anything, so that they can provide you with the best advice about how to prevent a challenge to your Will after your death.

We Can Help

At MW,our mission is “to make quality legal services accessible to everyone” including those who find themselves embroiled in a 1975 Act claim.

Our dedicated Estate and Trust Dispute Team are specialists in navigating the tricky waters of such claims to help ensure the best outcome for our clients. Our specialist lawyers have experience in helping both Claimants and Defendants to adult child 1975 Act claims and we are best placed to guide you through the process as quickly and painlessly as possible.

f you would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8550 or email us at enquiries@mwsolicitors.co.uk.

News stories are not all about celebrities, politicians, and famous people.


Ryan Dunleavy
Ryan Dunleavy
Partner & Head of Media Law Reputation Management

A cursory glance through the newspapers or viewing the television news on any given day shows that probably most news items focus on ordinary people who may be doing extraordinary things, or who may find themselves in an unusual situation.

Take the example of 22-year-old Marcus Hutchins, credited with halting the global spread of a massive international ransomware attack, WannaCry. It was estimated that Mr Hutchins prevented more than 100,000 computers across the globe from being infected by WannaCry.

Yet, despite being feted as a hero in the Press, there was a negative side to all this publicity for Mr Hutchins, a person who used the alias of ‘MalwareTech’ to avoid being identified. He was propelled into a Media spotlight that often brings with it unwanted attention. It has been reported, for instance, that Mr Hutchins has said that he will have to move house after a newspaper identified him and published his full address, resulting in him being hounded.

As part of the WannaCry story, it was not just Mr Hutchins who was targeted by the Media, but also those who knew him.

Media attention can often be short lived, but like a tornado that rips through a town, the duration of the event is not always as significant as the damage it leaves behind.

We Can Help

If you become the focus of unwanted Media attention, it is important to act quickly.

At MW Solicitors we can help individuals who receive unwanted Media attention. There are various legal avenues that can be explored to counter this attention, and our experts in MW’s Media Law and Reputation Management Department are not just experienced in the law regarding these matters, but also in how to communicate with the Media in an effective manner.

By way of contrast to Mr Hutchins’ situation, if a client wishes to obtain Media attention for a brand, event, or simply because they have a newsworthy story, we also assist with how, when, and on what terms information is conveyed by clients to the Media. That way clients can speak to the Media in the knowledge that Press intrusion will only go so far.

If you are seeking legal and reputation management assistance in relation to Media attention, call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

Wheelchair Skills Training

MW Solicitors Ltd are extremely proud to have become the principal sponsors of the Back Up Trust Wheelchair Skills Programme.

Joining Forces to Help Spinal Injury Survivors Rebuild Their Lives

Every day three people sustain a spinal cord injury, through accident or illness and at MW our expert Personal Injury solicitors represent many clients with vital legal assistance throughout the personal injury claim process.  We are acutely aware of the tremendous resources provided by Back Up through wheelchair skills training, peer support and vocational rehabilitation. 

In addition to providing financial support for these vital services, we will also be providing hands on support in the form of volunteer assistants who will attend each and every wheelchair skills training session throughout the UK.

About Back Up

Back Up was founded in 1986 by the former British and European Freestyle Champion and James Bond stunt double Mike Nemesvary, whose life was devastated when he broke his neck during a training session. Despite being paralysed from the shoulders down, Mike was determined to get back to the life he enjoyed.  Back Up was initially set up to offer ski courses for those affected by spinal cord injury. Over the years, Back Up has expanded its services to challenge and empower people to get ‘back up’ to a place they were at before their accident.

Back Up exists to inspire independence in anyone affected by spinal cord injury and to encourage everyone to get the most from their lives.  They work with people of all ages, from young children to the elderly, whatever the motivation or background.    

Back Up relies on a vital family of volunteers, mentors and skilled professionals, who provide unrivalled support and enthusiasm and who help deliver services that rebuild confidence and self-belief. 

About MW Solicitors

At MW, our mission is "to make quality legal services accessible to everyone" and we aim to support clients throughout their lives with our teams of skilled, experienced lawyers. 

If you have experienced a no fault injury MW can provide pro-bono or discounted assistance, whatever your legal needs.  Where your injury has been caused by someone else’s negligence we have a specialist serious injury and medical negligence team with decades of experience acting for the most seriously injured in the UK and abroad.  After suffering a life changing injury we believe rehabilitation in all its forms is key.  We have case managers who can assist with practical issues from the start and then we are with you and those that rely on and care for you throughout the course of your claim and beyond.

If you or a loved one have suffered a Spinal Injury and would like to know more about how we can support you through your rehabilitation and through the claims process, call our expert Personal Injury team on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk 

 

Tending an Eledely Relative

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 and the Role of the Court of Protection


Sharon Leanne Bell
Sharon Leanne Bell
Partner & Acting Head of Estate & Trust Disputes

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 person making a Will has never made one before
  • the estate has increased in value and tax planning is required
  • the estate has decreased in value
  • a beneficiary has received a substantial gifts and the will should be adjusted
  • a beneficiary (or beneficiaries) under an existing will has passed away.

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:

  • past and present wishes and in particular any previous testamentary wishes that may have been made when the vulnerable person had capacity
  • the beliefs and values that would be likely to influence the vulnerable person’s decision if they had capacity
  • other factors that the vulnerable person would be likely to consider if they were able to do so.

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.

We Can Help

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 enquiries@mwsolicitors.co.uk

hmrc

Solicitor and member of MW's Estate and Trust Dispute Team, Jane Flaherty, discusses the Governments recently announced plans to increase probate fees.

Background

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.

The Result of the Consultation

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. 

What are the New Charges?

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?

When do The Charges Come into Force?

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.  

What are the main objections to the proposals?

  1. The fees are disproportionate to the cost to the Court in providing the probate service.

  2. The cost to the Court does not vary depending upon the size of the estate. The same amount of work is required for most matters.

  3. The cost does not take into account any inheritance tax that also has to be paid.  It is based on the gross estate.

  4. There will be no exemptions to this charge, whereas there are exemptions in place for estates passing to the surviving spouse or to charity or where the estate qualifies for business or agricultural relief. When you consider the value of property, particularly in areas such as London, some estates may be asset rich but cash poor and may have difficulty paying the probate fee.  Families that hold their property as tenants in common because they want to provide for children from a previous marriage or want to ring fence the amount of capital going towards care fees may find themselves in financial difficulty.

  5. Solicitors will not be able to fund this payment for clients and that might lead to executors having to take out bridging loans, particularly if there are insufficient funds in cash to cover the cost.

  6. The legal profession feels that this is another form of death tax

  7. People may make unwise decisions about their assets, without seeking advice, to prevent the probate fees.

  8. Unscrupulous companies may miss sell products to vulnerable clients on the basis of probate avoidance. Such companies don’t give advice in the whole to enable you to make an informed decision as to whether their products are in your best interests because they are sales people not professional advisors.

Let the Government Know What You Think

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

 

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