Simple or complicated, what’s your Will type?

Photo of a man carrying children through a field

Search online for ‘simple’, ‘free’ or ‘cheap’ will writing and you’ll be presented with a range of website results including sponsored adverts promising that you can sort everything in five minutes flat.

In theory, you could scribble who you want to leave your earthly goods to on any scrap of paper and sign it. Then, as long as your signature is witnessed and signed by two independent adults aged 18 or over, it might be legally binding. But does that mean it’s a good idea?

One step up from that are the DIY kits you can buy from stationery shops and online that allow you to write your own Last Will and Testament.

In the digital age, many people have high expectations of doing things at the click of a button. As a result, online will writing services have become popular, especially since the start of the pandemic. These online services range from quick and basic online templates to more detailed customer journeys where you will be asked questions to find out more about your personal circumstances and finally options where you can speak to an advisor through a phone or online call.

Rebecca Head, of Four Oaks Legal Services, said: “In general, you should only consider writing your own will if your situation and wishes are very simple. The difficulty is that a lot of people think their circumstances are simple, when in fact there may be complications they have overlooked.

“With property prices rising, many people have more wealth to leave than they might expect and a properly drafted Will can avoid disputes after your death.

“Since the pandemic began, there has been a surge in people wanting to sort Wills quickly for minimal costs and online options can look tempting.”

When should you NOT consider a DIY online Will?

Circumstances that make a will more complicated, so that a DIY online option would NOT be recommended include:

  • If you have people who are financially dependent on you, other than your immediate family, such as children from previous relationships.
  • If you own a property abroad or have overseas investments or bank accounts.
  • If you own a business.
  • If you have wishes that are slightly complicated or open to misinterpretation.
  • If you want to try to reduce the Inheritance Tax obligations of your loved ones.

Rebecca said: “There are growing fears that many Wills that have been made with online software or DIY kits in recent years will actually be invalid when they come to be enacted, or will result in costly and stressful legal battles for families.

“In the worst cases, Wills may not do what the client intended and it may be the courts who decide who should inherit land, property and belongings.

“Many websites and will writing software have clauses that strictly limit, or deny, their liability if anything should go wrong, so you may have no legal comeback at all.”

The clear difference that puts clients first

Solicitors at Four Oaks are all legally qualified and experienced and Rebecca and her colleague Adam Penn also hold Diplomas in Trusts and Estates from STEP (the Society of Trust and Estate Practitioners). This is the gold standard qualification in the industry.

Rebecca added: “Experience tells us what questions to ask to really understand the situations of our clients and to advise them if their instructions are likely to result in heartache for loved ones in later years.”

A recent survey by independent research and consultancy firm Funeral Solution Expert found that 65% of UK consumers who believe their affairs are simple, actually have much more complex needs when it comes to their Will.

Rebecca added: “We recognize that some traditional law firms may have driven people towards online will writing services and DIY options because of complicated fee structures, slow response times and the hassle of getting an appointment. At Four Oaks Legal Services, we set out from the start to be clearly different. We are upfront about our fees and we are happy to arrange appointments outside normal office hours and to take instructions in the homes of our clients if it is difficult for them to get to us.”

Calls for action on predatory marriage

Predatory marriage: black and white image of two hands wearing weddings rings.

Predatory marriage may not be a term you have heard before, but it reflects a sad situation when a vulnerable adult is coerced into a union that is financially beneficial to their new spouse.

The phrase is used regularly in Canada where some provinces have added safeguards to marriage laws aimed at protecting people who do not have the capacity to consent to a wedding.

Rebecca Head, a director of Four Oaks and a member of the national group, Solicitors for the Elderly, said: “Under English law, marriage revokes any previous will and a new spouse can then often inherit a considerable proportion of their new spouse’s estate on death. This has unfortunately led to predators targeting elderly people, perhaps suffering from dementia, and marrying them – often without their families’ knowledge.  When the vulnerable person dies, their new spouse can also control the funeral arrangements.”

Incapable of making a will but capable to marry

“The current legal position is that a good level of capability is required for a person to make a new will but a much lower level of capability is necessary to actually agree to enter into a marriage.  This can result in a person being deemed incapable of making a will but perfectly capable to marry, which some people might find quite surprising”.

Now, Rebecca and the team at Four Oaks are backing calls for predatory marriage to be treated as seriously as ‘forced marriage’, which has been illegal in England, Wales and Scotland (and in Northern Ireland under separate legislation) since 2014.

Rebecca explained: “A forced marriage can involve someone being pressured or threatened into marriage against their wishes but it also applies when someone is unable to consent, perhaps due to a learning disability. When someone is unable to fully understand and give informed consent due to a condition such as dementia, we believe they deserve the same protection.”

MP takes up the issue of predatory marriage

In 2020, the Government’s Forced Marriage Unit (FMU) gave advice or support in 759 cases.

Leeds North East MP Fabian Hamilton says hundreds of families have contacted him since he first raised the issue of predatory marriage in Parliament in 2018. 

He tried to use a Private Member’s Bill to change the law in England and Wales along similar lines to the Canadian examples. The bill attracted support but, unfortunately, it ran out of time.

“Sadly, as people live longer with dementia, and as property values rise, we may see more cases in the future,” said Rebecca. “Difficulties in securing social care may also leave elderly people with dementia more vulnerable to being ‘befriended’ by predators.”

During the summer, Mr Hamilton raised the issue of predatory marriages again at Prime Minister’s Question Time and Boris Johnson said he would look to secure a meeting with the justice department to discuss the ‘injustice’.

 

Lasting Power of Attorney system to be modernised

Two women sit at a desk reviewing documents: by Gabrielle Henderson/Unsplash

The UK Government has launched a consultation, open to everyone, on proposals to modernise and streamline the Lasting Power of Attorney (LPA) system. It is open until October 13, 2021.

LPAs are powerful legal documents that allow someone to appoint people they trust to manage their affairs and make decisions on their behalf if they cannot do it themselves. LPAs were introduced in 2007 and replaced a previous Enduring Power of Attorney (EPA) system that had existed since 1985.

Why should I have a LPA in place?

You may have come across LPAs in the context of supporting elderly relatives. If someone develops a condition such as dementia or Parkinson’s disease, or has a stroke it means someone else can step in and manage their day-to-day affairs.

But LPAs can be an important safeguard for people earlier in life as well. Many people assume that if, for example, they had a serious accident and were in hospital in a coma, their spouse or another close family relative would be able to pay bills etc. on their behalf. This is not the case.

For this reason, owners of small businesses may want to think about having a Lasting Power of Attorney in place so that their business could continue to run and suppliers and any employees would be paid.

Without an LPA in place, your family usually has to apply to the Court of Protection to have a deputy appointed to deal with everyday financial matters. This is a slow process and costs thousands of pounds.

Any joint bank accounts you hold with your partner could become severely restricted if they become mentally incapable (permanently or temporarily). This could result in many problems if the joint owner has their income or pension paid into this account, or they use it to pay critical bills such as a mortgage.

What can an LPA empower your attorney to do?

There are two types of LPA in England and Wales:

  • A Property and Financial Affairs LPA gives a trusted person the authority to handle your bank accounts, investments, bills and property.
  • A Health and Welfare LPA covers decisions about your health and care.

A property and financial affairs LPA would allow your attorney to open, close or operate your bank accounts, pay bills, claim pensions, make or sell investments and property or, in some cases, run your business.

A health and welfare LPA allows your attorney to make decisions about your medical treatment and care. They can authorise or refuse life-sustaining treatment and make decisions about your daily care routine, for example washing, dressing and eating and where you live.

Who can be an attorney?

An attorney needs to be 18 or over and mentally capable of making their own decisions. You could choose your spouse or partner, a relative or friend or a professional person such as your solicitor.

If you’re appointing more than one person, you must decide if they’ll make decisions:

  • separately or together – sometimes called ‘jointly and severally’ – which means attorneys can make decisions on their own or with other attorneys
  • together – sometimes called ‘jointly’ – which means all the attorneys have to agree on the decision

How are LPAs administered?

The Office of the Public Guardian (OPG) was set up in 2007 to administer and maintain a register of LPAs. It replaced the previous Public Guardianship Office.

Today, there are more than 4.7 million LPAs and EPAs on that register. Around 917,550 of those were registered in 2019/2020 alone. Perhaps some of this increase was fuelled by the COVID-19 pandemic when people realised that banks and other organisations would only deal with the named account holder if a relative became so ill that they could not manage their own affairs?

The OPG says that about 40 per cent of the adult UK population have a will, but less than 1 per cent have a Lasting Power of Attorney.

LPAs can only be used after the application forms have been completed, signed and registered at the OPG.

Why does the Government want to change the LPA system?

Over the years there has been some criticism of the LPA system.

Rebecca HeadRebecca Head, director and Wills & Probate solicitor at Four Oaks, is a member of the national group, Solicitors for the Elderly which says that with the right advice, powers of attorney can act as important safeguards.

She said: “An LPA can be a positive and effective legal tool, which ensures your wishes are respected should you ever lose capacity. But there is a clear need for professional advice when considering powerful legal documents of this nature.”

Currently, each LPA is over 20 pages long and needs a minimum of six signatures. The complexity of the system results in a high rate of mistakes, which cause delays, and can put people off from setting up an LPA.

Although LPAs can be created online, the legislation requires the completed forms to be printed out, physically signed and witnessed and then posted to the OPG for registration. This led to around 19 million sheets of paper being received by the OPG in 2019/20 alone, with a similar number of sheets being sent out to the public.

Delays caused by mistakes can cause heartbreak and stress for families if the person the LPA is being created for (known as the donor) loses capacity before the registration is completed. This makes any LPA invalid and the family then has to go down that expensive and time-consuming route of applying to the Court of Protection instead.

What changes to LPAs does the Government propose?

Greater digitisation could reduce errors, says the Government, as well as cutting down drastically on paperwork and speeding up the process for everyone.

Another proposal would replace physical witnesses with a digital ID verification and signature procedure.

Currently, people can complete an LPA and sign it but NOT submit it to the OPG for registration until they need help from their attorneys. At that stage, many LPAs are rejected for mistakes and by that time the donor may have lost mental capacity. So, the Government is considering changing the law so that LPAs must be registered immediately or, alternatively, introducing a system of checks at the signing stage to reduce errors.

There is also a proposal for a fast-track service at a premium price for those who need an LPA urgently.

The old EPA system made it compulsory for an interested party to be notified that the document had been signed, as a way of ensuring there were no concerns that either the donor DID NOT genuinely lack capacity or they had come under undue pressure to sign. This was removed from the LPA but the Government is now looking if there needs to be a way for people to be made aware of an LPA application being made so that they can object.

If you would like to take part in the ongoing consultation, more details are available here – https://publicguardian.blog.gov.uk/2021/07/22/modernising-lasting-powers-of-attorney-safer-simpler-and-fit-for-the-future/

Rebecca added: “While we wait for the outcomes of the Government’s consultation, it remains important to get expert legal advice on whether an LPA is right for you and to ensure that time-consuming mistakes and delays are not incurred.”

If you would like to talk to Rebecca about LPAs, please call her on 07961 576 780.

Where there’s a will, there may be a dispute

Last-Will-and-Testament-image-by-Melinda-Gimpel-on-Unsplash.

We’re seeing a steep increase in the numbers of people challenging Wills across the UK.

This is backed up by a survey claiming that one in four people said they would challenge a Will if they were unhappy with the provisions it made.

Many Will disputes involve adult children who have been cut out of Wills or left less than they expected.

Why are more Wills being contested than ever before?

Well, firstly a lot of people are wealthier. This is often due to big rises in property values. This means there is more at stake, so people are motivated to take action.

Secondly, family trees are more complicated than they once were with numerous branches formed by divorces, remarriages, step-siblings and cohabitees. When someone dies without leaving a Will there are strict rules that dictate what happens to their Estate. For example, a live-in partner could lose their shared home and receive nothing.

Thirdly, publicity in the media has made more people aware that it is possible to contest a Will.

Fourthly, people have been living longer. This means that more people have been making Wills when they are in poor health and this can prompt disappointed relatives to challenge a Will.

Finally, writing Wills remains an unregulated area. Wills prepared without an experienced solicitor’s input may contain mistakes or miss out vital steps or information. This makes them easier to challenge. The same is true of DIY and online Wills that people draw up themselves.

What are the grounds for challenging a Will?

A Will can be legally challenged if there is a question mark over the mental capacity of the person at the time they made the Will. There is also a possibility of a challenge if there is proof that the person was under pressure to write what they did.

It can also be challenged, in some circumstances, if no provision was made for a dependent in need.

Technical errors in the paperwork can also lead to legal claims.

But as Rebecca Head, a director and Wills & Probate solicitor at Four Oaks Legal Services said: “A Will cannot be challenged JUST because relatives and friends think that it’s unfair or because siblings or other beneficiaries have not been left equal amounts of money or possessions of a similar value.

“Something called ‘testamentary freedom’ is always given priority. This means that we can leave what we want to who we want in our Wills.”

Rebecca is a STEP Practitioner, the top professional qualification for a Wills, Trusts and Probate solicitor.

She added: “A parent with two adult children may choose to leave more in their Will to one than the other for a variety of reasons. Perhaps, one child received more financial support than the other when the parent was alive, or one of them did more to help their parent than the other.”

How to avoid a Will being challenged

The main way to avoid a Will being challenged is to have it drawn up by a solicitor experienced in family and estate planning.

We would advise anyone to think carefully before launching a court challenge. Losing the case could result in the challenger being ordered to pay the legal costs of both sides, which can run into hundreds of thousands of pounds.

If a Will dispute goes to court, there will need to be robust evidence in order for it to be overturned. Evidence from a qualified solicitor, who took appropriate and thorough notes and obtained all the necessary information, is a major way to prove the validity of a Will.

A Will that has been professionally prepared is rarely declared invalid.

Rebecca recommends that parents talk to their children about their Will and the reasons behind the bequests they have made.

Rebecca said: “We understand that it can be a difficult conversation, and it’s understandable that they may want to avoid it, but they could be sparing their loved ones a nasty shock further down the line.”

Another piece of advice is to make a list of your personal possessions and state who you want to have them. It makes your wishes clear and can avoid emotionally-draining arguments.

If you still feel a Will is unjust, take advice from a solicitor with experience of handling contentious Wills. They will understand the highly-charged feeling you are experiencing and can give you independent and sound advice.

How to choose who writes your Will

Choosing a STEP member can be an advantage as they will have been trained to the highest level and have relevant experience.

Just because a Will writer is a member of the Society of Will Writers or the Institute of Professional Will Writers, does not mean they have the same expertise as a Solicitor or a STEP-practitioner, who will have the letters TEP (standing for Trust and Estate Practitioner) after their name.

Using an experienced solicitor will ensure there is more background information available to a judge in the event that a case does go to court. It may also deter people from challenging the will, because they will see that the solicitor took all the steps to prove that their client had capacity, understood the bequests and provisions they were making and was not under undue influence.

If you want help or advice from us, contact details for all our team are here.

 

Who Cares?

Care homes are increasingly asking potential residents of their homes to ensure that the resident has Lasting Powers of Attorney (LPAs) in place.  We have had a number of cases recently where clients have asked us to assist with this due to requests from the care home management team.  But why?

 

LPAs are legal documents which allow a person to appoint another person or a number of people to act on their behalf in relation to either (or both) their financial affairs or their health and welfare, usually when the donor of the power is finding it difficult to, or cannot, deal with these matters themselves. 

Putting in place an LPA is a valuable arrangement, particularly for care home providers.  If a potential resident has arranged a legal appointment of another person, the care home can deal with that appointed person, should their resident no longer be able to make decisions about their finances or their own welfare issues.  This means that delays are avoided when immediate decisions need to be made and access to funding is required. 

Without a Property & Financial Affairs LPA, the care home could be caught in ‘financial limbo’ whilst the resident’s family applies to the Court of Protection to appoint someone to manage the resident’s financial affairs. If the family is unable to pay the fees in the meantime, the care home will be placed in a difficult situation.

Without a Health & Welfare LPA, the care home may find that no-one can make decisions about the resident’s care on a day to day basis, such as whether they should visit the dentist or have their flu jab, or more major decisions about hospital care, treatment and operations.  As the care homes job is to provide care, they have to be sure those making decisions for the resident are legally authorised to do so.

With the rise in dementia-based illnesses (some 850,000 have a dementia diagnosis in the UK), care homes are naturally worrying about making sure they do the right thing by their potential and existing residents.  As it can take several months to put an LPA in place, this is why they are encouraging those with capacity to make LPAs before moving into a care home.  It can save stress and worry for the resident, and the care home, later.

If you want to discuss making a lasting power of attorney, please contact Joanna Parkin or Rebecca Head on 01543 440308.

 

Rebecca Head & Joanna Parkin

Boomerang Kids?

 

We all know things have changed when it comes to children flying the nest.  The price of property is a serious hurdle and many ‘children’ are remaining in, or returning to, the family home into their late 20s and 30s.  But what would happen if you died? Would they be able to stay in the home?

 

Take this example:  Peter and Jane have three children.  Two of them have left home but one, David aged 28, lives with them and shows no prospect of moving out- he has a job locally and the house is big enough for them all.  In their Wills, Peter and Jane leave the house to their three children.  In the normal course of events, the house would be sold and the sale proceeds would be split equally between the three children.  If David is still living in the house, he would have to move out as soon as the house was sold.  This might not be what Peter and Jane expect to happen.  They might not want him to move out quite so quickly and be forced to find somewhere else to live at what is already a distressing time.   So what can they do?

 

Peter and Jane could include a right to reside in their Wills allowing David to have some breathing space to find somewhere else to live when both parents have passed away.  Commonly, a right to reside lasts for anywhere between a few months and five years but it can be much longer.  A right to reside would allow David time to find another property before being forced to leave the family home.

It is always important you consider what would happen if you have got someone else living in the property with you, whether it’s an elderly relative or a boomerang kid!  If you are facing this situation, please contact us on 01543 440308 to assist you.

 

 

 

Should I Get A Solicitor to Write My Will?

The ongoing pandemic has understandably caused many people to make Wills for the very first time.  “Do It Yourself” Will-making kits have become an increasingly common means of creating a Will in recent years.  They are a cheap alternative to a professionally prepared Will.

But beware, homemade Wills may still come at a significant cost.

The recent decision in the case of Face v Cunningham has increased the likelihood of homemade Wills being challenged via the Courts.  The Court heard that the alleged Will of the late Mr Face could not possibly have been signed by the gentleman himself.  Whilst such incidents of fraud are rare, the real impact of the judgement is to reverse the burden of proof from the complainant to the estate.  In future, it is the Executors of the deceased who must take the time and trouble to issue Court proceedings to prove a Will.

This is a considerable departure from the Court’s previous position and means that homemade Wills will come under very close scrutiny in future. There is an automatic presumption that if a Will has been prepared by a Solicitor that the Will has complied with the requirements for legal execution. Home-made Wills are not afforded the same protection.

If you have a homemade Will or, like Mr Face, you have a complex family dynamic, your Will may be challenged in the Courts.  You may be able to avoid any future disputes by executing a Will prepared by a Solicitor.

Please call us on 01543 440308 if we can help.

Christmas Opening Hours

 

Our offices will be closing for the Christmas break on Thursday 24th December at 1pm.  We will re-open on Monday 4th January 2021.  

Should you need to contact us in an emergency during the Christmas period, please call Stuart on 07969 929 452.

We wish you a very Merry Christmas and a happier 2021!

Lasting Powers of Attorney – Refund Fees Deadline

 

We reported previously that the Office of the Public Guardian are making partial refunds to people who had paid to register their Lasting Powers of Attorney between the 1st April 2013 and the 31st March 2017.  This was due to the Office of the Public Guardian making savings on their operating costs which weren’t passed onto the public during that time.

The OPG believes there are over a million potential refunds due but the deadline to make a claim is fast approaching.  The refund scheme closes on the 1st February 2021.

If you might be due a refund and you haven’t yet made a claim, full details can be found on the Government website https://www.gov.uk/power-of-attorney-refund

Applications can be made online or by telephoning the Office of the Public Guardian on 0300 456 0300 (choose option 6).

 

The Small Business Online and Copyright

On Thursday 4th June, Four Oaks Legal Services Director, Stuart McIntosh, ran an online Zoom session aimed at small businesses.  The session covered copyright issues that affect small businesses online.  The feedback from the session was fantastic, so for those of you who missed it but would like to watch it, click on the link below.

https://drive.google.com/file/d/10GEJqiLRdyz9lJHdvvsar8bKnb1kx2UN/view?usp=sharing

If you have any questions about the issues raised in the session, please email Stuart on stuart@fouroakslegalservices.com or call him on 07969 929 452 and he will be pleased to chat to you.