Unsent text accepted as dead man’s will by Australian court – BBC News

Source: Unsent text accepted as dead man’s will by Australian court – BBC News

 

I fervently hope that this is not going to be taken up by the British Courts following the Law Commission consultation.

The potential consequences:

Is a written will superceded by a text message, a facebook message etc, where there is no evidence that it was seen by another?

If an executor cannot unlock a phone, can they be responsible for administering according to the will or intestacy provisions – just in case there is an unsent message?

An unsent message is a draft communication – everyone has thoughts that they have not said, or words they have not committed to, finally – where is the line to be drawn?

Who ensures that the deceased actually made the text message themselves, or even had the relevant mental understanding to make a will.

Its not April Fool’s day, is it?

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Vucicevic & Anor v Aleksic & Ors [2017] EWHC 2335 (Ch) (20 September 2017)

A home made will that reads like an examination paper on testamentary wishes and the difficulties about expressing them correctly, without the benefit of technical advice.  Including

  • misnaming a charity (and the process to follow if the charity cannot be ascertained)
  • amending a will after the will has been executed (and dependent revocation)
  • executing the will without a date
  • use of the term “money” and ascertaining residue
  • domicile and the conflict of laws and renvoi in relation to overseas property
  • establishment of a trust
  • establishment of beneficial entitlement or charitable trust
  • role of a trustee

 

All this and more – in one case…

 

Source: Vucicevic & Anor v Aleksic & Ors [2017] EWHC 2335 (Ch) (20 September 2017)

 

Mutual, joint or mirror wills?  Be careful what you wish for.

Legg & Anor v Burton & Ors [2017] EWHC 2088 (Ch) (11 August 2017)

Source: Legg & Anor v Burton & Ors [2017] EWHC 2088 (Ch) (11 August 2017)

Most lawyers specialising in wills or probate would tell you that mutual wills are to be avoided at all costs – the professional bodies that supervise or advise us put out technical notes emphasising this point.

However, as the Judge in this case remarked – “each testator sees only his or her case”.

It is perhaps because we see the cases that go wrong – the arguments about what the deceased would have wanted, that we make the recommendations that we do – it is not that we have the benefit of hindsight (which is very specific to each case) but that we have sufficient experience to know that things do go wrong, even when least expected – the best laid schemes gang aft agley .

In this case, the executors of the last made will of the deceased, had they been personally unaware of the will making history, would have had no indication that the testatrix had been a party to a mutual will – there was no textual evidence of any agreement that had been formed between the testatrix and her late husband – nor was there any confirmation of mutuality in the wills that were first made by the couple.  Having examined the evidence of the witnesses and associates of the couple, the judge in this instance concluded that the will of the husband had been made on the basis of an agreement with the wife that she would not change the will that she was making, after he himself had died- in fact he asked his solicitor to comment on the subject at the time and was reassured by his wife at the time that she would not change it  “My Mother actually heard this comment, and she shouted through from the kitchen ‘No I bloody won’t change it either’…”– a reassurance that he relied upon when executing his will.

The effect of this decision is to reinforce the earlier decision of Re Cleaver deceased [1981] 1 WLR 939 where the fact that two wills had been made in essentially similar, mirror terms did not create mutuality, but mutuality could be found where there was extrinsic evidence

 ‘It is therefore clear that there must be a definite agreement between the makers of the two wills; that that must be established by evidence; that the fact that there are mutual wills to the same effect is a relevant circumstance to be taken into account, although not enough of itself; and that the whole of the evidence must be looked at.

The effect of a mutual will is to bind together the will of one person with another – in the same way that a contract entered into by a person before their death needs to be seen as a prior commitment to the testamentary disposition.

Effectively, this would mean (in this case) that whatever the wife inherited from the husband could not be freely disposed of by her will – that she could not change her wishes.  Had she inherited or earned money subsequent to that will, then that money might have been disposed of, free of the condition of the mutual will.

Having seen a widow who wanted to make changes to her will for taxation purposes, being bound by an earlier mutual will, I know that it is a significant hindrance to the freedom of testamentary expression to limit a couple in this way – it takes no account of how circumstances change – and as change is a constant in itself, it means a kind of testamentary prison.   She professed to have no idea that this was the effect of the will – and indicated her late husband would not have wanted her to be so bound.

I doubt that there will be many who read this – just as as there are correspondingly large numbers of people who happily ask to make a joint will for a couple, without knowing what they ask for.  But if there is a person who has made a joint will (and the other joint testator is still alive and capable of making a will), it would be worthwhile to check with both of them that they realise the significant impact of any agreement – especially one that is written into the body of the will, or in a written form alongside the will, and what its effect is, looking to the future.

I am aware that the imposition of mutuality may seem attractive at first blush – particularly amongst those who have a culture or history of marital obedience.  But it is short-sighted of a legal professional to reach for a mutual will precedent without ensuring there are very clear attendance notes and explanatory letters explaining the effect and restrictions of mutuality.  This is what professionals are for – to give perspective and experience to the task of framing a person’s wishes.  Other solutions, aside from mutual wills, are potentially preferable to this, for all concerned.

Molatof!  More information on the Trusts Register

HMRC are now introducing an online registration process, in order both to streamline its function, as well as to comply with new anti-money-laundering legislation – called the Money Laundering Terrorist Financing and Transfer of Funds Regulations 2017 (Molatof, anyone?)

Trustees have an obligation to keep good records and accounts, not only for beneficiaries, but also for the Inland Revenue (HMRC).

Until recently, trustees did not have to supply details to the Inland Revenue of who was going to receive money from a trust – but this has changed.

Trustees have always been under an obligation to report income and gains, as well as reporting on the 10 year anniversary Inheritance Tax charge – if you are a trustee and you think you may not have failed to keep up to date, then your solicitor or accountant can help you keep on track, with a “trusts checkup”.

HMRC are now introducing an online registration process, in order both to streamline its function, as well as to comply with new anti-money-laundering legislation – called the Money Laundering Terrorist Financing and Transfer of Funds Regulations 2017 (Molatof, anyone?).  HMRC issued a newsletter about the upcoming changes in April – and suggested that the system would be online this month.  The Molatof regulations were published today, and it seems that it will be a few more weeks whilst HMRC tests the system to see whether it is working correctly.

The Molatof regulations mean that not only do trustees have to supply their details, but also they have to supply the names of beneficiaries and how they benefit – and in addition to their names, will also ask for National Insurance Numbers – and if a National Insurance Number is not available, addresses and passport details may be required.

HMRC have set themselves a deadline of the system going live by 5th October 2017 – for all trusts which have a tax consequence, information on the existence of the trust must be provided on or before 31 January 2018

What’s in a name?  A rose by any other name would smell as sweet

Where you are signing a Lasting Power of Attorney there are even more specific instructions – and these apply not only to you, the person giving the power, but also to your attorneys and the witnesses.  This is one of the reasons why solicitors like to have the attorneys in the office to sign – because they can ensure everything is signed correctly, in the right place and in the right order.

What’s in a name?  A rose by any other name would smell as sweet

 

When you put your name to a legal document, it’s considered that you understood the effect of the document that you signed – if you sign it in your own solicitor’s office, it is presumed that you have asked for and received advice on what you are signing, and this forms part of the legal service that you have paid for.

Where you are signing a Lasting Power of Attorney there are even more specific instructions – and these apply not only to you, the person giving the power, but also to your attorneys and the witnesses.  This is one of the reasons why solicitors like to have the attorneys in the office to sign – because they can ensure everything is signed correctly, in the right place and in the right order.

The regulations are very strict on who can sign the document, how they sign it, and who can witness signatures, and in what order these can occur – and if the regulations are not followed, there is a high possibility that the document will be rejected as being invalid.

  • Your signature – this should be your usual signature – even if you do not use your full name or all your initials in your signature.
  • Your full name – this should be your full legal name – Charles Philip Arthur George Mountbatten-Windsor (as an example).

If there is a space for your address (as there is for witnesses to both the donor’s signature and the attorney’s signatures) then your complete address, including postcode, must be inserted, legibly.  A failure to include an address, or with any part missing (including part of the postcode), could result in rejection by the Office of the Public Guardian.

The documents do state very clearly that the donor should sign first, and that their signature should be witnessed, before the certificate provider signs the document.  Each attorney should sign after the certificate provider has signed – it is acceptable for all to be signed on the same day, but not to be signed in any other order.