Developments in the courts from 2014 | STEP

Developments in the courts from 2014 | STEP.

This is lifted completely from the STEP pages written by Nicholas Le Poidevin QC TEP  (a Barrister at New Square Chambers) and Toby Graham TEP (a Partner at Farrer & Co)

The main interest right now for me is Marley -v- Rawlings, as I wrote about this a little while ago and it had such a bearing on  a case for rectification I was dealing with at the time.

It must be me – because I found a couple of lines in this to be truly amusing.  I wonder whether the writers are entertaining speakers?

When William died he left £300,000 but his son never saw a penny: Why you must write a will | Daily Mail Online

When William died he left £300,000 but his son never saw a penny: Why you must write a will | Daily Mail Online.

There’s a lot about this article that really rings true – and I don’t think that about most things that the DM publishes.

The terrible fact is that although most adults have home insurance and service their cars regularly, few have wills.  And really, the cost of a will might be far less than a car service in the short term, let along the longer term.

I still find it hard to understand why people can get married (which costs usually several thousands of pounds even for more modest arrangements) and not spend a few hundred pounds on sorting out their financial futures, now they are legally bound to each other.

With all the costs of a new house or a new baby, I can see why you might not want to spare the budget for doing your will in the short term as well – but thinking about how much I pay in childcare costs for after school club now, a will is less.  And there is absolutely nothing more important in my life than my child, whose future I want to take care of.  As for the new house – well, the smallest fraction of the purchase price could be set aside for a quick brush up of your will.

 

So – moving house might mean moving jobs, perhaps half way across the country, far away from your previous home and associates – meaning that the likelihood of your will being actually found diminishes, even if you made a will in the first place…  a good reason to update it, and also to register it with a service like Certainty.

 

Why does it have to be so much harder if a person dies without a will?  When it costs so little (compared to a night out in London, a car service, a new igadget,) to make it straightforward?

A significant advance | STEP

A significant advance | STEP.  An article about the changes in the law relating to how much capital money can be given from a trust fund to a beneficiary where there is no existing adaptation of the general law – ie on intestacy, or where the document provides no modification to the statutory powers.  Applies to trusts created after October 2014.

Managing Partner in outstanding Grinch email

Europe News.

Roll on Friday reminds me that there are benefits in not working for a large law firm anymore – I am no longer a slave to the timesheet.

Why does some part of me still crave that simplicity of work- where time spent justifies existence?

Walker -v- Badmin [2014], Testamentary Capacity is a common law issue

Fascinating new case about testamentary capacity and the differences between the Mental Capacity Act test and the old common law test of Banks -v- Goodfellow.

I expect there to be huge amounts of commentary about this, but Araba Taylor certainly seems to have done a good job here:  she has provided enough argument for the judge to be convinced that the MCA does not apply to tests of capacity of deceased persons and the validity of the wills made.

This is quite a massive step – since the Act introduced a new set of distinct tests for capacity, there has been a question over whether the MCA test for testamentary capacity was the same as, or superceded the common law test.  Most textbooks have been decidedly woolly on the subject – saying it was a rephrasing of the common law in modern language – Banks and Goodfellow is quite old now…  (over 140 years) and one might think that our understanding of mental awareness has increased over the intervening years.

This judgment suggests that the MCA test is higher than the common law test – which sets the bar lower – partly because many people who make their wills do so when elderly and infirm, and sometimes when they need the help of others to fully comprehend their circumstances so they can make effective decisions.  And that this cannot have been intended by the lawmakers at the time.

23. A second difference arises from section 3(1), which requires a person to be able to understand all the information relevant to the making of a decision. This, at least arguably, may in some cases require more of the testator than the common law test, which concentrates on whether the will correctly represents the testator’s intentions and his appreciation of the claims to which he ought to give effect, but does not require in all cases that he is able to remember and understand all relevant information. See Banks, above, Fuller v. Strum [2001] EWCA Civ 1879 at [65] and paras. 32-3. below.

24. A third difference is that the effect of section 3(1) read together with section 3(4), if applicable, would render a will invalid if the testator was unable to understand, use or weigh information as to the reasonably foreseeable consequences of the choices open to him, because of the impairment of his mind or brain. Presumably, that would be limited to material consequences, that is consequences which the testator might reasonably be expected to take into account, but this too probably requires more of a testator than the Banks test, at least in some cases.

It seems that the judge here has considered that the common law test should be determinative when considering whether wills are made validly, and that the MCA directions more correctly apply to the statutory wills regime (whereby the Court of Protection sanctions a will that the patient would have made, had they had capacity). This is also relevant when challenging wills, because of the burden of proof that lies with the propounder of the will to prove that any doubts as to validity have been allayed, once a suspicion has been roused.  The MCA presumes capacity, wherever possible.

In addition, the rest of the MCA is all about assisting patients with decision making and autonomy when they are living, rather than examining the decisions that have been made.

The judge in this case wondered whether it was possible for any testator to fully give all considerations to the material consequences of their decisions.  Perhaps some of the decisions made in a will might be dependent on legal advice as to their efficacy.  In the circumstances of this case, the testatrix left a life interest in what she had (which included an unresolved interest in the former matrimonial property) to her partner (remainder children), and then from the residue, she left part to her children and part to her partner.  The partner was of the same generation as the children.  The practical effect of a life interest would mean that her children would be unlikely to benefit in their own lifetimes, but it would be for the grandchildren to benefit in due course.  Was the letter (which may or may not have been written by the testatrix, and probably by her partner, but signed by the testatrix) written to explain the rationale behind the decisions she made enough to show that she had a full understanding of the effect of her will?

In this decision, having weighed considerable evidence, the judge thought that the testatrix’s side letter did show some reflection on the consequences of having a life interest.

As a side note, the judge did consider that it might well have been prudent to seek medical advice at the time of taking instructions, as per Kenward and the Golden but tactless rule…

Woman who disowned mother fails in claim on estate | STEP

Woman who disowned mother fails in claim on estate | STEP.

 

Conduct does affect the way the court views the situation of a child claiming for support under the IPFDA.  And a letter outlining the reasons for excluding a child has significant weight.

In considering the request, the judge was entitled to consider Wright’s conduct toward her mother – Mary Waters had left a letter explaining her reasons for disinheriting her daughter. A key element was that Mary Waters had sent her daughter GBP10,000 to invest on her behalf in 1998, but Patricia Wright later refused to return this money, insisting that it was a gift. In her letter of wishes, Mary Waters stated: ‘My daughter has already taken without my consent GBP10,000 of my savings’.

There had later been a serious falling-out between mother and daughter on other more personal matters. These quarrels culminated in Patricia Wright sending her mother a letter disowning her and wishing her dead, and stating that she did not wish to communicate with her any more. There was no further contact between them.

One might conclude that if mother and daughter had made it up and become marginally less estranged, the IPFDA letter, if unamended, might have been less effective.

Information sheets

I’m thinking about putting up some basic information sheets – these are the sorts of things that do not give specific legal advice, but more generic ones.

Sometimes it feels like I am explaining the same thing over and over again – and that although suitable for each client, it is not unique to each client.  It’s rather like saying “you need to wear a jumper, a cardigan or a coat”  rather than “you need to get a light blue silk scarf with images of cornflowers measuring x by y”.

Should there actually be any readers of this blog out there, by all means say what helpnotes you would like to see (that relate to wills, inheritance tax, and that sort of thing)  I am thinking about putting them up as separate pages on the side of the screen here.

Law Society research: millions of Britons have no will – The Law Society

Law Society research: millions of Britons have no will – The Law Society.

 

It is, as we have said for a long time, the exception rather than the rule.  Somewhat horrifying to think that over two thirds of us do not have wills.

I’m dealing with some intestacies at the moment, and practically speaking, although we can deal with things amicably  (hopefully) within a family, the extra work involved, and the trauma for the family of deciding who is going to do what, who is going to be responsible for making difficult decisions, and the fact that no-one is immediately able to do things on behalf of the estate is tragic.  For less than £200, the client could have saved hours of worry, hours of legal time, so much angst and family difficulties, and prevented the delay in administration – if there had been a will, the house could be on the market now – the estate agents will not risk signing a contract with someone who may not be the administrator, or they might not get their money back.

That is just the problem – Lasting Powers of Attorney are needed in lifetime to make life easier and better for the living who are vulnerable.  Wills are your last chance to make things easier for those you leave behind.  And if you are not a single person with no spouse or children, or grandchildren, then there are all those who are depending on you.  And wishing that you had appointed guardians, and made things clear for you.

Wright and another v National Westminster Bank Plc [2014] EWHC 3158 (Ch)

Applying Pitt v Holt – Unilateral transaction — life death litigation.

I can’t find a publicly downloadable account of the judgment in this case, and this report does quote some of the detail.

The lesson being highlighted for practitioners is that the gift of something must be certain.

I wonder whether there was adequate advice on the part of the advisor assisting them with setting up an intervivos trust.   Perhaps it might have been part of the advisor’s targets to sell this sort of structure.

Perhaps even, there were detailed attendance notes of what was said when, and whether it appeared as if the clients understood that they could not have the income from what was given away, that a valuable source of income on a daily basis would be removed.  Hindsight has a terrible clarity, but surely that is the basis of any advice about giving up assets.  A clarity that this money is no longer yours, but you can watch over it.  With perhaps more care than you have done with your own assets, precisely because it belongs to another