Living Wills, Wills

Where is your will?

When making a Will it is important to know where the original document is kept.

If a Solicitor has made your Will you may have been given the option to leave the original Will with your solicitor for safekeeping in their deed store department. If this is the case then you will most probably have received a copy of your Will and will have peace of mind that your original is Will is safe.

If a Will has been made some years ago maybe through your Bank, the Bank may have stored your original Will. You may have been issued with a receipt with a storage number and address where you can request the original documents from if needed. Once again your Will will be safe and you should have a copy.

In either of these cases what happens if:

Your firm of solicitors has closed
Your solicitors have been taken over by another firm and moved their offices
Your bank has amalgamated with another bank (this has happened in recent years)
The local branch of your bank has closed
Ideally you, as the client of either the solicitors firm or the bank should have been notified in writing of the changes which have taken place and be advised as to where your original Will is being stored.

We do not live in an ideal world unfortunately and often notification will not always be provided.

Therefore it is beneficial to ensure that you keep regular contact (maybe every year or two) with the business who is holding your Will. This will provide confirmation that they are still in existence and your original Will is safe.

To make enquiries about the whereabouts of the documents held by a firm of solicitors who have closed or moved their offices, it is beneficial to contact the Law Society who may hold the records of where the documents are or who took over the firm of solicitors. If this is not possible enquiries can also be made with other firms of solicitors who have offices in the local area as these may be questions often asked of them in the past or they have knowledge of the local area.

The banks may be more straightforward as they should have retained records as to where the Wills originally stored with them are held and it may be that they have outsourced to another company or a firm of solicitors.

Knowing the location of your Original Wills is important because if a Grant of Probate is required after death the original Will is needed. If the Will cannot be located and only a copy is held, there are many additional procedures which have to be followed to submit an application for a Grant of Probate of a copy of a Will. This can often be costly.

Even if a Grant of Probate is not required in the deceased’s estate, it is beneficial to ensure that you know where the original Will is. At this time only the Executors can request the original Will with a death certificate. The Original Will may never be needed again but if there is ever a claim to pursue on behalf of the deceased’s estate eg – medical negligence or a challenge to the payment of care home fees a Grant of Probate may be requested to permit the claim to proceed to settlement.

Therefore if one spouse has died, and a Grant of Probate is not required, the surviving spouse is advised to keep the Original Will with their own Will as it may be needed for such a claim, or to show who benefited from the deceased’s estate (for inheritance tax purposes).

If a parent or elderly relative has been in a care home and has privately funded their own care for several years, it may be once enquiries have been made that they were eligible for funding from the NHS. (There are specialist firms who undertake such claims). The original Will will be needed to apply for a Grant of Probate, even if the Will was made many years ago, if it was the original last Will made by the deceased relative it will still be valid.

Once again the knowledge of the location of the Original Will is essential.

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How does the decision in Ilott v Mitson affect you?

The decision of the Judge in the case of Ilot v Mitson, reported widely in the news recently, is worrying to many people who have made a Will, or who are considering making a Will.

When making a Will, you should give a lot of thought to deciding who to include and, sometimes, who to exclude as beneficiaries (i.e. the people who receive your estate when you die).

Once the Will is made, you would expect to have peace of mind that your wishes, as set out in the Will, would be carried out.

The reasons for excluding somebody can be:

  1. Family fall outs
  2. No contact
  3. That person is reasonably provided for (by you during your lifetime or they are financially well off in their own right)
  4. There are more preferential beneficiaries
  5. General dislike of the person

But any disappointed potential beneficiary not included in a Will could make a claim under s2 of the Inheritance (Provision for Family and Dependants) Act 1975 provided that they fall within one of the categories of claimant defined under s1 of the Act.

Now Ilott v Mitson appears to have widened the scope for successful claimants but when looking at the decision in depth, has it really?

The facts of the case (in brief) are:

  • An adult daughter fell out with her mother many years before the mother died
  • There was very little contact between the two
  • The mother made a Will leaving her estate between several charities
  • No provision was made for the daughter on the basis of the history between them

The Court’s decision to grant the daughter a share of the estate was based on the following facts:

  1. The daughter had a reasonable expectation to inherit from her mother’s estate irrespective of their past relationship
  2. The daughter’s personal circumstances were taken into account, in that she lived in council owned accommodation and was mostly reliant on state benefits
  3. The deceased had little or no personal connection with the charities, in that she did not donate to them on a regular basis
  4. It was felt that the mother was acting spitefully in excluding her daughter from the Will

The decision made was based on a very narrow set of circumstances which were personal to the daughter herself and would not be applicable to every claim made by a potential beneficiary. Therefore this case cannot be seen to automatically set a precedent for future claims on estates.

In view of this case, when excluding someone from a Will, it is advisable to prepare a supplementary letter including the following:

  1. Your reason for their exclusion from the Will
  2. Details of your past relationship
  3. The reason why the beneficiaries named in the Will should benefit rather than the excluded person
  4. Any other supporting documents

Please be mindful that this will not prevent a disappointed person making a claim but it will provide valuable evidence as to why the claim should not succeed.

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HSBC Wills and Probate

In June 2015, HSBC sold their Wills and Probate business to a company called Simplify Channel Ltd, with the transfer date expected to occur on 30th October 2015. Simplify are based in London, which is seen as a concern to our clients in Yorkshire.

Over the years, we have seen many clients who have had their Wills drafted by HSBC. In most cases, the Wills appoint HSBC as the Executors.

HSBC have sent a letter dated 10th July 2015 to all customers that have made a Will with them, giving them the option to sign a Codicil to appoint Simplify or another Executor of their choice instead of HSBC, or to inform HSBC that their Will is no longer valid.

The clients we have spoken to were given a deadline of 31st July to respond. Simplify will not be able to act as Executors unless Wills are changed.

We have been helping worried HSBC customers who wanted to make sense of the letter and obtain proper legal advice before making a decision.

In most cases, we would advise clients to make a new Will or Codicil to amend the Executors named in their Will and choose a family member, trusted friend or our firm to assist in the administration of the estate. Many clients have said that keeping their business “closer to home” is important to them.

We are happy to write to HSBC to request the return of your Wills and we will take steps to make the necessary changes to the Wills.

HSBC provide no information of the financial arrangement between them and Simplify. Often firms who act for banks charge customers much higher fees to take into account referral fees they pay to banks.

Simplify are not regulated by the Solicitors Regulation Authority. On their website, Simplify claim to have acted on behalf of banks for over 25 years, but Companies House shows the company as having been set up in 2012. Simplify are a subsidiary of Chorus Law Group Ltd, itself a reincarnation of a company called Independent Trust Corporation Ltd. We would strongly advise you to research these companies carefully. On their website, Simplify do not provide details or profiles of any members of staff. If HSBC have sold your Will without your permission, you may feel more comfortable with a more personal service.

If you made a Will with HSBC and have received the letter from them, or if you haven’t been contacted yet and are not sure where you stand, we would strongly advise you contact us on 033 3344 9600 for further advice.

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Backlash over Will Aid email promotion

An article was recently featured in the Law Gazette about a recent Will Aid promotion, which highlights the importance of using a solicitor when drafting your will. Article by Michael Cross.

Charity Will Aid has apologised to solicitors for emailing thousands of members of the public with a wills promotion in partnership with Co-operative Legal Services containing the words ‘you don’t have to see a solicitor’.

The Gazette understands that several solicitors and firms have reacted by withdrawing from Will Aid.

Under Will Aid, set up in 1988, participating solicitors waive their fee for writing a basic will in return for a donation to charity. The controversial email was sent to 10,000 people who had failed to get wills written under the scheme, promoting ‘alternative offers’ from one of three partners who had agreed to donate part of their fee.

These were the C-op, The Goodwill Partnership and Which? Wills.

One solicitor who saw an email promoting the Co-op partnership told the Gazette: ‘It was rather a kick in the teeth after many years of pro bono support by solicitors.’

In a statement, James Huitson, Will Aid’s chair said: ‘I would like to say sorry for any offence caused to individuals and their firms as a result of a recent promotion offered by us outside of the traditional November Will Aid month.’

He said the controversial promotion was a ‘limited piece of test marketing’ due to end on 15 August.

‘It is aimed solely at people who still wanted to make a will through Will Aid but found that all the appointments were taken in their area. The gap between the number of available appointments and the number of prospective will-writers has been increasing each year and this was an attempt to address the problem.’

Huitson added: ‘We should have been more sensitive to any potential upset this would cause and the impact of this on our relationship with some of the firms that have supported us in the past.

‘We would like to apologise for this. It is a lesson learned and will form significant part of how we evaluate future activity outside of our November campaign. We also remain absolutely committed to promoting the value of solicitors in the promotion of legally valid wills.’

A letter from Emma Lockwood at Manak Solicitors was also published in the same issue of Law Gazette in response to the campaign:

‘Co-op alliance is unacceptable’

We will sever all ties with Will Aid following its decision to ‘team up’ with – and effectively advertise – Co-operative Legal Services

Manak Solicitors has participated in the Will Aid scheme for a number of years, raising more than £13,000 for the good causes it supports. We initially decided to participate in the scheme to fulfil our corporate social responsibility aims, as promoted by the Law Society and as part of our commitment to pro bono work generally.

We were naturally very disappointed to learn that Will Aid has decided to ‘team up’ with Co-operative Legal Services. The announcement was made in what can only be described as an advertisement for CLS, fully endorsed by Will Aid.

Some high street practitioners may recall some of the many unpalatable soundbites from CLS denigrating our profession, such as: ‘It’s a natural thing for the Co-op to put the customer at the heart of our plans. For a solicitor it’s an alien approach’ (marketing director Ian Mackie, Marketing Week 2013).

This of course, is at odds with the language used by the Will Aid scheme. For many years the scheme has proclaimed that those solicitors participating are ‘good’, even providing us with a halo on the certificate to confirm receipt of funds.

We can only assume that the tie-up has a financial incentive for the Will Aid scheme and those solicitors who participated in it, have, up until now, simply served their purpose. On the other hand, perhaps the Co-op Group is seeking to review its own CSR duties, particularly in light of the Paul Flowers debacle.

In any event, Manak Solicitors feels Will Aid’s blatant advert for CLS is unacceptable and we will henceforth sever all ties with the scheme. We trust other high street practitioners will take the same view.

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Who are Solicitors for the Elderly?

  • Does an elderly family member need specialist legal advice?
  • Where can you be sure that the advice they receive is good advice?
  • Can you be certain that the service they receive is of a high standard in relation to the advice they seek?

There is one organisation which can help to fulfil your expectations and you can be assured that the advice you need is specifically aimed at the families and carers of elderly and vulnerable people.

The organisation is called SOLICITORS FOR THE ELDERLY (SFE).

Which can be found at www.solicitorsfortheelderly.com

SFE is an independent national organisation of solicitors barristers and legal executives who have registered as members of SFE.

All members must fulfil the membership criteria by primarily working with elderly clients in specialist areas such as

  • Wills (including disputed Wills, tax planning & trusts within Wills)
  • Lasting Powers of Attorney
  • Care home fee advice
  • Court of Protection

To name but a few.

To become a professional member of SFE, members are required to complete an exam to show their knowledge and competency in this area as well as following the SFE code of Practice.

At Morrish Solicitors LLP all of our solicitors in the Private Client Department are members of SFE:

Should you require specialist advice for an elderly or vulnerable family member then please do not hesitate to contact us.

If you do not live in the Leeds or Bradford area then you can search for an SFE member in your local area on the SFE website.

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Making a Will – How to Avoid Claims Against Your Estate

You’ve made a will so that should mean your estate is in safe hands when you die and the people you want to receive a legacy will, right? Well, not necessarily…

Claims against the executors of estates have risen radically. High Court statistics show there were 107 cases in 2012 and 368 in 2013 (more than three times as many) for breaches of fiduciary duty, i.e. executors not acting lawfully and in good faith.

This rise may be because more and more people choose to appoint friends and family, rather than professionals, as executors of their wills. You might think you can trust your family and friends (and we’re not saying you can’t) but being the executor of an estate can be a difficult job and not understanding your duties and responsibilities is not an acceptable excuse, according to the law.

Some claims issued last year involved allegations that executors had favoured themselves when making distributions, or had even intentionally stolen assets from the estate, using the justification that they did not know what they were doing was wrong.

Think about what else executors have to contend with: complex family arrangements; being an executor and a beneficiary; large estates with complicated assets; and the alleged growth of litigation culture (“See you in court!”). Nowadays taking someone to court seems more commonplace and you can seek guidance on how to do it online. Claimants know the court action itself may deplete the entire estate but if they can’t have it, nobody will! Recent cases involving famous families feuding include the estate of the actor Peter Ustinov and the artist Lucien Freud.

If you are making a will and you can envisage any problems arising after you die (for instance a combative family, tax implications or complicated assets), think about appointing a professional alongside your lay executors. You might think that you will save money by appointing lay executors who won’t charge for their services so that your beneficiaries will receive more. But long after you’re buried, the costly consequences of court action may mean that the last thing your hard earned assets are spent on after your funeral is both sides’ legal bills in a court case about what your executors did or didn’t do.

If you would like advice, please contact the Morrish Solicitors elderly client department on 033 3344 9600 or complete our enquiry form.

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What happens if you don’t make a will?

If someone dies without a will, they are said to have died ‘intestate’. There is a set of rules that governs who gets what in this situation and, as of 1 October 2014, these rules are changing.

What stays the same:

‘Common law’ partners

If you are in a long-term relationship but you are not married or in a civil partnership and you die without a will, your partner is not entitled to any share of your estate. There is no such thing as a ‘common law’ partner. The only way to make sure your partner is left something when you die is to marry them or leave a will.

Estates worth under £250,000

The changes to the intestacy rules don’t affect people with estates worth less than £250,000 but with the housing boom, the estates of an increasing number of homeowners will be worth more.

The pecking order

Who gets what when there is no will and no spouse:

1.     Children or their descendants;

2.     Parents;

3.     Brothers or sisters or their descendants;

4.     Half siblings or their descendants;

5.     Grandparents;

6.     Uncles and/or aunts or their descendants;

7.     Half uncles and/or aunts or their descendants;

8.     Whole estate passes to the Crown.

Each ‘class’ described above only gets an inheritance when the previous ones don’t exist. So for the Crown to inherit an estate, the deceased would have to have no family. This is unusual –  hence the rise of ‘Heir Hunters’, trying to find long lost relatives to claim their inheritances (and get a tidy cut themselves).

What changes:

Married couples / civil partners without children

Under the old rules, if a spouse died intestate and there were no children then the first £450,000 of the estate plus half of the rest went to the surviving spouse. The other half was split between the deceased’s blood relatives. Under the new rules, the surviving spouse will receive everything.

Married couples / civil partners with children

Under the old rules, the surviving spouse took everything up to £250,000. The children would receive half of the balance above £250,000 immediately (or it would be held in trust for them until they were 18). The other half would also go to the children but the surviving spouse would have a ‘life interest’ in the money while they were alive. The life interest meant they could take income from the money but not the capital.

Under the new rules, the surviving spouse will take all of the first £250,000 and then be fully entitled to half of the remainder. All the children will get is half of anything above £250,000 and they will have to be 18 before they get it.

Adopted children

Under the old rules, if someone died leaving a child under the age of 18 who was subsequently adopted by someone else, the adopted child could lose their inheritance from their natural parent. Under the new rules, the adopted child does not lose their right to receive an inheritance from their natural parent.

‘Chattels’

Under the old rules, the old-fashioned word ‘chattels’ was used to describe personal property. Its meaning included carriages, linen and scientific instruments (so you get an idea of when the rules were first drafted).

Under the new rules, ‘chattels’ are now defined as anything that is not monetary, business assets or ‘held as an investment’. However, what one person sees as an ‘investment’, another may see as a chattel’, e.g. a valuable painting or an antique car, so this is still open to interpretation.

So, out with the old and in with the new! But why let the intestacy rules govern your estate? Make a will and ensure that what you want goes to who you want. A clear set of instructions in a will can help avoid arguments among family and friends, and provide for your loved ones, at a time when emotions can be running high.