Archive for the ‘Wills, Trust & Probate’ Category

The Inherent Dangers of Joint Bank Accounts

Friday, July 23rd, 2010

All too often an elderly parent is persuaded by a kind hearted son or daughter to avoid the “unnecessary” cost of a Lasting Power of Attorney (which enables the future handling of the parent’s financial affairs) and instead is convinced to opt for the cheap and convenient placement of their monies into a Joint bank account with the child.

Major problems can arise on the death of the parent in determining the extent of the deceased’s interest in the account (or the child’s intended “lack of interest”) and the uncertainty as to the correct inheritance tax (IHT) treatment of the whole situation.

In Re Northall (deceased) [2010], the deceased, Mrs Northall had purchased her council house with the aid of one of her six sons. The property was later sold. However, the deceased did not have a bank account and so, one of her other sons, Christopher, opened a Joint account with his mother and deposited the sale proceeds of £54,836.00. In the following 3 weeks before her death, Christopher withdrew £28,625 and the day after his mother’s death, transferred the remaining balance into a joint account held with his wife.

Christopher claimed the account had been put into Joint names so he could make withdrawals on behalf of his frail mother. But he further alleged that his mother had instructed him to withdraw money for his own benefit and that any residue within the account upon her death would belong solely to him.

A number of legal principles apply:

  1. Joint accounts are ordinarily subject to the standard rule of survivorship – that is to say, upon the death of the first, the entire account passes to the co-owner absolutely. This is common for married couples and of great convenience to all. It is not so beneficial to parent and child, particularly if the remaining children see the only asset of their parent pass by default to the one child whose name appears upon the account.
  2. Joint accounts that are deemed to pass by survivorship “pass” outside of a will. It would therefore be irrelevant if the deceased did have a will gifting everything between all the children equally (A major reason why a professionally drafted will by GAD LLP Solicitors will address and review the actual reality of how you legally own and hold assets in order to ensure that you can gift them within a will in accordance with your wishes)
  3. When one person alone puts money into joint names, there is a presumption of Resulting Trust in favour of the provider of the funds. This presumption can be rebutted if Christopher could show the circumstances give rise to another technical issue of Advancement (not applicable in this case and to be discusswed in a separate Blog) or he establishes evidence that his mother intended to transfer the beneficial interest in the fund – The burden of proof would rest with Christopher in this latter position.

 Held:

Upon the evidence, there was nothing to support Christopher’s allegation that his mother intended the payments withdrawn to be a gift. Indeed, she had intended the monies to remain hers to spend as she so wished. Similarly, there was no evidence to support the son’s allegation that the remaining balance of the account was to pass to him upon death. The son was ordered to return the balance of the account, together with all withdrawals (save those where evidence was available to show the withdrawal was with his mother’s express instruction). It is unclear who bore the costs of this litigation.

 Conclusion:

Incidents such as these are all too common. Often however, the family disruption of one sibling suing another, or the existence of more modest balances within the account (i.e. not £55,000) often, for practical reasons, results in families not pursuing legitimate legal avenues of redress.

The sensible approach is to ensure your financial affairs are protected by a Lasting Power of Attorney, rather than placing a child’s name upon your account. If however you do choose to add their name, you should document the terms upon which they hold the funds and your intention as to its eventual “direction” upon death. Such formality appears to be taking the proverbial sledgehammer to the nut, but regretfully experience of many Private Client Lawyers dealing with probate is that individuals are rarely robbed by balaclava dressed strangers, but rather, close family members bearing gifts of flowers and “promises” to sort your financial affairs out for you.

Joint Accounts may not therefore necessarily prove to be the answer to all of your problems – they may just be the start!

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“Miss the Boat” and you may need a 1883 case to save the day (Re Perrins, Perrins v Holland [2009])

Monday, June 14th, 2010

It is to state the blindingly obvious that a testator must be mentally capable of making a will. The time for satisfying the test of capacity is the time of execution of the will. However, under the principle in Parker v Felgate (1883), it suffices if the testator had capacity at the time when he gave instructions for his will, provided that:

  • it is prepared in accordance with his instructions; and
  • at the time of its execution, he is capable of understanding, and does understand, that he is executing a will for which he had given instructions.

In Parker v Felgate, the testatrix had given instructions for her will in July 1882. In August, she fell into a coma, from which she could be roused to answer questions. She executed her will on 29 August. She neither remembered nor understood the instructions she had given, but she was capable of understanding, and did understand, that she was engaged in executing the will for which she had given instructions. Based on these findings, the court approved the will.

The modern case of Re Perrins concerned a challenge to a will of Robert Perrins by his son, David, on the ground that Robert lacked testamentary capacity.  

FACTS:

In 1991, Robert was diagnosed as having multiple sclerosis. In 1994, he had  made a will leaving his estate to David. The timetable of events was then as follows:

  • On 5 April 2000, a legal executive with 40 years experience in dealing with wills and probate, attended upon Robert at his home. He had been asked to do so as Robert wanted to make a will and to execute an enduring power of attorney (EPA). Although communication was not easy, Robert was able to make his wishes clear: he wanted to leave his estate to Anne (whom he described as his carer) or, if she should predecease him, to David and Robert’s brother.
  • On 12 April 2000, draft will and EPA  sent to Robert.
  • On 31 May 2000, a further copy of the draft will was sent out. Robert did not reply.
  • On 29 June 2000, a home visit by another member of the Law firm raised issues about possible amendments to the draft Will.
  • On 6 July 2000, further chaser was sent to Robert.
  • On 25 June 2001, a letter was sent to Robert stating that it was assumed that he did not want to proceed with the will. This prompted a telephone call from Anne on the following day. A fresh copy of the will and EPA were sent out
  • On 26 September (some 18 months later!)- The will was executed by Robert in the car park of the Solicitor’s office.

Robert died on 31 January 2003. His estate consisted mainly of his bungalow.

David challenged the will on the grounds of capacity. He submitted that its contents demonstrated a lack of capacity: it was accepted that there had been no estrangement between Robert and David and, accordingly, the latter submitted that it was irrational for his father to have left him nothing.  

HELD:

The relationship between Anne and Robert was a physical and loving one (and more than just “carer”).The only asset of any significance was the bungalow. In order to make any provision for David, the bungalow would have to have been sold. Given the nature of Robert’s relationship with Anne, it was not irrational for him to have wanted to provide her with a roof over her head. “On the contrary, the rationality of Robert’s dispositions is a pointer towards testamentary capacity at the time when he gave instructions”, said the judge.

Following Parker v Felgate, what is necessary is that the testator knows that he is making a will and believes that it is the will for which he has previously given instructions.

After assessing the evidence on capacity, Justice Lewison was satisfied that Robert had testamentary capacity on 5 April 2000, when he gave instructions for the will, but was not satisfied that he still had such capacity on 26 September 2001, when he executed the will. Therefore, but for the principle in Parker v Felgate, he would have pronounced against the will.

When he executed the will, Justice Lewison held that Robert understood that he was executing a will. Although he could not recall the instructions given in April 2000, he did find that:

  1. Robert had testamentary capacity when he gave instructions for the will;
  2. that the will reflected those instructions;
  3. that his instructions remained unchanged at the date the Will was executed; and
  4. that he knew and approved the contents of the will that he executed.

The Will was accordingly admitted to Probate, Anne inherited the Estate (and retained the roof over her head) and the son David took nothing

 

The lesson, if there is one to be learned, is to appreciate that medical conditions can offer a disgruntled beneficiary the opportunity to challenge a Will upon the grounds of lack of testamentary capacity. Excessive delays only help to play into the hand of a challenger. The emotional burden faced by people with serious long term illness’s and the pressure shouldered by careers cannot be over-stated. However, it is essential to prioritise the successful completion of legal documentation in order to ensure that clear wishes for the benefit of loved ones are fulfilled in a manner that cannot raise doubt or challenge. It really is a case of strike whilst the “iron is hot”. All too often the “to do list” is put to one side due to daily practical problems. We have all been there, but you could possibly “miss the boat” at your peril and be faced with the prospect of raising ancient case law to win the day,

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A “Toothless” Will-Writing Code!

Friday, June 11th, 2010

Solicitors have for a long time warned against the dangers and misconceived cost savings in Clients utilising the services of unregulated will writing companies run by non-qualified individuals.

Even with a newly announced voluntary code of practise approved by the Office of Fair trading (OFT) for non-lawyer will writing companies, there is little to suggest that the public will receive any greater protection.

Any one wishing to utilise the code must pass an entrance exam, provide consumers with a cooling off period and complete work within a mutually agreed time frame. It hardly needs pointing out that any such “entrance exam” is likely to be a set of multiple choice questions undertaken after a ½ day “intensive” course – a “hurdle” to any member of the public who wishes to claim to be competent to write a will that has no comparison to the 7 years of training a qualified lawyer will have undertaken, let alone the additional  20 years plus of experience contained within the Probate department of GAD post qualification.

It is all too telling that given this code lacks any serious sanctions to for breach (a will writer can merely drop the scheme and set up again the following day with the same letter-head (minus the logo)), the Scots, never a Country to shy away from true consumer protection, have rejected such a scheme and instead intend to place all non-lawyer will writers under a compulsory regulation scheme akin to the standards imposed upon qualified Lawyers.

Even the most “simple” of instructions between Husband and Wife, wishing to leave everything to each other and then the children, understates the complexity of underlying issues involved in every set of instructions. The Lawyer will address questions of property ownership, tax consequences and potential claims. A blinkered approach by a non-qualified writer may appear to be “just the ticket” – but ask no questions and tell no lies! A thorough examination of your circumstances and targeted enquiry into particularly relevant circumstances within your property and family affairs will ensure that the Lawyers at GAD deal with ALL the issues that need to be addressed within your instructions. AND, all of this will be undertaken at our highly competitive fixed fee rates with the added bonus and security of Law Society backed protection.

Our department has been instructed upon many occasions to deal with the “fall-out” created by will-writing companies. Besides the obviously poorly drafted document that doesn’t actually achieve the aims and wishes of the deceased, we encounter:

  • Executorship appointments that are either defective or impose excessive charges to the Estate
  • “Hidden charges” for the release of a will from a companies storage facility (having discovered that prior to death the Testator was actually paying a storage fee of up to £25 per annum) – We at GAD store all our clients will for FREE within our Deeds Storage Facilities.
  • Or worse still, we find that the purported will has never actually been completed (the drafts having been sent out with confusing instructions and no  follow up) – at GAD all our wills are executed, under supervision, within our own offices to ensure the technical formalities are complied with to the “letter”.

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Harris v The Beneficiaries of the Estate of Margaret Alice Cooper (deceased) – Jan 2010

Tuesday, March 2nd, 2010

The testatrix died in April 2008. By a home-made will, she left her property to the claimant, who was also her executor. The testatrix’s residuary estate was to be divided equally ‘between her surviving relatives’. The claimant gave evidence that the only relatives that the testatrix had mentioned had been her first cousins on her mother’s side, A, F and P. Further, no mention had been made of another first cousin, E, who had not been seen since 1939, A or P’s families, nor any relative on the testatrix’s father’s side.

The claimant applied for a declaration as to who were the appropriate beneficiaries. The court had to determine who were the objects of the testatrix’s gift and their respective interests, having regard to section 21 of the Administration of Justice Act 1982.

The court ruled: The meaning of each set of words had to be decided by reference to the precise verbal and factual context in which the words had been used. Further the court would strive to give effect to a gift made rather than declare them meaningless and to resort to a partial intestacy. In the circumstances of the instant case, the testatrix had intended to leave her residuary estate to A, F and P alone, to be divided equally between them.

It is likely that the costs of obtaining this declaration from the Court will have incurred the Estate in Legal Bills in excess of £15,000.00. Had the Testatrix come to GAD LLP Solicitors, her simple will instructions will have cost her only £125.00 (plus vat). A false economy on the part of the Testatrix which benefitted no-one except the lawyers and a  problem  that could have been avoided from the outset by having a professionally drafted Will.

Remember that even the most simple of “plain language” can cause horrendous problems within a legal document where it’s interpretation will be essential in determining the legal effect of a clause. What a person “thinks they are saying” and what they are “actually saying” can often be poles apart.

Make a home-made-will at your peril!

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Revocation of a Will by subsequent Civil Partnership (or Marriage)

Thursday, February 25th, 2010

Section 18B [1] of the Wills Act 1837 contains new provisions with regard to the revocation of an existing Will by the formation of a Civil Partnership, in the same way that marriage automatically revokes an existing Will, UNLESS, in either Civil Partnership or Marriage cases:

 It appears from the Will:

  • That at the time it was made the Testator (i.e. the Deceased) was expecting to form a civil partnership (or marriage) with a particular person; and
  • That he intended that the Will should not be revoked by the formation of the said civil partnership (or marriage)

The deceased was a successful executive in the music industry with substantial wealth. By a 2002 Will he had left his Estate to friends, family members and 3 Australian Charities. In 2008 however, he had formed a close relationship with the defendant (a much younger man). A new Will was produced by the defendant, though the family alleged in any event that it was a forgery. The new Will was dated August 2008. It read as follows:

 “I the undersigned [Testator] do by the present:

 1 Revoke all former wills and testamentary dispositions heretofore made by me and declare this to be my irrevocable last will and testament

2 Direct that this, my last will and testament shall not be revoked by neither subsequent marriage, civil union partnership nor adoption

3 Declare that my country of domicile is the United Kingdom

4 Give and bequeath to [the Defendant] the entirety of my estate as a sole beneficiary”

The Testator and the Defendant had entered into a Civil Partnership in October of the same year. The new Will would therefore have been automatically revoked UNLESS it complied with S18B above.

 Mr Justice Arnold held that the deceased had not complied with the section because:

  1. The language of the Will must show that the deceased expected to form a particular civil partnership and
  2. Intended that the will would not be revoked by that partnership
  3. By clause 2 of the Will, the deceased had only given a general statement about the effect of a civil partnership upon the Will – not an express indication that a particular partnership was contemplated
  4. Furthermore, no indication was given as to whom the partnership was to be formed with. The defendant was only mentioned in clause 4 of the Will as a beneficiary, not as a particular person to the partnership arrangement.

Conclusion

 There are 4 specific points to be aware of:

  1. Marriage / Civil Partnership AUTOMATICALLY revokes an existing Will, unless the Will in question satisfies S18 of the Wills Act.
  2. Particularly at risk are divorced people who sensibly prepared a Will once divorce proceedings commenced (to protect the children), but who have subsequently met a new partner and intend to remarry – the union through marriage / civil partnership will revoke the former Will
  3. “Death Bed” marriages undertaken through love (but necessarily in haste), may not have considered the implications for any pre-existing Will. The new Spouse / Civil Partner may have been the sole beneficiary under the pre-existing Will, but could find themselves having to share the Estate with relatives of the deceased under the Intestacy Rules, if the Will is deemed revoked
  4. Use a qualified Probate Lawyer at GAD LLP Solicitors! The above will was clearly “home-made” and used poor and ineffective precedents. The “illusionary” saving in legal costs in NOT having a Will professionally drafted paled into insignificance when weighed against the actual costs of litigation that ensued before the Court. Very few of us repair a broken down car – we go to a garage. Fewer still cut their own hair – they go to a stylist. No-one pulls their own teeth out….yet, people insist, without any legal training, to write what is possibly the most important legal document in their entire life and which if wrong (and it will invariable be so!) will cause tremendous heartache and financial ruin for those loved ones that remain. Understanding your current circumstances and future intentions enables the Private Client Department at GAD to tailor your Will to your exact requirements ensuring that the finished document will not fail or be subject to challenge before the Court.

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Insane delusions and poisoned affections?

Friday, February 19th, 2010

Re Ritchie,Ritchie v Joslin [2009]

The classic test for Testamentary Capacity was establish back in 1870 and has stood the test of time ever since! The principles laid down in Banks v Goodfellow [1870-71] state that the Testator (the deceased who made the Will):

  1. Must understand the nature of the act of making a Will and its effect
  2. Must understand the extent of the property of which he is disposing
  3. Must be able to appreciate and comprehend the claims to which he ought to give effect; and
  4. With regard to the 3 above, no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of the property and bring about a disposal of it which, if the mind had been sound, would not have been made

The deceased, Mrs Richie, an elderly lady of 88 years died leaving 4 children (2 boys and 2 girls) together with a substantial Estate of approx £2.5m. By her 1998 Will, Mrs Richie left the majority of her Estate to Charity. None of her 4 children were to receive anything. If the will was held to be invalid, the Estate would pass on Intestacy to the 4 children.

It was common ground between the parties that limbs 1 to 3 of the above test were satisfied. The parties differed however upon whether Mrs Richie was suffering from a mental disorder at the time she made the will and on the effect of any such disorder. It was alleged that Mrs Richie was suffering from irrational delusions. It was alleged, by way of example, that Mrs Richie falsely believed her children had done little or nothing to help her. The solicitor’s attendance notes taken when the Will was prepared supported this and other allegations advanced by Mrs Richie, namely:

  • All her children were well provided for and didn’t need the money
  • The sons had been violent towards her
  • Her daughters did not come near or visit her
  • Her sons were stealing from her

Following detailed evidence, the trial judge accepted that these allegations were not true. Rather than acting inappropriately to their mother who suffered from O.C.D. they had in fact supported her and she had infact been quite dependent upon them.

The central question was whether or not Mrs Richie believed the allegations to be true. If she knew perfectly well that what she was telling the solicitor about her children was untrue, then she could not have been suffering from delusions. However, Mrs Richie’s statements could not be viewed as mere lies – she was suffering from paranoia or an abnormal paranoid disability. The expert medical evidence was accepted that her paranoid personality was a disease of the mind that gave rise to delusion and irrational beliefs. On this basis it was concluded that Mrs Richie did believe that the allegations she made were true.

It therefore remained to be decided whether or not this disease of the mind meant that Mrs Richie’s moral sense, instincts and affections had been perverted by mental disease. Whilst the very experienced probate solicitor and the deceased’s G.P. considered her to have capacity, the judge concluded that the evidence from the solicitor’s notes plainly pointed to the fact that Mrs Richie’s motives in making the Will was to cut out her children, rather than benefit the Charity. There was no rational reason to do this. It was plain therefore that her affections towards her children had been poisoned. She would not have cut them out, but for the deluded beliefs.

It followed therefore that the will was invalid, the Charity lost and the children took the entire Estate equally under the Intestacy rules.

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Contested Wills and the Blight of the Farmer

Tuesday, February 9th, 2010

Challenges to Wills are on the increase by some 200%. The problem? Farmers! Well actually, the problem is the rather tricky legal concept of Proprietory Estoppel. It just seems to be coincidence that Farmers, for some obscure reason, tend to land themselves “in it” on a regular basis.

There is a fundamental concept in English Law of Testamentary Freedom. In essence, you can give your wealth away to anyone you please. Readers of our Blogs may be aware of how legislation has eroded this in the case of certain classes of individual who seek reasonable financial provision (The Inheritance (Provision for Family & Dependants) Act). However, apart from claims under the latter 1975 Act, farmers do like to frequently give assurances of their intentions to leave a farm to a relative, who often works full time (for their entire life) without any remuneration!!! The problem is that when the farmer dies, either a Will or the Intestacy Rules (laid down by Parliament for when you die without a Will) provided for a completely alternative distribution and the “poor” relative receives nothing!

The most recent case upon this point reached the House of Lords only last year. In this case, the “disinherited” relative, who had worked for free, had to establish:

  • That a Representation (or Assurance) had been made to him;
  • That he had relied upon that Representation / Assurance; and
  • That he has suffered detriment in consequence of his (reasonable) reliance on the Representation / assurance.

The farmer and his relative “(lead a difficult life)….committed to …hard and unrelenting physical work…..largely unrelieved by recreation or female company”. What was of great debate before the Court was the fact that there was no “signature event” – the utterances “I am going to leave the farm to you…” were never made.

Rather, the farmer used oblique and allusive terms, over a prolonged period of time, which if examined minutely and in isolation, may appear insignificant, but collectively demonstrated a continuing pattern of conduct. The House of Lords disagreed with the Court of Appeal that the assurances needed to be “clear and unambiguous”. It was reasonable that years of experience enabled the farmer’s utterances and actions to be interpreted by his relative, causing him to form a reasonable view that the farmer was to gift the Farm to him. The clarity sought to establish the assurance was “hugely dependent on context”. The relative could take the assurances at face value and rely upon them.

Clearly, the Law will protect a person who has acted to their detriment in reliance on an assurance, and that the assurance need only be “clear enough” between the parties themselves. Whether this is an unwelcome erosion of a person’s freedom to gift away property on death without restriction or the upholding of justice and fairness to achieve the right decision for an individual who has acted throughout their life to their detriment is a close call.

Consideration of your conduct pre death must be undertaken at the Will writing stage and some genuine “soul searching” and introspective analysis of past and current actions, behaviour and conduct necessary in order to establish whether a relative / friend has been labouring under a perceived assurance from you that they are to inherit a proportion of your assets upon death.

Our advice at Gregory Abrams Davidson is that now is the time to “come clean”. Once a potential “claim” is identified, we can:

  • assist in arranging your affairs to counter it or;
  • organise your affairs to “support it” if in fact you have every intention of honouring the assurance.

Gregory Abrams Davidson LLP specialise in private client. We have many years of experience in wills, trusts, estate planning and elder law.

For advice on preparing your will and planning your estate, please call Ian Sturgess on 0151 733 3353 – calls can be taken 24 hours a day – or e-mail isturgess@gadllp.co.uk.

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Latin and Death Bed Gifts are alive and well!

Wednesday, January 20th, 2010

It is not uncommon for a terminally ill person (the Donor) to gift assets to a loved one in contemplation of their anticipated demise. Such “Death Bed” gifting, whilst not exactly a “lifetime gift”, is neither a “testamentary gift” (reserved for Wills). How does the LAW view such situations and can an aggrieved beneficiary under a Will challenge the gift if the effect is to have severely reduced the value of any remaining property passing under a Will?

The concept is known legally as a Donatio Mortis Causa (or DMC for short!). The test requires the recipient of the gift to establish 3 facts:

Firstly – the gift must be made in contemplation of death. The Donor must actually believe he is going to die. This may be because they are already seriously ill or they are approaching major medical treatment.

Secondly – the gift must be conditional on death. Therefore the gift only takes effect upon the death of the Donor. If they survive, the gift fails!

Thirdly – The Donor must part with what is legally described as “dominion” over the property to be gifted. This concept is often difficult to define, but like an “elephant”, you know one when you see one! A couple of examples may demonstrate the point:

  • Physically handing over the item, eg jewellery or the passbook to a building society account may be sufficient. Similarly, handing over a key to a safe deposit box which contains unregistered title deeds to land may successfully gift the land to the Donor (a gift which carries, in today’s market, a considerable monetary value).
  • However, the use of technology and the internet makes gifting some assets more problematic. How do you deal with a building society account that no longer has a passbook and is transacted solely “on-line”? How can you successful pass dominion of Registered Land which in fact is both computerised and is not even evidenced by the ownership of a Land Certificate? These are questions that may well need to be debated before the Court.

The Courts will always be vigilant in scrutinising evidence advanced to support of a DMC. Whilst there is clearly scope for the unscrupulous to cheat and lie their way to a gift, it must be pointed out that the DMC can be established solely upon the evidence of the recipient if their evidence is deemed trustworthy.

Finally, when taking advice upon defending or challenging a DMC, careful consideration of the Donors mental capacity and the question of undue influence must be undertaken. Capacity has an effective “sliding scale”. A modest gift, requires only a modest degree of understanding by the Donor. If however the gift is substantial, making any Will effectively worthless, the level of capacity will be the same that would be required to make a will as laid down in the leading case of Banks v Goodfellow [1870]. More problematic is the burden of proof required if an allegation of undue influence is raised. Straight forward lifetime gifts can see the Courts raising a presumption of undue influence depending upon the relationship between Donor and recipient (requiring the recipient to prove that they had not unduly influenced the Donor). However, in the case of Wills, the burden is reversed. A disappointed beneficiary must prove that there was undue influence – the recipient has to prove nothing. The “million dollar“ question however is whether the DMC is counted as a lifetime transaction (i.e lifetime gift) or a testamentary act (i.e. effectively a Will gift)? At present there is no decided case law!

Conclusion

Whilst this doctrine continues to present on a regular basis to Lawyers, it cannot be emphasised that for the protection of both the recipient of the intended gift and for the general financial wellbeing of the remainder of the Estate, the uncertainty of these gifts could be removed completely by the writing and or updating of an individual’s Will. In this way, it is clear that the gift is to be made, the extent and context of the gift can be established and the effect of the gift upon the overall financial position of he Donor can be accurately assessed. To proceed in any other way, will only cause unnecessary heartache, uncertainty and costs!

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