The pandemic from our perspective!

The pandemic from our perspective!

As we approach 15 months of living through the Covid pandemic, I thought it timely to give you our experiences to date.

I think it is one of the positives, which I will always be proud of, during this time that we have survived and come out stronger.  None of the team were furloughed and no one lost their job.  More importantly, the team rallied stronger than ever.

Within a very short time, just before the first lockdown, we took the decision to work from home.  We all climbed the steep learning curve of remote working and changed our working practices rapidly.  This was no small feat as, unbeknown to most of our clients, producing a legal document from start to finish requires managing a myriad of processes full of minutiae.

I think the biggest surprise to me was how quickly myself and my team and my clients switched to using online video conferencing.  I had always been very averse to that medium as I believed that the personal relationship that I so enjoyed with my clients could never be fostered.  I was proved wrong.  We have, like many professional businesses that used to work face to face with their clients, now learned that we can almost exclusively work online with our clients.  This is both time- and cost-effective, both to the business and the environment.  I cannot see us or many businesses returning to the old ways.

The team went back into the safe and socially-distanced office almost a year ago.  That is what they requested.  The novelty of working from home wore off but again, we have learned that when they need to work from home, they can do it very effectively.  Everyone’s a winner, and everyone is safe.  However, we still cannot conduct client meetings at the office.

We have sadly taken the inevitable ‘phone calls from our clients who have been affected by Covid, either themselves or their family and friends. Some have been seriously poorly and some have died.  It is always hugely shocking and upsetting.  The reality of the constant news bulletins then ‘hit home’.

We have a very positive outlook for the next six months.  Yes, full opening up has just been put back by four weeks until July 19th, but the future looks good.  We have plenty to be excited about with the launch of the new brand Hamilton Legacy and all that it will bring.  Family Wills has been trading for almost 20 years and we look forward to the next 20 years as Hamilton Legacy.

Contentious Wills and Capacity

Contentious Wills and Capacity

Sometimes I come across clients who want to make a bold decision and remove a key member of their family from their Will.  This is not done lightly, flippantly or without due consideration. In fact, it is usually quite upsetting and raw for them.  If the person giving me this instruction (the testator) is elderly, this immediately rings alarm bells for me.  It could be an open door for a challenge by the aggrieved, removed beneficiary on the grounds of the testator not having mental capacity and hence not knowing what they were doing when they wrote that person out of their Will.

Throughout the testator’s consultation with me, in my professional capacity, I will be assessing whether they have the mental capacity to make a Will; this is called testamentary capacity.  This is framed by a case called Banks vs Goodfellow which broadly asks the following:

  • Does the testator understand they are making a Will?
  • Do they understand the extent of the estate they are bequeathing?
  • Do they understand who may have a claim on their estate (those who would normally be assumed to be the beneficiaries)?
  • Are they suffering from delusions?

Although we now have the Mental Capacity Act 2005, Banks vs Goodfellow is still used, despite dating back to 1870.

I will be making file notes throughout our meeting to show my views on their capacity. However, if a Will is clearly going to be contentious, I would also recommend an independent Mental Capacity Assessment.  This is not necessarily because I doubt someone’s mental capacity but because it nips in the bud any challenge on the grounds of capacity.  If an independent medical professional has made a report on that person’s ability to make a Will, and it is favourable to them, then a challenge through the courts becomes unlikely.

Approaching a client to suggest they have a mental capacity assessment can be difficult.  Many feel this is a slight on their mental capacity but it is important for them to understand that it is quite the reverse.  It is to prove that they DO indeed have capacity so that the Will isn’t challenged on mental capacity grounds.

Don’t forget contentious Wills can take many forms and are not just about excluding a person from a Will.  It could be where the values in the distribution are uneven. A less-obviously contentious Will could be where an uneven distribution is understood and agreed by all concerned, maybe because one adult child has already received an advance of money during the testator’s lifetime. However, the Will actually shows an even distribution e.g. between all the children.  This is hard to spot as it is the ‘normal distribution’ one would expect.

Of course, there are also other ways to challenge a Will such as the Inheritance (Provision for Family and Dependants) Act 1975 which we have covered in other blogs.

So, if you have a family member who wishes to leave a lower than expected distribution or to exclude a family member who is expecting to inherit, and they are ‘elderly’ then please warn them that a professional medical mental capacity assessment is the best way forward to achieve what they wish to achieve.

Are you just about to get Married OR Separated OR Divorced?

Are you just about to get Married OR Separated OR Divorced?

If so, then you’d better know how each affects your Will.

Marriage

Marriage is one of the few events that REVOKES a Will.  Not many realise this in the excitement of the nuptials. So, if you had a Will before your marriage, it is now null and void.  If you don’t make a new Will after your marriage, you will now die ‘intestate’.  You can make a Will ‘in contemplation of your marriage’ but there must be genuine intent and your partner must be known by you as your ‘intended’, rather than there being just an open-ended wish or hope!  This would mean the appropriate wording being included within your Will when it is written.

Getting married should be a trigger to review your Will or to write your first Will anyway as your spouse-to-be will have different rights and your obligations to them will differ from being those of just ‘a partner’.

Separation

Separation is never an easy time and it may mean that you are potentially on the road to divorce.  But, as far as your Will is concerned, you are still married and whatever your Will says will still happen if you die before you are divorced.  Your spouse still has the same rights. If you haven’t got a Will and you die when you are separated from your spouse then you die ‘intestate’ and the Laws of Intestacy would give your spouse the same from your estate as if you weren’t separated.  The end result could be that your spouse ends up with all your estate.  Most divorce lawyers will recommend that you rewrite your Will as soon as possible to stop both the Law of Intestacy or your current Will resulting in your spouse inheriting your estate, if you die before your divorce.

Divorce

Once divorced, the general rule is that it is as though your ex-spouse has predeceased you.  So, if you still don’t rewrite your Will once you are divorced, your old Will will still be valid (divorce DOESN’T revoke a Will) but your ex-spouse will be viewed as though they have already died.  So, if your ex-spouse is an executor of your Will, they no longer will be now that you are divorced and your reserve executor will act instead.  If your ex-spouse stands to inherit from your Will, at your divorce the gift will fall to whoever would have received it if your spouse had died before you.  Any powers given to your ex-spouse in the Will will no longer stand as it will be deemed that they have predeceased you.

Of course, if you don’t have a Will, an ex-spouse does not inherit at all according to the Laws of Intestacy.

What many do not realise is that being divorced only means that the marriage is dissolved.  It does not stop any financial agreements or claims, nor does it affect the rights of birth parents.  Do-it-yourself divorces are becoming quite common and where the divorce is relatively amicable, many choose this option as it is significantly cheaper than involving divorce lawyers.  However, what many do not realise is that by not using a professional, there will be no full and final financial settlement in place and, because of that, your ex-spouse has a legitimate claim on your estate at your death.

Joint Assets

It is worth remembering that any assets that are held jointly, including both property and bank accounts, will automatically pass to the remaining joint owner at death.  It is irrelevant whether you and the other joint owner are married, separated or divorced.  This is because the asset passes according to the Law of Survivorship which surpasses the Law of Intestacy and is not affected or controlled by your Will.

As ever, it is always worth getting legal advice if you are considering either marriage, separation or divorce as it will affect your estate.

 

Why some choose not to write a Will

Why some choose not to write a Will

So many people find it hard to get around to writing a Will (only 45% of adults have a Will). That inertia may be for any or all of the following reasons or you may have some reasons of your own:

  • You think it will be too expensive
  • You haven’t the time
  • You don’t want to take time off work to do it
  • You can’t decide or agree together on what happens to your estate or children
  • You don’t want to think about it as it is too difficult or morbid
  • You think “it” will never happen to you at your age and you can do a Will later
  • You think you will be “tempting fate” if you make a Will
  • You don’t know who to choose to write the Will as you aren’t sure you can trust anyone
  • You think the family will “get everything anyway”
  • You think you haven’t got anything to leave so you don’t need a Will.

So, if you are to stand a chance of getting around to “it”, here are some pointers to help you make “it” happen:

  • Choose an environment that makes discussing such personal and delicate issues as easy and comfortable as possible. Most people prefer to be at home as it is their ‘space’ and they have all their documentation to hand. However, some people prefer the formality of an office. Many professionals only offered online appointments during the pandemic, so if you are not familiar with this method, you may need to involve a technology-savvy friend or family member to help. Choose a time that suits you which may be in the evening if you work during the day.
  • Choose a provider that doesn’t charge for their appointments by the hour. To take proper and thorough Will instructions takes time and sensitivity. You don’t need to be worrying about how much it is costing you. The provider should furnish you with a quote once what you want and need has been established. It should then be up to you whether or not you proceed. . The first appointment should always be used as a fact-gathering exercise for you and your circumstances.
  • Your advice should be bespoke to your circumstances because one size doesn’t fit all. Therefore, your provider, Will-writer or solicitor should know what they are talking about. Just because the company has a glossy brochure doesn’t make it an expert. Just because they are a solicitor doesn’t mean they write many Wills. Think of your GP – they know about many aspects of medicine but they aren’t like a consultant who is an expert in their field. Whoever you choose, make sure they hold the appropriate qualifications.
  • You should like and trust your provider as you will be talking about really difficult issues and personal information. Your provider should be empathetic and patient. They should be experienced in helping you make decisions on difficult topics, often topics that provoke heated discussion between you and your partner or topics on which you don’t agree or can’t decide. Such situations should be very normal for the provider as it will be a regular occurrence for them; after all, families are families and people are people!
  • It is very rare that people DON’T need a Will. “Having nothing” is not usually true and you are just storing up potential problems for your family.
  • Not having a Will at your death means your estate will fall according to the Law of Intestacy. This is a very blunt instrument and often leads to issues in our modern world. It is often quoted to me that “my parents didn’t have a Will and everything was fine”. That was then but now people lead more complex lives than ever before. Less people get married or marry several times, many people have children from several marriages or relationships and people definitely own more assets than they used to.
  • Even if the Law of Intestacy endeavours to make sure the beneficiaries are who you would choose them to be (although this will not be the case in every instance), it may mean that the person in charge of your estate and your body isn’t the person you would choose it to be. This can be very distressing and contentious for those who you would normally have chosen.
  • And finally… regarding superstition. Putting a Will in place has as much effect on whether you get run over by a bus as not having a Will!! But at least it is less problematic for those you leave behind!!

So, with all this considered, do the right thing, give yourself and your family the peace of mind and consideration they deserve and GET ON WITH IT!!!

Protecting your Will and other vital documents

Protecting your Will and other vital documents

As important as writing your Will is, it is equally important to keep it safe and in a location that is easily found when the time comes for it to be needed. As such, we are adamant that our clients must be sure their documents are stored in a secure safe to protect against fire, water, theft, loss and tampering. If the Will is lost or damaged at the time of death, your thoughtful estate planning will be disregarded, even if your chosen executors knew your wishes.

Family Wills provides a will storage service to ensure that your executors are able to action your wishes. We will also store your original Lasting Power of Attorney (LPA) documents as part of this service. We have decided to provide this service as a direct result of one of our client’s experiences.

Our client was offered Will storage but he was happy he had a “safe place for his documents”.  He even took the precaution of giving his executors an unsigned copy of his Will and Family Wills’ contact details.  When they called us for the signed Will, we had to let them know that our client had chosen to keep the original document himself and that it should be among his possessions – it wasn’t; they found everything but the Will. Ultimately the Will was ruled to be presumed revoked by destruction.

This meant that our client had now died intestate and through that law, in his case, this meant that his parents now inherited his estate.  It therefore fell to our client’s parents either to distribute the estate according to his wishes through a Deed of Variation, both timely and expensive, or to allow all the assets to default to them. In the end, the parents got their letters of administration and all his assets. The people our client wanted to benefit got nothing.

Nobody will ever know what happened to the Will. Maybe our client intended to revoke his Will. What we do know is that if we had held the Will in storage for him then his wishes would have been carried out.

If you choose to forego a specialty storage facility for your Will, be sure to store your documents as advised and be sure to let your executors know where to find your Will and how to access it.