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Wills: Government refuses to regulate will-writing

The government has decided not to regulate will-writing, despite recommendations by the Legal Services Board’s (LSB) to do so. The LSB’s recommendation was published in February, following lengthy research by the Legal Services Consumer Panel and a long consultation in which the majority of the professional associations supported the proposal to tighten regulation of will-writers. The government has decided not to implement the LSB’s suggestion to amend the Legal Services Act even though the Lord Chancellor acknowledged that consumers are harmed by poor practices within the will-writing field, and that regulation might solve some of the problems. Instead the Lord Chancellor mentioned alternatives for unregulated will-writers such as voluntary regulation, extra guidance, codes of practice, and education of consumers. LSB Chairman David Edmonds said he was “disappointed” by the government’s decision and Elisabeth Davies, Chair of the Legal Services Consumer Panel, said the decision is “terrible news for consumers and …Read More

Will disputes: What are suspicious circumstances?

One of the grounds commonly used to contest a will is that the testator didn’t know or approve the contents of their will.  This is called “want of knowledge and approval”. The court will look at all of the ‘suspicious’ circumstances in connection with the disputed will when dealing with want of knowledge and approval allegations. Here are 7 things to look out for, which could be considered ‘suspicious’: The Will is homemade and no professional advice has been sought; The Will contains spelling mistakes and/or untrue statements and/or uses language which would not have been used or understood by the testator; The Will contains a radical change in dispositions made without a rational explanation and/or generally the dispositions cannot be rationally explained; The relationship of the beneficiary to the testator was not close; The witnesses to the Will were not sufficiently independent; There is evidence of the beneficiary having …Read More

Probate: What happens when beneficiaries want to remove an executor or administrator?

I often come across cases where personal representatives and beneficiaries don’t get on and one party wants to remove another.  Can this be done after an executor or administrator has obtained a Grant of Probate or a Grant of Letters of Administration? The short answer is yes, but there needs to be a very good reason! An application to remove or substitute a personal representative is usually brought under s50 of the Administration of Justice Act 1985.  The court will then consider the welfare of the beneficiaries. Removal applications are expensive and the court will therefore want to see a compelling reason for the removal, together with evidence that that no alternative means of resolving the dispute exists. The person making the removal application will need to show that the estate cannot be properly administered for the benefit of the beneficiaries in the existing situation.  Applications based on personal friction, which do not impede …Read More

Will disputes: Children of abusive father unsuccessfully challenge his will

This is a sad case involving the children of wealthy businessman Alfred Stewart, who died in 2008. His children, Garry, Calum, Linden and Leonie, claimed Mr Stewart was an abusive sexual predator.  In 2005 he made a will that left his £6.7 million estate to charity, completely excluding his four children. The children raised an action at the Court of Session in Edinburgh to set aside their father’s 2005 will (and later amendments to it) on the basis that he was paranoid and delusional when he made his will. The court heard evidence that Mr Stewart was verbally and physically abusive to his children and his first wife, Lynne Buchan.  There was also evidence that he propositioned other women and sexually abused a child from about the age of four. Psychiatrists also told the court that Mr Stewart had a paranoid personality disorder. The judge, Lord Brailsford, said, “He seems to have been sexually …Read More

Probate: What do your clients want to pass on to the next generation when they die?

A survey by CPJ Field & Co funeral directors asked people what they would like to pass on to others when they die.  The people surveyed were split into two age groups; 18-44 and 45+ The older group had a fairly traditional view of items to pass on to their loved ones, including photos, jewellery, property and ornaments. The younger group favoured less tangible legacies such as recipes and family traditions, although they also said they’d want to leave jewellery and photos. By Karen Shakespeare, 16th May 2013.

Health and Wealth: What is on your client’s bucket list?

Having reached the age where life begins, I’ve become more aware of my life’s achievements and the things I still want to accomplish.  I was therefore interested to read the results of a recent survey carried out by a funeral director (CPJ Field & Co) which revealed the most popular  things people want to do before they die. The results are split into two age groups; 18-44 and 45+.  The subtle differences between the two groups is fascinating. Both groups listed travel as their main goal and seeing their children settled as their second highest priority. The lists then start to differ.  The next two most important goals for 18-44 year olds is to get married and have children.  Understandably, these two aspirations don’t feature at all for the 45+ group.  They’ve already been there, done that! For the over 45 year olds, it seems that fitting a few fun …Read More

Trusts: The tax treatment of discretionary trusts

These notes apply to trusts where the creator of the trust (the settlor) and his/her spouse cannot benefit from the trust.  If the settlor or his/her spouse can benefit from the trust, special rules apply. Inheritance tax Inheritance tax depends very much on the sequence of events which occur after the trust is set up. If the trust is contained in a will the trustees can, within two years from the date of the testator’s death, distribute the whole of the trust fund to one or more beneficiaries without any liability to inheritance tax.  After the end of this two year period, or in the case of a trust created other than on death, inheritance tax will be due under the “relevant property” regime. Under the present law this will mean inheritance tax at up to 6% of the value of the trust assets every 10 years, and charges at …Read More

Inheritance Tax – Recording potentially exempt transfers

A potentially exempt transfer (PET) is not liable to inheritance tax when made, and it is treated as an exempt transfer unless the person who made the gift (the transferor) dies within seven years.  This means that there is no requirement to notify HM Revenue and Customs (HMRC)  on the making of a PET or to deliver an inheritance tax account for a PET. HMRC will not enter into discussions about, or determine the value of, a PET before the transferor’s death makes that PET chargeable. It should be remembered, however, that there may be a charge to inheritance tax in respect of the PET in some cases, and that on the death of the transferor details of PETs made within the previous seven years will need to be available.  It is therefore important to record all PETs in writing. Tax on a PET that proves to be a chargeable …Read More

Care fees: Demos predicts the elderly will be worse off with the £75,000 care fees cap

Demos, the think-tank focused on power and politics, believes an extra 120,000 elderly people a year will receive no relief on their social care costs as a result of the government adopting a cap of £75,000 instead of £35,000. Figures from Andrew Dilnot’s government-commissioned review into the future funding of social care showed that 37% of people aged over 65 would have their social care bills reduced by a recommended £35,000 cap on individual care costs. However, the Health Secretary Jeremy Hunt has announced that the Government will introduce a £75,000 cap instead.  According to Demos, the £75,000 cap will only help 16% of the over-65 population, a difference of 117,096 pensioners every year based on 2011 census figures. Currently the means-tested threshold where people are required to fund the full costs of their care is £23,250, which the Government is expected to raise to £123,000. Claudia Wood, Deputy Director of …Read More

Will disputes: Dispute over Daventry man’s estate

A local case was in the High Court last month when Paul Tociapski claimed his brother, Boris, had put pressure on their father, Igor Tociapski, to transfer his Weedon property to him in February 2010.  Paul also claimed that their father’s 2009 will was invalid on the grounds of testamentary capacity and lack of knowledge and approval. Judge Stuart Isaacs QC decided that there was no sufficient evidence to satisfy him that the late Mr Tociapski had made the transfer of his £350,000 home to Boris with full, free and informed thought. He therefore set the transfer aside for reasons of undue influence. The judge also considered the validity of Igor Tociapski’s 2009 which left everything to Boris.  The judge accepted that there were suspicious circumstances surrounding the will ; namely that there appeared to be no rational reason for Paul to have been cut out of his father’s will, …Read More