Produced in collaboration with STEP East Midlands.
The current pandemic has brought an increase in the number of people making wills, many of them homemade. However, many of these Wills can be badly drafted and fail to deal with all the assets that a person has, particularly their digital assets.
Debra Burton and Ashley Blood-Halvorsen, a specialist contentious probate and estates Barrister at 3 Paper Buildings, discuss the common problems encountered with badly drafted Wills including:
Ashley Blood-Halvorsen
Barrister,
3 Paper Buildings
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Webinar transcript
(Please note this is auto-generated and un-edited)
Good afternoon, everybody.
0:20
Welcome to the first step, East Midlands Talk of 2021.
0:27
The topic of today's talk is DIY Wills on Digital Assets. What Can Go Wrong? This is a live and interactive presentation, so if anybody has any questions, please can you pop them in the Q&A box, and we will look to answer them at the end. Any questions that we don't get the opportunity to answer today during the presentation, we will look to answer offline.
0:56
The event is also being recorded. So, if you'd like a copy of the recording or to review it will be available on the step East Midlands website, and also the Shakespeare ... website.
1:08
So just bear with me share my screen.
1:14
So speakers today are actually both Harbeson sorry, Ashley's if I was to flip the three Pippa buildings, and actually specializes in contentious probit matters. I'm double burden. I'm a legal director Shakespeare ..., and I'm also a specialist on contentious trusts, and probit matters.
1:37
So today's agenda: We are speaking to topics covering common problems with DIY wills, shoes, practically, shoes, tux, construction, rectification, and partial and full. It has to say, and we'll also be examining the topic of digital assets, which is becoming much more relevant in today's society.
2:02
Now, I should say from the outset, when we're talking about DIY DIY wills, what we're speaking about is any wills had been prepared without professional assistance. So, either solicitor will writer and that can include the traditional DIY wills. where the testers who might just do some hand-written notes good old-fashioned will write impacts So off the shelf tubular, smiths. And I suppose also the modern equivalent of a will, right, and pack, and that is websites where you can simply pop in your details, and it will spit out for you, but this apps, there's no advice or anything connection with that will.
2:45
So first and foremost, we're going to discuss policy and policy issues can sit into two sections. So you can have, will, may be invalid due to lack of formality. Secondly, because of capacity and other issues. So we'll cover formalities first.
3:04
So if someone comes on content, just pull that lowest point of view, DIY well is can produce a lot of disputes, so it will produce a lot of fees.
3:16
It's not to say that there's not a lot of challenges with professional drastic whales, because they obviously, you know, the DII wills, real big breeding ground.
3:26
And the issue formalities is something that is very closely examined, and especially wills now that being too, that may have been done during the current lockdown periods. These will be very closely examined to make sure that formalities have been complied with. So, he's dealt with ..., so, I'm not going to deal with that in any detail. But the two main areas that wanted to focus on signatures will not been properly signed, and also the will not being properly witnessed.
3:57
So, in respect of Signatures of Wales, I'm sure there's plenty of practitioners out that it was hard, family member, or finally come along with a big bundle of documents. And hand-written note on the tough from what the test it wanted, happened to the stairs, and you've had to deliver the bad news at that is not a valid will, because it's not signed. So, that's obviously quite common. You can, you can spot them.
4:23
The other area that actually, we think is going to be a big area of contentious and potential disputes, is the drive for electronic signatures, and asked me: No electronic signatures are not valid for wills.
4:38
There still needs to be a wet signature, but I imagine that if you did a quick poll of, if the general public, there might be very surprised about that, particularly sophisticated business people, at the, you know, now, you can entrance, pounds, multi-billion pound contracts even with the use of electronic signatures. You know, the land registry, accept them, the car to accept them, The probate Registry, obviously, now gone online, so everything is being pushed towards this.
5:11
Digital signatures in digital modernization and yet wills is still traditional. So, what we might have is, you know, as I say, quite sophisticated test it, is actually believe in that they can electronically sign the world.
5:26
And that not been the case, also, as well as technology moves on.
5:34
Electronic signatures, and the printing facilities could actually, at first glance, look very much like it's a wet signature. And you may have that hybrid situation, where the witnesses have signed a wet signature. The test entered sound electronically.
5:49
So as you would normally with if you suspect that Sanctities being photocopied it is you're going to have to really look carefully to make sure that that is actually a real what signature and will be valid.
6:05
Secondary roles to these disputes and is witnessing. And I'm sure a lot of people attending this talk today I've got stories about the difficulties that witnesses getting to and sorry, test it is getting to getting wills witnessed if the left to their own devices. So there may be no witnesses at all to the whale. May be only one witness.
6:29
Only, very recently, I got an inquiry, where a test it to had used a worldwide pack, and completed all of the details. In this test, it with English and domiciled in England. Unfortunately, the testator had picked off, Scottish will write and pack, and therefore, complete two days. And ..., and the ..., there's only one way is required. So of course, attested to follow in the performer has only one witness.
7:00
So cost That will, is not valid. What makes this particular situation worse is that the Probate Registry is actually granted a probate burst upon it.
7:08
Not quite sure how that's got past them, maybe because they are extremely busy at the moment. But this wasn't picked up until a disappointed beneficiary got a copy of the will. And it's come along to challenge it. I mean, they, those issues should be valid on on the fifth.
7:23
So, of course, if you get on the lookout, if you are being asked to administer any estimates that the witness informality have been properly complied with, do the main one will is witnesses not been present at the same time or witnesses? Not signing in the correct order, and that's not something that's going to be well readily available on the first the wealthy you to spot, but. Certainly for DIY wills, as you said, they're going to come under close scrutiny, and that is going to be the questions that are going to be asked of the witnesses.
7:56
Video witnessing of wills, as you know, came in into effect some of September.
8:03
We have the wills after 18 37, electronic communications amendment, coronavirus, audit, 2020, doesn't exactly roll off the tongue. So that allows video witnessed since I'm not going to into that, but other than to say that it's, it's actually quite complicated. And the hoops that you have to jump through to make sure that that is that it's complied with. So if a test it is that YouTube video witnessing on their will and their wills.
8:34
What difficulties they're going to get into and we're going to, I can see that we're going to be viewing yes, videos of i-phones and things like That's been complied with.
8:49
A lot of DIY will have no attestation clauses, of causes, no presumption of to execution. So, as I said in that situation should be looking to get if it's from the way, says.
9:05
Blissett tissues?
9:08
Other issue, so the challenges well, we have our holy Trinity of unholy trinity. We have, lack of capacity, want to acknowledge an approval, and wouldn't do influence. So, cause, these are all challenges that amid, even if the well, it's been freshly drafted. But when you have a DIY will, you simply do not have that the independent evidence that you would if you did have to solicit to so you don't have them. You don't have the file. You don't have any tenants notes. You don't have that, you know, independent assessment of capacity that someone's wedge and understood the will and also that, you know, we're the only person in the room and don't put that. They're not under any pressure to sign the Will.
9:48
Now, claims to influence often alleged very rarely succeed, but we are expecting a rise in them to court recently has shown a increased.
10:00
Acceptance, well, recognition, I should say, that people don't always behave as the court would like them to.
10:09
And that people can look to when do we influence. And certainly wills again to Don during this locked down period. If people have been locked down with a particular family member and as a result have made that will. And that well, it's a whole madewell, it's going to be some real close scrutiny for most contentious pulpit. Lawyers.
10:28
So watch out for those fraud forgery, to be honest, not that unusual. But we're starting to see more and more of them. The examples of fraud is someone's being tended to be test data.
10:43
Basically, the witnesses knowingly sign at a later time.
10:46
So that is different to the previous slide where they've just gotten the knowledge that this is basically suggesting that there's a conspiracy recent case.
10:54
I think it was a couple years ago where the will was produced 10 years later, halfway through proceedings when the person compound in it, so suddenly remembered this well, which always raises eyebrows. And ultimately, they found to be lying. And then one of the witnesses admitted, they had and so Q, committal, Satan's for perjury. And I think the actual witnesses got three months suspended for 12 months for perjury.
11:22
And the instigator got 12 months prison sentence. And he was also an accountant. So career is ruined. It does happen. It's quite rare.
11:32
The type of thing that y'all, people are more likely to see if they're involved in a State Administration is Page has been inserted into Wills. We've got case on of that very thing at the moment home, it well prepared by an executor. His wife benefits, the test set previously had professionally drafted whales, and there was some significant changes.
11:55
And when we've come to investigate it, two copies of the wheels were have been discovered. And the front to the back pages are the same for both. The middle pages have been changed And surprise, surprise. Those middle pages are the pages which have the legacies in them.
12:15
So a question marks being raised off of that, and that might be making me more likely to see. Also. Somebody being tricked into signing A will potentially thinking it was on NFL PA contract, shopping list, anything like that forgery, again, is a very common allegation, but very rarely actually goes anywhere you would require handwriting the evidence that. But there's amazing things now that you can get extra evidence on. That can actually examined the inks that we use that what could work out, what time when.
12:51
If a signature was done at the same time, it's the rest of the will.
12:54
But again, it's something that's often alleged, not often proved. But, again, we start to see more and more of it as the opportunity for this kind of thing is present in itself more involved. And finally, a document being created at Layer two Debt. And I've just mentioned the kiss of Wrangling Front, which is very interesting case. That was heard last year, but he's actually been appeals, and in that situation, it wasn't tested to sign his home-made well, somebody else onto their direction test. It was only 36. No capacity issues. No disability issues. They just appointed an attorney. And they believe that the Attorney ...
13:35
Wales, So the design of the direction and the rolls around the kitchen table, what the attorney was, actually someone who's been to prison for fraud, involved in financial scams.
13:46
And so there was this suggestion when this will again, turned up 10 years later, after any tests, shaping granted that that being signed into law today, the document is being created.
13:59
Interesting, that case the court upheld the validity of the well despite the expert evidence to suggest that every documents have been assigned different at different times. But as I said, that's going to appeal.
14:12
Other potential litigation issues that we see our DIY wills nights and we find that claims also, known inhabitants at clamps financial coefficient clamps. So that's where the test data is not considered any claims that may be made against the State for recent financial fish. And that will be purely because they haven't had that independent advice as to who they need to be considerate.
14:35
And often, you know, we hear where the test it to me, told, you, know, adult children, or Don't worry. You know, this person, or being in a relationship for 20 years knows full, Well, that they're going to move out and sell a house, is same as I've died, and that the very happy to do that. Well, there's plenty of Content. Probate Laser will tell you that never happens in real life, and so expecting all claims, because, as I said, they haven't had that advice.
15:00
70 constructive trust to stop a clerics. The state might have assets are actually would not 100% by the test data, even though first, if the will, it purports to duns.
15:11
So again properties that might be cohabitees have contributed to to the cost properties are potentially other assets. And the sign I want to set promises assurances myths. that parties, so that you traditional stuff or clams tends to happen in the farming context. And, again, the test, it has probably given no thought at all, when they've had this guy. Why? Well, because they have not been prompted.
15:37
They've not had that conversation by the professional, So, those claims are quite likely to come in.
15:46
Practical problems with the wording of the will, So the wheel is not inviolate, good news. You haven't got any, you know, any other claims, but the actual document itself is not clear, which creates a real headache for people, And, as Ross from friends will tell you, words do matter and can have a massive impact.
16:08
So, replacements, Tom, this gift, OK, so, type of things that we tend to see, You know, executors again, it doesn't make will invalid just a headache, and also can create delay, as you know, in terms of determining who has got the for our TTP instructing you to get on with that.
16:27
Unintended executors, what I mean by that is the online wills and those 14 power for 14 minute wheels. And what we're finding now more and more is that those wills automatically important, the wheel writing company.
16:46
And beverage homepage 46, about 18 clicks into the into the online Ts. And Cs is, is the clause whereby you've agreed to point their company.
16:57
And their charges five, 6% chance of someone only earlier this week and they'd heard where the charges with 20% of the gross estate at the instructor solicitors the clamp. The Claremont Percentages on the disbursements.
17:12
so for straightforward wills, it could be painting tens and tens of thousands of pounds for State administration because the unregulated they do not like to step down when asked to do so. So you know, we've had to basically do a deal.
17:27
come to commercial settlements, it can cost a lot of money to get to get rid of those executives.
17:35
Example, Gifts felons. So the properties are to be sold on it gets no longer in existence. So quite used to dealing with that.
17:43
A big one is, for example, if not kind of central tendency, So that property may have, in the face of it being left to the beneficiary, but no professional advice was given. And actually the properties combine survivorship.
17:56
The will may not deal with any foreign assets. So you have to deal with with that situation, it can be difficult to identify the beneficiary. Sometimes it might just be one name, we've had that, this is particularly the case for charities because charities can often change the name of the can merge and they may know that may not be the clause in the will which allows the executives to sort of say a gift.
18:24
We had one fairly recently. the estate was lecture number charities on one of the gifts, and we said, I'm leaving it to those two nice men who look after donkeys in North Yorkshire. So trying to work out who was intended a bit of a headache for the executives. Some gifts can be conditional.
18:47
Know, the wording of it might be clear And also the value of the gift is Share Ruscha percentages. That can also create headaches and cause the Committee on unintended tax consequences. Dual H T loss of elites are not considered spouse, I believe, for charity release.
19:07
This may be sold assets too early. So, the Velocity PR Loss API, and it might not be clear on the face of it, which are the gifts is barren tax. Or, actually, if it is, no thoughts being given to that. So, for example, a property being left to a co-habitate, but no cache. How are they going to pay the tax if the property has to be sold and they were intending to live in it, so in turn, that can then result in a potential 75 of them?
19:37
So how can, how can you progress these claims? I mean, good old edar variation can come to the rescue.
19:45
That can, that can really rescue a lot of these issues of costs.
19:53
Data variations should be entered into, within two years of the dirty data test data, if you want it to be back in, as the willing to get.
20:03
For the tax purposes, they can be done afterwards, But, of course, not for tax purposes. They do have their limitations. If you've got minus O bonds, then they can't be used to call. It would need to improve any to variation on behalf of a minor and some charities as well. And not necessarily it not very keen attention to deformation, because they haven't district guidance of what they can and cannot give up.
20:28
The construction matters and actually able to this shortly that mark what you should be looking to gather any extreme habitants. You can be getting a independent council's opinion to give you to give you some advice on the construction, and then if all of the beneficiaries are happy to do abide by that, then that can be worth through. If you've got a charity gift that's failing then you can consider using the pre scheme.
20:53
So that is where the cost of charity commission will look to save the gift to the charity CP scheme. You can take ages to use and so the spread of the delay and costs and mass, but, again, something to be aware of.
21:11
And, finally, if you are stuck with the construction of rectification or, you know, has failed or has an it and you got Web and beneficiaries, then you are looking at cause applications on those applications for ... of the Will. And on that note, I'm going to hand over to Ashley who's going to speak further on those points.
21:37
Thank you, Debra. Thank you for joining us today, and I'm glad you're here. Just so you know, I'm, can we have my windows and doors replace, so there's a man climbing a ladder outside my window, so, if you hear some audio disturbance, it is from me. You might hear some think We have a radio. Apologies. This is lockdown life.
21:56
So, I'm going to take the next bit. Now, I don't actually control the slide, so I'm going to remember to tell debris each time to change the slides, It's gonna be a bit like the covert briefings. So hopefully, I remember, and we don't get too lost here.
22:11
So, I'm starting with construction and construction applies to all wheels, whether they are home-made or not. And, frankly, it's a subject which has trebled judges for some time and the traditional approach was illiterate approach.
22:28
And what evidence was emitted was basically within the will itself Now, since about 143, there's been a bit of a shift. And we can see that shift in Salmon to Manzi, which I have up at the top there. Now, strictly speaking, the objective of the court has not actually changed. It is to ascertain the intentions of the test date or as expressed in the will.
22:54
Now, the approach, you can think of it as a bit, like contractual interpretation with commercial contracts, So namely to identify the intention of the parties, to the document, by interpreting the words that were used, but within the documentary, factual, or commercial context.
23:14
And we know that from Marlee Enrollees, which is one of the most important cases in this area, then I've said a word should usually be given their natural and ordinary meaning. And of course, that sounds simple and straightforward. And we know that, of course, is never the case. Because if you think about your whatsapp messages to text, your e-mails, your Facebook photos, and comments, you know, there might be times where context has been taken. Not the right way or maybe tone has been missing.
23:44
Words can have multiple meanings and lawyers are trained to have to use precise language.
23:55
So even when we have lawyers who draft professional wills, we can still end up in a situation where we're having a roundabout words and what they mean.
24:07
Now lawyers, we lawyers like rules. We've got something called the Arm Chair Rule, Victorian case. And basically, the idea is to take a look at the test ader circumstances and what was going on at the time, but the will was executed.
24:23
So how does this all apply to home-made wilsonville? It's completely irrelevant.
24:29
And you have to take a look at what was going on at the time and what evidence might be available. So, if we change the next side, please, thank you. And we look to section 21 of the Administration of Justice Act. I've put a screenshot of it in there and you can read it. And this came about after Law Reform Committee recommendation. It only applies to dance after 19 83. But I think we're fine with that. It's been some years since then.
25:01
And we need to think about how this applies to home-made wills. What evidence will there be? So, you know, already message should have already referred to some of our messaging systems. You know, what's our text, essentially e-mails, Facebook messages. You need to take a look at all of that, much of our conversations, and are recorded to certain extent. But of course, an emoji can change the entire context of a message. And of course, there is always oral evidence and witness evidence, and it is perfectly good evidence, but tends to be lesser and human memories are not always particularly good.
25:41
So I've got a case on there, and I'll tell you a confess. I've been YouTube the first name trying to figure out how to pronounce it. I think it's a good book and Elastic.
25:54
And it is a really interesting case. Encourage you to look it up, if you can. The test data was born overseas. He moved to the UK. After the Second World War became a British citizen, died, 91, 20 14, No wife. No partner. No kids nothin'.
26:14
And despite having lived here for quite a while, his English wasn't actually particularly good. And he died having left a home-made hand written well. And he also left a reasonably sized state, one point eight million.
26:31
Now, part of the problems is that he had made some straightforward culinary gifts, but he had left quite a bit of his state of the Serbian Orthodox Church. There was houses two in Britain, one overseas.
26:47
Then he said all the money that was leftover was to be gifted.
26:52
Now the purpose of these gifts was to help people in need in Kosovo, especially children. And he had placed a senior bishop of the church, which, by the way had different arms, and there's different types of the Serbian Church expressing full confidence that he would ensure the benefit went to the right place. And then the Testator says that one of the houses was not to be sold until 20 40.
27:18
So we've got a whole range of issues Here is an absolute gift. Is this a trust? Who is it supposed to help children? Well, who has a need? What about not selling the property before 2040?
27:30
And then, of course, whether or not the wording of all of the money created a partial and test to see.
27:38
So you can run into issues with wheels that are home-made dongbei solicitors done by will riders. There's always a potential here, but, of course, it's just going to be more likely to be the case when you do it by yourself, and particularly somebody who may not have the best English.
27:55
Next slide, please.
27:58
So, this here is rectification. Now, oftentimes, you'll see a claim for construction and or communication, depending on the context.
28:06
And of course, applies to home-made mills, but I think there is probably more danger with home-made wills with ratification because the power sits here in Section 20 there is no other power.
28:23
And frankly, if the will doesn't quite do what the test state of thought it would do or hoped it would do, that doesn't mean there's going to be in order.
28:32
You have to satisfy very specific conditions, so we are looking at a clerical error or a failure to understand his instructions, and that is it.
28:45
Next slide, please.
28:47
So, as I've said there, effectively, it's not sufficient to prove that the testers, testamentary intuitions have been defeated by the inclusion or machine of certain words. It has to be a clerical error. And the next slide will show you what that is.
29:06
So, if we go to the next slide, please.
29:11
It's important to keep in mind that a clerical error is the type of error, necessarily who made it. So a test taker can make a clerical error that was confirmed and re williams. And here is sort of synopsis of a clerical error. So to an hour where somebody who may be the testator, solicitor clerk typist introduces words into or myths awards from a will without intending to do so or without applying his mind to their significance or effect.
29:45
Now, when we're thinking about whether a clerical error has occurred, the first thing to know, what are the testator's intentions?
29:54
Then we ask, does the will fail to carry that out? And then, Is that a failure because of the clinical error? And those three questions will also apply to the other them, which of course is a failure to understand his instructions. Now, in my opinion, the second limb failure to understand his instructions may be slightly less relevant, potentially, to home-made wills, because oftentimes it's a seder doing it. But you can think of a scenario where somebody was effectively on their deathbed and dictating to somebody, their intentions, and the will and the person perhaps misunderstood.
30:36
So, if we go to the next slide, please, I'm not going to spend too much time on this column, And we think most people are aware of this. So, when does it ... Will, there is no will be, even when there is a will, if there's been judged and valid for the reasons that Debra has covered, then we do have a full ... And of course, we know it's section 46 that is relevant. But the next slide. I'm going to talk a bit about partial and tests. And I think there's probably is more likely to happen with wheels in general. But particularly with home-made wheels. So Emily view, most of the times, it tends to be the residue, but doesn't have to be.
31:23
And it could be were the main beneficiary has predecease the ta center, and there's no substitution. Or where there just is no named beneficiary. I am currently advising on a dispute where the will was professionally drawn by solicitors and the original beneficiary named. So that is a problem. Now there's a case they're reasonably recent one, Barrett and Hammond and others, 2020.
31:49
It was a Willow which was drawn professionally. The first one was drawn in 19 98, and every sort of lawyers nightmare, divided the residue into, I believe, it was 52 parts, and it was given to different beneficiaries.
32:04
From the wife's family, a codicil was executed in 2005, which deleted two individuals' as beneficiaries, which was six parts, and then redistributed, four parts to to charities. So if you've done the Quick Math, you know that you don't quite add up.
32:22
So what that meant is, there are parts of the state, which were left on distributed and in that case ratification of the wheel was sought, and there was evidence induced regarding the explanation for these parts and the partials In the end. It was actually determined to be a clerical error.
32:46
So if we've got a situation where there's a partial and test to see, we're looking at letters of administration, with the will annexed, assuming the executive calls is fine.
32:58
Then we started thinking about OK, who benefits from that partial tests to see? So we have the classic service or spouse, children to be an issue, but what about polygamy? Know, there's case I've got up on there. The full name is actually the official solicitor of the, sorry, official says The Solicitor to the Senior Courts and EMR. Of course, I was too long to write on the slide.
33:26
Basically, the official solicitor had been appointed as a judicial trustee of the estate of the deceased. The deceased had actually been domiciled in Ghana, and he died intestate, leaving real and personal property in England.
33:43
Now, he was survived by numerous polygamous. wives had numerous children, and some of those brought proceedings against the administrators of the English estate. So, now, we were faced with the question was, How do we treat these polygamous marriages underneath our law?
34:04
They were entered into underneath the customary law of Guyana and they were recognized, and they were recognized for the purposes of the administration of the English, A state. So, you know, in a world where we are moving around and we have family in different countries. I mean, I'm clearly not from the UK originally. This can be quite problematic.
34:28
You need to you to have a think about perhaps a test center where they came from, where the cultural background was. And that means me very nicely into the next slide, which is digital and unclean states. And I hunted on Google for some kind of archaic photo I could find. But realistically, it's probably from, I don't know, the nineties. It's not that long ago.
34:52
I'm sure there's plenty of us that actually remember this. And once upon a time when somebody died their family or their executors would come in with a Tesco carrier bags, stuffed, full of documents.
35:08
Um, nowadays, I would think most people probably struggle to produce bank statements that have come through the post or any sort of utility bills. Most of us have gone paperless. And the digital life, I think, has made the executive a little bit more difficult, because, of course, there can be personal liability that the role of executor tracks. So, there needs to be real care when doing a search for digital assets.
35:39
Now, just to be clear, information does not actually pass as property to a personal representative after death, but the rights and interests associated with that, I can invest in the representative, so pure information, including digital information, is not actually recognizes property in English law. Next slide, please.
36:03
So our digital life. So what we're talking about here, Facebook, Instagram, Tiktok, Twitter, some of us probably remember myspace. This whole bunch of other ones, Reddit, reddit's good.
36:14
We all have a footprint there, you know, photos, videos, things that have sentimental video, financial relationships.
36:22
We've got a high street banks, but you may have heard of monzo starling, challenge challenger banks, I bank was starling and I think if you didn't have access to my phone, my debit card, you would never know. That. And we have other Financial dealings. So YouTube of course, we can you know, watch our videos, but some people make a lot of money on YouTube, far more than we would ever make PayPal Have you sold something?
36:48
Isn't money sitting there?
36:49
E-bay Same thing Robinhood He may or may not have heard of it. It's basically an app on your phone and it helps retail investors trade in the stock market. Recently installed called GameStop went from about $20 to 450, and that was driven mostly by retail traders of Reddit. And the age old question of pensions.
37:11
What about that? I mean, you know, you move around jobs, the pension from here, pension from there.
37:16
And tracking all of these things can be problematic.
37:21
Know that the law society did some research, and I found about 93% of people surveyed had not included any sort of information regarding their digital assets in the will or letter of bushes. And, of course, that makes sense, because these are public documents.
37:35
So how do we deal with this? Well, probably the most important, in my view, is the e-mail. You know, I think we're long beyond the stage of sending each other chainmail. But effectively, an archive, when you register for a website, when you set up a new service, it probably goes to your e-mail. And that can be quite important.
37:55
And what about passwords, rebo, usernames? I mean, if it's stored in Chrome, that's great. But what if it's not?
38:03
So we've got a lot of issues here. We've got the sentimental.
38:06
We've got the ability to properly administer the state.
38:10
What about the consequences for inheritance tax?
38:13
So there are other potential dangers. For example, if the deceased use a cloud service, the terms of that service may forbid anyone else from accessing it. And strictly speaking, Section one of the Computer Misuse Act 990, it, makes it a criminal offense to do a function with an intent to access any kind of program, where that access is unauthorized. And you knew that was unauthorized. So, what about any kind of criminal liability?
38:45
So, what do we do? Well, secure Any kind of local devices as soon as you can? You need to protect them from interference and trespass. Obviously, if it's an executive, that's easier, administrator doesn't have any real power until Grant is a given. Hopefully, you've got passwords. But, you know what? You might not asking someone on the deathbed, if you've even had that opportunity with a password, is with my team of a cold So you need to them, potentially, look at instructing and digital forensic expert to gain access.
39:18
Now, if that expert can't actually gain access, there is no argument, though. The personal representative doesn't actually need to do much more, because the obligations of a personal representative only extend to property, which comes into their hands, or, but for willful default, would have come into their hands.
39:36
So, if we go to the next slide, please.
39:43
This here is a chart from about 2010, very recently, just a few days ago, I pulled this. And this here is, Bitcoin, may have heard of it in the news quite a bit.
39:54
The digital currency was invented, and think, in 2008, so being used in around 2009, nobody knows, actually who invented it. The identities, so bit of a mystery. And what Bitcoin is.
40:08
It's a, it's a decentralized tissue is a currency.
40:12
So there's no central bank, there's no single administrator, and it can be sent from one user to another on a peer-to-peer network without any sort of need for intermediaries.
40:23
You can purchase goods and services with it, criminals love it. If you remember a few years ago, the NHS was hitting some ransomware. You tend to pay in bitcoin And that's because it does have real value and if you look at that chart, you can see it was kinda bobbing along in 20 14 to 20 16 had been a run-up in late 2017 and we had a pullback and then towards the end we've got three very strong green bars and it's recently gone above 50,000 things retreated a little bit but it's made quite a few gains.
40:56
So the believers of Bitcoin will say that is the future reserve currency of the world Who knows?
41:03
But you know what I sure wish I bought a few thousand bitcoins in 2010, but I didn't have much regret, but what if your Desisted, what if your Executives have no idea?
41:19
I mean, if they bought one back in 2010, it could be worth quite a bit of money.
41:25
So if we go to the next slide, please.
41:30
This here is a screen grab of poor mister Howell's from Wales, and this is actually from CNBC, which is a news outlet in America. And he had purchased 7000, 500 Bitcoins. I don't actually know when, but keep in mind the last slide. We sold 50,000 for one Bitcoin, this is unfortunate. But during some house cleaning, in 20 13, he threw his hard drive and all that hard drive where the Bitcoins.
42:02
So effectively. Bitcoins can be star stored on local hard drive. If you'd use digital wallet, which has an address. And the key and part of the nature of cryptocurrencies is if you don't have what you need. So, the address with a hard drive, you don't get it, because there is no single administrator.
42:17
So she has actually offer things Newport um, it was like 20% or 20 million, basically to help him find this hard drive, and he would give that percentage to the local authority. I'm pretty sure they declined.
42:35
If we go to the next slide, is Now this. Here's an unusual slide We've got mister Elon Musk in the corner we've got a tweet below and we've got a dog and we've got dollar signs We need to keep in mind, is that bitcoin is just one cryptocurrency.
42:54
There's actually multiple. So we've got litecoin, we've got Ripple, we've got Stellar, and we've got doetsch and doge's on the basis of a mean, It's a bit of a joke.
43:06
And it was invented by mister Marcus and mister Palmer, and they just wanted to set up a payment that was fun and easy and it's always been seen, like I said, a bit of a joke. However, it has some serious backers, including mister Musk, who, I think, was the most wealthy man in the world to think. He has just been taken over by mister Enzo, think as a yes from Amazon, is trading right now about 5% per coin, which, of course, sounds like absolutely nothing. It's had a high of eight, but in early December, just gone, it was trading at 3000 of a cent, but zero point zero zero three, so it's gone up over 900% in a very short time. So what happens if your test hater had potentially pots, um, as a laugh, as a joke?
44:00
Another value is gone up over 900%.
44:04
So Cryptocurrencies and Bitcoin, and all these sorts of things, are pretty niche than you might think. Well, you know, it's only a young person thing, or, you know, people who are overly technically minded, but you know what? We've got silver surfers. And, even if it's somebody who's not overly interested in these sorts of things.
44:26
You start to think about the Facebook Memorial happens to those photos, And this, in itself, I think, is, is a talk that we could do in time. If you're interested in hearing more about it, we could potentially put one together, let us know. But that is me done.
44:45
So I'll hand back over now to Deborah.
44:50
Thank you, Ashley. I mean, digital assets is just sort of fascinated, as you said, that could be a token itself. So, just coming to the end of our talk now is to destroy everything to get the takeaway points.
45:03
So, going back to the DIY whales and ..., I'm sure that all of our staff practitioners out there and register it is will be, you know, double checking out, Wills, to see if their family valid.
45:19
As I said, watch out for electronic signatures, You know, making sure they are real signatures, what signature, But, as I said, contentious pulpit lawyers. Now, we're going to be all over ... especially, don't do locked down. So, you know, it's important. Just be making sure that those wheels are valid.
45:40
And, of course, from it, from your perspective, you don't want to be spending too long.
45:45
You don't know the administrative state, if, under one, the one will actually, that doesn't turn out to be valid and making sure that you can get paired.
45:56
If you do have any concerns all, you know, sometimes that might just be, you know, gut feeling about, you. Know, about the Will then be looking to get affidavits of do execution from witnesses, particularly focusing on the order unto is present. And, again, really important those bills, which on June the lockdown.
46:17
If, if there's any construction issues with the, well, then we're looking to, you know, gather evidence early on, secure the paperwork. And you'll be asking the executors of the witnesses can they identify think to this, and then a fee. And then you can be looking to get tunstall's opinion, and, hopefully, if all the beneficiaries on board, then, you know, that can. And, if not, that can be very useful.
46:39
If you need to make a court application for the construction rectification, As always. And I'm sure you all will do this.
46:49
Advise Beneficiaries to take independent advice very early on if it looks like a dispute is common.
46:57
Any executives who are professionals or indeed, don't really benefit should be standing neutral.
47:03
Cause, Ashley, I know if anyone would like to pick up the phone generally and just have a quick Chat about any possible claims, if you've got any concerns the finest tying up, what Ashley said, I suppose now, we just have to consider the existence of digital assets.
47:20
Day to stay. They are the future. That doesn't apply just on the state administration. That should all supply now in any state planning consideration of tax so many accountants out that. These are the questions that are going to be asked on Dino Ashlyn I yesterday which is having a brief chat when we went through this and then we ended up as it is.
47:42
Well about, what if, what, if? And?
47:45
No, it will make it really difficult for folks, know, for people in the future, like, for example, settling in 19 75 at ..., we need to know what an ... includes digital assets, which haven't been valued, and as well as if you can't get expert evidence valuation. So again, we chatted about this yesterday.
48:08
It's very unlikely at the moment, there's gonna be a great number of experts out there fighting with Bitcoin and, and things like that, but, you know, it certainly steps should be taken as far as possible.
48:22
OK, so do we have any questions?
48:27
OK, so I see there was a comment, ... said About sweeping statement: About executors and solicitors of announcing coach and test is to select them as executives. Yes.
48:38
No, I do agree that as part of of taking instructions with, you know, sometimes encouragement to select them the different stead or is the fact that, you know, the test has actively made that decision because they should have been some discussion about it and more importantly due to the regulation that solicitors. And If they were requested by a beneficiary, or the point in fisheries, join me to sit down. Then they will almost inevitably do that, they will agree to announce.
49:09
The example that I was given was that this regulated companies just outright refused and effectively you have to eat supplement to try to get, to try to get them settled.
49:24
OK, if anyone else has any.
49:29
Let's find, um, feel free to add me to LinkedIn if you so, wish. If you don't, that's fine. Won't be offended. And, thank you so much for attending, yes. I'm, Keith. So, what I would like to do finally is a misstep East Midlands events. We started to put together the program for the rest of the year. So on the 28th of April, we have a property taxation evoked by RSM and those details will be going live on Eventbrite shortly.
50:02
So please sign up if that's something you're interested in. In September. It to be confirmed. We're going to have a talk on post brexit succession, and in November, we are going to be having a talk from a experts and how to deal with those HMRC investigations, which I'm sure is something that everybody dreads get that notification.
50:30
If you do have any feedback on today's event, you would like any information about how to become step Member or if indeed, you have any ideas or suggestions, fall futures.
50:44
Mellon who is the Secretary says, Step East Midlands, and to her e-mail details there, if anybody would like a copy of the slides as well. If you e-mail us, we'll be happy to circulate those. Otherwise.
50:59
Thank you very much, and we hope to see you again.
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