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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Webinar
Wills, protecting your wealth and family matters
Wills, protecting your wealth and family matters
COVID-19 has impacted everyone’s lives in some way - these are challenging times and it’s brought out the best and the worst of situations. It has been also a time to reflect and put in place arrangements for families having relationship difficulties and those who have sadly suffered a bereavement, but also for those who've had more time to reflect on making provisions for loved ones after their death.
In this webinar, our team of Wills and Family law experts we will answer some of the common Family and Wills issues we are seeing including the “no fault” divorce and child arrangements, wills and broader tax planning, preventative measures to avoid probate disputes and what to do should there be a claim made against your estate.
Along with answering your questions:
- When do “no fault” divorces come into force and how will these be different from the current system?
- Why do I need to make a Will and what can I do to avoid a will dispute after I die?
- When do “no fault” divorces come into force?
- What do the courts look at when deciding custody?
If you have any questions or want to find out more about how we could help you with Wills or any family law matters contact us today for a free confidential consultation.
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Webinar transcript
(Please note this is auto-generated and un-edited)
0:43
My name's ... Anne Tromans Head of Wealth here at Shakespeare Martineau. Welcome to today's webinar on Wheels and Family Matters. These are indeed challenging times for everyone at the moment, and they can bring out the best and the worst of situations.
1:02
It has been a time to reflect and put in place arrangements for families having relationship difficulties and those who've sadly suffered a bereavement, but also for those who've had more time to reflect upon making provisions for loved ones after their death.
1:18
I'm joined today with three of my colleagues who are here to answer some of the common issues we have recently seen. We have Helen bounds who deals with family matters but junior Harvey, on Wilson private client matters, and Andrew Wilkinson who deals with contentious probate matters an area which we've seen growing increasingly more important over the lockdown.
1:42
Son, let me first of all turn to Helen. Hello, Helen.
1:47
Perhaps you can tell me please, in relation to divorce, when do no false divorcees come into force?
1:56
Right-hand side, this is a really big change for family law. We've been resolution and other family teams have been complaining about this for a long time and what we hope now is it's passed through Parliament that it will come into force in the autumn. And what this means for couples is that it really simplify divorce.
2:18
So, gone are the days when we will have to produce facts of divorce, so unreasonable behavior, older adults gray, but we can simply say that the marriage has irretrievably broken down, and they won't be defended divorces anymore. And the real different sounds that the couple can apply to the core jointly for a divorce and we've never seen before. And it really means, rather than concentrating on the, sort of, a historic reasons for the breakdown of the marriage, the couple will be able to look forward. And they'll be able to make arrangements for the children concentrate on that and concentrates on dividing the finances rather than looking at the reason why the marriage has broken down. And we really hope and the court said that this is going to be the case. That it will take less time for couples to get divorced. What the call to hate ping. Is that it will be 26 weeks from start to end the couples to, to go through the system.
3:20
Do you think that will mean that, that more people will step forward and decide to get divorced where in the past, they perhaps have decided that, you know, too much trouble Or too much expense?
3:31
Know, honestly, I don't think it will affect the divorce rate.
3:35
I think what people will do is that, you know, if the marriage is broken down, they'll still apply fit for the divorce was still see the same numbers, but it will just be simpler, and for the couple, OK, thank you. And talked about things like Custody Helen, what, what do the courts look at when they're deciding on a custody situation?
3:59
This is really interesting, because so many people use the term custody, and actually it doesn't exist in an English law for children. So the behavior is governed by the Children Act, and this refers to, child arrangements, said the arrangements for the children, and he doesn't use terms like custody anymore and say, what the child arrangements? Or just do research who spends time with the child and he's a child, should live wave.
4:27
So which pair with the child should live with the courts when making this decision? And I think it's really important to note that the Court should be last resort. The best people to make these decisions for the children, all the parents, And it's only if the parents aren't able to make the decision that he should go to the court. So when the courts are looking at what should happen with children within divorce that paramount consideration, and most important consideration is the welfare of that child or those children, and they will look at what we called welfare checklist. So, this is a list of relevant points that the Court must consider.
5:09
For example, what does it wishes the failings of a child? Now, this, of course, will depend on the child's age. A child that is, say, 12 or over that, What she's feeling? Some more likely to be taken into. Account by The court compared to a child who is 3, 4, or five.
5:27
Also, the court. Which parent is able to meet the particular needs of the child, or the children's, say, for example, their educational needs, their physical needs, their emotional needs. The court also looks at whether the child, if the child was placed with one, parent, wouldn't cause significant harm to the child to be with that parent. And another consideration if the court is, do we really need to change the arrangements for this child, and if we do, we remove a child from one parent to the last, What impact is that going to have on the child? And it must be remembered that the court really, you know, they're not concerned about. The parents at the heart of any decision is what's in the best interest of the children.
6:14
Thank you, Helen, that's That's. That's very health. And just moving on to another area that seems to be quite common with inquiries these days is in relation to cohabitation. What's, what do we understand by cohabitation agreement? Please.
6:34
So a cohabitation agreement is often called a living together agreement that it really is what it says. It said agreements, a written agreement signed by a couple that sets out the arrangements, the financial arrangements for that cup, Pope. Said we've been married. Then locked in a civil partnership than a living together. Agreement can set out the arrangements that they have during the relationships I for example, who pays the watts and how they're going to deal with the income and outgoings and in that relationship?
7:11
And perhaps most importantly, it sets out what should happen if that couple were two separate So it sets out who the property belongs to P widens the property, and what happens to that property if the relationship works right down it can also deal with the longings, you know who has the sofa, even down to pets, who has the cat or dog. These things are quite important when the separating the worst time, Helen, when people should do this. You know, because if they haven't done it when they first started to live together. It's not too late. Presumably, Absolutely, no, and it can be done at any time that you lift together, And the most important thing, Gates, I think to, to do it as soon as possible. As soon as you start thinking about these things.
8:02
Because the worst time is, to think about these things is when your relationship is breaking down. So, we found a lot of couples have moved in together quite quickly over this locked down period, because they've made the decision. They don't want to be a part, so they've moved into gets up. So the fact that they've lived together for the last however many weeks, we're at now 30, whatever it is. It doesn't mean that they can't then enter into this living together arrangements or agreement now.
8:33
Yes.
8:34
I guess what you're saying is it's better to do it sooner rather than later, whilst everybody's good terms and write down. For example, Yes, exactly. And I think it should be viewed. really like an insurance policy. You know, we hope that we never have to use it. Will writes hit, sign it and put it in the drawer and hopefully, never have to take it out. But it's important that, you know, if the worst comes to the west and the relationship breaks down, that you've got ... agreements in place, because it will save you time and money. Should that relationship breakdown?
9:09
Thank you, Helen. That's really helpful. Thank you very much. I'm going to move across to Virginia Heartbeat who's a member of our private client team, and she has had a few inquiries in relation to particular aspects in connection with whales at Virginia. And one of the first questions that is often asked is actually why? Why does somebody need to make a whale? Why can they just not manage with that one?
9:38
Oh, let us start. We are all going to need a will, one day.
9:44
People don't always appreciate the range of things that you could actually covering a well. It's somewhere where you can document your funeral wishes. If your parents sit somewhere where you can document who you would like to be Guardians for your children, if something were to happen to both of you.
10:02
It's where you can document where your jewelry goes or your golf clubs, or how you make gifts to charity.
10:08
It's where you can do some broader planning that might be planning around care home phase, and what kind of impact that might have on your state Border Tax Planning.
10:21
There are structures that we can help put in Wills that where possible, minimize the impact of inheritance tax, so they have been planning reasons for them as well, And it's a way of making sure you've got adequate provision. Especially if you've got a complex dynamic in your family, Perhaps, if there's a second marriage, and there are stepchildren, how is that all going to pan out?
10:43
If you don't have a, Well, it's very broadly, is how you make sure that what you want to happen is what happens, and how your family is provided for the way that you want. And you began by saying, what happens if you don't do it Well, if you don't do it, the law can fix most things, and it fixes that particular problem with the intestacy rules. So, if there is no, will you look at the, the intestacy rules, and that tells the world what will happen to your state. And broadly speaking, those rules, protect a spouse who is there, and then blood relatives. So, if you're in, you're not married, when a civil partnership, but as is increasingly common living with somebody, that person without a will, is highly likely to receive nothing under the Intestacy rules. So, really important for people who are in relationships that fall short of that formality well, yeah, we associate with marriages and civil partnerships.
11:38
And even if you knew that he could also be important in relation, you touched on earlier about about tax planning that wills efficient wheels can perhaps help to mitigate tax. Presumably, in the absence of a Will, the intestacy rules may not work in your favor from a tax perspective? Well, absolutely, absolutely, So, it, Yeah, I said, there's a way of sorting it out loud. We have got some intestacy rules that they very rarely worked with Families Advantage, whether that's on a personal level or tax planning perspective.
12:10
I was talking about a particular example, if you're not married, or in a civil partnership, but the way the rules work, even if you're married. If you're married in their children, the rules say that the children are going to inherit part of the estate. And depending on the value of the property in the house. That could lead the spouse vulnerable to not being able to remain in the matrimonial home.
12:33
So, yes, there's a fallback position, but I would say to all of my clients, don't go that.
12:39
Don't leave your family, navigating the complexity of the intestacy rules. We are all going to need, will one day. And it really is never too soon.
12:48
So the Ginny, I understand that you've been talking about the need for people to make wills. And certainly whilst we've had this current difficulty with people being locked down in the social distancing that people have had to comply with. So how?
13:03
How we able to get around that so that people can put the wheels in place that we've just, you've just said how important it is that they do that? Yeah. Yeah, we have got increasingly inventive over the last several weeks of of locked down. The process of executing a will is subject to some pretty rigid formalities that has to be signed by the person who's making the will in the presence of two completely independent witnesses, who can see that signature going on the page. They are both present at the same time. And they both then sign the will afterwards. Which initially sounds like a bit of a mountain to climb when when you're in lockdown or best subject to a two meter distancing rule.
13:47
In practice, there are ways of dealing with that. And I can speak to that, and I think most of my colleagues now have practical examples. We've had one instance of a lady driving to our office, and sitting in her car, and signing her, well, well. two of us were outside, watching the process. And the will then got posted out through the window, and everybody was wearing gloves. And nobody was sharing pens.
14:13
I have met clients on a driveway, the makeshift, Black and Decker workmate table, and executed that the wheel that way. And, in other cases, we've sent the documents out to our clients entirely. We've not been there talking them through the process, but we can explain it in writing. Well, what signature needs to end up, where they've been been passing things across the garden fence to the neighbors, so, there are ways of achieving this. So, if you haven't got a, well, and you are thinking about doing it, don't let the current difficulties put you off. We can help you find a way around that.
14:46
Again, moral Virginia is where there's a will, there's a way. Thank you for the. Virginia was an Ask a question. Can you talked about physically being in the presence of the witnesses, could you witnessed the Zoom all video chats? Awesome.
15:03
Tonight, that does that work on ours, I've avoided it, and you might come in on that one, as well. There is discussion that I don't want to do anything that could be subject to challenge, and I've managed somehow or other to get people in the same presence. But on what do you think about that? I think that our view is that, OK, if it was a desperate situation and you have somebody that was terminally ill and you had no other way of doing it and I think we would, we would we would try absolutely everything we could to get a will find an undue properly executed. And then, if we had to be, perhaps, try and put the case together to explain why the circumstances was such that he was, It was signed in such a way, I know that have been other jurisdictions. For example, in New Zealand, they've been a lot more flexible than we have. But, currently, my understanding is that our rules are still quite prescriptive, and, you know, and they're very, very old rules, and they still applies. Virginia is just explained, unfortunately, Andrew.
15:59
Yeah, I suspect no one wants to beta test case because the test cases probably going to be very expensive.
16:06
Indeed, Indeed, I expect the when we are at the other side of this, and the will be someone I know that's your area, so you'll be able to let us know. But I, Yeah, I'm sure that somebody will be, It's going to be going to cost a lot of money, I would imagine.
16:21
So, it's going to need to be a fairly sizable state to justify any, you know, any litigation.
16:28
And the other thing, Virginia, whilst people are self isolating, I know that there's been problems with people being able to get things done, their transactions or financial transactions. So, I wonder if you've got any advice for people that perhaps need somebody to, to do things on their behalf, how they go about authorizing somebody to, to, to conduct their affairs for them.
16:54
Was something we advise all our clients to do, is to prepare lasting powers of attorney. And some of our clients will have those in place. And some of them, from the property and financial first perspective, will have set them up so that they can be used, even while they still have mental capacity, if they want some help directly. So some people might have those arrangements in place already. If you don't. And it does take quite a few weeks to get that process set up, we can create, for our clients, what's called, a general or an ordinary power of attorney, which is very specific. Usually, you can limit it to the particular thing. You want somebody to sign the particular task that needs doing, that we can, we can put in place a power of attorney that will cover specific tasks that might need doing now. So, again, don't be put off if there's something that you need help doing.
17:51
And they're quite easy to do, Virginia at all. Because she said, the lasting powers of attorney, you know, the court require certain requirements for those, and they can take several weeks from start to finish. But they're still very important in the long run. But, as you say, with the the general powers of attorney, they can be done as I understand it, straight away. And so, there is an advantage, and for peace of mind, they can be done, possibly, want the lasting power of attorney or trending on it and getting completed.
18:21
That's absolutely right. And, yes. Yes. I think we've all done that on occasion so that yet they are, they can be set up very quickly, and very often, they do have a place being set up while you're waiting for the long registration process, for the Office of the Public Guardian to be completed.
18:36
I guess, I should say that the only drawback is with, with the general power of Attorney, is if somebody is losing or has lost capacity, then obviously they can't be used. Which is why, if somebody has capacity, we normally recommend, don't we, Virginia? That they do and lasting power of attorney. Because that will still enjoy beyond bearing capacity. But in the short term, do the general power, so that they can get it up and running, and doing whatever they need. Yes. Yes. That's a good point. and actually dovetails back to what I was saying at the end of talking about whales, Same, for lasting paths, returning. The sooner you get on and get these things in place, the better protected you are, the greater your peace of mind, The less worry and trouble for your family might. And I had, yeah, absolutely.
19:22
Thank you, for junior, very wise words, thank you. And now I'm going to turn to Andrew, Andrew Wilkinson, who Andrew one knows that you're involved in a lot of contentious matters in relation to estates. And I just wondered, I know that a couple of the questions that we've had, one in particular, is, what can I do to avoid a will dispute after I die? Now, that's a very big question, as you can find it helpful, and I think, I think, unfortunately, you're never going to be able to avoid That was completely. There is always a risk that that might happen.
19:54
But I think there are certainly things that you can do.
19:58
The steps you can take now, which reduce that risk significantly.
20:02
And I think the main one is to take the advice. You know, you've people have heard my colleagues talking about, you know, the advantages of wells and what you can do with the wheel. I think taking proper advice, I think, is hugely important in getting your affairs organizing the way that works for you.
20:19
I think also, from that, from an evidenced point of view, it's important that there's a very clear that codes of, now, suddenly who you've included in your when and why even. But also the people you haven't haven't included. And that might be family for particular reasons, or it could be, you know, all sorts of people who might be the obvious people to benefit from your state.
20:39
I think it's always worth having a discussion with your list about who's in and who's out and why that is. And that evidence is hugely important And just thinking through that process and just documenting aes.
20:51
And I also think that certainly in the cases that I say supplies, is it is a very dangerous element and often can trigger a lot of DSP. So, I think it doesn't always work. And, you know, some families are different, but I think if there is an opportunity to talk to your family, about your will, and what you're trying to do that, I think, avoids the element of surprise.
21:14
Experience tells me that, that combination of surprise and grief can be fairly toxic, and it can result in litigation that, that could otherwise be avoided, and the thing that people need to to bear in mind that often a will is a public document. So perhaps they put in their whale and could You could make things worse, could make a situation, was well made an aside let Rather than perhaps put it on the face of the Well, what do you what? Would you say that? I think? I think, I think it's important to them under the weather is a public document, as you say. And actually, it may well be better to have lots of those reasons to be in a solid lesson on a simpler and attendance. Now, let us List is file, rather than in the Will themselves. Again, I've seen lots of cases where the Pacific specific wording of those gifts, or the, you know, the word in the world, has caused huge, upset, and In a way, that's not been not been helpful.
22:10
And I remember one example where someone had died, and he left his daughter and under the terms of as will the price, and with all of sudden, in order to wash her mouth, that with A needless to say, that caused huge upsets. I suspect that was not done on an advice from solicitors. But inevitably, that would, Of course, you know, the dose, I'm sure was incredibly upset, at least in these words, an inevitability, you know, that probably led to a dispute and not being happy and challenging the world.
22:42
So I think it's choose your words carefully, particularly in the will itself, and I think you're right. I think by taking advice, sometimes you can, you can take the heat out of that. Because I've met with clients and they're very, very clear. They may have fallen out with family members and they very much think, well, they don't care, this is how they feel and this is what they want to say in the whale. But I think that what we're able to do is perhaps make them reflect upon that. We can give them a solution to put it, as you say, an aside letter. And that perhaps helps to mitigate any, any, any issues down the road, which they may say, well, I don't care, I won't be around. But actually, we find it still can be quite quite impactful, and as a family members as well. As I said, is that the one thing that we're sort of seeing, more and more is where we're working with no, public health colleagues, where people want to include particularly provisions in that will deal with the possibility of a dispute. So those says, well, what are called no challenge gifts. And essentially they say, Well, look. I gave my daughter say a gift of X, but only if she doesn't challenge the will.
23:47
Now you've got to draft stage very carefully, but in theory they work and I think the opposing comes out.
23:53
I think you need to think about them carefully, but certainly in terms of what's, what you put in the will itself, though, again, some things you can think about that might reduce the risk of a of a dispute advising once you've you passed away.
24:05
Yeah, very wise words. And another question and it probably sort of flows on from Helen talking about living together agreements, cohabitation agreements, and where people aren't married. And, and perhaps some of the, some of the notions that people have about what rights they have. And I just wondered from your perspective, if you could perhaps clarify about the actual type of rights. That a common law spam, as we, as we call them, actually has. Because I wonder whether there's a few misnomers there that you could put .... So, I think, as, as Virginia has already touched upon, main tests, to see those. don't come with your spouse, is illegal myth, A common law spouse has no rights under the test symbols.
24:46
Now, that's not to say that they don't have any links to tools, So in, in, in English law, you have generally the right to leave your state to whoever you want. But that is subject to one piece of legislation, which is called the 75 that the inheritance provision for family independence apps. And basically what that piece of legislation says is that there are certain categories of people who can bring a claim when you diogenes Joe Estates.
25:11
So, that's an aspect of it. What you will say is, if provision has not been made and they can claim against your stays, I think people are often surprised. People assume that well, this is a English law, when you can leave us. take two, if you want, You all will be subject to this this piece of legislation. So, so, whilst if the test signals apply this kind of have the TSA has no rights automatically, they can bring a claim against the estates into this 75 items.
25:38
And now, of course, you know, I think it's very dangerous to the law.
25:42
And I think the reason is that those claims are unpredictable in terms of actually what you would get will occur.
25:49
Because he gets the duties have huge range of discretion and, and also they tend to be fairly nega provision. And so I don't think you can assume that, you know, cohabitees going to bring a claim and then get a huge, significant. he's. unfortunately, they say they might do, depending on their circumstances, but actually the course general approaches to fairly limited provision.
26:11
So, so I think the advice is that a common law spouse has no automatic rights.
26:16
They have the right simply 75 at claim, but I wouldn't rely on and I think the better approaches to take advice and put something in place now that gives them the proper protection and undo well, that's going to be far better than at the test signals. And then the risks and uncertainties, and cost, of course, of, of litigation against against family members. Which inevitably is going to be difficult and expensive. Particularly, you know, it's a continuous when everyone's kind of lost enough, when recently said.
26:47
Yeah, that would be my thoughts on that. And I suppose, as well, under the same time, what would I be thinking of as well Is looking at how that couple have got their assets structured? Because they may again, not necessarily pass through. Well, if they've got joint assets, it might be right for the assets to be joined, but it might not be. So, I think what we're both saying really is that you take advice and, and look at making the right provision, rather than relying on on the law, perhaps. And having to challenge a Will, you know, in order to get what what properties, you know, we've seen quite increased recently in disputes about the ownership of property.
27:24
So, wherever, how smart you know, a couple might have lived together, for you know, potentially long-term, 20 this year, is, I'm going to house is in no one seems to be in both names. Always in one person's name. And the other person isn't happy with that. And sometimes these disputes arise when people alive and not alive in the context of the advice that hadn't been her team are giving, But they also relies on on death.
27:49
And you get to speak to emulate our house. And I contributes to pay for the Windows are paid to, all sorts of words And puppies are paid for mortgage.
27:58
And, again, it's just really thinking about that and making sure that that position, the land, registry position matches up with what everyone's understanding is.
28:07
Again, it's going to be much cheaper and easier to sort it now than to try and deal with it later on in the context of someone having to, you know, relationship having end date, or someone having done when inevitably tensions are going to be raised. And things are going to be much harder to resolve.
28:24
Yes, yes, very chim Andrea, thank you.
28:27
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29:16
Thank you for joining us, Goodbye.
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