Latest blog entries All blog entries from Sun, 05 Jul 2015 05:59:00 +0000 en-gb More Pensioners Leaving “Living Inheritance.” According to a new report on the state of pensions and pensioners in the UK, more youngsters will benefit from inheriting from their parents and grandparents.

According to the website 68% of UK adults are expecting to leave property in their wills, worth an average £182,000 with many grandparents expected to leave a “living inheritance” to younger members of their family to aid with university fees or buying a property.

According to official figures from the ONS pensioners are now 50% wealthier than in 1995, and with the younger generation experiencing debt and rising fees for higher education, many experts have predicted that the older generation may prove vital in aiding such debts.

Living Inheritance

With pensioners having more income, living longer and spending more on themselves, a living inheritance is becoming a much more common thing, with the elderly choosing to aid their loved ones when it is needed rather than just leaving an inheritance in a will.

Despite this, more than 75% of the elderly intend to leave behind a significant inheritance in their will, with the average sum being around £51,000.

Karen Barrett, chief executive of Unbiased and author of the report, said: “More than half expect to leave tangible assets such as paintings, jewellery and antiques, with an average value of £22,000.”

Contact Us

The survey highlights the importance of leaving an inheritance and having a will that ensures your estate is left to those it is intended for. If you wish to create a will or have your will looked over by a solicitor, contact us today using our online contact form.

]]> (Mark Wilson) Wills Mon, 22 Jun 2015 09:51:23 +0000
The Law on Powers of Attorney: getting it right A recent story from Ireland cast a light on the important area of Powers of Attorney, and the law governing their validity and use. The article in the Irish Examiner (available here) reported how two sisters had secured a High Court order that prevented their brother from using a Power of Attorney to manage their fathers affairs, who suffers from dementia. 

The basis for the two sisters seeking court intervention was their belief that their father did not have legal capacity to give his consent to the Power of Attorney, which gave authority over all of his affairs to his son. They argued that their brother had exerted undue influence or fraud to induce their father to sign the document. Their brother claimed that his father had the necessary capacity, having asked how payments to the nursing home where he lived would be made. The court was not convinced that best practice had been used in creating the document, or in assessing capacity. As a result, it issued an order against validity of the Power of Attorney. 

It is not uncommon that people are curious as to what the law governing the use of Powers of Attorney is, but are unsure about where to get this information. At Wilson and Fish, we regularly advise on the use of these documents and can answer the questions that you have.

What is a Power of Attorney used for?

A Power of Attorney is a legal document that allows someone, i.e. you, to choose someone to look after you and your interests at a time when you can no longer do so yourself. In law, this is described  as the ‘granter’ giving power over their affairs to their ‘attorney’. 

What kinds of Power of Attorney are there?

It might be surprising to learn that depending on exactly what you want your attorney to do, you will use one of two kinds of Power of Attorney. 

  • Financial Power of Attorney

This is a one of the two kinds of Power of Attorney, and it is specifically designed to allow your attorney to have responsibility for your money and your property. It is also known as a ‘Continuing Power of Attorney’. In most cases, this will be quite a detailed document: it should state as clearly as possible what your attorney should spend your money on and when, if ever, any of your property can be sold.  

  • Welfare Power of Attorney

This is the second kind of Power of Attorney. It empowers your attorney to make decisions regarding your healthcare. A Welfare Power of Attorney works differently from a Financial Power of Attorney, in that it will only come into force when it becomes clear that you can no longer look after your own welfare. This document should include information regarding where you are to live and with whom, if you are no longer capable of looking after yourself.  Furthermore, it should also make very clear how decisions are to be made in respect of any medical care that you need. Moreover, you will need to include some direction concerning what action is to be taken to determine when your Attorney must take their responsibilities, e.g. how to determine that you are no longer capable of looking after yourself.

You might also wish to confer some financial responsibility on your attorney under a Welfare Power of Attorney.

How is a Power of Attorney made?

A Power of Attorney is a legal document, granting responsibility over one person to another.  Therefore certain requirements need to be met before it will be valid:

  • A Power of Attorney must be written down;
  • You must set down what powers you are willing to grant your attorney in the Power of Attorney, and sign it; and,
  • It must be brought to the attention of a member of the legal profession who will ensure:
    • That you are aware of the consequences of signing the document; and
    • That your signing the document is not the result of the exertion of undue influence from any other party.

Who can you ask to become your Attorney?

You have complete freedom of choice in terms of who is to become your Attorney. However, the person that you decide on may depend on the kind of Power of Attorney in question. You may want to keep in mind that whoever you decide to appoint will have sole responsibility for management of your financial affairs and/or providing for your welfare. You must be confident that the person you select will discharge the responsibilities they owe to you in your best interests.   

It is also very important that the person you want to be your Attorney understands what taking the position involves, and what they may need to do. Take the time to consider all possible eventualities, and what course of action you would wish them to take, e.g. in respects of medical care or, if there should ever be any financial difficulties. Wherever possible, it is best to try and remove the risk that your Attorney would be unsure as to what you would wish to be done. 

The story involving the Power of Attorney in Ireland and the question of capacity highlights the importance of the document. The courts will take a very dim view of suspicion that a Power of Attorney was not executed in the correct way, or if there was any unfair advantage being taken of a vulnerable person. It is important that if you are considering creating a Power of Attorney, you understand what this involves and make the decision to do so freely, without the influence of other members of your family.

At Wilson and Fish, we understand that you may be very unsure about the use of a Power of Attorney.  We take pride in working with our clients to find solutions to their problems, and in helping them to understand how Powers of Attorney work. If you have questions about a Power of Attorney, please contact us today.

]]> (Mark Wilson) Power of Attorney Thu, 18 Jun 2015 10:37:53 +0000
Charity Slammed by Family Over Estate Left The British Heart Foundation has been criticised by the family of a man after they enquired if they could be entitled to more money after he had left the charity more than £77,000.

The charity claimed that despite the will stating that any money the family could be taxed on should then go to the BHF, the will was unclear. The will of Barry Thomas was disputed after it stated that after his family and friends had received the maximum amount of inheritance - £325,000 - that they could get tax-free.

“Months of Turmoil.”

Despite the BHF stating that there was never a dispute over what could have been left to them, the nephew of Mr Thomas said: “We went for months not knowing what was going on with the will - whether we would get what Barry intended for us.

"The British Heart Foundation were getting a tidy sum, but they wanted more and put us all through stress.

"We had to wait for our solicitors to deal with BHF before they finally backed down.

"My uncle would have reworded the will if he knew what could have happened.”

Despite the claim from the family, the charity said: “We're extremely grateful for the generous donation Mr Thomas left the British Heart Foundation in his will.

“The way Mr Thomas' will was drafted wasn't clear so we sought legal advice to make sure the will was being correctly implemented.

“We wrote to the family's solicitor to let them know we were obtaining this advice following which our solicitors wrote to her once asking for some information about Mr Thomas' instructions when the will was drafted.

“Our solicitors confirmed to her that her reply had fully answered our query, and that we agreed with the way the will was being interpreted and the estate proceeded to finalise without further issue.”

The charity added: “To our knowledge, there has never been a dispute.”

Making a Will

The issue highlights the importance of having a faultless, error-free will. When making a will, it is vital to ensure that the language is correct and that it has been checked by a fully qualified and expert solicitor. Contact our team of inheritance specialists to ensure that your will and any inheritance is correctly in place.

]]> (Mark Wilson) Wills Tue, 16 Jun 2015 09:31:55 +0000
Drafting a Will: Is it entirely up to me what I include in my Will? It’s not often that succession law makes it into the newspapers, but a recent article pointed out a common question that people have when drafting a Will: what can I or can’t I write down in my Will?

In an article in the Express (available here) it was reported that the Charles Spencer, a peer and custodian of the Althorp estate, will be naming his son, Louis, as his heir. The story has caused a degree of controversy among the aristocracy, as Lord Spencer has three older daughters, none of whom will be deemed the beneficiaries of his title or estate in his Will. The Earl is reported to be following the convention of ‘primogeniture’, a tradition among the aristocracy that the firstborn male child will inherit an estate over other siblings.

While the politics of aristocratic succession may not be relevant for many people, the story does highlight a common concern for many people that are considering drafting a Will. That is, whether there are any limitations on what they can or cannot do with their Will? In this blog article, we consider this question.

What goes into a Will?

The important point to note about a Will is that it is designed to reflect your wishes for what you want to be done with your property (or more accurately, your ‘estate’) when you pass away. In other words, you have what is known as ‘testamentary freedom’ to decide however you wish your estate to be distributed among your surviving family members and friends when you pass away. 

Do I have complete testamentary freedom?

A Will is designed to give an account to your surviving family members what you wish to be done with your property – it is not to reflect the wishes of anyone else. Indeed, if a Will is suspected to reflect the wishes of someone other than you, then this will be grounds to challenge its validity. Therefore, even if your decisions are likely to cause upset among family members, provided that they are your wishes alone, they will be honoured. 

However, it would be inaccurate to say that in writing a Will you have complete freedom to write down what you want. The law does outline a few restrictions on this. The general point to note is that in Scotland, the law requires that you make some kind of provision in your Will that will allow your surviving family members to be financially secure. 

Another very important consideration that you should have is that the law does not permit you to actively prevent a member of your close family – your spouse/partner and children - from benefitting under your Will, i.e. writing down that someone is to be given ‘nothing’ from your estate. It will almost always be the case that you will have some difficulties with family members from time-to-time, which may well lead to periods of little or no contact. However, the law does grant your immediate family members a share in your estate when you pass away. In practice, this would normally be accounted for by your naming them a beneficiary in your Will. Where you choose to omit someone from the Will that is entitled to benefit from your estate, matters may become more difficult to address. 

What happens if I omit someone from my Will that is entitled to benefit from my estate?

In choosing to leave a family member out of your Will, you will indirectly force either your spouse, children or both to assert their ‘legal rights’ – this is the name given to the portion of your estate that they are entitled to by virtue of their being your spouse or child.

If you provide for your spouse but omit your children from your Will, then they will be entitled to claim their share of your estate in competition with what you have decided to allocate to your spouse.  This kind of situation can result in a great deal of anxiety and animosity amongst your surviving family. Another point to note is that where the Will is challenged, it may be the case that it will become impossible to realise your wishes, owing to the law being forced to reorganise your affairs so as to give your family what they are legally entitled to. 

It is hoped that in deciding to draft a Will, you will use the freedom that the law gives you to discharge the legal obligations you owe to your family. However, you will be unable to escape these obligations by simply failing to note them in the document itself: your family could simply challenge what you have written, and the courts will ultimately be forced to ensure that they are allotted their legal entitlement from your estate.

The actions that Lord Spencer proposes in naming his son as his heir, while objectionable to some, are technically not illegal as a matter of succession law. Furthermore, it is important to be aware that the rules governing Succession in England are not identical to those in Scotland. If you are considering drafting a Will, you should speak with a solicitor that has experience of advising on succession law and of drafting a Will clearly.

Contact our Solicitors for legal advice

At Wilson and Fish, we are experts in Succession Law and are regularly sought to assist clients in drafting a Will and appointing an Executor. Our specialist solicitors understand that the prospect of planning from a time when you are no longer here can be a very daunting one. Furthermore, we appreciate that the rules in this field can appear difficult to understand. We pride ourselves on offering clear advice that reflects your circumstances. We will handle every aspect of your needs, from discussing how the law will operate in respect of your wishes, to drafting a Will that observes all of the necessary legal requirements. If you have any questions concerning the law on Wills, or are curious as to what is involved in their creation, please contact us.  ]]> (Mark Wilson) Wills Mon, 15 Jun 2015 15:22:35 +0000
Thousands of UK Families Losing Out On Inheritance Tax Relief More than 3000 UK families could miss out on proposed inheritance tax because the family home has already been sold according to analysis from HMRC and NFU Mutual.

This is because thousands of estates will be hit by inheritance tax bills due to the threshold being too low for many.

Under new proposals by the government, married couples will be able to pass a main property worth up to £1 million to their children without paying any inheritance tax.The main residence will qualify for an extra £175,000 of each person’s £325,000 inheritance tax threshold.

"Exisitng Threshold Is Too Low"

However, the changes come too late for those who have already sold their homes to pay for care but mean that families do not need to now to evade inheritance tax or risk on losing out on a property.

Sean McCann, a financial planner at NFU Mutual, said: “These proposals are an acknowledgement from the government that the existing inheritance tax threshold is far too low. However, it would be much fairer to apply an overall increase rather than tinker with the rules around who can benefit and who can’t.

“Under the new proposals, we could soon start to see more elderly people reluctantly house-sitting for the next generation or even upsizing to make the most of this potential tax break. The wider effects on the property market could be significant.

“Financial planning with the help of a professional can help make sure families are making the most of their money and aren’t paying any more tax than they have to.”

Contact Us

Inheritance tax is notoriously complex, but there are many ways to reduce potential bills. Our team of skilled solicitors can give you the advice and representation you need regarding inheritance tax and financial planning. Contact us today using our online contact form.

]]> (Mark Wilson) News Mon, 08 Jun 2015 09:00:10 +0000