Blog Archives

Why apathy isn’t good enough when it comes to Wills

This research chimes with Collyer Bristow’s own findings announced in our Age of Apathy report. Many parents operate under the belief that a Will is not necessary. This may be due to a perception that they do not have substantial assets, or that a Will would only codify what would happen anyway in law in the absence of a Will.There are a number of misconceptions in the public at large about what happens on death if the deceased did not leave a Will. Our Age of Apathy report founds that 23% of respondents presumed their assets would be inherited automatically by their surviving spouse. This reason was second only to the belief amongst respondents that they do not have the time to create one.On death the entitlement of your loved ones is determined by a rigid set of rules known as the ‘intestacy rules’. If you are survived by a spouse and at least one child then the assets of the deceased are divided between the spouse and children according to a predetermined formula. This can result in young children receiving assets outright at a young age. In addition, inheritance tax may be due at 40% over a the first £325,000 as only those assets passing to a spouse benefit from the 100% spouse exemption from inheritance tax. This position is potentially made worse if a couple is in fact not married; in such circumstances the surviving partner is entitled to nothing and the entire estate passes to the child. This has potentially even greater inheritance tax consequences and is rarely the intention of the parent.There is never a bad time to make a Will. Whenever someone experiences a significant life event, for example getting married, buying a property or starting a business,  they should consider what plans they currently have in place should they die unexpectedly. These are prime opportunities to write a Will.

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Which parent died first and why does it matter?

Whilst the Evening Standard is correct that the law that is being relied on in this case is “little-used”, prudent Will-drafters should always take care to consider the impact of the commorientes rule on clients and, where possible, take advantage of the potential tax benefits.The commorientes rule determines the ownership of assets where two (or more) people die in circumstances where it is impossible to determine who died first, for example in a car accident or (as here) in an accident in the home. The rule states that the younger individual is deemed to have survived the elder individual and, consequently, the elder individual’s estate passes to the younger individual. However if it can be determined which individual died first, even if only by a single second, then the commorientes rule will not apply.There are several important consequences arising out of the application of the commorientes rule that practitioners should consider:Firstly, the rule only governs the law of succession and does not address any inheritance tax issues as, for inheritance tax purposes, couples are deemed to have died at the same time. Drafted correctly, a Will can allow the elder spouse’s estate to pass to the younger spouse and then on to the younger spouse’s beneficiaries completely free from inheritance tax. This is at the very least a thin, silver lining on what is otherwise a tragic event.Secondly, a survivorship clause may inadvertently override the commorientes rule, which would have the effect of disapplying the inheritance tax advantage above. The Will should allow for the younger spouse to inherit if they survive for a certain period (for example 30 days), but also if he or she survives under the commorientes rule.Finally, the commorientes rule applies to gifts in Wills and through the automatic provision of jointly-held property to the surviving joint owner. It does not however apply to inheritances under the intestacy rules if, for example, the deceased did not have a Will.This is yet another reason why individuals, and particularly spouses, are strongly encouraged to make Wills.

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Are robots writing your will?

Law firm VWV conducted a poll which found that the majority of people asked are wary about the use of artificial intelligence in the preparation of wills, with almost a third of respondents saying that they would not want any artificial involvement at all.It must be said that, as with many stories, the devil is in the detail. The concept of ‘artificial intelligence’ is one which evokes fantasies of sentient robots when, in all likelihood, the AI being adopted by law firms likely amounts to software which automatically imports information from client identification documents and populates a ready-made template. Hardly Arnold Schwarzenegger.However, the underlying sentiment behind the story is one which should chime with all solicitors and will drafters. Whether or not a law firm uses modern technology as an aid to its business, all lawyers should ensure that the client experience is one of the most important priorities. Clients value a trusted adviser who can listen to their needs, process what they have learned and work with the client to provide a service that is in-line with the their original needs and expectations.Here at Collyer Bristow we offer a wider range of services relating to wills and estate planning: from succession planning for nuclear families, to cross-border HNW and UHNW non-domiciliaries. In 2018 we launched our news offering CB Entrust – a fixed price expert approach to writing one of the most significant documents of clients’ lives. As a firm we push for a holistic understanding of clients’ unique requirements and circumstances. CB Entrust assists clients in understanding the intricacies of their lives and ensuring that they are documented and managed in the manner they envisage. An in-depth consultation with a specialist lawyer as opposed to completing a DIY will form gives clients peace of mind knowing that they have had expert advice on inheritance and taxation planning.

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Why giving money to UKIP might give you a large tax bill

Aaron Banks attempted to use the European Convention on Human Rights to argue that HMRC was wrong to charge £163,000 in inheritance tax on certain donations he made to UKIP. Putting to one side the irony of a major backer of UKIP and Brexit using the ECHR to obtain a favourable tax position, the case brings up an interesting facet of the exemption from inheritance tax for donations to political parties. When an individual makes a gift, that gift will be chargeable to inheritance tax unless it benefits from a relief or exemption, for example the gift may fall within an individual’s annual exemption of £3,000 or their nil rate band, currently £325,000. There are several well-known exemptions, such as for gifts to spouses or to charities, however gifts to political parties may also benefit from a complete exemption for inheritance tax.In order for the donor to benefit, the recipient must pass the statutory test for a “qualifying political party”. This test is that, at the last general election prior to the donation, the party either had (1) two MPs elected to the House of Commons, or (2) one MP elected and the party received at least 150,000 votes nationally. At the time of the donation the party did indeed have two MPs, but these were both elected in by-elections following the 2010 general election. This means that UKIP did not satisfy the test and therefore the donation failed.Putting to one side the argument of whether it is correct that a political party should not qualify despite receiving almost 1,000,000 votes at that election, it is not for the First Tier Tribunal to override statute. It is a matter for Parliament to decide whether to update this law and therefore the Tribunal had no option but to side with HMRC.For what it is worth, based on the election data in 2010 Mr Banks could have benefited from the exemption had he given his donation instead to the SNP, the Green Party, Sinn Fein, the DUP or Plaid Cymru, all of whom satisfied one of the two tests for qualifying political parties despite receiving fewer votes overall than UKIP.

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Why you will no longer need to swear when visiting your solicitor

The Government has announced that, from the end of November, executors will no longer need to formally swear an oath before receiving the grant of probate – instead they will be able to make a ‘digital’ statement of truth. This move by the Government will be a welcome relief for executors nationwide, as the requirement that all executors must have their oath sworn in front of an independent solicitor is one of the more arduous aspects of the probate administration process.Coupled with this is the added benefit of being able to apply for probate online, rather than in paper form. This is all part of the Government’s move to make the probate process more modern and simpler.This is likely to be a welcome change for probate administration firms up and down the country. However the authorities are yet to release any guidance on how the new process will work and from when it will go live. It remains to be seen whether such a dramatic change will be plagued by the same technological problems which occurred with the introduction of the Trust Registration Service in 2017.

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Leave your estate to loved ones rather than up to chance

A key point that the public should take away from the findings in the article at the bottom is that the hidden costs of dying intestate can often far exceed the cost of putting in place a simple Will. If intestate individuals do not have close family, they risk leaving their estate exposed to third party heir hunters and the commission which such companies may take before next-of-kin are informed.Those individuals should ask themselves whether they would prefer that their estates be left to friends or even charity instead, rather than a proportion evaporating in administration costs before their next-of-kin ever sees their inheritance. Even if an individual’s wishes are similar or identical to the intestacy rules, a Will allows a testator to tailor their wishes and to provide their executors with more flexible powers, rather than resorting to the rigid intestacy rules. A Will also allows testators to set out substitute wishes in the face of unforeseen changes in circumstances, for example the unexpected death of a loved one.A simple Will provides an individual with the peace of mind that their affairs will be properly administered after their death, and ensures that the intended recipients receive the appropriate amounts in a timely and efficient fashion, rather than waiting for the council’s administrative process to run its course. All of this is not to disregard the potential tax mitigation which can also be achieved from prudent and careful testamentary and lifetime estate planning.

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Don’t e(stop) til you get enough

This case shows that the equitable doctrine of proprietary estoppel can still play a significant role in deciding court cases, which runs contrary to the general idea of testamentary freedom.The doctrine provides that, where a person has been promised an interest in property and has, in reliance on it, incurred expenses or made sacrifices that he would not otherwise have made, the law provides a remedy. It is a common fact pattern that an individual is promised that they will receive a house or property on the death on the death of the current owner, and that individual then does something in reliance on that promise (such as working for less pay). Courts have a wide range of remedies available to resolve such disputes, which can include transferring the entire property to the claimant individual in certain circumstances.Cases such as these should remind practitioners to take care to ensure that clients’ testamentary documents and letters wishes are up-to-date. Whilst these may not be irrebuttable, a later testamentary document will go a long way towards confirming the client’s true intentions in the face of opposing arguments.

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Lawyer legacy leaves large litigation liability

It (should) be well-trodden practice for solicitors to advise their clients to seek independent legal advice should the client wish to benefit that lawyer under their Will. This ruling demonstrates the need to consider this best practice more widely than perhaps previously thought. The client in question had been advised to take independent legal advice the first time the Will was prepared, however on each subsequent revision (and particularly where the amount of the legacy increased), the solicitor had not done so.The tribunal also found that it was not sufficient for the solicitor in question to believe that the ‘independent’ advice sought was truly independent. The SRA rules were applied in this instance in an objective manner and the two advisers were found to be too closely connected. The standard to be achieved was that of an ordinary person.

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Socialite Tara Palmer-Tomkinson left her fortune to children she never had

In a Will signed some 13 years before her death, socialite Tara Palmer-Tomkinson left her £2.3m fortune to children she never had.Miss Palmer-Tomkinson died childless at the age of 45 in February 2016.It is a case which again highlights the importance of continually keeping your Will under review. 

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Unsent text accepted as dead man’s Will by Australian court

An Australian court has ruled that a text message which an individual typed and stored in the drafts folder on his phone, but did not send, is an official Will.The 55-year-old man had composed a text message addressed to his brother, in which he gave “all that I have” to his brother and nephew.  The message was found in the drafts folder on the man’s phone after he took his own life last year.  Brisbane Supreme Court ruled that the wording of the text indicated that the man intended it to act as his Will.Justice Susan Brown said the “informal nature” of the message did not stop it representing the man’s intentions, especially as it was “created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”.In England & Wales, the formalities for a valid Will are set out in Section 9 of the Wills Act 1837:the Will must be in writing;be signed by the testator, or signed on behalf of the testator in his presence and by his direction; andthe testator’s signature (or acknowledgement) must be made in the presence of two witnesses, present at the same time.The Law Commission is currently conducting a consultation on Wills which is open to the public until 10 November 2017.  The proposals currently being consulted on include, amongst others, the proposal to enable the court to dispense with the formalities for a Will where it is clear what the deceased wanted.It will be interesting to see how the consultation progresses and what the outcome will be.

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