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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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