Hospital patient life support

The importance of a Lasting Power of Attorney ~ Health & Welfare

The importance and peace of mind a Power of Attorney (LPA) can bring to a person and their loved ones has been recently showcased in the national spotlight. 

Annie Visser, has spoken publicly about the legal document which enabled her husband to “die with dignity”.

Bradley Visser, 38, suffered a severe traumatic brain injury when he crashed his electric skateboard at their Oxfordshire home in July 2019.

He had appointed his wife, his Power of Attorney ~ Health & Welfare (LPAH&W), and in the legal document recorded that if such an event happened, he didn’t want to live with brain damage.

He also set out in the document that Mrs Visser shouldn’t keep him alive if certain “life perimeters” were not met.

Annie Visser said:

“If he couldn’t be a daddy, if he couldn’t go to a rugby match, if he couldn’t provide for his family by working, and if he couldn’t be physically active, he didn’t want to be here.”

The LPAH&W meant Mrs Visser could present the hospital with a legal document stipulating Mr Visser’s wishes, and she, not the hospital, had the power to make life decisions for her husband.

This resulted in Mr Visser’s wishes being carried out, and his life support machine being switched off. He passed away two days later.

Following on from her experience, Mrs Visser is spreading the word of the importance of LPAs. She said: 

“It is a document with far more importance than a Will, yet no-one knows of it. That is what I am trying to change. I genuinely think if I didn’t have this piece of paper, I wouldn’t be able to get out of bed in the morning. The guilt of having to make a decision with no background knowledge on what that person genuinely wants is actually worse than the end result. I have been able to be as strong as I have been for myself and for the children purely because every step of the way I feel like I have Brad stood next to me.”

You can create your own LPAs (just like you can create your own Wills) but please consider using the services of a professional for these important documents. One of our consultants met a family this week where the wife had created her own LPAs. She has two children and two stepchildren. She wanted her children to act and her stepchildren to only act if her two children could not act. Unwittingly, she has created the document so that her two stepchildren will act with her children if her husband dies before her and she definitely does not want this. Furthermore, we include extra phrases in our LPAs such as authority regarding financial advisors and providing copies of the Will if needed.

If you would like to meet one of our Consultants and discuss any of the issues raised in this article or any other Estate Planning topic, please telephone 01732 868190 or click here.

Homeowner judge

Why is it important for homeowners especially to instruct a professional practitioner to create a Will?

We are often asked why it is recommended to use a professional practitioner to create a Will. Here are some thoughts from the judge in a 2009 Court of Appeal case in Singapore.

“A Will is one of the most important legal documents which an individual can execute. Often, it embraces assets which an individual may have taken a lifetime of effort to amass. It may also deal with properties that have not only immense monetary value, but also (and, perhaps, more importantly) incalculable sentimental or emotional attachment for both the testator and the family members or beneficiaries concerned. Almost invariably, a decision by a testator not to distribute his assets equitably among all the family members whom one would usually expect to be provided for under a Will excites dissatisfaction, and is not infrequently a prelude to bitter legal squabbles. There ought to be no room for even the slightest doubt (or the slightest possibility of a mistake) on the part of a practitioner in both understanding the testator’s intention and expressing that intention in the Will to be drawn up.

“The preparation of a Will involves serious professional responsibilities, which practitioners must uncompromisingly observe and discharge. Regrettably, it seems to us that, all too often nowadays there are some practitioners who appear to consider the preparation of a Will to be no more than a routine exercise in form filling. This is wrong. Before preparing a Will, the practitioner concerned ought to have a thorough discussion with the testator on all the possible legal issues and potential complications that might arise in the implementation of the terms of the Will. The practitioner ought to painstakingly and accurately document his discussions with and his instructions from the testator. He should also confirm with the testator, prior to the execution of the Will, that the contents of the Will as drafted accurately express the latter’s intention. Half measures or the cutting of corners in the discharge of these serious professional responsibilities will not do.”

If you would like to meet one of our Consultants and discuss any of the issues raised in this article or any other Estate Planning topic, please telephone 01732 868190 or click here.

Digital assets

Digital assets

The internet can be a wonderful place for people to create and build new things; from publishing your own e-books to setting up your own business, creating new digital assets that can be bought, sold and owned like more traditional assets. A recent case, however, has cast a light on the ways in which the law is still to catch up with lives led increasingly online and the difficulties that this can cause when you die.

In July 2015, Matthew Thompson died leaving behind his wife, Rachel, and their young daughter, Matilda. Wanting their daughter to have something to remember her father by, Mrs Thompson contacted Apple to request that they release the more than 5,000 photos and videos of their family that her husband had taken over the years and which were stored on the tech giant’s servers. The photos and videos were of great sentimental value to Mrs Thompson, particularly given that some were of her own father, who died around 18 months after her husband. Apple, however, refused, saying that as Mr Thompson had not specified who he wanted to have access to his account after his death they would require a court order before they would release any of the photos or videos.

Why would Apple turn down such an apparently simple request? The answer lies in the way that digital assets are treated under the law.

Digital assets, such as photographs and videos, are treated differently to physical objects when it comes to leaving them to someone else when you die. Unlike a photograph album, which you can in a very literal sense pass on to someone else, the physical presence of a digital asset, such as the data file of a digital photograph stored on a device such as a smartphone or PC, is not regarded as an asset that you can leave to someone in your Will.

What you can leave to someone else, however, are the digital property rights associated with that digital asset, such as the copyright. Where they are stored on a physical device, such as a laptop, this distinction may seem unimportant as if you have the laptop you will have possession of the data files for those digital assets. However, where the data files are stored remotely on servers operated by companies such as Google or Facebook, this can lead to difficulties.

Access to services like Facebook is usually governed by the terms of a user agreement between the account holder and the company. The issue with this from the point of view of dealing with a deceased person’s estate is that the user agreement is between the user and the company, and so when the user dies, the right to access the account may die with them.

To make matters even more complicated, different companies have chosen to deal with the issue of access in different ways. The terms of service for Apple’s iCloud, for example, specifically state that accounts are non-transferrable and that the content of an account will be terminated on death. Google and Facebook allow users to nominate someone to have access to their accounts after their death, while Instagram does not grant its users the ability to do this, but it does allow family members to request that an account is ‘memorialised’, meaning that the account cannot be logged into or altered, but the content will remain visible.

All of this can lead to a rather bizarre situation where a deceased’s next of kin can have the right to the digital property rights property in a digital asset stored in the cloud, but no right to access the data files themselves.

Fortunately for Mrs Thompson, a central London court ordered Apple to release the photos and videos taken by her late husband, albeit this came some three years after his death and at great financial and personal cost.

To put grieving families through such a lengthy and arduous process in order to get access to their family photographs seems ridiculous and hopefully the law will eventually be reformed to allow digital assets to be dealt with more simply after death. For the time being, however, there are steps that you can take to help secure your digital assets for the next generation:

  1. Create a schedule of where your digital assets are stored including logins if files are stored in the cloud, as this will help your executors track down all of your assets.
  2. Nominate someone to deal with your account after you die if you have digital files stored remotely with a company that allows you to do so.
  3. Include a clause in your Will that specifically deals with your digital property rights in much the same way as you might include a clause that deals with who is to inherit your personal possessions or your property.
  4. Nominate a digital executor to deal with your digital assets if you have particularly valuable or significant digital assets that you do not think that the executors of the rest of your estate would be able to deal with. For example, winding up an online-only business might require people with specialised knowledge to deal with effectively.

If you would like to meet one of our Consultants and discuss any of the issues raised in this article or any other Estate Planning topic, please telephone 01732 868190 or click here.

Prince’s Estate diminishes because no Will is found

The third anniversary of Prince’s death has passed and there are few signs of the administration of his estate being concluded as reported in-fighting between the administrator and the beneficiaries continues.

On 21 April 2016, the musical legend Prince passed away at the age of just 57, following an opioid overdose. The music world was left grieving and in a state of shock. Three years on it seems that the singer is unable to rest in peace whilst the battle over his estate continues.

Shortly after his death, it was discovered that Prince had not left a Will to deal with the administration of his estate – thought to be valued in the region of $100 million to $300 million.

What has followed has proved to be a complex and costly affair, with the courts of Minnesota (Prince’s home state) already having received over 2,700 court petitions on various estate administration matters.

One consequence of not having a Will (known as being intestate) is that Prince had not appointed anyone to administer his estate. The courts were tasked with appointing administrators. In the first instance, a financial institution was appointed. It was subsequently replaced by another financial institution. Already one can see that legal costs were beginning to rack up.

Another consequence of being intestate was that the courts were left to determine who should inherit Prince’s estate. Whilst it is understood that Prince left no surviving spouse or offspring, at least 45 people initially claimed to be legitimate heirs (including one would-be heir claiming to be a secret wife). It was eventually decided that Prince’s six siblings should inherit. More legal costs incurred.

Despite the courts of Minnesota resolving these matters, issues around Prince’s estate rumble on. According to reports, the appointment of the second administrator was an unpopular one and the relationship between the court appointed administrator and the beneficiaries has become increasingly strained.

It is well broadcasted that there appears to be no love lost between the beneficiaries and the administrator, with claims from the beneficiaries that they have received nothing more than a small legacy to date and that the administrator is recklessly mismanaging Prince’s estate. The administrator is accused of incurring significant, and in the eyes of the beneficiaries, unnecessary costs and investing in projects that the beneficiaries consider Prince would have been completely against. The relationship has deteriorated to such an extent that the beneficiaries even went so far as filing for the second administrator to be removed – a petition that proved to be unsuccessful. And as with every petition, more legal costs rack up.

The administration continues, and it remains to be seen when it will be concluded and what the beneficiaries will receive, if anything. One of Prince’s siblings is understood to have said that she soon expects the estate to be bankrupt unless action is taken against the administrator.

The tale of Prince’s estate is a cautionary one. Although estate disputes can arise even where someone dies with a Will, it is clear that many significant and costly issues could have been avoided if Prince had not died intestate. He would have been able to decide who should be entrusted with administering his estate, who should benefit from it, and set out his wishes on how his estate should be managed. In this way, Prince could have had greater comfort in knowing that his estate and his legacy would be handled appropriately, and not frittered away or wasted. Instead, if reports are true, it seems that millions of dollars have been spent on expenses and legal fees much of which could have been avoided.

There is no substitute for creating a professional drafted Will.

If you would like to meet one of our Consultants and discuss any of the issues raised in this article or any other Estate Planning topic, please telephone 01732 868190 or click here.

DIY Wills

We are professional Will writers. However, we accept that if your requirements are uncomplicated you may decide to create a “DIY” Will. But please be careful. Here is an example of a “DIY” Will that could, indeed would, have gone horribly wrong. (We have changed the names of those involved).

Mr Smith had created a “DIY” Will as follows:

~

I appoint my son Fred Smith and my daughter in law Jane Smith to be my executors.

I give my estate to Fred and Jane and their children in equal shares.

~

On the face of it this seems uncomplicated. It seems that Mr Smith wants Fred and Jane to receive 50% of his estate and the two children of Fred and Jane’s marriage being Charlotte and Dawn to receive 50%.

However, Fred has one child being Andrew from a previous relationship and Jane has one child being Belinda from a previous marriage.

Who gets what?

Does Fred and Jane receive 50% and Charlotte and Dawn receive 50%.

Does Fred receive one third and Jane receive one third and their children being Charlotte and Dawn receive one third between them?

Does Fred receive 25%, Jane receive 25%, Charlotte receive 25% and Dawn receive 25%?

Does Fred receive one sixth, Jane receive one sixth, Andrew receive one sixth, Belinda receive one sixth, Charlotte receive one sixth and Dawn receive one sixth?

Do Fred and Jane share 50% and do the four children share 50%?

In this case Mr Smith was able to tell us what he intended, and he agreed for us to create a professionally drafted Will. During the meeting our Consultant found out that Dawn was a vulnerable person receiving state benefits. We, therefore, included a trust in the Will so that Dawn could receive funds from the trust without affecting her state benefits. The state benefits would have been lost if Dawn’s share had be distributed directly to her.

But if Mr Smith had died before we had become involved who would have received what? And would anyone have actually known what Mr Smith wanted? There is a cost to creating a professionally drafted Will. However, the cost will almost certainly be less than the cost involved in resolving an ambiguous “DIY” Will.

If you would like to meet one of our Consultants and discuss any of the issues raised in this article or any other Estate Planning topic, please telephone 01732 868190 or click here.

Aretha microphone

Hand writing expert enters Aretha Franklin Will saga

Following the discovery of a number of hand-written Wills found stuffed into the cushion covers of a sofa in one of Aretha Franklin’s luxurious mansions, a Michigan based judge has allowed a hand-writing expert to examine the alleged Wills.

This story is rumbling on, epitomising the disharmony that can be created when a professional Will is not written during the testator’s lifetime.

This case started off completely amicably with Franklin’s four sons being more than happy at having a quarter of the estate worth millions of dollars.

The four siblings also agreed that their cousin, Sabrina Owens, should be made executor because she was university educated and had the necessary skills having worked as a university administrator for many years.

Unfortunately, the speed bump arrived when an alleged Will was actually found.

Following the recent discovery of handwritten Wills being found in the famous soul and gospel singer’s suburban home in Detroit, the family has been arguing with each other over the validity and requests of Wills allegedly handwritten by Franklin before she passed away.

One of the Wills named her youngest son, Kecalf Franklin as the executor of her estate. However, other family members contest the Will and claim that Kecalf isn’t fit to handle such an important and valuable estate.

Consequently, Kecalf has since filed two court petitions seeking to be made an executor of his mother’s estate, alongside Franklin’s niece, Sabrina Owens as co-representative, who was appointed to the role last year – but with the intention to replace her in due course.

The Queen of Soul’s youngest son claims that Owens has “mismanaged the estate” and has “failed to perform a duty pertaining to office.”

According to documents, Kecalf confirms that Owens has not shared an inventory of his mother’s estate until four months after she had passed away. According to Michigan State Law, Owens should have prepared an inventory of Franklin’s property within 91 days following her appointment as a personal estate representative.

The document also alleges that Owens had not communicated details of the investigation into the appraised value of Franklin’s music catalogue or negotiations for television series and biography based on Franklin’s life.

During a recent hearing, Oakland County Probate Judge, Jennifer Callaghan, placed administration of the estate under court supervision.

Although this is all taking place in America the moral of the story is that using a professional Will writer can save time, cost and disharmony after the Testator has passed away.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

DNA testing

Daughter ordered to take DNA test to prove she has an interest in her late father’s estate

Colin Birtles died without a Will in 2013. He was survived by his two daughters, Lorraine Freeman and Janice Nield-Moir. Unbeknown to her elder sister, Mrs Freeman successfully applied for letters of administration to enable her to manage and distribute his estate, amounting to his terraced house in Oldham and a small amount of cash. According to the rules of intestacy, Mr Birtles’ estate should be divided equally between the two sisters.

When Mrs Nield-Moir learned that Mrs Freeman had obtained a grant of administration, she issued a claim for revocation on the grounds that she wished to be appointed as administrator for the estate. At the same time, she sought a declaration that Mrs Freeman is not entitled to any interest in the estate, alleging that she is not, in fact, Mr Birtles’ biological daughter. Mrs Nield-Moir has collected a number of witness statements from third parties to the effect that Mr Birtles said as much to several persons during his lifetime.

Mrs Nield-Moir applied to the High Court for a direction that Mrs Freeman submit to a DNA test, which would provide scientific evidence as to her parentage before any distribution from the estate could be made in her favour. Mrs Nield-Moir offered to also be tested, to show whether they were related as full or half-sisters.

Mrs Freeman refused to consent to the DNA test. She stated that not only was her mother married to Colin Birtles at the time of her birth, but her birth certificate names him as the father, creating a common law presumption of their relationship. Moreover, after Mr Birtles and the girls’ mother were divorced, Mr Birtles paid maintenance for Mrs Freeman until she was 16 years old, under a court order to that effect. Mrs Freeman dismisses the allegations of her irregular parentage as “nothing but gossip”.

In response to Mrs Neil Moir’s application, Matthews HHJ concluded that there were three questions to be decided:

  1. Whether the test would be sufficiently accurate;
  2. Whether the court had jurisdiction to make the order;
  3. Whether in the circumstances the court ought to make the order.

Matthew HHJ quickly decided that DNA testing would produce a definitive answer as to both the applicant and the respondent’s parentage. He also determined that, following the Court of Appeal’s recent ruling in Anderson v Spencer (2018 EWCA Civ 100), that the court has an inherent jurisdiction to order DNA testing, even though it currently has no statutory jurisdiction to do so. Matthew HHJ then held that the issue to be determined was so critical to Mrs Nield-Moir’s case that the court ought to direct that the test should go ahead.

As things currently stand Mrs Freeman cannot be compelled to provide a saliva sample for the DNA test. But Matthew HHJ made it clear that the court will draw an adverse inference against her case if she continues to refuse.

It therefore seems that, in this instance, if Mrs Freeman wishes to secure her inheritance without difficulty she will have to submit to a DNA test to prove that Mr Birtles was her biological father. Should it transpire that Mr Birtles was not, she will not be entitled to a share of his estate under the laws of intestacy, and she will have to look, for example, to the Inheritance (Provision for Family and Dependants) Act 1975 for discretionary relief.

Who knows how this case will play out but it does seek to demonstrate the interplay between scientific developments and the conduct of litigation in the modern world, and the lengths parties will go to, to pursue claims over estates.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

If your circumstances change, please contact us

If your circumstances change, please contact us so that we can check if your current Estate Plan is still best for you.

We have changed the family name to protect their identity, but this is what has happened to one of our valued clients.

Mr & Mrs Green were born in the 1940s. Mr Green worked for British Rail / Network Rail and Mrs Green was a teacher. In the 1970s they had two children. They purchased their council house in the 1980s and have spent their life helping their children in every possible way including gifting them funds when the children needed help. They have built up savings of £15,000 and their house is now worth £380,000. They have always wanted to leave as much as possible to their children when they pass away.

Over the years that Mr & Mrs Green have been clients, we have suggested on a number of occasions that they create Wills with a Life Interest in Property Trust and Powers of Attorney. Mr & Mrs Green have always enjoyed good health and felt that the cost of our suggestion was not justified. They were happy with their “simple” Wills. We last met Mr & Mrs Green in the autumn of 2016 but since then their circumstances have changed dramatically. Each Christmas Mrs Green used to note down the birthdays of the family in the diary of the year about to start. It was over Christmas 2016 that Mrs Green started to fill out her 2017 diary. She had always had a superb memory and her husband thought it strange that she was having to refer to her 2016 diary to pick out the family birthday dates to put them in her 2017 diary. When Mr Green remarked on this in a jovial way Mrs Green, for the first time in their almost fifty years together, swore at her husband. During 2017 Mrs Green’s aggressive dementia took over the lives of the family and sadly by the end of 2017 Mrs Green was in a care home. Because Mr Green was living in the family home and the savings were below the threshold, the Local Authority funded the care which was of a very high standard. By the end of 2017 Mrs Green had almost completely lost mental capacity.

Mr Green visited his wife every day in the care home and read to her from the books of some of her favourite authors. The whole experience was so unfamiliar to Mr Green and the children that, unfortunately, none of them thought to contact us for advice concerning the family Estate Plan.

The care home were very surprised when on 06 June 2019 Mr Green did not visit his wife. They tried to contact him without success and when they made contact with the family it became apparent that Mr Green had passed away at the age of 75.

Mr Green’s simple Will left all his assets to his wife. Now that no one lives at the family home the “exemption” status has been lifted and so the family home is now included in the assessment for care fees for Mrs Green. Mr & Mrs Green never created Powers of Attorney so the children must now apply to the court so that one of them can act as a deputy and handle the affairs of Mrs Green. This is a lengthy and costly process.

We have created thousands of Wills with a Life Interest in Property Trust which will protect half of the family home between first death and second death. If only Mr & Mrs Green had taken our advice £190,000 of the family home would now be safely in a trust ready to pass to the children when Mrs Green passes away.

If your circumstances change, please contact us so that your family is not left in the position that Mr & Mrs Green’s children now find themselves in.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

Prince's estate

Prince’s estate: the long legal battle

The iconic musician, Prince, died at his home in April 2016 without having made a Will. The singer was twice divorced and had no children or surviving parents. It took 12 months to determine his legal heirs. These being his sister and five half-siblings, as declared by a District Judge in Minnesota.

His assets included properties and the rights to his music. Court filings estimate the estate to be worth approximately $200m (£153m), however half of that value is expected to be absorbed by taxes.

Following his death, more than 45 people filed claims to the estate. In July 2016, a judge rejected claims by 29 people who argued that they were related to the musician and ordered genetic tests to be carried out on others. Similar tests had already been carried out to rule out the claim of a man in jail in Colorado who said he was Prince’s son.

It was then ruled that Prince’s siblings would inherit his estate, however, the judge also stated that the people who were denied the status of heirs must have time to appeal against the ruling. This meant Prince’s sister and half-siblings had another year to wait in order to receive their share of the millions.

Even though not all estates will reach into the high millions as in Prince’s case, it is still hugely important that people understand the benefits of being prepared, regardless of age or welfare. It is also important to think about how you want your estate to be distributed should the worse happen as it could be the difference between it being shared amongst your loved ones in line with your wishes, or a potentially divisive and unpleasant family dispute.

It is so important to make a Will or if you already have a Will to check that it is “up to date”. Casey & Associates offers a “free” home visit Will checking service for home owning couples who live within the areas we cover.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

Estate money

Estate decimated by legal fees

Did you read the report in The Times regarding a couple who were faced with an exorbitant legal bill of £115,000 which was ‘removed’ from a modest £300,000 estate. The deceased, the father of Paul Cutler, 47, had appointed a solicitor as the executor of his estate in his Will. Mr Cutler was alarmed to discover that the costs for administering his late father’s estate were spiralling out of control. When Mr Cutler complained, he was informed that only the ‘client’ of the solicitors i.e. the executor, in this case, the solicitor themselves, could complain, despite the obvious conflict of interest.

Acting as an executor of a Will has been referred to as ‘the role you didn’t want’ and can be a huge responsibility at an especially emotional time. Naturally, we want our loved ones to have as little to do as possible and we want our affairs dealt with efficiently. Appointing a professional can help to remove this burden from those left behind. Where there are complex family dynamics or perhaps a lack of family ties altogether, it is an especially sensible decision.

Problems can arise when a) a secure fixed fee is not obtained in advance of work starting and b) when the client is unable to complain effectively at the service being provided. Many people assume that probate and Estate Administration work should be carried out by a Solicitor who will charge by the hour. There are other options. Our advice, usually, is to appoint family as executors and ask the family to contact us, Casey & Associates, at the time of need. Our Consultant (usually the same person that has been advising the deceased for many years prior to their passing) will meet with the family executors and give “free of charge” initial advice. If the estate is uncomplicated then often the family executors can carry out the Grant of Probate and Estate Administration work themselves. We work with three affiliates who are regulated to process Grant of Probate and Estate Administration work. Our Consultant can give the family executors a fixed fee quotation to carry out the necessary work and then the family executors can instruct the work to be done by a regulated professional if they wish.

The regulated professional affiliates we work with have administered tens of thousands of estates on a fixed-fee basis.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.