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 own your home solely, or jointly with your partner, and want to discuss any of the issues raised in this article or any other Estate Planning topic with one of our consultants, 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.

Second marriage

Are you in a second marriage?

All names are changed to protect client identity.

One of our consultants met Mr & Mrs Green recently. Both are in their second marriage and both first marriages ended in divorce. Mr Green has two children (Andrew and Belinda) from his first marriage. They are in their late twenties and had “left home” when Mr & Mrs Green met. Mrs Green has two children from her first marriage (Christopher and Donna). They are in their late teens. They both live at home with Mr & Mrs Green. Mr Green has been very much part of their life as they have grown up. Mr & Mrs Green have a child (Evelyn) together who is now eight years old.

Mr & Mrs Green jointly own a house worth £500,000 with a mortgage that is covered by life insurance. They have almost no savings.

Talking about the distribution of their estate has been very difficult for Mr & Mrs Green because they can never agree on how much each child should receive.

Our consultant set the scene for Mr & Mrs Green by explaining what would happen if they did not make Wills. If Mr Green died first then when Mrs Green died the entire estate would be split between Christopher, Donna and Evelyn. Andrew and Belinda would receive nothing. If Mrs Green died first then when Mr Green died the entire estate would be split between Andrew, Belinda and Evelyn. Christopher and Donna would receive nothing. Mr & Mrs Green both agreed that this was unacceptable and realised that whatever they agreed to for their Wills was better than passing away without Wills.

Quite quickly, Mr & Mrs Green agreed that Evelyn should receive 50%, Christopher and Donna should receive 30% between them and Andrew and Belinda should receive 20% between them. They both realised that this was not a perfect solution but it was much better than what would happen if they did not have Wills.

We have created a special Will for homeowners. When the first of Mr & Mrs Green passes away, “their” half of the family home goes into a trust. The trustees are the surviving spouse and Andrew and Christopher. The trust is flexible so the surviving spouse can move home if needed. However, that 50% of the house is held in trust so that when the surviving spouse passes away, that half can only go to the children as agreed when both Mr & Mrs Green were alive. In other words, it means the surviving spouse cannot change their Will, making that 50% of the family home pass to “their” children.

This solution is extremely popular with our clients who are in second marriages.

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.

Law court

The importance of updating your Will

The following case highlights just how important it is to keep a Will up to date – particularly if your personal or financial circumstances change.

In this case, the Will was challenged. A claim was brought on behalf of infant children by their litigation friend and mother under Section 2 of the Inheritance Act (Provision for Family and Dependants) Act 1975 (“the Act”).

Family background

Malkiat Ubbi (“Malkiat”) was a pharmacist by trade. In 1987 he met Susan and they married in September 2000. The couple had one child, Jarnail born in June 1994. Susan already had a daughter, Jesse, from a previous relationship.

In 2007 Malkiat met Bianca, an Italian pharmacist who had moved to the United Kingdom and began to work in the Ubbis’ pharmacy. The couple had an affair. After a brief separation in late 2008 when Bianca returned to Italy, the couple resurrected their affair and went on to have two children, Mattia born in March 2012 and Gabriele in July 2014.

On 8 February 2015 Malkiat died unexpectedly. By his last Will and testament (dated 6 August 2010) he left all his real and personal property to Susan. He made no provision for any of the children, including his two children with Bianca, in the event that Susan should not survive him for a period of 28 days he left his estate on trust to Jarnail.

The Court proceedings

On the 19th of April 2016, Bianca challenged the Will and issued a claim under the Act, seeking an order for reasonable financial provision for her two children. In order to bring a successful claim under the Act the children had to prove (a) that they fell within the category of applicants under Section 1 of the Act, (b) that the disposition under Malkiat’s estate did not make reasonable financial provision for them and (c) having regard to the matters set out in section 3(1) and 3(2) of the Act that an order should be made in their favour.

As children of the deceased, the children fell into the category of persons entitled to bring a claim under the Act. As such, they were entitled to seek such financial provision as it would be reasonable in all the circumstances of the case for them to receive for his maintenance. The question for the court then to decide was whether it should exercise its powers and make an order and if so, the level at which such an order should be made.

When considering the children’s challenge of the Will the court was required to have regard to various matters including:

  • The financial resources and needs which the applicant and/or beneficiary of the deceased’s estate have or are likely to have in the foreseeable future;
  • Any obligations and responsibilities which the deceased had towards any applicant or any beneficiary of the estate for an order under Section 2;
  • The size and nature of the deceased’s net estate;
  • Any physical or mental disability of any applicant or beneficiary of the estate;
  • Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant; and
  • As a claim brought by infant children, have regard to the manner in which the applicant was being or in which he might be expected to be educated or trained.

In addition, the court shall take into account the facts as known at the date of the hearing and, in considering the financial resources of any person, his earning capacity and financial obligations and responsibilities.

Lastly, the court also accepted that it must have regard to two other factors, namely the importance of testamentary freedom and discretion to award “reasonable” financial provision for “maintenance”.

Testamentary freedom

In August 2010, when Malkiat executed his Will, he was living with Susan whilst continuing to conduct an affair with Bianca. Mattia was not born until 2012 and Gabriele in 2014. The court found that at the time of execution of the Will, Mattia and Gabriele had not been a consideration and concluded that the significance of the provisions of the Will had limited bearing on the case. The court did not consider that Malkiat had deliberately chosen to disregard the children’s needs.

Reasonable financial provision for maintenance

When considering reasonable financial provision and maintenance for the children, the court took into account the standard of living enjoyed by both Susan and her family and Bianca and the children whilst Malkiat was alive – which was of a high standard, considering the size of the estate (said to be some £4,500,000 gross) and resources available to Susan.

The court then considered the children’s reasonable financial requirements for maintenance. In this regard, the court found that these fell into four categories – housing costs, school fees, professional childcare fees and other outgoings.

So far as housing costs were concerned, the court found the children required a four bedroomed property so that each of them could have their own bedrooms and Bianca could employ a live-in professional nanny to assist with childcare until such time as the children were both at secondary school when a three bedroomed property would then suffice. Based on documentary evidence provided as regards monthly rental costs for each of these two scenarios, the court calculated a lump sum up until Gabriele was nearly 20 years of age.

On the question of school fees, the court found there was no expectation that the children would be privately educated and refused to make any award for the financial provision of the same. The court considered that any expectation in this regard was a sole desire on the part of Bianca with there being no evidence that this was a wish held by Malkiat as well.

As to the child care arrangements, the court agreed that Bianca, by necessity following Malkiat’s death, now worked very long hours and it was reasonable for her, therefore, to employ outside private assistance with childcare. Again, the court calculated a lump sum figure for this based on evidence provided by Bianca as regards the cost thereof. This sum reduced following the children’s attendance at secondary school.

Lastly, the court awarded an additional sum by way of capitalised lump sum payment for maintenance to cover other outgoings such as utilities, council tax and university fees.

When calculating the total lump sum, the court then applied a reduction to the same, being a sum representing a 65% contribution based on Bianca’s own income towards the costs of the children’s maintenance. As a result, the court ordered that the children be awarded a lump sum payment of £386,290.60.

Conclusion

The provisions of the Act are such that it is specifically designed to ensure that any applicant can challenge a Will if the deceased’s Will does not make adequate provision for them, assuming that they fall into one of the classes of categories of applicants entitled to bring such a claim.

In this case, had Malkiat updated his Will to make provision for his children with Bianca (and indeed Jarnail) it is less likely that the Will would have been challenged; saving all parties from having to endure the considerable emotional distress of the proceedings, not to mention substantial sums which were spent on legal fees.

This case highlights the need to ensure that a Will is treated as a living document and updated whenever there is a significant change in circumstances, whether that be financial or personal.

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.

husband wife will

I don’t need a Will because everything will go to my husband/wife. True or False?

Jack and Jill are in their late sixties and are happily married with two children: Bill and Ben. Bill is happily married but the business he owns is under some financial pressure and he is rather worried because the bank are talking about calling in the loan of £150,000. Ben is married but his marriage to Rose is a bit rocky. Jack and Jill have intended on keeping their finances separate and they own their two properties as “tenants in common”. The “buy to let” provides roughly half of the family’s annual income. Jack and Jill have considered writing a Will but under the (incorrect) impression that everything would “go to each other”, have never “got around to it”.

The family home is worth £800,000 and the “buy to let” is worth £600,000. Jack has ISAs to the value of £200,000 as does Jill.

Jack is taken ill and dies. The family assumes that all Jack’s assets will go to Jill. Rose starts to take great interest in the estate finances (soon you will see why) and brings the “Laws of Intestacy” to the attention of the family.

Jack’s assets are half of the family home (£400,000) and half of the “buy to let” (£300,000) plus his ISAs at £200,000. So his estate is worth £900,000. Rose starts taking control and advises the family that Jill is entitled to the first £250,000 and then half of the balance with the other half being shared between Bill and Ben.

So Jill receives £250,000 and half of £650,000 which is a total of £575,000. Bill receives £162,500 and Ben receives £162,500. There is not enough cash to pay Bill and Ben so the “buy to let” has to be sold. This means that about half of the family’s annual income is lost. The bank becomes aware that Bill has just inherited £162,500 and calls in their loan in the sum of £150,000. Now that Ben has just received £162,500 Rose thinks this is a good time to divorce Ben. As part of the divorce settlement Rose receives 50% of the £162,500.

Because assets went directly from Jack to Bill and Ben his entire Inheritance Tax allowance of £325,000 has been used up and is not available to be transferred to Jill.

All of the above could have been avoided if Jack had contacted Casey & Associates and made a Will.

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.

currency

Businessman dies with no access to his cryptocurrency wealth

On the 9th of December 2018, Gerald Cotten died unexpectedly at the age of 30. Gerald was the Chief Executive Officer of QuadrigaCX; a Canadian cryptocurrency exchange platform which allowed the trading of Bitcoin, Litecoin and Ethereum. According to court documents, Gerald Cotten had sole access to the digital wallets containing more than 180million Canadian dollars (£105million) belonging to the company’s 115,000 customers. This has resulted in QuadrigaCX being unable to pay their subscribers.

It has been reported that the company’s operation was run from one main computer, owned by Gerald Cotton, and nobody else was aware of the computer password or recovery key. Gerald Cotton’s widow, Jennifer Roberston, claims that she did not have any involvement in the business whilst her husband was alive.

On February 5th 2019, the Supreme Court of Nova Scotia issued the Order and appointed accountancy firm Ernst & Young Inc. to oversee the search for the missing funds. QuadrigaCX said: “The Court has appointed a monitor, Ernst & Young Inc., an independent third party to oversee these proceedings as we make every effort to address our customer obligations. Filing for creditor protection allows us to work diligently through the process, and to try to ensure the viability of our company.

This case highlights the extreme consequences of not leaving suitable arrangements for the recovery of cryptocurrency. Writing a Will and keeping it updated can ensure that your estate, including any cryptocurrency, are distributed as per your wishes.

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. Don’t delay ~ Act today!