A question of capacity

Why is a will often referred to as a last will and testament?

This isn’t a trick question. Really.

It’s called a will because it sets out your will – your wishes. And it’s called a testament because it is the formal evidence of those wishes. And why are we bothering with this?

Well, because we’ve been thinking about what ‘will’ actually implies, and what it doesn’t imply.

For many – perhaps most – of us, it implies that the person making their will did so freely, understanding what they were doing, and that it represents what they want to happen.

But that’s as far as it goes. What it doesn’t mean is that the testator (forgive the jargon) had a clean bill of mental health. Just that they had the ‘testamentary capacity’ to make their will. Which is a different thing altogether.

Let’s take a real-life example. It’s from a case that reached the High Court very recently, and it may help to clarify the point… (more…)

Challenging a will: an interesting state of affairs

We never forget our mission: simplify, simplify and simplify again.

But from time to time, we find ourselves up against the undeniable fact that the law is full of technicalities which do their best to defy simplification. And what follows is a case that made it all the way to the Court of Appeal, which proves our point rather nicely.

Just as a foretaste, one of the issues in the case is two not-very-different interpretations of the word ‘interest’. Neither of them has anything to do with what you pay on a loan.

So, here we go. Are you sitting comfortably?

Background – the easy bit

A husband and wife were divorced. Part of the financial settlement was that if the wife were to inherit more than £100,000 when her mother died, then the husband would be entitled to half of the balance. The mother’s estate was, at the time of her death, in the region of £250,000.

Nice and clear so far. If the mother had made no will to the contrary, the (now ex-) husband would receive £75,000 – i.e. half of what was left after £100,000 was deducted from the total estate.

But there was a valid will to the contrary. Or maybe there wasn’t. And that is where the problems arose. Because this will left exactly £100,000 to the daughter, and the remainder to the daughter’s children. So the ex-husband would receive nothing.

For one reason or another (we decline to suggest what reason that might be), he sought to challenge the validity of the will. We’re not, as you know, big fans of anyone dying without leaving a valid will. But in this case, it was definitely to the husband’s advantage for there not to be one. For once we’re not as interested in whether it was in fact invalid as we are in whether he was allowed to challenge the will at all.

Still with us? We hope so – because it gets more involved from this point on.

Taking an interest

In order to challenge a will, and force the executors to prove its validity, you have to show that you have a right to do so. Fair enough, we say. Not just any Thomas, Richard or Henry should be able to contest a will. And the law states that indeed they can’t – unless they have an ‘interest’ in it.

Now, the wife (or possibly her legal team…) argued that the husband didn’t have an interest in the will, because he didn’t stand to inherit anything under it. The husband, on the other hand, argued that of course he had an interest, because of what was due to him if the wife received more than £100,000.

So, to follow the logical steps of his position, if the will was not valid, then the wife would receive £250,000, of which £75,000 would end up in his hands.

This is where the difference between ‘interest’ and ‘interest’ comes in. Try a little bit of the judgment from the lower court:

“The court is concerned with identifying an interest in the estate and not whether someone is ‘interested’ in the estate. Just as a creditor of an estate, while interested in the estate, has no interest in the estate, so in my judgment a creditor of a beneficiary of the estate has no interest in the estate, though he is possibly interested in the estate.”

Oh crumbs. This is the sort of thing that lawyers lap up, and indeed we do find it quite, er, fascinating. From a theoretical point of view. But it’s something of a distraction from the real question. As one of the judges in the Court of Appeal pointed out (our paraphrase), if the husband was unable to challenge the validity of the will (because instead of having an interest, he was only interested) and the will was in fact invalid, then the wife would be taking advantage of that invalidity to defeat the husband’s entitlement.

Or in other words – our heavy paraphrase – the will might be invalid, but even if it were he wouldn’t be allowed to challenge it, so it would stand and he would lose out.

Who won? (Spoiler alert)

So the Court of Appeal decided that the husband’s interest – in ensuring that a particular beneficiary received her correct inheritance so that he could receive his due – was enough to entitle him to challenge the will. Moreover, in a victory for common sense, they decided that ‘justice in a general sense’ required that he be allowed to do so.

Not that that concludes the matter. Oh no. This was only the case to decide whether he could challenge the will. For the outcome of the actual challenge, we have to wait a while yet.

If we haven’t all lost interest by then.

You can read all about it at Simplify Wills.

Find out more, at….

Simplify Wills

Intestacy: a lesson in anatomy

Pop quiz

Right then: pay attention. We’ll start with a quick test.

Which of the following correctly defines ‘intestate’?

  • an American motorway
  • part of your stomach
  • how you describe someone who dies without a will

The answer is (c). You knew that. And if you chose anything else, then we (politely) suggest that you have more faith in our editorial talents.

An American motorway is of course an interstate. The only connection with ‘intestate’ is that both may be directions you wouldn’t want to take.

The part of your anatomy we tried to confuse you with is your intestine. And your stomach has little in common with intestacy, except to say that it isn’t good for either of them to grow too much. (more…)

Of affairs: legal, domestic and the other type

Picture this: an elderly man, in poor health, signing his last will and testament (written by his solicitor) at his nursing home. A little sad, we know. Though not particularly unusual.

But what if we told you that:

  • the elderly man was a rather wealthy business magnate;
  • unlike his previous will, this new one cut out his wife and daughters, and left everything to his partner (Bernice, who used to be his mistress, and was his wife’s cousin);
  • the new will also cut out another daughter (from a relationship before his marriage);
  • this daughter wasn’t happy with the new will – all she did was to lodge a caveat at the Probate Registry, but it was enough to require Bernice to go to court for a declaration that the will was valid; and
  • the solicitor overseeing all this was his brother-in-law (his sister’s husband), and that the new will meant that the solicitor’s wife (the sister) was no longer due to receive a legacy of £100,000.

No, we’re not making it up. And yes, it does read like something out of a soap opera. But it’s true – all of it. (more…)

Times are changing… or are they?

We all know (or we should do, anyway) that the traditional way of preparing a will is for it to be written on paper, signed by the person making the will and witnessed by two independent people.

Does that sound a little boring and old-fashioned in the digital age?

We think so, too. But though it may be a bit backward, it just happens to be the way wills in England and Wales have to be done to be valid.

And before you try to catch us out, we know there are exceptions for soldiers in actual military service and sailors at sea, who can make oral wills – but we’re limiting ourselves to talking about the rest of you without wills. In other words, only about 75% of the population aged between 16 and 54.

So, we were wondering: would it make a difference if we could all make video wills? (more…)

The Bard and his beds

What comes to mind when you think of Shakespeare? The plays? The sonnets? Or poetry? Perhaps all three. But what about his last will and testament? Chances are, that’s not something you’ve ever really given much thought to. Though maybe you should.

You’re probably wondering why we’re asking. Well, wonder no more.

As you may or may not know, in his will Shakespeare bequeathed his ‘second best bed’ to his wife, Anne. At this point, you’re probably thinking either ‘weird’ or ‘so what’. The thing is, for a long time this was seen as a bit of a snub towards poor Anne. Which contributed to the assumption that he didn’t exactly have the warmest of relationships with his family. (more…)

House and home

We know that we’ve talked a bit about this before, but the more we’ve thought about it, the more we realise that there’s more we want to say…

One of the Conservatives’ main pledges before last year’s election was that, if they won, they would increase the existing inheritance tax-free allowance of £325,000. It was part of a series of measures that George Osborne revealed fairly late in the day, in the hope that their somewhat lacklustre campaign might be given a kick up the backside.

Well it might have done the job, as we all know the rest of the story – the Tories went on to win the election, and there swiftly followed a Budget in which George Osborne duly announced a higher inheritance tax-free threshold to start from April 2017.

So far, so good.

The announcement certainly looked like it might go some way to making up for the fact the current allowance has been frozen for the last six years. But when you begin to look at the detail, it’s not looking quite as rosy as it might for some tax-payers. (more…)

Home from home

We all know that making a will is a good idea, a very good idea. In fact, it’s such a good idea that you really shouldn’t delay any further if you don’t have one.

Do you want the law to decide who should inherit your assets? If you don’t have a valid will, that is exactly what will happen and you may be surprised as to who gets what. We suspect you would prefer to choose who is to benefit from your estate yourself, we know we would.

So, now that we’ve established you need a will, you can get cracking. It’s easy to start by clicking the link below…

Making a will

But hang on a minute, before you get too carried away deciding who’s going to get what and, most importantly, who’s going to get your treasured vinyl collection, one question – do you own any overseas property? (more…)

International Wills

This is the age of the global village. And recent events with regard to UK membership of the European Union mean that we are examining our place in the world very carefully.

An Englishman’s home is his castle

It’s doubtful whether that was ever true in any real sense, and it’s even more doubtful now. In these days of:

  • second homes in the Algarve,
  • timeshares in Provence,
  • brothers and sisters who have emigrated to New Zealand or Australia,
  • property we bought when we worked in Dubai,
  • numbered Swiss bank accounts (well, maybe not all of us), and
  • international trade on a personal and commercial level,

the castle in question need no longer be English. (more…)

Till death do us part?

We’ve said it before, and we’ll say it again. Make a will, and make sure your loved ones are properly provided for.

Consider the recent case of a couple from the west country. We’re calling them a couple, because in terms of household and emotional ties, that’s what they were. But by some lights, and on a strict interpretation of the law, they weren’t.

For a start they weren’t married or civil partners. What’s more, one of them – the man with whose death this brief story begins – was still married to someone else. He lived with his partner, and had been estranged from his wife for the best part of two decades. And then, sadly, he died. (more…)