Practice Area: Power of Attorney, Wills, Trusts & Estate

It is legally possible for couples to make mutual wills by which each binds the other not to alter their bequests at any point in the future, save by mutual agreement. As a High Court ruling showed, however, the inherent inflexibility of such arrangements is one good reason why lawyers usually advise against them.

A married couple made mutual wills by which they each bequeathed their estates to the other. The wills provided that, on the death of the second spouse, the entirety of his or her estate would pass to their third-eldest child. Following the husband’s death, however, the wife made a fresh will by which she appointed their sixth-eldest child as her sole beneficiary.

The effect of the mutual wills, if valid, was that, in the absence of their agreement to the contrary, each spouse bound the other to bequeath his or her estate to the third child. When the death of the husband rendered any such agreement impossible, the obligation on the wife to do so became irrevocable.

The sixth child sought a formal declaration that his mother’s final will was valid. In resisting his claim, however, the third child asserted that the document was of no effect in that it conflicted with the terms of the earlier mutual wills.

Ruling on the matter, the Court noted that it is notorious to lawyers practising in the field that a decision to make mutual wills needs to be considered with the greatest care. The inflexibility of such arrangements, which take no account of any future changes in circumstances, usually renders them inappropriate.

The couple understood the effect of their agreement to enter into mutual wills. It was, however, certainly a transaction that called for an explanation. In setting aside the agreement, the Court was not satisfied that they had entered into it free from the third child’s undue influence. The ruling meant that the mother’s final will took full effect and that the sixth child, not the third, was the beneficiary of her estate.

Failing to make reasonable provision for your dependants in your will is to positively invite discord between your loved ones after you are gone. That was certainly so in the case of a man who bequeathed not a penny to his elderly widow.

The man wanted his fortune – which was estimated to be worth up to £1.99 million – to pass solely down the male line. By his will, he divided his estate equally between his two sons. He made no provision at all for his four daughters or his widow, to whom he had been married for about 66 years.

Following his death, his widow, aged 83 and in failing health, moved out of the family home after one of the sons, with whom she had a very strained relationship, moved in. She lived with one of the daughters but had very few assets of her own. Her income consisted of under £12,000 a year in state benefits.

After she launched proceedings under the Inheritance (Provision for Family and Dependants) Act 1975, the High Court noted that it was a clear-cut case of a will failing to make reasonable provision for a financial dependant. All the husband’s wealth had been accumulated during a very long marriage to which his wife had made a full and equal contribution.

Although she had worked for years in the family business, she had no direct stake in it and received no salary. She was financially dependent on her husband, who took charge of money matters and met all the family outgoings. Had the marriage ended in divorce, she would have been entitled to half his assets; yet, by the terms of his will, she was left with next to nothing.

In effectively rewriting the will, the Court ordered that the widow should have half of her husband’s estate. Such an inheritance would be sufficient comfortably to meet her reasonable capital and income needs and would enable her to purchase a modest home close to her daughter.

In March 2020, 53-year-old Derek Draper, husband of Kate Garraway, contracted COVID-19 and was put into a medical coma in an intensive care unit. In the next few months, as her husband became seriously ill, the TV presenter learned first-hand the perils of not having Lasting Power of Attorney. The “financial mess” she described publicly should be a lesson to us all.

Thankfully, Mr Draper is now back at home and recovering slowly, but the couple’s story is one which many of us should heed.

Sudden illness, an accident; we could all lose capacity in the blink of an eye

The coronavirus pandemic has brought home to many of us how quickly our life circumstances can change, but it’s not just a global health emergency which could turn our worlds upside down.

Any circumstance which renders a person unable to make decisions for themselves (having lack of mental capacity) can lead to serious upheaval for loved ones and especially spouses, who may have shared many of the services jointly while the other spouse took care of all the details.

As Kate Garraway found out, the minute her husband became incapacitated several important financial and business elements of the family’s life were now out of her control – it was her husband’s name on the bank accounts, insurance policies and car documents. Only he could make decisions.

She said in a TV interview, “There are lots of financial goings on which are making life very complicated because I can’t get access to things because legally, I haven’t got power of attorney.”

Being Next of Kin is not enough

Many of us mistakenly believe that our next of kin (husband, wife, civil partner, son, daughter etc.) will be able to make essential decisions on our behalf if we become incapacitated, but this is not legally the case.

To be able to represent a loved-one officially, a person will need to be named as attorney and a valid Lasting Power of Attorney (LPA) must have been set up. The attorney’s capacity will depend on whether they have been named on a property and financial affairs LPA or a health and welfare LPA, or both.

As Ms Garraway found out, only the donor (the person choosing the attorney) can nominate an attorney, so once the donor is incapacitated it’s too late and their next-of-kin will need to make an application to the Court of Protection to become their deputy.

Getting the legal aspects right

An LPA is a powerful legal document and it pays to seek advice from a specialist solicitor for LPAs to ensure it is set up correctly, an invalid LPA may only be discovered at a critical time and this can be devastating for loved-ones.

Similarly, if you need to apply to the Court of Protection, the advice and guidance of an experienced solicitor who specialises in deputyship issues, is crucial to ensuring an application is made correctly.

LPAs – the stats

According to research, 65% of adults believe next of kin will be able to make decisions on their behalf if they lose capacity.

Only 22% of UK adults have LPAs in place.

Around 22,000 LPA applications are rejected each year for anomalies which prevent them being set up in the first instance.

Putting it off is a false economy

Setting up Lasting Powers of Attorney does incur a cost and you’ll need to factor in fees for legal advice, but it can cost considerably more financially, as well as in terms of stress and emotional expenditure, to have to apply to the Court of Protection for deputyship.

As Kate Garraway has said, she and her husband talked about setting up powers of attorney in case anything happened but it was little more than a jokey aside, and although she remembers the conversation, nothing was actioned as a result: “It isn’t logged anywhere. Or if it is, I can’t find it.”

Contact Wellers today to talk to us about setting up an LPA or if you need to apply to the Court of Protection to become a deputy. We can provide the legal expertise you need to help your application go as smoothly as possible and to help minimise the possibility that your application is rejected. For our Bromley or Chislehurst offices please call 020 8464 4242, for our Surrey team please call 01372 750100, for London call 020 7481 2422 and for Sevenoaks the number is 01732 457575. Alternatively, you can email enquiries@wellerslawgroup.com.

If an elderly man had listened to his solicitor’s repeated advice to make a will, his children would have avoided a sea of trouble after his death. His failure to do so resulted in a bitter High Court dispute and a judge’s finding that one of his daughters resorted to forgery in a bid to inherit almost everything he owned.

Following his death, his daughter claimed to have discovered a photocopy of his will. The home-made document – the original of which was never found – purported to bequeath to her his home and all his other assets save for modest legacies to his grandchildren. Her brother and sister were specifically disinherited.

After the daughter sought to have the will admitted to probate, however, her siblings argued that it was a fabrication. During a nine-day trial, the Court heard evidence from the pensioner’s solicitor, who described him as a sweet and desperately lonely old man. He said that he had on numerous occasions sought to persuade his client to make a professionally drafted will but without success.

Ruling on the dispute, the Court was satisfied to the point of being sure that the will had been forged by the daughter in collaboration with her partner and the two witnesses who signed it. That meant that the pensioner had died without making a valid will and his estate would be divided equally between his three children.

The Court found that the terms of the will – which would have left his son homeless – were utterly incredible. The words used in the document were clearly not those of the pensioner but were redolent of the language used by the daughter.

The circumstances in which she claimed to have discovered the will were also highly suspicious and it was inherently unlikely that he would have made a will without using the services of the solicitor, to whom he would naturally have turned.

The trouble with appointing loved ones as executors of your will is that they are likely to be grief-stricken and there can be no guarantee that they will get on. A High Court decision showed that appointing a professional to perform the task is often the best way to save money and preserve harmony.

The case concerned a businessman who sadly died at a young age. He had assets worth about £920,000, principally made up of three properties and his shares in a company he ran with his life partner. The partner and the deceased’s brother were appointed executors of the estate.

After the executors failed to see eye to eye, the brother launched proceedings on the basis that the partner had refused to participate in the process of obtaining a grant of probate. The partner denied that there had been any lack of cooperation on his part and eventually agreed that he and the brother should both step down as executors and be replaced by a legal professional.

The executors, however, both put forward candidates to fulfil that role and the Court was required to adjudicate between them. There was little between the candidates’ knowledge and experience and both were well qualified to perform the task. The Court, however, appointed the candidate preferred by the partner, principally on the basis that he would charge a lower hourly rate for his services in executing a will that contained no complicated or unusual provisions.

The Court expressed sympathy for the partner, who had suffered a devastating grief reaction to the businessman’s death. Although he had presented his case well and appropriately, he had used language in pre-trial correspondence which was at times intemperate. Due to such unreasonable conduct, he was ordered to pay the legal costs of the case on the punitive indemnity basis.

When it comes to inheritance, the obligation to keep your promises may well be legal as well as moral. In a case on point, a judge followed the demands of conscience in ruling that a hard-working man should inherit the farmland of a close friend who for many years treated him as a son.

When the friend died without making a will, the land passed automatically to his next of kin, his only daughter. The man launched proceedings on the basis that that outcome was unconscionable in that the friend had repeatedly assured him that, when he died, the land would be bequeathed to him.

Upholding his claim, the High Court found that the friend had on more than one occasion clearly represented to him that the land would one day be his. In reliance on those assurances, he had worked hard on the land for about 20 hours a week for more than 20 years. The relationship between them was clearly a special one, akin to father and son, and he had trusted the friend to keep his word.

Whilst she would retain the farmhouse, the daughter was ordered to transfer to the man the farmland and outbuildings, which were worth about £330,000. The Court also upheld a claim by the man’s brother in respect of a small plot of land on which he had placed a log cabin as his family home. He too had acted to his detriment in reliance on the friend’s assurances that the plot would be transferred to him.