The judgement of the Court of Appeal in the case of Payne & another v Payne was published on Thursday 17th May and is another lesson in the dangers of relying on homemade Wills.

Private Client lawyer, Ann-Marie Aston of The Wilkes Partnership explains the decision in further detail.

John Payne senior died in August 2012 aged 74 years. He had been married twice. The first marriage resulted in four children, the second none.

Fourteen months after he married for the second time, Mr Payne made a will (the 1998 Will) on a pre-printed form and without legal advice, handwriting his wishes on the form and leaving his assets to his second wife, Mrs Payne. The will was independently witnessed but the witnesses did not sign their names but merely printed their names and included their addresses.

Mrs Payne did not get along with at least two of the children of Mr Payne’s first marriage so when Mr Payne passed away and a second Will purportedly made in 2012 (the 2012 Will), just shortly before Mr Payne’s death came to light, Mrs Payne was understandably suspicious of it.

Mrs Payne disputed the validity of the later Will and the case went to various hearings/directions hearings over the following years. However, presumably due to the cost of legal representation, both parties were only represented at certain times throughout the dispute and represented themselves at other times. This resulted in protracting the matter even further due to misunderstandings by Mrs Payne as to what was required during the legal process and what evidence, was required and when and how it should have been presented to the court.

The judge at the first instance decision in 2015 held that neither will was valid and as a consequence Mr Payne had died intestate. Mrs Payne appealed this decision which went to a final hearing at the Court of Appeal in March of this year.

The court held that the first instance judge erred in her judgement that the 1998 was invalid and accepted evidence from one of the witnesses to it that his printed name was evidence of his attestation that he had witnessed Mr Payne signing the 1998 Will. The court therefore declared that the 1998 Will was indeed valid.  This was on the basis that the Court held that the wording in section 9 of the Wills Act 1837 requiring an attesting witness to sign a will ought to be interpreted as requiring a witness to merely write his name with the intention that the act of writing it should operate as an attestation.”

“This judgment looks at the original wording of the Wills Act and shows us that while the Court will apply the legislation practically it is still an area surround by technical requirements which for the uninitiated could result in the will being held invalid

Although Mrs Payne represented herself for much of the proceedings, no doubt the whole process was costly and extremely stressful to get to the fair and just result she deserved. The moral of this story is to ensure that when executing or putting in place any legal document good quality legal advice is taken. Had Mr Payne done so, the matter may have ended much sooner and at much less cost to the parties.

Andrew Hasnip, Ellie Holland and Ann-Marie Aston – partners at Wilkes are all experienced private client solicitors dedicated to ensuring that quality legal advice is provided and that the document ultimately produced can withstand any challenge for want of validity. Further, full inheritance tax planning as well as provision for family and dependants’ advice amongst other pertinent issues will also be explored.

And if you are left with the unfortunate task of trying to prove a home-made will, Andrew and Ellie will be able to advise on the validity of the Will and deal with its admission to probate on behalf of the executors.

Finally, if you are faced with a Will which you believe is not valid or equitable or you have been notified of a challenge to a Will you believe is valid, we have a team of experienced contentious probate lawyers in Kevin Lynch and Nigel Wood who can advise and deal with these sorts of issues on your behalf.

Delays in dealing with disputed Wills can lead to not being able to dispute at all because of the strict time limitations for bringing or defending disputes of this nature.

For further information and advice please contact Ann-Marie Aston on 0121 733 8000 or via email at aaston@wilkes.co.uk

Ann-Marie Aston, The Wilkes Partnership, IPW, Institute of Professional Willwriters, Birmingham, Solihull, Solicitors

In this article originally produced for the May edition of the Institute of Professional Willwriters  (IPW) journal, Ann-Marie Aston, Partner at The Wilkes Partnership examines Statutory Wills and how applying for one in certain instances could be the correct course of action for a client lacking capacity.

Background

A Statutory Will is one where the court of protection makes a Will for a person who lacks mental capacity to make a Will for themselves.

In the majority of cases, even where capacity to make a Will is lacking, it may not be in that person’s best interest to make an application to the court for a Will to be made in the circumstances.

So when should an application be considered on behalf of someone who lacks testamentary capacity?

The following are examples or prevailing circumstances when a Statutory Will should be considered including situations where:-

  • A gift in the current Will has adeemed or is likely to adeem and will not be part of the person’s estate due to its sale for instance to pay care fees;
  • The person’s circumstances have changed dramatically since the last Will was made such as a marriage, co-habiting, significant increase or decrease in the size of their estate;
  • Provision under an existing Will may not be in a beneficiary’s best interests such as a minor child or disabled beneficiary where it could better protected within a trust;
  • The person’s tax liability on death could be reduced with better planning. Indeed in IRC v Duke of Westminster (1936) – it is a person’s right “if he can, to arrange his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be;
  • There are suspicions that a current Will may not be valid for instance due to lack of capacity or undue influence. These circumstances should be considered with caution.  An application for a Statutory Will should not be made merely to examine the current Will’s validity but it could be in a person’s best interest to avoid conflict and upset regarding his estate;
  • There is no Will in place and there is a person or persons who might reasonably be expected to be provided for who do not come within the intestacy provisions.

If any of the above scenarios exist or there is uncertainty, advice should be sought from a lawyer experienced in advising on Statutory Will applications.

Making a Statutory Will application

Although the court’s permission is technically required to submit a Statutory Will application (s50 MCA 2005), there are many exceptions to the general rule which will cover the majority of interested applicants.

The application must contain full details of the person’s personal (including detailed medical evidence and evidence of lacking testamentary capacity) and financial circumstances as detailed in the relevant practice direction to the rules. The application also needs to demonstrate why it is in the person’s best interest to do a Statutory Will.  Evidence of the person’s past and present wishes and feelings, beliefs and values should also be included where possible.

Notice of the application needs to be served on all persons materially affected by it and anyone holding confidential records such as solicitors holding the current Will.

Once the court has received the application generally it issues it back to the applicant together with directions.  These generally require formal service or notification on the persons recited as respondents or to be notified.  In addition, the court will direct the Official Solicitor to be served and invited to act as Litigation Friend for the person.  Straightforward applications may proceed entirely on the paperwork however complicated or contested applications may require a hearing.

Generally, a straightforward application for a Statutory Will will take approximately five months but could be longer if complicated or contested.  If the person’s life expectancy is limited it is possible to expedite the application if medical evidence of the limited life expectancy is provided to the court.

What must the court take into account?

Prior to the MCA 2005, the court’s objective when deciding on a statutory will was to consider what the incapacitated person would have done (Re D(J) 1982).  However, following the MCA 2005, the case of Re P (2009) Lewison J (at the time) stated that under the MCA 2005, “the overarching principle is that any decision made on behalf of P must be in in P’s best interest.  This is not necessarily the same thing as inquiring what P would have decided if he or she had capacity”.

If the court approves the Statutory Will it makes an order for the applicant to execute it.  The original is then sent to the court for sealing.

Costs of a Statutory Will application

A Statutory Will application concerns the person’s property and affairs where r156 of the Court of Protection rules apply such that where “proceedings [that] concern P’s property and affairs the general rule is that the costs of the proceedings … shall be paid by P or charged to his estate”.  The court can depart from the general rule if a party has acted unreasonably.

Due to the costs involved in a Statutory Will application, even where there appears a compelling reason to apply for a Statutory Will, if the estate would be significantly exhausted in costs, this would invite the court and official solicitor’s criticism and may risk a costs order against the applicant.

Conclusion

Where a person lacks capacity to make a Will, it may be prudent to consider whether to make an application to the court of protection for a Statutory Will for them, where it is in their best interest to do so.

For further information and advice please contact Ann-Marie Aston on 0121 733 8000 or via email at aaston@wilkes.co.uk

 

Kevin Lynch, Partner in the Contentious Probate department at The Wilkes Partnership examines the recent case of Habberfield -v- Habberfield [2018] EWHC 317 (Ch) and how a proprietary estoppel heavily influenced the outcome of the case.

A proprietary estoppel operates where one party has been induced to act on the basis of a proposition made by another in circumstances where that other party has subsequently sought to rely on that proposition to their detriment. Should that party prove that they have reasonably relied on such assurances (and suffered a detriment) then an equity may have arisen in that party’s favour. Where it is established that an equity has arisen/been established, the party that made those assurances will be bound by them.

In such cases, the burden of proof rests on the Claimant. The Claimant must show the following elements that are key to proving its case:-

  • Party A is given clear assurances by Party B that they will acquire a right over property;
  • Party A reasonably relies on the assurances of Party B;
  • Party A acts to their detriment as a result of the assurances made by Party B;
  • It would be unconscionable for Party B to go back on those assurances given to Party A.

Habberfield -v- Habberfield [2018] EWHC 317 (Ch)

Facts:-

Frank Habberfield (deceased) and his wife Jane Habberfield owned a 220 acre farm, (Woodrow farm) which was worth around £2.5 million. Their daughter, Lucy, worked full time on the farm from 1983-2013.

The couple had four children, their youngest, Lucy, worked at the farm full time from when she left school. Over the years, Lucy worked for long hours, low wages and had few holidays. She also lived at the farm until 1998, until she moved to a house nearby with her partner, Stuart, who also worked at the farm full time from 2007. Lucy’s other three siblings worked only part time at the farm and helped with some of the more administrative duties.

In 2008, Lucy refused an offer from her parents to enter a new limited partnership to run the farm. Lucy left the farm in 2013, which closed down in 2015.

The Estoppel:-

Over the years, Frank (and sometimes Jane) had made various representations to Lucy that she would take over the farm when he was unable to continue to do so. Lucy was told that she would benefit in the future. Further, in 2007, Lucy, Stuart and her parents met with their account to discuss how the farm could be transferred to her in the future and inheritance tax issues were discussed.

It was Lucy’s case that in reliance on the promises that she would take over the farm resulted in a her suffering a detriment being that she worked long hours on low pay and with few holidays over a 30 year period.

The Decision:-

The High Court’s decision was based on Lucy’s time working at the farm for 30 years and the commitment she had shown to the farm.

  • The representations over the years were (although not always explicit) together, a coherent promise that Lucy would inherit the farm;
  • Lucy’s detrimental reliance included the long hours, low pay, limited holidays and her commitment to the farm;
  • Lucy kept her side of the bargain and was compensated on the basis of the promises and not just her reliance losses as that would not have been equitable.
  • Lucy’s refusal to form the new limited partnership with her parents in 2008 (which did not give Lucy the control she was promised) did not entitle Jane or Frank to go back on the representations;
  • Frank’s assurances bound his wife Jane, even though she was not so overt/explicit in her representations.

The High Court therefore held that Lucy’s proprietary estoppel claim succeeded and ordered her mother to pay £1,170,000, which was equivalent to the value of the farm land and farm buildings.

Kevin Comments:-

This case shows another example of equity ‘stepping in’ at the right time. Lucy had worked for 30 years to her detriment and her family had tried to waive the promises made at the last moment. The representations made by her parents were not simply statements made about what they were going to do/plans for the future. They were assurances that specified that Lucy would receive something in the future for the work she was doing at the time. Lucy relied on those promises to her detriment and, as a result, gave rise to an equity in her favour.

This case is a reminder that succession planning is not easy and great care should always been taken when doing so. Open conversations would need to be had with legal advisers (keeping all family members informed) together with well drafted Wills to ensure that every family member understands their position, and why in order to negate potential challenges and difficulties in the future.

The Contentious Probate Team at The Wilkes Partnership advises executors and beneficiaries faced with an uncertain or ambiguous Will.  If you wish to discuss any aspect of Will drafting or interpretation issues please get in touch with Kevin Lynch on 0121 233 4333 or via email on klynch@wilkes.co.uk.

Meghan Markle, The Wilkes Partnership Solicitors, Birmingham & Solihull Law Firm, Wills, Private Client

May’s wedding of HRH Prince Harry and Meghan Markle’s will be a high profile affair, with pictures beamed across the world and photographs appearing in newspapers and magazines for years to come.

Other couples planning their special day this month or later in the season should spare a thought for a more sombre day, as few realise that marriage and civil partnership automatically revokes a previously made Will.

Dying without a valid Will, i.e. intestate, means that the laws of intestacy dictate who gets what rather than you choosing who you want your assets to go to and who should be in charge of their distribution.  Such situations place additional strain on those left behind as well as making matters more administratively burdensome.

When getting married there are clearly many things to sort out in advance: outfits, venues, flowers, cake… but making a Will in contemplation of marriage will avoid your wishes being inadvertently revoked when you sign the wedding register.

A Will in contemplation of marriage needs to state that it is such and that it is your intention for it to remain in place once you have married, name your intended future spouse and be prepared within a reasonable timeframe of the marriage.

That being said, it is important to note that where a civil partnership is converted to a marriage (with the same person) this conversion does not revoke any will that is in place.

For more information and advice, contact Lucy Cox, Solicitor at The Wilkes Partnership on 0121 733 8000.

Kevin Lynch, The Wilkes Partnership Solicitors, Contentious Probate, Will Disputes, Birmingham, Solihull

The Wilkes Partnership has appointed contentious probate expert Kevin Lynch as partner to build on the firm’s expertise in the field and expand its reach across the UK.

A qualified barrister and solicitor with almost a decade of experience, Kevin joins from Fishers Dewes where he led the firm’s contentious probate and civil land practice, working on major High Court actions. Prior to this, he spent three years at Leicester-based Davis and Co.

Following experience in a range of disciplines, including representing clients in court due to his unique status as a solicitor with Higher Rights of Audience, Kevin decided to specialise in contentious probate – a field he has become recognised in.

When asked about his appointment Kevin said: “During my career to date, I have worked across a variety of practice areas, before specialising in contentious probate.  I felt that the opportunity to work for Wilkes, which is a very well established firm, was too good to turn down and am looking forward to getting started.

“With a firm like Wilkes I feel that there is significant potential for growth. Our expertise is on par with the major national players, and as Birmingham continues to become increasingly international, it is my ambition for Wilkes to become the partner of choice on contentious probate.”

This latest news from The Wilkes Partnership follows the appointment of Zara Reed to the board as HR & Compliance Director and Stuart Tym as head of planning, as the firm continues its investment in people and development.

Nigel Wood, Senior Partner at The Wilkes Partnership, says: “This is more good news for our firm. Kevin is an expert in contentious probate, so we’re really pleased to have captured his talent and, personally, I am looking forward to working alongside him. It’s a very exciting time for the firm as we invest in recruiting people at the senior level as well as giving our junior intake training opportunities to define their own specialisms.”

The Contentious Probate Team at The Wilkes Partnership advises executors and beneficiaries faced with an uncertain or ambiguous Will.  If you wish to discuss any aspect of Will drafting or interpretation issues please get in touch with Kevin Lynch on 0121 233 4333 or via email on klynch@wilkes.co.uk.

 

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Buying & Selling Property Solihull, The Wilkes Partnership Solicitors, Amanda Holden, Residential Conveyancing

Spring is in the air!

And did you know this is the best time of year to sell your home? Amanda Holden Senior Associate at The Wilkes Partnership Solihull explains why.

Firstly, your house looks so much better with the sun shining and the garden coming into bloom. The interior is light and you can have windows open to freshen the air.

Secondly, buyers often time their move to coincide with the end of the school year and so are looking in earnest in the spring. This in turn leads to more buyers looking at the same time which increases competition for the houses available pushing up the prices.

And this year looks like being better than ever for those selling as the Midlands sees the biggest rise in house prices over the previous year ended November 2017. Property values grew by 7.2% in the West Midlands compared with London which saw a growth of only 2.3% according to the Office for National Statistics.

At The Wilkes Partnership one of the biggest changes we are seeing in conveyancing is the growth of online firms acting for buyers or sellers. Online firms are process driven which is fine if the transaction is completely straightforward but can make the sale or purchase more problematic, particularly in more complex transactions such as leasehold purchases which are often the case with first time buyers.

We pride ourselves on providing a reliable and friendly service with a strong knowledge of the local market. This means we are able to push sales and purchases through far more efficiently and can answer the myriad of questions that first time buyers inevitably have. Included in our service is one face to face meeting which is invaluable in cutting straight to the heart of the issues and saving lots of to-ing and fro-ing that an email conversation would inevitably have.

We build a relationship with our clients and often act for people in relation to their wills, power of attorney and divorce and we often act for the children of our clients when purchasing their first property.

If you would like any advice on property conveyancing you can contact Amanda Holden at The Wilkes Partnership to discuss in person – aholden@wilkes.co.uk

NPPF Planning, Stuart Tym, The Wilkes Partnership Solicitors, Birmingham, Solihull

The long-awaited and much talked about NPPF consultation has arrived!

As always with many of these consultations, slipped in amongst the long awaited NPPF is a consultation on a Housing Delivery test, practice guidance on viability and the consultation on developer contributions mentioned in the last Budget.

Keep an eye out for a detailed analysis of the draft NPPF over the coming days.

If you would like to discuss it’s contents, and the likely implications for any particular scheme, please do get in touch with Stuart Tym, Head of Planning here at Wilkes.

Stuart can be reached on  0121 710 5891 or via email at stym@wilkes.co.uk. You can also get all of the latest planning news straight to your inbox by signing up here.

To read the draft NPPF Click here.

Aaron Keene - The Wilkes Partnership Solicitors, Divorce, Family Law, Solihull, Birmingham

In a continuation of a piece written in early January on the Redknapp divorce Aaron Keene, Partner in the Family department at Wilkes examines how it appears the courts are finally beginning to listen to calls for a change in the law.

The Lord Chancellor and Secretary of State for Justice, Mr David Gauke MP, a former solicitor, has agreed to examine the case for reforming the divorce laws and the present need, in many cases, to rely upon fault based divorce, i.e. adultery or unreasonable behaviour, if the parties have not been separated for 2 years.

In cases which are undefended at the present time the Court do not undertake a detailed enquiry into the reason for the breakdown, save that one party has satisfied one of the facts pleaded under the Matrimonial Causes Act 1973, simply accepting a statement by the Petitioner, but if the other party defends the proceedings the Court have to reach a decision based upon both parties’ evidence.

At present, if you wish to petition a Court for divorce, you have to prove the irretrievable breakdown of your marriage by showing one of five facts. These include adultery, unreasonable behaviour and desertion for 2 years as well as separation for 2 years, with the other party’s consent, and separation for 5 years.

The Family Law Act 1996 provided at that time new proposals to move towards a no-fault divorce process based upon people attending an information meeting and then having a period of reflection and consideration of whether the marriage could be saved before proceeding with the divorce, but it was never implemented and has now been repealed. MPs at that time were persuaded to abandon that approach.

It now looks as though the time may be right to reform the present divorce laws, presently enshrined in the Matrimonial Causes Act 1973.

It also remains to be seen whether the divorce process itself will be looked at. Figures released by the Ministry of Justice for the third quarter of 2016 from July to September 2016, showed that there were 27,546 petitions filed for divorce during that period and it took 47.3 weeks on average for the petition to reach Decree Absolute, although 23.8 weeks to reach the Decree Nisi stage.

There is often a delay between Decree Nisi and Decree Absolute while parties obtain an order in respect of their finances before making the divorce final by way of the Decree Absolute.

Aaron Keene considers this move as being long overdue and states that it should lead to more amicable separations by divorcing spouses. Should suitable amendments be passed it would allow people to concentrate on the important issues in respect of the arrangements for their children and financial matters arising from the divorce, rather than concentrating on the reasons why the marriage may have broken down.

If you would like assistance in relation to a family matter, call Aaron Keene at The Wilkes Partnership on 0121 785 4400 for further information or email abkeene@wilkes.co.uk.

Planning Law Update, The Wilkes Partnership Solicitors,Birmingham, Solihull

January was an interesting month for Planning, with some key movements and legislative changes.  Our aim for these short bulletins is to provide you with up-to-date information on the key goings on in and around the world of Planning.

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