Potential clients wish to know if they have to use a Solicitor to make their Will when perhaps they have the alternative option of a homemade Will kit to purchase at a lesser price.
The answer is yes, you are able to make a Will in whatever manner you wish. However, we would warn to exercise caution over a ‘do it yourself’ approach and our best advice would always be to seek the advice of a qualified solicitor when it comes to making your Will.
While it is perfectly possible to make your own Will and people continue to do so (it has previously been held that a wish written on an egg shell constituted a valid Will!) unless you are taking legal advice, it may be that you do not realise the implications of what you write. Even a purchased Will ‘kit’ usually caters only for very simple Wills, meaning you may not consider everything that you should.
Time and time again, we as Solicitors encounter the pitfalls of homemade Wills when it is already too late.
Many people seem to be aware, for example, that a beneficiary named in a Will should not also witness the testator sign it.
Far fewer people know that it is not just the beneficiary who should not witness a Will, but neither should any beneficiaries’ spouse or civil partner. While the signature of the spouse or civil partner will not invalidate the entire Will, it does invalidate the gift made to that specific beneficiary. If the testator was gifting that beneficiary their entire ‘residuary estate’ (essentially, everything that they have) - a catastrophic result.
The formalities for executing (signing) the Will are almost as important as the correct content, and Solicitors know exactly the requirements to ensure that a Will is deemed valid.
We also see homemade Wills to include only gifts of specific items to specific people with no disposal of the residuary estate (whatever remains of the estate other than these specific items). This may be because when the testator wrote it, these items were all that he had.
In a case we dealt with recently, it was a different story ten or twenty years down the line, as the Testator did not get around to amending or making a new Will.
As we proved, any estate that is not disposed of by a Will passes via the rules of intestacy. This is a statutory list governing exactly who receives the estate in the absence of a valid Will. In the above case, the testator died without a spouse or civil partner but with one daughter with whom he had no relationship. This child was not one of the beneficiaries named in the Will, and quite clearly his intention was not to provide for her.
Unfortunately, in acquiring additional assets by his date of death which of course comprised the residuary estate, they did indeed pass to his daughter by virtue of the intestacy rules.
Legally, this is what had to happen.
It may be that your simple, homemade Will is executed perfectly and so is indeed valid and able to take effect on your death… should the Will have been so simple? Or would estate planning have benefited your beneficiaries by reducing inheritance tax payable? Or would more of your estate (or indeed anything) have been protected for your intended beneficiaries by inclusion of a trust in your Will?
Many couples we meet initially intend to leave everything to their partner, trusting that they will pass on the estate to their children on the second death.
What if the surviving partner changes their Will following the first death, though? Or what if they simply had to go into care for which the house you previously owned together is taken to cover their fees?
You may not even realise the need to consider this, and would be best placed to speak to a solicitor to ensure the maximum possible benefit of your estate for your intended beneficiaries.
Alternatively, you might be satisfied to leave matters very simply, perhaps all on to your partner and then on to your children as outlined above.
But have you considered what would happen if you all died together at the same time, though? What if something should happen when you all travel together in the same car or plane? While awful to think about, such tragedies do happen and surprisingly, most people do not consider what they would want to happen to their estate in such circumstances. If your Will did not provide for such an event, your estate would pass via the intestacy rules which again, might not give the results you would hope for.
Our Wills and Probate Department specialise in the drafting of Wills, meaning that they are able to advise clients on how best to capture their particular wishes. Our team will assist from your initial instructions right through to the drafting of your Will and ultimate signing of the document/s to ensure that all necessary formalities for a valid and effective Will are complied with.
We mainly go along throughout our lives thinking of the present and leaving the future to look after itself, but with a little forward planning now you can put in place the systems you need to look after yourself if the worst comes to the worst.
Solicitors for the Elderly and the Centre for Future Studies have produced a new report voicing their concerns about the population's lack of preparedness, and found that:
• 97% of people in the East of England leave important health and welfare decisions to chance
• 70% would like a family member to make medical and care decisions on their behalf, in the event of mental incapacity
• 73% of people in the East of England are worried about dementia and losing the ability to make decisions for themselves
• 77% haven’t discussed end of life medical and care wishes
• 36% admit to having made no provisions at all, such as a will, LPA, pension or funeral plan
The study found 97% of people in the East of England have not made necessary provisions, should they lose capacity from conditions like dementia.
A further 36% admit to having made no provisions at all for later life, including a will, pension, funeral plan or Lasting Power of Attornery (LPA).
The research found that 73% of people in the East of England are worried about dementia and losing the ability to make decisions for themselves, but 77% have not spoken about, or even considered, personal medical and care end of life decisions.
A staggering 62% of people incorrectly believe that their next of kin can specify what they would have wanted if they were no longer able to act for themselves, and 70% of the public would like a family member to make medical and care decisions on their behalf.
59% of people incorrectly believe that their spouse has the power to do so.
74% of those in the East of England are worried about becoming mentally incapacitated and losing the ability to make decisions for themselves.
62% believe that being on the NHS organ donor register ensures that organs are donated following death, however this is not the case.
Less than 3% of Britons surveyed in the East of England by Solicitors for the Elderly (SFE - an independent, national organisation of over 1,600 lawyers, such as solicitors, barristers, and chartered legal executives, who provide specialist legal advice for older and vulnerable people, their families and carers) have a health and welfare LPA in place.
A new report from SFE and the independent think tank Centre for Future Studies reveals the UK is leaving medical and care preferences to chance. The report looks at the ever-increasing number of people living with dementia which, combined with the failure to plan ahead for mental incapacity, exposes a looming crisis. And although these statistics focus on the East of England they are likely to be replicated across the whole of the UK.
In response, a coalition of organisations, led by SFE are joining forces to encourage people to tackle the taboos around end of life planning, in order to prevent an incapacity crisis.
Planning ahead is surrounded by worrying misconceptions, especially in relation to health and care preferences.
Without the necessary provisions in place, potential life-changing medical and care decisions are taken away from loved ones.
There are currently 928,000 Health and Welfare LPAs registered with the Office of the Public Guardian (OPG) across England and Wales, compared to the 12.8 million people over the age of 65 who run the risk of developing dementia – a difference of nearly 93%.
The forecast shows the disparity will continue, leaving millions in limbo. By 2025, it’s calculated that 15.2 million people will be at risk of mental incapacity and it’s estimated that only 2.2 million health and welfare LPAs will be in place. This shows that the health and welfare wishes of 13 million people will not be taken into account when they need care most.
SFE is urging the nation to act now to avoid this incapacity crisis by planning ahead in case of mental incapacity.
It is crucial to have a conversation with loved ones in order to make specific medical and care wishes known – such as
– otherwise there is a risk your preferences are not taken into account.
The campaign calls on people to act now and start a conversation with loved ones about end of life topics to remove the stigma surrounding the discussion.
Lakshmi Turner, Chief Executive of SFE, said:
“Most of us do not like thinking about, let alone talking about, death, disability or disease, despite the fact that it touches all our lives – but it is essential that we do so.
“Whilst it’s great that more and more of us are putting wills in place and establishing plans for finances and assets, far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance.
“It’s time to set the record straight. Planning ahead by talking to family or friends shouldn’t be seen as doom and gloom, it’s about having a positive conversation about welfare, empowering your loved ones and making the decision-making process easier for everyone.”
Professor Ilora, the Baroness Finlay, states:
“With decades of experience working and campaigning around palliative medicine, the low numbers of health and welfare lasting power of attorneys is of concern.
“When a person loses capacity to take decisions, it is sad to see families and professionals struggling to try to determine what a person would have wanted. Delays and distress can be avoided by appointing someone to speak for you when you can no longer speak up for yourself.
“Discussing medical and care wishes ahead of time ensures that care can respect an individual’s wishes, with the respect they deserve – even when it comes to fulfilling wishes after death, such as organ donation.
“It’s important to have an open discussion about future illnesses and possible incapacity. I urge the millions of people who haven’t given loved ones the opportunity to listen, to act now.”
Jeremy Hughes CBE, Chief Executive of Alzheimer's Society
“We welcome this initiative. Lasting powers of attorney for health and welfare too often get overlooked.
“People with dementia have the right to make choices about their care, just like anyone else. Making someone they trust their attorney for health and welfare is one of the ways people can do this. A health and welfare LPA provides reassurance to them and the act of creating one can start useful conversations about the future with family and friends.”
An LPA is a powerful legal document, which allows a person (or ‘donor’) to choose one or more individuals (known as attorneys) to handle their affairs in the event that they are no longer able to do so themselves, for example if they lose mental capacity. Attorneys are usually trusted family members or friends, but people can also select a legal professional as their attorney.
An LPA must be put in place while a person has the mental capacity to do so.
It’s important to plan ahead and get your wishes down on paper as early as possible to ensure that whoever you choose to manage your affairs can retain control, should you lose capacity.
There are two types of LPA: a health and welfare LPA (H&W LPA), and a property and financial affairs LPA (P&F LPA). The former covers things like choices around care plans, medical treatment and end of life wishes. The latter deals with the management of property, other assets, bank accounts and bill payments.
At Cunningtons we have a team able to assist you and advise you in respect of Lasting Powers of Attorney.
Bryony Wilmshurst who heads the team is a full member of Solicitors for the Elderly and advises that putting plans in place for the future need not be daunting or stressful and is not something that should be put off until a later date.
At Cunningtons we always take in to account the individual needs of our clients and are able to tailor our service to meet their needs.
Please do not hesitate to contact us on 01376 567280 if you wish to discuss Lasting Powers of Attorney.
This is in part to do with the fact that 40% of British adults do not make Wills and the difficulty that this so often causes. It is hoped therefore that 'electronic Wills' makes the entire process more convenient and in turn, something more likely to be undertaken.
While we agree that everybody should have a Will, the proposed changes are concerning insofar as they leave open to what we would argue is a huge potential for abuse.
Currently, to make a valid Will an adult must have the necessary ‘testamentary capacity’ and intention and must observe all legal formalities when executing (signing) their Will.
It is in writing, signed by the Testator (the person making the Will) or some other person at their direction (the latter only in very limited circumstances);
It appears that the Testator intended by that signature to give effect to the Will;
The signature is made or acknowledged by the Testator in the presence of two or more independent witnesses at the same time;
And each witness signs the Will or acknowledges the Testator’s signature in the presence of the Testator.
In addition, a Will will not be valid if the Testator is subject to undue influence or pressure by somebody else to make it.
The above formalities clearly intend to safeguard the Testator from these very matters; particularly the requirement for independent witnesses. If a Testator is no longer required to adhere to the above, could we ever be certain that they intended what is written in their Will? Could we even be sure that the Testator had any knowledge of the content of their Will? It could easily be assumed that an electronic signature may not have come from the Testator himself, and it is not beyond the realms of possibility to suspect that some (exploitative) relatives or friends of especially vulnerable persons such as the elderly or unwell could set up and sign a Will on the Testator’s behalf.
Whilst handwriting could be analysed if similar concerns were raised, a digital footprint would arguably be much more difficult to verify.
The proposed changes could make these issues more prevalent and conversely, the entire process could become more complex. While indeed allowing e-Wills might encourage greater numbers to make a Will, the administrative process (the period following death) could become increasingly marred by accusations of family members as to the validity of that Will in the very first instance. This, we believe would achieve the opposite of what the Law Commission intends.
Whether these proposals take effect and however the Will making process continues to adapt, it is absolutely our view that every adult should make a Will to ensure that their property and/or assets pass in accordance with their wishes on their death.
Our Wills and Probate Department specialise in the drafting of Wills, meaning that they are able to advise clients on how best to capture their particular wishes. Our team will always take instruction direct from the Testator to guarantee as far as is possible that the documents are made free from any outside pressure or undue influence, and are available to assist with the signing of the Will to ensure that all necessary formalities are complied with.
- A simple, single Will (single person) - £130 plus VAT
- A single Will to include a right of residence, life interest, or discretionary trust - £300 plus VAT
- Simple mirror Wills (two persons) - £200 plus VAT
- Mirror Wills to include right of residence, life interest, or discretionary trusts - £600 plus VAT
- Severance of joint tenancy (if required) - £100 plus VAT per property
As of 1st February 2018, it was possible for a person having applied to register an LPA - or Lasting Power of Attorney - (for both property & financial affairs and health & welfare) or EPA - or Enduring Power of Attorney - between 1st April 2013 and 31st March 2017 to claim a partial refund of the fees paid for doing so.
It also applies to those whose fees were already remitted (reduced by 50%) at the time of application, as well as repeat applications (where an additional fee was charged).
Fees recoverable depend on the application type and year in which it was made, but will range from £17 to £54.
A donor (the person having made the LPA or EPA) or indeed their attorneys may apply for the refund as can personal representatives of a donor who has subsequently passed away.
Given the sums involved, the Office of the Public Guardian will not be dealing with solicitors acting on people’s behalf to claim the refunds due.
They have however made assurances that making a claim is quick and simple - and that they are readily on hand to assist - see full details visit the claim form here online via the www.gov.uk website.
In summer 2017, controversial comments regarding Lasting Powers of Attorney by retired Senior Judge Denzil Lush proved quite the talking point.
His main gripes appeared to be that:
1. They are marketed on the basis that the alternative Deputyship application to the Court of Protection is ‘bad’, and
2. They are vulnerable to abuse; he made particular mention of this being by ‘unscrupulous’ children.
A Lasting Power of Attorney (LPA) is a legal document made by a person (the ‘donor’) while they are mentally able, to appoint another person or persons (the ‘attorneys’) to essentially step into their shoes and act in their affairs should they become mentally incapable.
There are two types; one dealing with property and financial affairs and one with health and welfare affairs.
An LPA can only be made while somebody has mental capacity.
An LPA can only be used once it is registered with the Office of the Public Guardian (https://www.gov.uk/government/organisations/office-of-the-public-guardian). Most people apply right away to ensure that they are available immediately when needed.
The Office of the Public Guardian typically takes 8-12 weeks to register the documents and charge £82 per document (a maximum of £164 per person).
What is a Deputyship?
An application to the Court of Protection for a Deputyship Order is instead made by the would-be deputy because the ‘donor’ lacks the mental capacity to make a valid LPA.
The same two types of order are available, but a health and welfare order is more difficult to obtain.
It can take upward of one year to obtain a Deputyship Order, just when it is already needed most.
Court fees for just one Deputyship Order are in the minimum sum of £400.
It is definitely fair to say that deputies are held to higher ongoing accountability in their roles, mainly by the filing of annual accounts and payment of a deputy bond which is like an insurance policy protecting the vulnerable person’s assets against possible misuse. That said, the very reason for these safeguards is the fact that that person cannot (and indeed may not have, had they undertaken an LPA while still able) choose or consent to the deputy dealing with their affairs.
Cunningtons' opinion remains that the advantages of an LPA far outweigh any possible disadvantage, and the current Public Guardian, Alan Eccles, has been similarly quick to respond to former Judge Lush’s comments, pointing out that of 2.4 million registered Lasting Powers of Attorney; just 92 suspected cases of financial abuse had been bought before the Court of Protection by summer 2017. This equates to just 0.0038% of all of them and even within this small number, not all attorneys were guilty of any wrongdoing.
It is commonly assumed that a spouse or partner will be able to deal with our finances and property automatically if we should ever become unable, just as in the same way most people think that next of kin will be able to make decisions in relation to health or care needs.
This is inaccurate and loved ones often find far too late that they are unable to deal with the simplest and smallest of transactions such as paying a utility bill or even continuing to deal with a bank account held in joint names with a person who has lost mental capacity.
This Times Money article on Times Money (https://www.thetimes.co.uk/article/give-careful-consideration-to-a-power-of-attorney-2cfr6ssg5) makes mention of a gentleman unable to cancel his wife’s mobile phone contract after incurring fees of £1,000 despite her not having used it. This was because he did not have the relevant permission to look after her finances. You might agree that this is problematic enough, but consider the fact that a Deputyship application to acquire that permission would take at least 8 months. A previously made and registered LPA appointing him attorney would have allowed him to resolve the issue immediately.
Despite attorneys not being subject to quite the same rigmarole as deputies under a Court of Protection order, an LPA can be tailored to an individual’s own circumstances and include their specific preferences and/or instructions. An LPA can even direct that application to the Court of Protection is necessary for an attorney to be able to undertake a particular, probably significant, transaction. The key here, as we would argue it has always been, is to ensure that appropriate legal advice and drafting is undertaken to ensure that an LPA accurately and fully accords with the wishes of the donor.
Our Wills and Probate Department specialises in the drafting of Lasting Powers of Attorney, meaning that they are in a key position to advise clients how best to capture their particular wishes.
Lasting Powers of Attorney are lengthy documents and contain lots of legalese which make them difficult for a lay person to navigate, let alone complete. Cunningtons will ensure that this is done properly and what is more, always takes instruction direct from the donor to guarantee as far as possible that the documents are made free from any outside pressure or influence. This means that vital decisions regarding the possible future management of the donor's affairs are theirs - and theirs alone.
Without registration: £200 plus VAT
With registration: £300 plus VAT plus Office of the Public Guardian fee of £82
Without registration: £200 plus VAT
With registration: £300 plus VAT plus Office of the Public Guardian fee of £82
With registration: £400 plus VAT, plus two registration fees of £82