2020 Legal Roundup

For our last article of what has been an interesting year for many (thanks to Covid-19) we thought we’d take a look back over the past year for a roundup of developments and interesting news relating to the will writing industry.

Covid-19 and Remote Working

The start of the year began with the country being placed into full lockdown in March which meant that for our members, new systems needed to be put in place as an alternative to visiting clients in their homes and taking instructions face to face.

As there has been no sign of Covid-19 going anywhere as of yet, many of our members had to make adjustments and put provisions in place to enable them to take instructions from clients by Skype, WhatsApp video call or even Zoom which has proved to be extremely popular. This has still enabled many to continue to work throughout what has been a very busy year for will writers and estate planners.

Those that have visited clients in their homes as we progressed throughout the year where restrictions were lifted (subject to the tier restrictions in each area) have also been required to change their procedure. To name a few changes, ensure the client is not displaying Covid-19 symptoms prior to the appointment, carrying hand sanitiser and washing hands before and after an appointment, avoid shaking hands, using separate pens and maintaining a distance.

Going forwards the advice is still to continue working remotely where possible and if clients are vulnerable or shielding, they should not be visited in their homes at all. For advice on working remotely and the attestation of Wills, please see our write-ups here and here.

Opt-out Organ Donation

The Organ Donation (Deemed Consent) Bill received royal assent last year. This change meant that those who die domiciled in England from Spring 2020 would be deemed to be organ donors unless they opted out in lifetime. This is a reversal of our current opt-in system.

Despite the challenges many of us have faced this year, it is fair to say this change and the introduction of a new system has the potential to save many lives and has given hope to those who are awaiting organ transplants.

When discussing funeral and organ donation wishes when taking instructions from your client, this is still something you will need to raise as many people may not be aware of the change and may wish to opt out.

Proposed Probate Fee Hike Abolished

Last year we mentioned there was an attempt to increase probate fees. The fee structure was due to change to a tiered structure based on estate value from 1 April 2019. However, a week before the change was due to be implemented, it was announced that the plan to increase would not be going ahead this year and the proposed changes were abolished.

Instead, individuals in England and Wales will continue to pay the fee of £215 for personal applications and where applications are made by accountants on their behalf, the fee of £155.

Probate fees will be reviewed as part of the annual charges assessment in civil and family courts.

Money Laundering Regulation

The Money Laundering Directive (MLD5) came into force in July 2018 but the deadline for compliance with the Directive was 10^th January 2020.

See our write up here.

A Collection of Interesting Cases Made Headlines

This year the Ministry of Justice released its latest figures on inheritance disputes disclosing 188 cases were brought to the High Court in 2019. This is almost a whopping 50% increase on the figures produced in 2018 which saw 128 cases brought to the High Court.

It has been a very interesting year for contentious probate. This year we’ve seen everything from forfeiture to proprietary estoppel to a rectification claim.

Here are some cases which made the headlines this year…

Amos v Mancini

In this case Mrs Amos was out driving with her husband when they were involved in an accident which resulted in his death after Mrs Amos failed to stop at a roundabout on the M4 motorway. Mrs Amos was convicted of death by dangerous driving.

Mrs Amos applied for a declaration from the High Court and argued that the forfeiture rule should not be applied to her which, if it was, would prevent her from benefiting under his Will and also his share of the home which was owned as joint tenants. If the forfeiture rule was applied, Mr Amos’ estate would be split between his daughter, his granddaughter and Mrs Amos’ son from a previous marriage.

The claim was initially contested by her step-daughter who argued her father had wanted to change his Will but no evidence was filed to support her statement.

The Judge ruled that the forfeiture rule did apply to death by dangerous driving and was next asked to consider whether the Court could exercise their power to modify or exclude the forfeiture rule.

The Judge considered the conduct of Mr and Mrs Amos as well as other circumstances. Mrs Amos had been driving for a long period of time and at the time when the accident occurred, it was dark and raining. The Judge came to the decision that the intention was that the surviving spouse should inherit the share of the home they had purchased together and felt it was significant that the other 2 beneficiaries had not contested the claim.

On the facts, the Judge concluded that it would be unjust for the forfeiture rule to apply in this case and that the loss she would suffer was disproportionate to her responsibility in the offence. Therefore, the forfeiture rule was excluded in this case and Mrs Amos was able to still benefit from Mr Amos’ Will.

Wills v Sowray

In this case, two brothers brought a proprietary estoppel claim in the High Court against the estate of their deceased friend.

The land which they were claiming against consisted of a large farm with properties and buildings. They had both lived on the farm during the deceased’s lifetime.

The deceased had promised one of the brothers that on his death, he would get the farm and to the other brother, that he would receive a plot of land in exchange for a vehicle. The deceased did not make a Will to record his wishes and died intestate. In accordance with the laws of intestacy, his estate passed to his daughter who was estranged at the time.

The Judge in this case concluded that the brothers had relied on these promises to their detriment and therefore the case was ruled in their favour.

Re H Deceased

This case concerned an adult child who brought a claim for reasonable financial provision under the 1975 Inheritance (Provision for Family and Dependants) Act against her father’s estate even though she had been estranged from him for a long period of time prior to his death (10-20 years).

Her father had excluded his daughter from his Will and she had received no financial assistance from him for a number of years prior to his death. However, she suffered from a long-term psychiatric illness which left her unable to work and the benefit she received was not enough to support herself and her 2 children.

The net estate was valued at £554,000. The daughter sought sufficient provision to buy a home, medical treatment, a replacement car, white goods and shortfall in her income along with legal fees.

The Judge in this case applied Ilott v Mitson and others and determined that the lack of maintenance from her deceased father during his lifetime did not prevent her from bringing a claim and decided that an award for reasonable financial provision should be made to her but not to the extent that she should inherit a home or income for the remainder of her lifetime (as she sought), only what she needed to meet her financial needs.

The daughter was awarded £10,000 to put towards a rental property (in comparison to the £375,000 she sought), £15,000 for a car and white goods, £17,000 for medical care and approximately £80,000 for her income shortfall. She was awarded half of the success fee under the CFA. She was awarded, in total, the sum of £139,000.

Clitheroe v Bond

In this case, Jean Clitheroe had made 2 Wills – one in 2010 and the other in 2013. Both Wills excluded her daughter Susan and the reason given was that Susan “was a shopaholic and would just fritter it away.”

John, who was the son of Jean, was the executor and trustee of both Wills and the residuary beneficiary. On Jeans’ death, John sought an order declaring that the 2013 Will was valid or, in the alternative, that the 2010 Will was valid.

On Jean’s death, Susan challenged both Wills on the grounds of testamentary capacity. She argued that both Wills were invalid as at the time they were made, Jean was “suffering from a complex grief reaction” which was triggered from the death of her eldest daughter and which brought on delusional beliefs about Susan being a “spendthrift.” Susan argued that the insane delusions was evidence that Jean lacked the requisite capacity.

On looking at the file of the solicitor who prepared the deceased’s Will, there was very little information in there. It was noted he had minimal contact with the deceased and did not really discuss her wishes in detail.

The High Court therefore ruled that there was insufficient evidence to show that, on the balance of probabilities, Jean’s beliefs about Susan had any rational basis and therefore she lacked mental capacity. Therefore, the Wills made in 2010 and 2013 were deemed invalid and Jean died intestate.

See our write up of a rectification claim here.

Video Witnessing of Wills

Undoubtedly the biggest and most welcomed change in 2020 was the video witnessing of Wills made legal.

Earlier this year the Law Society announced that they were in talks with the Ministry of Justice to discuss what emergency measures could be put in place to allow for Wills to be validly executed safely during the pandemic. The reason for this is because it was proving difficult to execute Wills under current provisions which stated that to be validly executed, a testator must sign their Will in the physical presence of 2 witnesses. One such suggestion was to allow for Wills to be witnessed remotely by video link using apps such as Zoom or Skype.

In July 2020 it was formally announced by the Ministry of Justice that Wills witnessed via video i.e. Zoom, Facetime or Skype are to be made legal.

On 28^th September 2020, the long-awaited reforms for video witnessing came into force. The Lord Chancellor temporarily amended the Wills Act 1837 to now allow the witnessing of Wills to take place via video i.e. Skype or Zoom.

The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 which allows Wills to be validly witnessed by video link, has a retrospective effect so it will apply to any Wills executed in England and Wales after 31 January 2020, providing the quality of the sound and video is sufficient to see and hear what is happening all the time.

The amendment to the legislation is expected to remain in place until 31 January 2022 or as long as deemed necessary. Despite this significant development in the industry, the advice is still that video witnessing of Wills should only be used as a last resort.

See our write up here.

All that leaves is for us to say stay safe, keep in good spirits and we hope you have a very merry Christmas and a happy New Year however you choose to spend it.