No excuses

Bernard Matthews tried to carefully plan for his death by drafting wills in three other jurisdictions as well as Britain. Unfortunately this did not avoid the inevitable disputes he feared would arise due to his complicated familial and romantic relationships (Scarfe v Matthews [2012] EWHC 3071), but what's worse is those who don't even try to properly plan for the future.

The recent Ministry of Justice (MoJ)campaign, Choice not Chance, targets the 25 to 50-year-old age group and encourages them to make wills and lasting powers of attorney (LPA).

The posters encourage those who are buying a house, getting married or having children to protect their family by making a will, or to change their will if their circumstances change. Other posters ask, 'Have you had that difficult conversation with your parents?' encouraging them to talk to their parents about making a will and an LPA. A poster with a picture of a rugby scrum has the heading, 'Accidents happen', encouraging the younger age group to make LPAs.

I recently gave a talk about powers of attorney to health professionals working with dementia patients. I was asked why there was so little publicity about powers of attorney and a lack of encouragement to make them at a younger age before it is too late. Many consider this to be a morbid subject but the MoJ campaign aims to change that.

Our clients or potential clients

Along with the rest of society, we tend to think of wills and powers of attorney as things that we should encourage older clients to make. However we should be encouraging all our clients and clients' families to make wills and powers of attorney to avoid difficulties, should the worst happen.

The intestacy rules do not always benefit those that the client expects to benefit, such as the daughter who had been adopted away from the deceased's family in Vallee v Birchwood [2013] EWHC 3071, but who succeeded in an interesting donatio mortis causa claim.

The long term cohabitee in Cattle v Evans [2011] EWHC 945 received nothing on the intestate death of her 59 year old partner. She had to pursue (successfully) an Inheritance (Provision for Family and Dependants) Act claim.

Making a LPA early in life (while there is no doubt about capacity)
avoids disputes about whether there
was capacity to make an LPA later on.
It also helps to avoid all the costs of
a deputyship application and may help to avoid future disputes, such as those that arose in Re PL [2015] All ER D 176 (Mar) regarding who should be
the deputy.

Ourselves and our colleagues

We all know that the majority of people do not leave a will. However anecdotal evidence also suggests that many employees of solicitors firms and many solicitors themselves do not have wills or up to date wills. The same applies to LPAs.

It is all too easy to think that we have got plenty of time to get these things sorted out before we need them, but the worst can happen unexpectedly. In Sherrington v Sherrington [2005] EWCA Civ 326, the solicitor didn't get around to making a new will for more than a year after his remarriage. His widow said, 'We were not in a hurry. He was 56 years old. I was 53 years old. There was no rush'.

However a will was then made in a rush before they went on holiday, the testator dying ten days after they returned in a car accident, which the High Court determined was not validly executed and which the solicitor testator had not read, so probate was revoked. A Court of Appeal hearing was required for the decision of revocation of the grant to be quashed, with the court dispute causing significant costs and stress for all concerned.

It would be interesting to have a poll of all firms that read this magazine to see what proportion of staff have wills and powers of attorney. But even better would be a campaign by each firm to ensure that all staff and their family members have wills and powers of attorney in place. 

Margaret Windram is an associate at Thomas Eggar

She writes the regular in-practice article on wealth structuring for Private Client Adviser