News
Appeal court overturns deathbed will where beneficiary guided testator's hand
2 February 2012
The England & Wales Court of Appeal has declared that a will executed by Martin Lavin on his deathbed is invalid, because his sister - the will's sole beneficiary - guided his signing hand.
The litigants in the case (Barrett v Bem [2012] EWCA Civ 52) are the immediate descendants of Mr. Lavin and his sister Anne, both now dead.
The exact circumstances of the signing of the will, just before Mr. Lavin's death in hospital in 2004, have been a matter of dispute. The witnesses and other family members present have changed their minds from time to time. But the EWCA's belief - informed by the evidence of handwriting experts - is that Martin Lavin could not have signed the will unaided. Apparently he was so ill that his hand would not stop shaking. It had at one stage been claimed that Anne "held his hand to steady it while he signed the will", but the Appeal Court agreed with the earlier High Court judge that Anne had "stepped in, took the pen, and signed the 2004 Will on Martin's behalf".
The crux was thus whether Anne had signed the will by the direction of the testator; if she had, then it could be judged valid under s.9 of the Wills Act 1837 as amended.The EWCA could find no binding authority on what the drafters of the 1837 Act might have meant by "the direction of the testator", so it created its own interpretation. The key passage in its judgement was stated by Lord Justice Lewison: "The court should not find that a will has been signed by a third party at the direction of the testator unless there is positive and discernible communication (which may be verbal or non-verbal by the testator that he wishes the will to be signed on his behalf by the third party".
In this case, he said, "the mere facts that Martin wanted to make a will and had tried and failed to sign it personally are insufficient to amount to a direction to Anne to sign the will on his behalf ... In my judgment some positive communication is required in order to amount to a valid direction."
Accordingly he declared the will improperly executed and thus invalid, and ordered Mr. Lavin's earlier will (which had been concealed by one of the Bem defendants) to be admitted to probate instead.
In a further comment, he called for the law of probate to be amended to cope with situations like Mr. Lavin's. "It is plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity", he said. "Parliament should consider changing the law to ensure that this cannot happen in the future."
Sources
Beware of Challenging a Will
Sisters lose challenge to dying father's will
12 December 2011
The England & Wales High Court has upheld a will executed by 78-year-old George Wharton on his deathbed, leaving everything to his long-term partner Maureen.
The challenge was brought by the testator's daughters, who alleged that the execution was obtained by Maureen's undue influence.
George Wharton was a Kent businessman who operated holiday camps and caravan parks. At his death in September 2008, his estate was worth GBP4 million.
The sequence of events leading up to his death was unusual. He had been suffering from terminal cancer, and when told he had only days to live he returned home from hospital to settle his affairs. By then he had been cohabiting with Maureen for 32 years, his first marriage having ended in divorce in 1977.
The same evening, Maureen and he were married in a ceremony conducted by two visiting registrars. Just before the ceremony, he executed the contentious will making Maureen his sole beneficiary. It was handwritten by his family solicitor Timothy Bancroft, who read it aloud to the testator, and (along with his own wife) also witnessed its execution. The will was made in contemplation of the marriage.
Three days later George Wharton died. As the High Court judge (Mr Justice Norris) put it: "A deathbed marriage, a deathbed will, a large estate and the absence of any provision for issue may be expected to heighten family tension." It did. The testator's three daughters challenged the deathbed will, claiming that Maureen used undue influence to make George execute a document that was contrary to his wishes.
But Mr Justice Norris disagreed, stating that he could not accept that Mr Wharton was acting under coercion when making a deathbed will in favour of the woman he had treated as his wife for 32 years, and whom he had just chosen to marry. "He quite plainly understood marriage as a solution to the inheritance tax problem which overhung the business he and Maureen had created and for which he had made no provision", said the judge.
After the judgement, Maureen Wharton criticised George's daughters for challenging the will by using solicitors on a contingency fee arrangement.
Court Upholds £10 Million Will
(11 December 2007) The High Court has upheld the controversial Will of a wealthy woman which leaves £10 million to the owners of a Chinese restaurant. Despite challenges from her disappointed relatives the court ruled that the Will was valid and that the wishes of the testator Mrs Bechal were to be followed
The case highlights the freedom that we have to leave our estate as we wish. It also brought to the fore the need to ensure that all circumstances surrounding the making of the Will are handled properly so that it cannot be challenged successfully in court.
IHT Limit "Doubles" for Couples
(9 October 2007) In his Pre-Budget Report the Chancellor Alastair Darling made a major announcement on the tax free limit for married couples and civil partners. With immediate effect, the tax free limit will be transferable between spouses, having the effect of doubling the limit for couples from today. He commented that this will also apply retrospectively, providing benefit to those already widowed
As ever, the key will be how it is all implemented, and we will be looking at the details over the coming days and weeks. It is likely that Wills made in the past to minimise inheritance tax remain entirely valid, and still provide other benefits.
Remember that these changes do NOT apply to couples who simply live together.
Lasting Power of Attorney now available
(1 October 2007) Regulations for Lasting Power of Attorney came into force today. The LPA replaces the previous Enduring Power of Attorney regulations, although any existing EPA remains valid. LPAs provide additional safeguards, and can deal not only with financial matters (LPA Property & Affairs) but also with health and welfare matters (LPA Personal Welfare)
Revenue get tough on unpaid tax.
(29 July 2007) As reported in the Sunday Times, HM Revenue & Customs are chasing up bills for unpaid tax as part of the crackdown on offshore assets. This includes following up undeclared interest for overseas savings accounts even for accounts relating to those who have died.
The report comments that the Revenue has power to pursue such debts for at least 3 years. It is part of the responsibility of being an executor that during the probate process all such debts are paid, and is a reason why many families pass on the burden to professionals who specialise in this area.
64% of those with children have no Will
(9 July, 2007) According to a recent report by Barclays Wealth, the majority of those with children (64%) do not have a Will. This means it's uncertain who would take care of their children (act as Guardian) and nor would they know who would be responsible for taking care of their children's inheritance (Executor / trustee).
A further finding is that on average those who have made a Will take 7 years before reviewing it. In today's climate of more and more estates being subject to Inheritance Tax, it can mean they may be leaving unexpected tax bills for their loved ones.
Selected past news items
- Inheritance Tax limit now £300,000 per person
- BUDGET 07: Inheritance Tax limits to rise only slowly.
- Inheritance Tax to grow 9% this year.
- Will Writers 10th Annual Conference
- 46% prepared to sell house to pay for care
- 72% rise in number of estates paying Inheritance Tax
- 1 in 10 fall out over inheritance
- Technical Changes make saving Tax easier
- Wills still able to reduce Inheritance Tax
- Estates paying IHT more than Double
- 'One third' of homes face 40% tax
Inheritance Tax limit now £300,000 per person
(6 Apr, 2007) From today (start of the new tax year) the 'Nil Rate Band' for Inheritance Tax increases to £300,000 (from £285,000). The NRB is the maximum amount that an individual can leave (other than to a legal spouse or a charity) without incurring Inheritance Tax. The tax is levied at 40% on any excess above this level, and can result in some very large bills before the family can inherit the estate.
With properly drafted Wills, a married couple can exploit both NRBs, whilst still looking after each other. These Wills allow them to pass on £600,000 to the family without paying a penny in Inheritance Tax.
BUDGET 07: Inheritance Tax limits to rise only slowly.
(21 Mar, 2007) In the Budget speech today the Chancellor announced that the Inheritance Tax limit will rise to £350,000, but only by 2010. This continues his previous announcements of raising the limit only very slowly - by around 4% - 5% per year.
With house prices continuing to grow in the long term there are very many families who might be caught by this tax in the future. The tax remains set at 40%.
Will Writers raise money for "Hearing Dogs for Deaf People" charity.
(10 Jan, 2007) At the January meeting of the Midlands (Central) group of the Society of Will Writers, there was what is rapidly becoming their traditional charity auction of 'unwanted' Christmas presents. This year we chose to support the "Hearing Dogs for Deaf People", and were able to raise £200 to support their excellent work.
It costs around £5,000 to fully train a dog, so the charity is always in need of support. If you wish to include in your Will a legacy to the charity Alder Wills & Probate Ltd Wills & Probate will be delighted to draft the Will for you, and as a "thank you" for your business we will donate 10% of the fee directly to the charity.
You can find out more about the Hearing Dogs charity at www.hearingdogs.org.uk
Inheritance Tax to grow 9% this year.
(9 Nov, 2006) The latest forecasts from Her Majesty's Revenue and Customs (HMRC) show a planned increase of 9% in the amount of Inheritance Tax being collected this financial year (2006/07). The new annual total is expected to be £3.56 billion. This growth in tax is despite a small increase in the amount that any individual can pass on tax free, from £275,000 last year to £285,000 this year.
Further rumours amongst financial specialists suggest that the Chancellor is looking at additional means of increasing the tax taken, including removing the right to vary a Will after death (an Instrument of Variation). Whatever the truth of the rumours it is clear that making a Will is becoming ever more vital in order to stop the Government taking a bigger share of your family's inheritance.
Will Writers 10th Annual Conference
(30 Oct, 2006) The Society of Will Writers 10th Annual Conference is taking place in Market Bosworth 13-14th November, and once again Alder Wills & Probate Ltd Wills & Probate will be attending. The meeting is part of the ongoing commitment to training and professional development, ensuring that Will writing specialists are right up to date with the latest changes to the regulations and tax legislation. Sessions this year include background on dealing with overseas assets (such as a Spanish holiday home), which is becoming increasingly common.
Whoever is writing your Will, be sure that they are keeping up to date with all the changes and are not just relying on training received many years ago.
46% prepared to sell house to pay for care
(20 Sept, 2006) According to a survey conducted on behalf of Help The Aged, around 46% of those approaching retirement are prepared to sell their home in the future to pay for residential care. The survey also showed how many have not considered the reality of how care is paid for, and the impact it will have on their estate.
Appropriate planning ahead of time, including creating suitable Wills, can protect some assets from being lost in this manner - leaving more to pass on to the family.
72% rise in number of estates paying Inheritance Tax
(5 Aug, 2006) Research by the Halifax shows a major increase in the number of estates that are paying Inheritance Tax (IHT). In the five years to 2003/04 the number has risen by 72% - and government projections expect a further 22% for year 2006/07.
Figures show a 49% increase in the total amount of IHT paid over the last 5 years, with estates that are just over the Inheritance Tax threshold (currently £285,000 for 2006/07) paying an increasing proportion of that total tax bill.
Current government plans are for only a slow rise in the IHT threshold, and they project a further increase in the total amount of IHT being paid, and also in the number of estates impacted.
1 in 10 fall out over inheritance
(26 July 2006) As many as 10% of adults have fallen out with the family over inheritance (according to a press release from Scottish Widows using research by YouGov) - with as many as 42% of siblings who have argued never speaking again
The report emphasises the need to make a Will to prevent some of the arguments. The statistics show that good advice is needed to minimise the family problems that might otherwise be left behind.
Technical Changes make saving Tax easier
(9 Jun, 2006) The Government have tabled amendments to the Finance Bill. Described by some as "technical changes" (or by others as a "climb down") these go some way towards removing the concerns raised by Will writing professionals about proposals announced in the budget. The budget proposed that money being left to children had to pass to them at age 18 or else it might be subject to additional tax burdens - the changes to the Bill go some way towards letting the money continue being held in trust until age 25 (by which time it is hoped they are more able to handle their inheritance).
Either way, the main route for saving Inheritance Tax remains unaffected but it is hoped the changes will also ease the situation for an extra handful of families.
Wills still able to reduce Inheritance Tax
(7 Apr, 2006) The Finance Bill has been published following the Budget. Despite scaremongering from some of the press, it is still possible to use your Wills to minimise inheritance tax. Some of the more exotic tax-saving schemes look to be caught out by the proposed changes - particularly those which involved creating trusts during your lifetime. It means that it is even more important to focus on setting up your Wills correctly, to exploit the tax-saving approaches that remain available.
Estates paying IHT more than Double
(19th Mar, 2006) According to a report in the Sunday Times, figures from the Office of National Statistics show a big increase in the number of estates that pay Inheritance Tax. Back in 1997 the figure was around 15,000 estates per year, but the most recent figures reported now show 35,000 estates per year pay the tax.
'One third' of homes face 40% tax
(3rd Feb 2006) According to a recent survey by Scottish Widows, 8.2 million people have assets worth more than £275,000. This is said to represent 34% of all homeowners, with around 3/4 of those surveyed having done nothing to reduce the large Inheritance Tax bills that their families potentially face. To quote part of the report:-
"With this is mind it is vital that people take action. For many people it is possible to cut or even completely avoid IHT with just a few simple steps. The first and most obvious of which is to make a Will."