19 Jun 2017
Summer newsletter 2017
Moore Probate Research summer newsletter 2017
In this, our summer bulletin, we’re delighted to have another offering from Gill Steel of LawSkills as well as a handful of case studies highlighting how we’ve helped clients in recent months. Can we help you, or a colleague, with any problem cases at the moment? Don’t hesitate to contact us for an informal discussion about how we can tidy them up for you. You can reach me on 01225 690 021 or matthew@mooreprobateresearch.co.uk.
With kind regards and very best wishes for the summer to all our readers.
Matthew Moore
Research Director
Can a solicitor release the Will of a mentally incapable client to their attorney?
An article by Gail Frankland and Gill Steel of LawSkills.
As Practitioners are aware, Property and Financial Attorneys and Deputies owe a duty when making financial decisions, so far as is reasonably possible, to consider succession plans made by the person for whom they can act. Having knowledge of the Will and or Codicil(s) means that the Attorney or Deputy is in a position to act in the best interests of the person for whom they act.
Practitioners who are members of the Law Society will find this guidance very useful. The Practice note can be found at here but is only fully accessible if you log in as a member of the Law Society.
The guidance clarifies when a solicitor can disclose a copy of a client’s Will and or Codicil(s) to a Property and Financial Affairs Attorney or Deputy when a client has lost mental capacity.
The key elements to the guidance are:
- The Solicitor can accept instructions given by someone else, where the person providing the instructions has the authority to do so on behalf of the client. Whether instructions come from an Attorney (agent) or a Deputy (statutory agent), the Solicitor’s duty of care is to the person on whose behalf they act.
- Solicitors have a duty to act in their client’s interests. The Will and Codicil(s) forms part of the financial affairs belonging to the Donor and so unless the donor provides contrary instructions, the Attorney is entitled to see a copy of the Will and or Codicil(s).
- To evidence compliance, it is advisable for the question of disclosure to be recorded at the time of making the Will and confirmed at the time of making the LPA. Instructions should be obtained and incorporated in a side letter or within the LPA itself.
- If the client has made it clear that the Will and or Codicil(s) should not be disclosed, it should not be disclosed unless ordered by the Court of Protection. If ordered by the Court to disclose and the Solicitor believes it is not in the best interests of the client, then the Solicitor can seek a variation of the disclosure order.
- If the LPA or EPA contains a restriction which prevents the Attorney from acting until the Donor lacks mental capacity to manage his property and financial affairs, the Solicitor is advised to require the Attorney to satisfy himself that the Attorney has sufficient authority to act.
- The Court of Protection appoints a Deputy to make property and financial affairs decisions on a continuing basis, the wide terms of which enable the Deputy to see a copy of the Will. Although incapacity is not a continuing state, it would be unduly onerous to require the Deputy to provide medical evidence of capacity so the Solicitor is able to rely on the Deputy’s request for disclosure.
- The original Will should be retained by the Solicitor as part of the client’s papers in accordance with the original retainer unless ordered otherwise by the Court of Protection.
The guidance gives very useful examples of what can occur in practice.
Gail Frankland & Gill Steel, LawSkills Ltd
22 March 2017
Case studies
Research begins at home
The Facts
We were approached by a solicitor in Berkshire who had never previously used us and who was working on an estate long since administered in which an additional asset had been discovered.
The Problem
Research was required to locate one of the legatees in Australia. The address given in the will was long-since out of date. Our client had already received a couple of rather expensive quotes to undertake research in Australia – an increasingly difficult jurisdiction in which to operate due to ever tightening privacy laws – and had been recommended to us by a colleague.
The solution
There wasn’t much money at stake so we needed to think differently – how could we solve this case as cost-effectively as possible? We offered a tried and tested quick fix – a couple of hours work aimed at locating someone relevant in UK, in the hope that they’d remained in contact with their family in Australia.
The outcome
While this tactic doesn’t always work, we do find it to be successful often enough to make it worth a try. We quickly located an uncle of the legatee in England who put us in touch with his nephew. We even managed to come in slightly under budget and the first time client is now one of our regulars.
A musical Trust
The facts
Under the terms of his Will a composer of some note had left the future royalties of his most famous work to those of his siblings who survived him.
The problem
The monies had accrued over the years but had never been paid out and the whereabouts and even the names of the siblings were no longer known. Research was required to identify them, document their inevitable deaths and locate their ultimate successors.
The solution
We consulted census returns and birth indexes, and reconstructed the deceased’s immediate family. We established that the Testator was one of a large family – six of his siblings outlived him. We documented their respective deaths – most had died many years ago – and obtained their Wills, tracing the devolution of the gifts.
The outcome
We located all the ultimate beneficiaries to the trust, many of whom were completely unaware of their relationship to the deceased and their musical heritage, and our client was delighted to be able close her file.
Better to be safe than sorry
The facts
Peter Johnson had died intestate and the statutory next of kin was in the class of his uncles and aunts of the whole blood. His father was understood to be an only child and the maternal family was thought to comprise one uncle and one aunt, both predeceased, leaving only three heirs in total.
The problem
There had historically been poor communication between family members and our help was needed to confirm the position before the PRs could safely distribute.
The solution
We quickly established that the maternal family had included a previously unknown uncle who, although married, had died without issue. Although no there were no extra heirs in the maternal family, our client was concerned that the picture was not as she had thought and asked us to confirm the position in the paternal family. As can often be the case, it transpired that, far from being an only child, the Deceased’s father was in fact one of many siblings.
The outcome
We identified and located 27 heirs in the paternal family. With all heirs accounted for and no specific risks identified, we easily obtained a reasonable quote for comfort insurance. Our final report pack included, as is standard, a detailed written report, family tree, certificates and other supporting documentation, a beneficiary address list and a distribution schedule. Our client was very pleased to have avoided an incorrect distribution and she now instructs us in all such matters.
Contact us
Call, write or email with the facts of your case and we’ll give you a no-obligation free of charge assessment report. You’ll be pleasantly surprised at our competitive, realistic fee estimates and we take pride in getting the job done properly, promptly and to the highest standards.
We know you can choose from many probate research firms – we hope you’ll put us to the test and let us show you what we can do.
Call me on 01225 690 021 or matthew@mooreprobateresearch.co.uk
What our clients say
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