Sometimes It Matters Who Dies First!

rjbuser — Wed, 03 Jul 2019 06:42:42 +0000

Maybe it is time to have your Will reviewed?

A recent case going through the courts has brought this issue to the fore. Under common law where two people die at, or very near, the same time, and at least one of them is entitled to part or all of the other’s estate on their death, usually the result of an un-natural death occurring from events such as an accident, a homicide, or a murder-suicide,, the elder of the two is deemed to have died first.

So, in the case of simultaneous death, where you have a Will that leaves everything to your spouse or civil partner the Will of the younger partner will prevail, which may not be what you would have wanted. Such a situation could mean your children could be disinherited and that for sure would definitely not be what you would want.

A Will should be reviewed regularly anyway, so if this case has you worried, let’s talk through your circumstances and find out what you can do.

In the case currently going through court, the children of an elderly couple found dead at home together are locked in an unusual £300,000 inheritance battle as they ask a judge to decide which parent died first.

John Scarle, 79, and his wife Ann, 69, who each had children from previous marriages, were found dead from hypothermia in their bungalow after police were called by worried neighbours in October 2016.

Under a little used 100-year-old law, the family of whoever dies last stand to inherit the home in Leigh-on-Sea, Essex.

Mrs Cutler’s barrister James Weale said the deaths happened between October 3 or 4 and October 11, 2016, telling the High Court: “The most that one can do is speculate as to what might have happened. None of the experts were able to express any view as to even the approximate date, let alone time of the death of either of John or Ann.”

John Scarle’s daughter, Anna Winter, insists her stepmother, who suffered a stroke and had mobility issues, probably died first, which would mean her father briefly inherited his wife’s share and passed it to Mrs Winter.

But Deborah Cutler, daughter of Ann Scarle, claims the order of deaths cannot be determined and the ‘legal presumption’ is her stepfather, the elder of the couple, died first — meaning she and her brother, Andre Farley, get the house.

Acting for Mrs Winter, barrister Amrik Wahiwala said the evidence showed ‘on the balance of probabilities’, it was Mrs Scarle who died first. But James Weale, acting for Mrs Cutler, said no expert has been able to give an date or time of death for the couple ‘beyond reasonable doubt’.

Judge Phillip Kramer has reserved his ruling until a later date.

Is it time to have your Will reviewed?

A Will should be reviewed regularly anyway, so if this case has you worried, let’s talk through your circumstances and find out what you can do. You can contact me here

Our Wills are as individual as you are

The post Sometimes It Matters Who Dies First! appeared first on Enfield Wills.

How a £90 Will by Barclays lost half my house

rjbuser — Mon, 08 Oct 2018 15:05:55 +0000

Barclays is being sued by a daughter who claims a botched will by the bank deprived her of a stake in her late father's London home. The case underlines a wider problem with low-cost wills

A woman is seeking hundreds of thousands of pounds compensation from Barclays, claiming the bank's will-writing service resulted in her losing a stake in a valuable London home.

Barclays is contesting the claim.

But, in an interesting twist, Telegraph Money can reveal that when the complaint was previously assessed by the Financial Ombudsman Service (FOS), the bank was found at fault. The Ombudsman ordered Barclays to pay "a fair and reasonable settlement".

Unusually, Barclays decided to ignore the Financial Ombudsman's recommendation.

The matter has now gone to the High Court.

Court documents detail how in 2007 Ebenezer Aregbesola used Barclays' £90 will-writing service to create a will dealing with his various assets including homes overseas and in London. His will instructed half of the London home to be given to his daughter, Tinuola Aregbesola, on his death.

The property was owned jointly by Mr Aregbesola and his wife – who was not Tinuola's mother. Because of the joint ownership, on Mr Aregbesola's death in early 2014, the property went wholly to his wife – in contravention of the wishes spelt out in the will.

In order for the will's conditions to have been fulfilled, Barclays should have severed the joint tenancy agreement, the court document alleges. This would have enabled half of the property's value to pass as instructed to his daughter. Because this severance process – which the Ombudsman describes as "a simple formality" – was neglected, the joint tenant, Mr Aregbesola's widow, is legally entitled to the whole property which she can now bequeath as she pleases.

The case highlights the danger of popular, cheap "DIY" wills which are often too simplistic to reflect accurately their owner's wishes.

In summing up the case the Ombudsman concluded: "The half-share in the property in London cannot be gifted to Miss Aregbesola in accordance with the late Mr Aregbesola’s wishes.

"There is no subsequent right for this to be contested with the co-owner in a court of law. Had the bank referred Mr Aregbesola’s will instruction form to its solicitors I am aware [the solicitors would] issue the notice of severance as a matter of good practise.

"In order to resolve the complaint we would usually ask the bank to put the consumer back in the position they would have been had the correct steps had been taken in the first instance.

"Unfortunately, the share in the property in Balham is incapable of being gifted now. Therefore, I would ask Barclays to come up with a settlement that would fairly and reasonably resolve the complaint – taking into consideration the value of the property and the intended gift."

But once it received this recommendation Barclays shifted position. It said that since its will-writing division was not regulated, it would not have to adhere to the Ombudsman's findings. The Ombudsman accepted this was technically correct.

In an emailed statement, Barclays told Telegraph Money: “The matters raised are the subject of ongoing legal proceedings. It would not be appropriate to comment on the specific points raised. We note that the Financial Ombudsman Service issued its latest decision in relation to the complaint raised by Ms Aregbesola on 19 February 2015. The Financial Ombudsman Service concluded that the matter was outside of the scope of its service."

The legal position – and how to avoid similar problems

Where parents remarry and enter into property transactions with their new spouse, wills bequeathing assets to children of former relationships need to be checked.

Sonita Hayward of solicitors Bolt Burdon Kemp warned of "a real lacuna in the law due to the fact that will-writing companies are not currently regulated". She said this is "particularly concerning when well known institutions such as Barclays offer such a service".

She explained that companies could afford to offer cut-price fees, such as the £90 charged by Barclays in this case, "because these organisations aim to profit from the fees generated by administering the estate as executor, after the testator’s death."

Rip-Off Executor Services Have Been Highlighted In The Press

In 2011 the Office of Fair Trading said: "'The wrong decision when appointing executors could mean a potentially expensive professional service is chosen, when a family member or friend may be quite capable of handling the task either alone or with professional support."

At that point banks including Barclays undertook to review their will-writing services.

Clearly, problems with existing wills remain.

Ms Hayward has experience of joint tenancy problems such as that raised in the Aregbesola case.

"I see cases all too frequently where the problems with the terms of a will and failure to sever a joint tenancy only come to light after the death of the testator, at which point it is too late. Parties are then reliant on the good will of a third party, often a parent’s second spouse, to resolve the issues that they face.

"The difficulty with this is that a joint tenant is under no legal obligation to comply with a deceased joint tenant’s wishes where the joint tenancy has not been severed. The only redress open to the disappointed beneficiary is for them to sue the party that prepared the will."

"I have previously acted for siblings where one of their parents left them their half of a jointly owned house. The parent in question had remarried and owned the property jointly with their new spouse.

"The solicitors who prepared the will in that case did not take any steps to sever the joint tenancy which existed between the owners. As a result, following the death of my clients’ parent, the gift of the interest in the property failed and the spouse inherited the remaining share of the property.

"My clients had to bring a claim against the solicitors who prepared the will as they had no remedy against the new spouse. We were successful in recovering damages for them. Awareness of these types of claim arise at what is already a very distressing time and cause great additional emotional strain to families."

Daniel Winter of law firm Nockolds said: "The growing complexity of family structures, coupled with the rising value of estates, means that the administration of estates often calls for greater judgement than in the past."

“Cases where an individual or organisation has simply been negligent, and failed to grasp the legal responsibilities of administering an estate are becoming more frequent. We have also seen cases where a family member acting as fiduciary is motivated by greed and takes assets which should go to other beneficiaries, or seeks to ‘correct’ a perceived wrong that happened in the past."

The post How a £90 Will by Barclays lost half my house appeared first on Enfield Wills.

Severance of Tenancy – Enfield Wills

Sometimes It Matters Who Dies First!

Is it time to have your Will reviewed?

How a £90 Will by Barclays lost half my house

The legal position – and how to avoid similar problems

Rip-Off Executor Services Have Been Highlighted In The Press