Life is unpredictable, and while we naturally hope for the best, preparing for the unexpected is crucial. We often focus on things like retirement savings, property, and our estate, but the prospect of losing mental or physical capacity — even temporarily — is something many people overlook.

Preparing for potential incapacity isn’t just about financial protection, but also about ensuring that our wishes are respected when we can’t speak for ourselves. Illness, injury, or the natural effects of ageing can sometimes leave us vulnerable, so having a plan in place to manage both health and financial decisions during such times is incredibly important.

It’s almost like putting a safety net in place — not because we expect to fall, but because if we do, we want to be certain it’s there to catch us, and that it will catch us in the way we would have chosen.

One of the most empowering things you can do is take control of the situation by planning ahead. A Lasting Power of Attorney (LPA) is an essential legal document that allows you to appoint one or more individuals, known as your ‘Attorney(s)’ to make decisions on your behalf if you either authorise them to act whilst you have capacity (this option is only available for your financial LPA) or if you become unable to do so yourself, whether due to illness, injury, or incapacity. There are two main types of LPAs:

1. Property and Financial Affairs LPA – which covers decisions relating to your finances, property and other assets.

2. Health and Welfare LPA – which covers decisions about your personal health, where you live, medical care, day to day activities and well-being.

Here are some of the key reasons why preparing a Lasting Power of Attorney is important:

1. Control over who makes decisions for you

Without an LPA in place, if you lose mental capacity, decisions about your care or finances could be made by someone that may not have wanted involved, such as the Local Authority, family member or even a friend.

2. Peace of mind for you and your loved ones

Having an LPA in place gives both you and your family peace of mind. If something happens and you’re no longer able to make decisions, your appointed Attorney(s) will already be empowered to step in. This reduces stress and uncertainty for your family during a challenging time.

3. Prevents delays and possible complications

Without an LPA, if you lose mental capacity, your family might have to apply to the Court of Protection for a deputyship order. This process can be lengthy, costly, and stressful. An LPA avoids this situation, as it gives someone immediate authority once the document has been registered to step in and act on your behalf, when the circumstances arise.

4. Flexibility

You can specify exactly what decisions you want your attorney to be able to make. For example, with the Property and Financial Affairs LPA, you can choose whether your attorney can make decisions about your property immediately or only after you’ve lost mental capacity. Although this option isn’t available for the Health and Welfare LPA, you may wish to include preferences of instructions, which need to be carefully worded, on things like medical treatment, care options and even whether you want your attorney to make decisions about life-sustaining treatments.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

The recent case published regarding the late Margaret Baverstock highlights the importance of ensuring that the legal requirements to prepare and sign a Will are adhered to. In this case, the Judge concluded the deceased lacked the required capacity and that the Will signed eight days before her passing had not been validly executed commenting as follows:

Comments regarding Testamentary Capacity:

• ‘The deceased was also extremely frail and on her deathbed. In these circumstances, it was necessary to question Margaret to ensure her understanding.’

• ‘Merely reading out the document and asking if she understood it was not enough.’

Comments regarding the signing of the Will:

• ‘I am satisfied that the deceased had no idea what was going on. She was unable to act independently and, although she responded with a ‘yeah’ or even a grunt when addressed as mum, that was simply a response to being directly addressed and didn’t indicate consent to signing the Will or acknowledging its contents.’

• ‘She looked completely blank during the reading of the Will and on all, save one occasion, she only responded to her daughter.’

• ‘At no point did Margaret ask Lisa for help in signing the Will or direct her to sign the Will on her behalf. Nobody ensured that she understood what was happening by asking her questions about the contents of the Will or asking her to tell them her wishes, and she cannot fairly be said to have signed the Will.’

As there was no previous Will, the Judge confirmed that as the Will was in fact invalid the intestacy rules applied which resulted in the estate being split equally between the deceased’s two children, one of which would have received nothing if the validity Will had been upheld.

To assist with mitigating claims being made in respect of the validity of a Will being prepared, I have outlined some key points to bear in mind when preparing and signing your Will:

1. Capacity to Make a Will

• You must be at least 18 years old.

• You must be mentally sound and capable of understanding the nature of the Will, what it contains, and the consequences of making the Will. If there are any concerns, then a capacity report will usually be requested by the Legal Advisor. They will also prepare a detailed note on file documenting the circumstances in respect of the preparation of your Will, reasons why the Will was being prepared in that way and their considerations in terms of capacity, adding a layer of protection to your Will.

2. Signing the Will

• The Testator must sign the Will in the presence of two independent witnesses. These witnesses must be present at the same time and watch you sign the Will.

• Witnesses cannot be beneficiaries (people who stand to inherit from your Will), or the spouses/civil partners of beneficiaries, to avoid any conflict of interest.

• If you are unable to physically sign the Will, you can have someone sign it on your behalf in your presence, but there are additional legal requirements to comply with depending on the circumstances.

3. Witnessing the Will

• After you sign the Will, your witnesses must sign the Will in your presence and in the presence of each other.

• The witness should add their full name, address, and occupation next to their signature.

4. Changes to the Will

• If you want to amend your Will, you can create a codicil (a legal amendment to your Will) or make a new Will entirely. If you’re changing your Will, you must follow the same signing and witnessing procedures as before.

• It’s also a good idea to keep your Will updated to reflect any changes in circumstances (e.g., marriage, divorce, births, or deaths).

Here at Franklins Solicitors we offer a comprehensive Will writing service.  For further advice and assistance, please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

If you and your sibling have both been appointed as attorneys in a Lasting Power of Attorney (LPA), you may wonder how this will work in practice. In this blog I will explain the roles and responsibilities you both have as attorneys and what you can do should an issue arise between you. 

Your role and responsibility as an attorney

Being appointed to act as an attorney for someone is a serious responsibility. In choosing you to act, the donor likely felt you are a trusted individual who can take on the responsibility necessary for their future health and financial decisions. They likely believe you will make decisions in their best interests for when they become unable to.

Acting jointly as an attorney  

When acting jointly with your sibling as attorneys, your roles and responsibilities are similar to those of a sole attorney, but with some additional considerations due to the shared responsibility. Here are some key aspects of your role:-

1. You must work closely with your sibling to make decisions in the best interests of the donor.
2.  Strive to reach a consensus on decisions whenever possible. This may involve discussions, negotiations, and compromise to find solutions that align with the donor’s wishes and needs.
3. Hold each other accountable for fulfilling your duties and responsibilities as attorneys, including keeping accurate records, managing the donor’s affairs responsibly and avoiding any conflict of interest.
4.  Inform each other of any significant decisions or actions regarding the LPA. Regular communication ensures transparency and helps prevent misunderstandings.
5. Consult with each other as well as the donor if possible, when faced with important decisions or situations that may impact the donors welfare or interests.
6.  Ensure all actions taken by you both comply with the law, regulations, and the terms of the LPA.

By working together effectively and fulfilling your duties conscientiously, you can ensure that the donor’s best interests are prioritised and that their affairs are managed responsibly and ethically.

What happens if we cannot agree?

Conflict resolution

In the event that you and your sibling have disagreements, the following options are available to you when trying to resolve disputes:

1. Reaching an agreement: the first step would be to openly communicate with one another and express your concerns and try to reach a compromise.
2.  Obtaining legal advice: seeking legal advice from an experienced solicitor could help provide clarity on your rights and options. They can review the LPA document, assess the situation and offer guidance as to the best course of action.

Applying to the Court of Protection: if the disagreement is still ongoing and cannot be resolved through negotiation or obtaining legal advice, then applying to the court for intervention might be the alternative. The court can make decisions regarding the LPAs, including appointing replacement attorneys and providing guidance on specific issues.

Summary

Every dispute is different and depending on the circumstances, one dispute might take a different approach to another.

Obtaining legal advice may be a good option for you as it will provide clarity on your options and will not escalate matters too much.

Our Wills, Trusts and Probate team or our Litigation and Dispute Resolution team can advise you on next steps. Please give us a call on 01908 660966 or 01604 828282 or email info@franklins-sols.co.uk.

If you have children under the age of 18 years, your Will needs to set out what will happen to them if you die before they turn 18 as well as who is responsible for looking after anything you leave them.

For our purposes there are three roles that matter: executors, trustees and guardians. These can all be filled by the same people but the responsibilities of each are different.

Your executors are responsible for the financial aspects of your estate: applying for probate, closing down bank accounts, paying any liabilities and distributing the rest to the beneficiaries in accordance with your Will. Your executors will also be the trustees of any Trust included in your Will, which we expand on below.

Your guardians are responsible for looking after your children day to day.

In the vast majority of cases, a guardian can only be appointed by a person with parental responsibility or by someone who themselves has already been appointed as a guardian.

If a child’s parents are married or in a civil partnership when the child is born, both parents automatically have parental responsibility. If not, the mother still does automatically, but the father would only have it in certain circumstances, e.g. if he is named on the birth certificate or he goes on to marry the mother.

We would strongly suggest including a clause in your Will in which you appoint guardians for your minor children. This appointment would take effect when both parents have died and would last until the child’s 18^th birthday.

For practical purposes, it is best if both parents appoint the same guardians in their respective Wills.

The position is more complicated where there are stepparents; in that case we would highly recommend discussing this with us at a meeting.

As mentioned above, when a minor inherits someone’s Estate, it must be held on Trust for them until they are at least 18.

For a Trust to work properly, there need to be at least 2 trustees so this is the minimum number you should appoint. It is possible to appoint just one, but then that person would need to appoint a second trustee to act alongside them. This may not be someone you approve of, so if you want to retain some control you should appoint at least two executors/trustees.

You may not want your children to become absolutely entitled to their share of your Estate the moment they turn 18. Other common ages you can specify are 21 and 25, because there are often inheritance tax benefits to Trusts where the children are entitled to their share before they turn 25. Ultimately, though, it is entirely up to you. Whichever age you choose, your trustees will still be able to let them have some of the money before then, if e.g. they need it for school fees or private medical care.

That said, there are several other types of Trusts available, and we would be more than happy to discuss these with you to find the one that best suits your aims.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

If you are thinking of going through a divorce, have been divorced or are separated but legally married, it is important to consider what will happen to your Estate when you pass away and whether it is in line with your wishes.

What happens to my Will whilst I am waiting for my divorce to be finalised?

If you are currently going through a divorce and are waiting your divorce to be finalised, your existing Will is still valid. If you have appointed your spouse as an Executor and/or Trustee and they are a beneficiary in your Will you should consider doing a new Will to reflect your current wishes.

If you do not have a Will, your Estate will pass under the rules of intestacy which ultimately means your spouse will inherit most or all of your estate.

What happens to my Will once my divorce has been finalised?

Once your divorce has been finalised, your Will is still valid. However, your ex-spouse will be treated as though they have passed away. A divorce does not automatically revoke a Will.

If you have appointed substitute Executors and/or Trustees and have specified default beneficiaries, this will take effect.

What happens if I am legally married but separated from my spouse?

Your existing Will will remain valid if you are separated but legally married. Therefore, it is important to consider doing a new Will if your current Will does not reflect your wishes.

What happens if I remarry?

Marriage automatically revokes a Will unless the Will specifies that it is in contemplation of marriage.

If you are thinking of getting remarried or have remarried, you should consider doing a new Will.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Photo by Andrea Piacquadio from Pexels

The case of Clitheroe v Bond is a dispute between two siblings concerning the validity of two Wills executed by their late mother. The question for the Court was whether their late mother died intestate or whether the Wills executed were valid. If the latter, it would mean the entire estate, comprising of £400,000.00, would pass to the son in its entirety.

At the original trial, the original Wills were not admitted on the grounds of incapacity. This was as a result of the late mother’s affective disorder, including complex grief reaction, instance delusions and depression.

The son appealed this decision arguing the deputy master had applied the incorrect test. The son also argued the wrong approach for delusions had been applied. In essence, the basis of the appeal was that the incorrect test had been applied for testamentary capacity.

The High Court have provided clarification on the correct test to apply when assessing testamentary capacity.

Mrs Justice Falk confirmed the correct test for assessing whether a testator had the capacity to make a Will as set out in the 19^th Century case of Banks v Goodfellow. Mrs Justice Falk further clarified the position in regards to delusions.

As a result of this clarification, an adjournment of three months was provided to the parties to allow them to reflect on their positions and see if there was an opportunity to reach an agreement.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

According to a recent article, HMRC have seen a record high of £274million in respect of inheritance tax claimed from over 5,000 investigations undertaken in the 2019-20 tax year. For clarity, an investigation by HMRC is undertaken to ensure that all assets have been accounted for when completing the relevant tax paperwork to apply for the Grant of Representation.

The duty to ensure that correct tax is paid lies with the executor appointed within the Will or the administrators of the estate if no Will was prepared. When acting as an executor or administrator, you will need to account to HMRC for all assets within the estate, all debts/liabilities which are being deducted and any exemptions or reliefs that are being applied to reduce the inheritance tax liability.

There are many pitfalls for the unwary executor/administrator when dealing with Inheritance Tax (IHT), they range from not applying a relief correctly to estimates being passed off as date of death valuations.

The valuation of any asset is done at the date of death on its open market value between an unconnected buyer and seller, and one of the most common areas of investigation are valuations of property, investments and, increasingly, chattels.  A vague low value estimate, especially of property or works of art, will stand out when an IHT return is reviewed and trigger an investigation.

As far as reliefs are concerned these need to be used correctly as the wrong nil rate band calculation being used or negligently applying a charity exemption could lead to a rather expensive additional IHT liability for the beneficiaries of the estate and they may well take action against the executor or administrator for the costs of this, such as interest and penalties, if it was personal representative negligence that lead to the incurring of these costs.

The most common forms of exemption/reliefs are as follows:

• Spousal exemption – anything passing to a spouse or civil partner is completely tax exempt, including those based in other tax domiciles;
• Charity exemption – again, anything passing to a charity is tax exempt as well, although watch out that the charity is in fact a charity and if based abroad qualifies as one in this country;
• Annual allowance – this relates to gifts and currently stands at £3,000 per annum. This does not apply to gifts made where the donor continues to benefit from the asset being given away or gifts are made out of surplus annual income;
• Nil Rate Band – each individual currently has a nil rate band of £325,000 which is free from inheritance tax;
• Transferrable Nil Rate Band – the survivor of a marriage or civil partnership can claim up to double their own nil rate band if they receive their spouse or partner’s entire estate under the spouse exemption mentioned above. The availability of this can be limited if the first to die gave money to non-exempt beneficiaries, such as children and other relatives, on their death at the same time or instead of their surviving spouse or partner.
• Residence Nil Rate Band – currently set at £175,000 and available where the deceased left their property to direct descendants (again, this can be transferred from deceased’s spouse of civil partner’s estate if unused and available but the surviving spouse must give a property to their children). It is not available to people who leave their estates to nephews/nieces even if they are akin to direct descendants because they have no children of their own.  Also its transferability is restricted, unlike the standard nil rate band, so that if there are no surviving children or grandchildren on the second death or the survivor leaves their estate to someone other than their children or most likely step children there is no residence nil rate band to double up.

There are however some other obscure reliefs that may be available which some may not be aware of when calculating the inheritance tax liability of an estate. A few of these are provided below.

Quick Successive Relief (also known as QSR)

This relief is available where a deceased has inherited from another estate within a short period of time before their death. In order for the tax relief to be claimed, the two deaths must be within 5 years of one another and inheritance tax must have been paid on the asset when the first person passed away.

Depending on how long the individual survived, will depend on the relief available. For example, if the deaths are within a year of one another then 100% relief from inheritance tax on that proportion of the estate is received. If however, they survived three and a half years, then the relief is reduced to 40%.

Business Property Relief

This relief is very simple on the face of it.  If you own a business or have shares in a company and have done so for 2 years or more you can leave up to 100% of this tax free to a beneficiary in your Will.  The reality is not that simple.  There are several conditions and the most important of these is that the company that you own shares in or business you run must have been trading for most if not all of the period of the deceased’s ownership.

The trading requirement is the most contested aspect of this relief.  For the purposes of claiming this relief a company or business must be trading rather than just holding investments.  The most common example of this distinction is property owning companies that rent out office space.  The company is trading in a literal sense of the word but for IHT purposes is just earning investment income and therefore BPR is not available or restricted to the pure trading aspects of the business, if there are any.

Agricultural Property Relief

Like BPR above this is another seemingly straightforward relief.  The relief works by making farms, the houses, buildings and farmland, i.e. agricultural land, tax free.  What qualifies as farming to the lay person does not always mean that HMRC regard the farm or its activities as qualifying for APR.

It works by relieving the entire agricultural value of farm land and farmhouses from tax.  Importantly it does not exempt the market value of the land and house being relieved and this might be more than its agricultural value, so caution has to be paid as how it is valued and a professional valuation is essential when attempting to claim this relief as trying to claim the whole value of the land may end up with an investigation and more tax being paid than was bargained for.

This like BPR is a very heavily litigated area with the main thrust of disputes between estates and HMRC coming from whether a farmhouse is actually one at all.  The other pitfall with this relief is hope value and this comes from where the farmland has development potential and this can also be a taxable asset so when asking for a valuation is best to make sure the surveyor carrying out the valuation investigates its planning potential.

It is important to note that administering an estate and calculating an inheritance tax liability can be complex depending on the assets within the estate and what exemptions or reliefs are to be claimed. As such, we do advise that you seek specialist advice in these circumstances to ensure that should an investigation by HMRC be issued, all necessary steps have taken to finalise the inheritance tax account with HMRC prior to the estate being distributed. If the estate has been distributed and an investigation is issued by HMRC, this may leave the executor or administrator in a position where they have insufficient funds to settle any additional tax as the estate has already been distributed.

If you require advice in relation to the administration of an estate contact our expert Private Client team on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.

The simple answer is yes.

A Will exists to do a great deal more than simply settle your financial affairs. Avoiding disputes between family members, assigning guardians for any children, or setting out funeral wishes are also incredibly important. It may be that you want to ensure that a sentimental item will be passed to a certain person, or in some circumstances you may wish for someone not to benefit from your estate at all. You can also choose to leave gifts to a loved one, friend or charity for example. Without a Will you lose influence over these types of matters. A correctly drawn up Will gives you peace of mind that you have documented your wishes and have specified where your assets are to pass on death.

What happens if you do not have a Will?

Without a valid Will, the rules set out by government, known as the rules of intestacy, determine how your assets will be dealt with – regardless of any wishes you may have had.

The most common misconception is that under the intestacy rules, everything will pass to a spouse or civil partner. This is simply not the case. Consequently, you may be leaving your spouse or partner in a very vulnerable position should you pass away without a Will in place.

The law also does not recognise cohabiting couples within the intestacy rules, which may leave your partner in a vulnerable position should you pass away.

There may also be members of your family, close friends or charities you would have liked to benefit, who won’t under these rules. It could also mean that someone may inherit from your estate that you have not had contact with for many years or simply would not have wanted to benefit.

So, what types of decisions can you make within your Will?

A Will can cover many different aspects depending on your circumstances. In the most common situations, a Will may include some of the following:

• The appointment of executors – these would be individuals that you Trust to collect in all assets within the estate and to distribute them in accordance with your wishes;
• The appointment of guardians – in the event that you pass away and have minor children, you have the ability within your Will to appoint testamentary guardians, someone who you Trust implicitly, to look after your children;
• Who you wish to benefit from your estate – you have the ability to leave your estate to whomever you wish. This may include spouses/ civil partners, children, grandchildren, or other family members, friends or charities; and
• Gifts – you may also wish to include some gifts of sentimental items to specific individuals or gifts of money to beneficiaries who are not included as residuary beneficiaries.

There are various other matters which you may wish to include within your Will, for example Trusts for minors, business Trusts, or Trusts over properties, but these do require specialist advice and are dependent on your circumstances.

Here at Franklins Solicitors LLP we are dedicated to assist where we can. If you would like to obtain advice or guidance regarding the preparation of a Will, Lasting Powers of Attorney or would like assistance with a Deputyship Application, please contact our Private Client team on wills@franklins-sols.co.uk or call Northampton: 01604 828282 / Milton Keynes: 01908 660966.

When someone passes away, family members, beneficiaries and executors can be unaware of the importance of unoccupied house insurance and the protection that it brings. When a home owner passes away and the property is left unoccupied there is only a short period of time to notify the insurer and put adequate protection in place.

Grieving family members can often miss this crucial step, which can lead to various problems. For example, if the insurance has been invalidated and a water pipe bursts, as an executor it may be that you could find yourself liable for any damage or the difference in property valuation if you have failed to put comprehensive insurance cover in place.

There is no need to remain with the current providers if you feel that they do not offer enough protection. You will need to check the provider’s terms and conditions and it may be that you will need to make enquiries with other insurance providers in order to ensure that the house is fully protected.

Furthermore, during the winter months it will usually be a condition of the insurance that the property’s water system is drained or the heating is kept to a constant temperature. Another usual condition is that the property is regularly checked and such conditions need to be adhered to. It is also sensible to take steps such as turning off any unnecessary utilities – such as fridges or freezers which are not in use. If there are any assets in the property of either sentimental or significant value it would be suitable to relocate these to a safer place and make a detailed inventory of the items that have been removed from the property.

Unoccupied house insurance can be overlooked at such a difficult time, but the implications of not having such insurance in place can be extremely serious and costly.

If you need any assistance, contact our Estate Administration team today on 01908 660966 / 01604 828282 or at probate@franklins-sols.co.uk.

In short and simple terms – yes.

If you are named as executor in a deceased’s Will and you choose to take up such a role, you have certain responsibilities and duties, which are imposed in law.

In a recent case David Loveday was appointed executor under the late Anita Border’s Will. The terms of the Will were clear in that after testamentary debts were paid, the residuary estate would be split equally between his partner Emma Cullen and Parminder Gibbs.

Parminder Gibbs did not receive her half of the residuary estate as bequeathed under the terms of the late Mrs Border’s Will.

This was because David Loveday used the monies for holidays, a new car and to settle his debts. Following a lengthy inheritance dispute, which went to the High Court, Mrs Gibbs demanded her rightful inheritance and to remove David Loveday as executor.

Despite defying a Court order to produce bank records showing where the inheritance had gone, he later admitted he had spent it all and pleaded guilty at Woolwich Crown Court for fraud.

This is an important case indicating the right of beneficiaries to bring legal claims if an executor is refusing to provide the rightful inheritance in accordance with the terms of the Will. It also highlights the duties of an executor which are enshrined in law.

If you require legal advice or assistance on your duties as an executor or to pursue an executor for not adhering to the terms of a Will, then please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.