Registration of Wills

[Clitheroekid]

The thread about missing Wills has reminded me again of the question of whether there should be some form of compulsory registration of Wills, so that only a Will that had been properly registered would be admitted to probate.

The experiences described in that thread are all too common. One of the biggest problems in dealing with an estate is being sure that you have the last Will made by the testator, and the worry of a later Will turning up, or being unable to find a Will, administering the estate as an intestacy and then finding that there was a Will after all.

In many cases it's not that important, as the later Will often more or less repeats the earlier one and/or replicates what would happen on an intestacy. However, I've had two serious cases where the estate was administered according to the Will and the legacies paid out, only for a later Will to turn up after the administration had been concluded.

In both situations some of the unfortunate beneficiaries of the probated Will had to pay back all the money they had received - with interest!

In one of the cases the legacies were in the region of £30k to £50k, and it was around 5 years later that the newer Will came to light. Needless to say the money had all or mostly been spent, so that some beneficiaries had to try and borrow money to make the repayment. Quite understandably, some of them simply refused to pay at all. It was a nightmare.

I appreciate there would be difficult cases, for example with deathbed Wills, and there would have to be some leeway to admit an unregistered Will to probate, but careful drafting of the legislation should be able to deal with that.

There's already a procedure for voluntarily depositing a Will with the Probate Service, but it's very little known and to my knowledge very little used. However, the fact that the procedure exists should mean that it could be used as the basis for a compulsory registration system, thereby reducing the cost of setting it up from scratch.

As the administration of such a registry should be fairly simple I wouldn't expect the fees attendant upon compulsory registration to be excessive, and to my mind the certainty that such a process would bring to the probate process would more than cover the costs. In particular it would save all the time and money spent on trying to locate the Will that happens at present.

Any thoughts?

[robbelg]

That seems eminently sensible

[Lootman]

Isn't that what happened ten or so years ago when the old-style POA's were replaced with LPA's, the latter requiring registration?

Interestingly, at the time, my solicitor rang me up and suggested that I do an old-style POA whilst I still could. Clearly it was his belief that the old unregistered POA's were somehow more desirable.

But for the life of me, I can't recall his reasoning, and perhaps he just had a boat payment due. But I haven't changed it just in case. My eldest son has original, since he is the one most likely to need it.

Incidentally, if I received an 50K inheritance and then, five years later, somebody came to me and said "Oops, we messed up and you need to pay it back", you can bet I would not pay it back. I have clean hands and acted in good faith. Can't solicitors buy insurance for that kind of situation, since an Executor can be held personally liable for such situations?

[melonfool]

Incidentally, if I received an 50K inheritance and then, five years later, somebody came to me and said "Oops, we messed up and you need to pay it back", you can bet I would not pay it back. I have clean hands and acted in good faith. Can't solicitors buy insurance for that kind of situation, since an Executor can be held personally liable for such situations?

What's has a solicitor buying insurance got to do with anything? It is the executors who need to be covered. But solicitors presumably DO have insurance.

But, anyway, surely they can only be personally liable if negligence was proved. So, all reasonable inquiries need to be made to ensure you cannot be accused of negligence.

I wonder if any consequence could occur to the person who withholds the sum - maybe that would be theft?

I'd like to register my (new, once I have sorted out new house etc, I will need a new will to disinherit the ex. In theory I need one now but I hope I can be relied upon not to die for a few weeks) as no-one would ever know where to look for mine and it's not the sort of thing that if I told any relevant people they would remember what I told them (or I might move it anyway).

Mel

[swill453]

I'd like to register my (new, once I have sorted out new house etc, I will need a new will to disinherit the ex. In theory I need one now but I hope I can be relied upon not to die for a few weeks) as no-one would ever know where to look for mine and it's not the sort of thing that if I told any relevant people they would remember what I told them (or I might move it anyway).

If you'd rather be intestate than have the ex inherit, you could always just destroy the will. Having saved the text if it's useful to you for drafting a new one.

Scott.

[Lootman]

Incidentally, if I received an 50K inheritance and then, five years later, somebody came to me and said "Oops, we messed up and you need to pay it back", you can bet I would not pay it back. I have clean hands and acted in good faith. Can't solicitors buy insurance for that kind of situation, since an Executor can be held personally liable for such situations?

What's has a solicitor buying insurance got to do with anything? It is the executors who need to be covered. But solicitors presumably DO have insurance.

I thought it was fairly obvious that I was talking about a case where the solicitor was the executor. If an executor is not a professional with some kind of liability or indemnity insurance, then it could be a problem as such insurance is probably either not available or very expensive.

But, anyway, surely they can only be personally liable if negligence was proved. So, all reasonable inquiries need to be made to ensure you cannot be accused of negligence.

Agreed but I think CK's point was that, every now and then, somebody does make all reasonable inquiries and then a later Will shows up anyway. At that point there's a huge problem that may not clearly be anyone's fault, which is why I raised the possibility of insurance.

I wonder if any consequence could occur to the person who withholds the sum - maybe that would be theft?l

A conviction for theft requires proof of criminal intent. If someone receives an inheritance then they have done nothing wrong. If they spend it, they have done nothing wrong. If they are then asked to repay it and they do not have the money, I cannot see what criminal intent exists nor how it can be proven.

More likely the stiffed beneficiaries might file a civil case, although I'm not convinced that case would be easy to win either.

[Clitheroekid]

Interestingly, at the time, my solicitor rang me up and suggested that I do an old-style POA whilst I still could. Clearly it was his belief that the old unregistered POA's were somehow more desirable.

But for the life of me, I can't recall his reasoning, and perhaps he just had a boat payment due.

The `old-style POA' to which you're referring was the Enduring Power of Attorney. These were replaced by Lasting Powers of Attorney in 2007.

Your solicitor was making a very sensible suggestion. The EPA was a delightfully simple and straightforward 4 page document that did the job very well. I made hundreds of them, and clients liked them because they were simple and therefore cheap.

Furthermore, they didn't have to be registered until and unless the donor lost capacity, so there were no fees to pay.

The new LPA was a massively more complex document. It was entirely inappropriate for the people who had most need of them, namely those who were often drifting towards incapacity and for whom a 12 page LPA plus another 20 or so pages of forms that needed completing was a daunting prospect.

This made LPA's a lot more expensive - again effectively excluding many people who most needed them - and as they also had to be registered before they could be used at all it meant court fees of over £100 were payable as well.

Most solicitors very much regretted the disappearance of the old EPA's.

But I haven't changed it just in case.

I don't understand this comment. Your solicitor was advising you to make an EPA, which you declined to do. However, there was nothing equivalent that existed before the EPA, so what `change' are you referring to?

Incidentally, if I received an 50K inheritance and then, five years later, somebody came to me and said "Oops, we messed up and you need to pay it back", you can bet I would not pay it back.

Correction. You might not want to pay it back, but in that event the executors would probably sue you so that you'd end up not only paying it back but paying legal costs on top.

True, you might be able to defend it, but it wouldn't be at all straightforward, particularly if repayment would cause you no particular hardship, and at the very least it would cause you a lot of hassle so that you'd probably negotiate a settlement.

Can't solicitors buy insurance for that kind of situation, since an Executor can be held personally liable for such situations?

You can buy insurance for virtually anything, but in reality it is in most cases a very small risk. Most executors are beneficiaries, so that as the expense of such insurance (not just the premium but the expense of sourcing a policy and setting it up) would come out of their own pocket they would generally much prefer to take the risk.

[Lootman]

But I haven't changed it just in case.

I don't understand this comment. Your solicitor was advising you to make an EPA, which you declined to do. However, there was nothing equivalent that existed before the EPA, so what `change' are you referring to?

Sorry, I didn't express myself clearly.

I did set up the EPA as my solicitor advised, and just in time.

What I meant was that I have not subsequently changed it, so it is still valid. In other words I haven't been tempted to do a LPA, and the reasons you gave helped me understand why I won't either, so thank you.

Incidentally, if I received an 50K inheritance and then, five years later, somebody came to me and said "Oops, we messed up and you need to pay it back", you can bet I would not pay it back.

Correction. You might not want to pay it back, but in that event the executors would probably sue you so that you'd end up not only paying it back but paying legal costs on top.

True, you might be able to defend it, but it wouldn't be at all straightforward, particularly if repayment would cause you no particular hardship, and at the very least it would cause you a lot of hassle so that you'd probably negotiate a settlement.

Well yes, I'd kick up a huge stink and expect to settle for some portion of it. The basis of the defence would surely be my "clean hands".

The more serious case is the one you mentioned earlier, where the recipient has spent the money and is effectively judgement-proof, or living overseas or otherwise difficult to collect from.

[Slarti]

The thread about missing Wills has reminded me again of the question of whether there should be some form of compulsory registration of Wills, so that only a Will that had been properly registered would be admitted to probate.

Bad idea, as there have been instances where people made their will just before dying and if they were not allowed there would be more people dying intestate, which would not be a good thing.

Slarti

[melonfool]

Slarti - read the whole post, CK covered death bed wills.

Scott - it's a toss-up between current will inheriting ex and no will leaving to estranged parents! On balance the former is better because it does at least leave a large sum to my niece and nephew which they would not get if I were intestate. And, oddly, I feel I could trust the ex more to pass anything he got on to them (knowing we had split and therefore it was not ethical to keep it), which my parents would not.

Mel

[Lootman]

there have been instances where people made their will just before dying and if they were not allowed there would be more people dying intestate, which would not be a good thing.

Bear in mind that if you are on your deathbed, then you are very likely to be under some fairly serious medication, which might render it impossible for you to make a valid Will on the grounds that you are "not of sound mind", due to the cocktail of drugs you are on.

I was once summoned to a hospital ward to witness a Will and, upon arrival, I asked to see the medical chart. She was on a mix of opiates and painkillers. I refused to witness it.

[Slarti]

there have been instances where people made their will just before dying and if they were not allowed there would be more people dying intestate, which would not be a good thing.

Bear in mind that if you are on your deathbed, then you are very likely to be under some fairly serious medication, which might render it impossible for you to make a valid Will on the grounds that you are "not of sound mind", due to the cocktail of drugs you are on.

I was once summoned to a hospital ward to witness a Will and, upon arrival, I asked to see the medical chart. She was on a mix of opiates and painkillers. I refused to witness it.

I made my point because I did witness a will for a dying lady on the same ward as my late mother.
She may have been on serious meds, but she seemed to be talking logically to me, and the will was very simple, so I had no worries.

Slarti

[melonfool]

there have been instances where people made their will just before dying and if they were not allowed there would be more people dying intestate, which would not be a good thing.

Bear in mind that if you are on your deathbed, then you are very likely to be under some fairly serious medication, which might render it impossible for you to make a valid Will on the grounds that you are "not of sound mind", due to the cocktail of drugs you are on.

I was once summoned to a hospital ward to witness a Will and, upon arrival, I asked to see the medical chart. She was on a mix of opiates and painkillers. I refused to witness it.

I made my point because I did witness a will for a dying lady on the same ward as my late mother.
She may have been on serious meds, but she seemed to be talking logically to me, and the will was very simple, so I had no worries.

Slarti

You don't actually 'witness the will' though, do you? You merely witness the signature and have no need to know what is in the will.

Mel

[Lootman]

I made my point because I did witness a will for a dying lady on the same ward as my late mother.
She may have been on serious meds, but she seemed to be talking logically to me, and the will was very simple, so I had no worries.

You don't actually 'witness the will' though, do you? You merely witness the signature and have no need to know what is in the will.

Agreed, you are only witnessing a signature, and really only to affirm that the person signing the Will is the person the Will is for.

In the case I cited above, I did refuse to witness a Will on the basis that the lady in question was clearly not all present. I don't believe that I was under any obligation to refuse, nor that there was any risk to me to witness it. It just seemed wrong to me to witness a signature in that situation. I'm sure she found a less scrupulous soul to witness it.

One of my neighbours is an elderly lady. She is quite lucid and coherent until about noon every day, when she hits the sherry. In the afternoons, she is quite useless (although no doubt, blissful). When she asked me to witness her new Will, I made sure it was in the morning.

[AJC5001]

Agreed, you are only witnessing a signature, and really only to affirm that the person signing the Will is the person the Will is for.

But it doesn't. I could create a will titled 'The last Will & Testament of Lootman', get hold of two witnesses off the street, sign my name a 'Lootman' and all they have witnessed is that is what I've signed. There is no need or mechanism whereby they would know I was or wasn't 'Lootman'.

One of my neighbours is an elderly lady. She is quite lucid and coherent until about noon every day, when she hits the sherry. In the afternoons, she is quite useless (although no doubt, blissful). When she asked me to witness her new Will, I made sure it was in the morning.

So she obviously changes into somebody different in the afternoon? Surely she is the same person, only her level of competence has changed?

Adrian

[melonfool]

I was asked last week to witness the signature of a colleague's wife on their mortgage docs. She had signed that morning and he had videoed her. I refused. Apart from the fact I've never met her of course I wouldn't be witnessing her signing.

There followed a long conversation where it transpired he thought they both had to sign together in front of one witness, which was not the case at all. So he printed a new sheet, signed it, I witnessed his signature and she took the doc to work the next day and signed it in front of a witness who was her work colleague. You'd think someone would have made it clear what they needed to do!

Mel

[Lootman]

I could create a will titled 'The last Will & Testament of Lootman', get hold of two witnesses off the street, sign my name a 'Lootman' and all they have witnessed is that is what I've signed. There is no need or mechanism whereby they would know I was or wasn't 'Lootman'.

You could. But since you aren't me, cannot prove that you are me, and cannot sign my name the way that I do, it would not do you any good if you try and execute that fake Will.

One of my neighbours is an elderly lady. She is quite lucid and coherent until about noon every day, when she hits the sherry. In the afternoons, she is quite useless (although no doubt, blissful). When she asked me to witness her new Will, I made sure it was in the morning.

So she obviously changes into somebody different in the afternoon? Surely she is the same person, only her level of competence has changed?

She doesn't change into a different person, but she does change from someone who is competent to make informed decisions into one who is not. I am only willing to be a witness when she is competent.

[Dod1010]

You posters all seem to have very interesting lives (and neighbours!)

Dod

[Watis]

I was asked last week to witness the signature of a colleague's wife on their mortgage docs. She had signed that morning and he had videoed her. I refused. Apart from the fact I've never met her of course I wouldn't be witnessing her signing.


Mel

I have been asked to do the same thing - but without the video. I refused because I believe it would be perjury to sign as a witness when I didn't see the signature being written.

If I understand this correctly, if the signatory wanted to back out of their responsibility for paying the mortgage in the future, they could legitimately claim that their signature was not witnessed by me, making the contract void and me facing a criminal charge?

Watis

[melonfool]

I don't think it's a criminal offence, no.

But, if you were called later because of a problem, you would need to tell the truth. I'm not even sure that doing it is perjury to be honest. Though, to an extent it depends what the statement you are signing says I suppose.

I won't do stuff like that though, I am a natural rule-follower.

Mel