The Practical Lawyer

The author looks at the issues raised by drafting wills in a digital age, and the challenges for administrators who are left to discover what the deceased owned (and owed) if they left no accessible records.

In this case, T was estranged from his three daughters and left his entire £265,000 estate to a friend who was in financial difficulties. He left a letter explaining his reasons for excluding his daughters from his will. However, one them (D) made a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable provision of £59,000.

Private client practitioners need to understand the implications of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017. The regulations came into force in June 2017 and will have an impact on trustees and advisers.

At issue in a recent case was whether or not mutual wills had been created, and when a constructive trust may then have arisen.

A will made in 1946 discriminated against the rights of adopted grandchildren under Article 14 ECHR in conjunction with Article 8. The adopted grandchildren were, therefore, entitled to benefit under the terms of the will trust.

An advance decision is an important tool and should be discussed with as much regularity as wills and LPAs for anyone involved in estate planning. The author of this useful article questions whether the heartache surrounding a recent CoP case would have been avoided had the patient completed an advance decision using the mechanism available under ss24-26 MCA.

Amendments to the Court of Protection Rules 2007 are now in force. Rules 5 and 6 of the Court of Protection (Amendment) Rules 2017 allow for the CoP to make civil restraint orders. Rule 5 now defines a ‘civil restraint order’ as:

Law Society guidance on Making gifts of assets has been issued. The Law Society highlights the issue in circumstances where clients may ask practitioners for advice about transferring property or investments to their next of kin, family members or friends, before their death, as a means of planning for their future care. The Law Society warns that a solicitor could be implicated if found to have aided a client’s deliberate deprivation of assets.

What is the role of the CoP where there is a dispute between providers or funders of health or social care services for someone lacking capacity to make decisions for themselves and family members about what should be provided for them?

The Court of Appeal’s order in the high-profile case of Ilott gave little weight to the testator’s very clear wishes and the long period of estrangement between her and her daughter, the claimant in the case.