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Wills, probate and administration

Wills – undue influence

This useful article considers the difficulties of proving undue influence where there are what the author calls ‘testamentary predators’, in light of a helpful illustration. He refers to precedent 222 Butterworth’s Encyclopaedia of Forms and Precedents (5th edition, 2016 review), where there are particulars of claim to revoke a grant of probate alleging testamentary incapacity, lack of knowledge and approval, and undue influence.

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Lasting powers of attorney – guidance

 

Solicitors who advise clients on lasting powers of attorney, and those acting as an attorney under an LPA, will welcome updated guidance from the Law Society. It reminds solicitors of the need to be aware of the Mental Capacity Act 2005 provisions; the provisions of the MCA Code of Practice; and the relevant guidance from the Office of the Public Guardian.

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Public Guardian – gifts

Giving gifts to others on behalf of an individual under a power of attorney can cause legal problems, not least because they may only make gifts if it is in the person’s best interests and the gift is ‘reasonable’. The Office of the Public Guardian has issued an updated practice note for attorneys and deputies on how they can make gifts and what is appropriate. It is published in light of the OPG’s updated policy on loans and supervision.
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Court of Protection – practice direction

The CoP’s final case management pilot practice direction is now published and will become effective on 1 September 2016 – giving practitioners time to prepare. The PD will take precedence over the CoPR (and its practice guidance). Three case management pathways for CoP proceedings are specified in the scheme:
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Trust corporations – practice guidance

The Law Society has published a useful practice note on trust corporations – corporations which undertake the administration of trusts and estates, and in some cases act as a Court of Protection deputy and attorney. The PN is aimed at considering establishing a trust corporation to use as an in-house trustee, executor, administrator, attorney or deputy.
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Family care payments – guidance

The Office of the Public Guardian has published a practice note on family care payments (or gratuitous care payments) – helpfully setting out the relevant legal framework and the OPG’s approach to such payments. The guidance applies to court-appointed deputies under a finance and property order.
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Procedure – Gazette notices

Probate practitioners will welcome a new notice placement service, through which notices can be placed simultaneously in local newspapers and online in The Gazette ‘in one easy step’.
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Deputies – client accounts

The Office of the Public Guardian has issued a practice note, OPG’s approach to solicitor client accounts. It explains the OPG’s approach to the use of client accounts to manage deputyship funds, and how the deputy acts under the MCA, the Solicitors Regulation Authority Accounts Rules 2011 (SARs) and the MCA Code of Practice. The PN clarifies the OPG’s position on the issues, and sets out two fundamental clarifications.

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Deputies – responsibilities

The Office of the Public Guardian has also issued a practice note, Public authority deputyship responsibilities, on the role and responsibilities of a public authority when appointed as a deputy by the CoP. It makes clear that its duties cannot be delegated to organisations outside the public authority.

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Forfeiture – wills and trusts

The forfeiture rule is based on the principle that it is against public policy to allow a criminal to claim any benefit by virtue of their crime; and applies to gifts by will and under the intestacy rules. 
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