Weekly Round Up – 23 April 2021
A quick round of the latest news in the world of Wills, Lasting Powers of Attorney and Probate.
Court awards children ‘reasonable provision’
In Re R (Deceased) [2021], the deceased wrote a Will in 2018, three months before his death.
He left his shares in the family business to his parents, which formed the bulk of his estate. His remaining assets were left to his current partner of seven years. He was previously married and had two children with his ex-wife. He left nothing to his ex-wife, whom he had divorced six years before his death. He also left nothing to his two teenage children.
The children were no longer in contact with the deceased. Their mother (the deceased’s ex-wife) had discontinued the child maintenance order more than five years before his death.
The deceased recorded his wishes in his Will, stating his intention that the children should not receive anything because of the lack of contact they had with him. He also felt that they would not need any financial support from him.
The ex-wife brought a claim under the Inheritance (Provision for Family and Dependents) Act 1975 against the deceased’s estate.
The estate argued against this, stating that: “There can be no basis for expecting that the Deceased would make any financial provision for the maintenance of his children either during the remainder of his lifetime or after his death.”
The court disagreed with this argument. It was held that the deceased’s failure to pay child support (even if not called upon to do so) or the fact that that the children were treated by their step-father as children of his family and assumed responsibility for their maintenance, could not be used as a defence to an application for inheritance from the deceased’s estate.
The children were awarded £68,000 and £118,000 to cover home living costs, school fees, a car, university costs, housing costs after university and counselling.
To add insult to injury, Master Treverson even rebuked the estate, stating that it was “regrettable that they chose to argue as part of their case that there was no obligation on the Deceased by his 2018 Will to make any provisions for his children.”
Court upholds late mother’s exclusion of her sons from her Will
Rea v Rea [2021] concerned the Will of the late Anna Rea who died in 2016. She had made a Will in 1986, where her estate was to be divided equally amongst her four children. However, she updated her Will in December 2015, were she left the entire estate to her daughter, Rita.
The Will provided that this was because her three sons had not taken care of her whereas Rita had been her sole carer for several years. The Will further said that the executors should defend any challenge brought by her sons for inheritance as she believed them to be financially independent of her and did not want them to inherit anything from her estate.
The three sons challenged the Will on the basis that Anna Lea lacked testamentary capacity. They argued that she spoke very little English and so did not approve of the terms of the Will. They also argued that Rita had poisoned her mother’s mind and manipulated her into making the Will in 2015.
In contrast to Re R (Deceased) [2021], the challenge against the Will was unsuccessful.
The court felt that Rita’s evidence on the main points was more persuasive and, most significantly, she had provided evidence from her mother’s solicitor and doctor that the 2015 Will reflected her true last wishes.
Despite an appeal based on unfair treatment at the hearing, the appeal was rejected.
Rita inherited Anna Rea’s entire estate.
Eastenders operate in their own jurisdiction
Eastenders landed themselves in hot water with legal experts after misinforming viewers over the workings of lasting powers of attorney.
In one scene, Sonia Fowler (played by Natalie Cassidy) revealed that Dot Cotton (played by June Brown) had made Sonia her Power of Attorney. When Sonia revealed this fact to Dot’s granddaughter, Kirsty “Dotty” Cotton (played by Milly Zero), in true Eastenders fashion, she accompanied it with an excessively dramatic threat.
Sonia stated “Your Grandma has just given me power of attorney so I’m now in control of her property and bank accounts. I was going to give you some early inheritance but I’ve just changed my mind.”
Whilst we know this is just a soap opera and so we mustn’t confuse it with real life, the important impact is the way it does still misinform viewers.
Firstly, Dot “just” made me Power of Attorney. There is no mention whether it this a Health and Welfare Power of Attorney or a Property and Financial Affairs Power of Attorney. These are the only two in the English system and if you are Power of Attorney for one, it does not automatically mean you are Power of Attorney for the other. Here, we just have to assume by context that she means the Property and Financial Affairs Power of Attorney.
Secondly, “just” suggests that Powers of Attorney can be made in the flick of a switch. Oh no. It takes up to 12 weeks to register a Lasting Power of Attorney if there are no mistakes in the application. This is to allow for any claims against the appointment to be made. So, again, we have to assume that Sonia had just received confirmation of registration of a decision Dot had to have made back around Christmas time.
Most importantly, Sonia claims to now control Dotty’s inheritance entitlements. An attorney can act under a Property and Financial Affairs Lasting Power of Attorney even if the donor has mental capacity, provided the donor chose this option.
Even if Dot has mental capacity (which she seemingly does), then Sonia cannot make decisions without Dot’s consent. Sonia is not automatically in control of everything and certainly cannot make decisions regarding Dotty’s inheritance autonomously.
Whilst, again, this is just the law on Albert Square, the damaging effect is the way it misleads viewers and could deter them from making important documents.
I would be more than happy to provide an LPA Advice Consultation to the Eastenders storyline writers.
