Weekly Round Up - 7 May 2021
A quick round of the latest news in the world of Wills, Lasting Powers of Attorney and Probate.
Challenging a Will on grounds of Fraud or Forgery
Several cases involve the validity of Wills being challenged on the basis of forgery or fraudulence.
However, few succeed due to the presence of other alleged factors becoming the basis of a Will being found invalid, such as lack of capacity, undue influence or want of knowledge and approval.
What is the difference between a fraudulent and forged document?
The main differing element concerns the genuineness of the document.
A fraudulent Will is a genuine document which does not truly reflect the testator’s expressed wishes.
the Will may not have been signed in the presence of two or more witnesses;
the testator may have been misled into signing a document, unaware that it was a Will;
false representation(s) may have been made to persuade the testator to make the Will on certain terms; or
the last Will has been deliberately destroyed.
Conversely, a forged Will is not a genuine document. It may be a ‘fake’ Will or have a false signature, not belonging to the intended testator in question.
However, there are similarities between fraudulent and forged Wills.
Firstly, both fraud and forgery are criminal offences which can result in a criminal prosecution which must be dealt with before the probate action can be heard.
Secondly, contesting a Will based on either fraud or forgery is normally made by those who claim to be a victim of a conspiracy which has, consequently, deprived them of the inheritance they had expected to receive.
For professional Will writers, or for those who wish to write their own Will, there are several factors which may act as red flags if a challenge was brought against the Will on the basis of fraud or forgery:
If the testator wishes to disinherit or exclude someone from their Will, who they would normally be expected to include;
Any particular circumstances which have led the testator to make, update or provide instructions for their Will;
If the Will benefits one person to the exclusion of others; or
If the Will primarily benefits non-family members.
We always seek to answer these questions when taking your instructions to write your Will.
We also discuss these issues in depth in our Advice Consultation services, for those who wish to write their own Will, but have concerns.
Finally, a Larke v Nugus request is one which requires a statement from the solicitor or professional Will writer who prepared the Will about the circumstances surrounding the Will’s preparation. For this reason, we keep all attendance notes and memos safe to safeguard your wishes in these circumstances.
Pension Fraud on the Rise
Action Fraud has reported that £1.8m has been lost to pension fraud in the first four months of this year.
Before the pandemic last year, pension scam reports were decreasing, with Action Fraud reporting that pension scams fell from 1,788 to 358 over a six-year period.
However, a stark contrast has been seen this year, as 107 reports of pension fraud were made in the first three months of 2021, an increase of 45% compared to last year.
Pauline Smith, Head of Action Fraud, highlighted that people must be vigilant as the consequences can be disastrous.
“Criminals are malicious and unapologetic when it comes to committing pension fraud. They are motivated by their own financial gain and lack any kind of empathy for their victims, who can often lose their whole life savings to these scams.”
They have called for any instances of pension fraud and attempted scams to be reported to Action Fraud.
If you have, or know of anyone who has been, a victim of pension fraud or attempted scams, please do contact Action Fraud.
Including your Digital Assets in your Will
Since 2018, it has been a growing trend for clients to include digital assets in their Wills. This is both a prudent and necessary inclusion.
Whilst these types of assets are more common amongst the younger generations, the importance of including these in your Will is equal for all.
Whilst on the rise, 90% of people still have not made provision for the digital assets in their Will.
Failing to make provision for your digital assets or property in your Will can have disastrous effects for your family in both financial and sentimental respects.
Firstly, as Ruth Pyatt, Director of Solicitors for the Elderly notes, “PayPal balances, winnings on gaming accounts and currency such as bitcoin could be lost if nobody knows they exist. Important family items such as photographs stored digitally could also be misplaced if nobody knows how to access them.”
You may also want to consider what is to happen to your information on social media accounts.
Moreover, an executor may be criminally liable under the Computer Misuse Act if using a password or PIN to access an account after death.
Equally, it may even be against the Terms and Conditions of a social media account to release a password to someone else.
Today, more people are unaware of most of their passwords and have to navigate their way through many hurdles to rediscover or remember them. This creates several more issues for your family as they cannot do the same and much of your proposed inheritance for them will be locked behind digital walls.
For this reason, we always encourage clients to consider any digital assets they wish to pass on, and how their proposed executor is to access these.
Whilst we encourage transparency between executor and testator, we understand the concerns you may have about disclosing all your personal account information to them.
For this reason, we work closely with Safe4, so that you can open a vault with them which securely contains all your information. This provides a more accessible means for your executor to distribute your digital assets as you wish.