It's All In The Planning!

Here’s an interesting story picked up from a London online newspaper. Interesting read.

When Dr Christine Gill last month successfully challenged her mother’s will, which had bequeathed the £2 million family farm in North Yorkshire to the RSPCA, it was just the latest in an increasingly long line of disputes over wills to have been picked over by the media.

Contentious probate is the new divorce. The cases have all the elements of human drama — money, family feuds, long-buried grudges, often mistresses and dark secrets — and are all the more intriguing because the key witness is, by definition, unavailable.

The High Court ruled that Dr Gill’s late father had coerced his wife to go against her own wishes to leave the farm to their daughter. Further, given Dr Gill’s work on the farm and that she had cared for her parents for more than 30 years, as well as assurances from both that she would inherit, the court said it would be “unconscionable” if she did not. The RSPCA intends to appeal.

The Gill case is evidence of a rising trend in probate disputes. Research by the London law firm Wedlake Bell this year found that 228 such disagreements reached the courts in 2008, compared with 83 in 2006. A survey of 3,000 people in March by another London firm, Seddons, found that one in ten had been or were in dispute after a death in the preceding six months.

Marvin Simons, Seddons’s head of dispute resolution, identifies three main causes: the property boom, which has produced more estates worth fighting over, a greater awareness of rights, and “more complicated and dysfunctional family structures” — problems can occur when parents divorce and have second families. He describes a “vulture syndrome” of greedy beneficiaries falling out; one in four people surveyed said legacies had caused rows with friends or family.

The size of some estates means the biggest law firms in the City get involved. Rupert Ticehurst, head of private wealth and charities at Herbert Smith, says challenges to a person’s capacity to make their will are increasingly common. “With people getting older and making wills in their 70s and 80s, this is more likely to be questioned,” he explains. Further, greater understanding of mental health means capacity can later be assessed from medical files.

There are various routes to challenging wills but “it’s not fair” is not enough, says Fay Copeland, head of contentious probate at Wedlake Bell. But this is emotional territory. “People see their legacy as a reflection of how the parent or grandparent felt about them,” she says. “You have to treat this differently from a commercial dispute.”

So lawyers need to offer more than legal help. Mark Keenan, the partner at the London firm Mishcon de Reya who acted for Dr Gill, says that will disputes “can be incredibly painful and stressful, and inevitably there is an element of counselling clients in the wider sense as well as advising them”.

Jeremy Kosky, litigation partner at Clifford Chance, says that an opportunity to rant can be cathartic for clients as well as part of the process of identifying all aspects of the problem. “It is often the moment when misgivings or misunderstandings become most apparent,” he says. “The best approach is always to let the rant run its course. Do not pretend it didn’t happen. Showing that you have listened is important and you can best do this by taking the points head on.”

This all makes mediation an attractive option, although Ms Copeland warns against trying it too early: “People do need time for anger.”

They also need time to understand the risks of continuing with litigation. In his review of litigation costs, Lord Justice Jackson observed that the Jarndyce v Jarndyce syndrome is still alive, “where, as occurred in the novel Bleak House by Charles Dickens, the end of the litigation only came when the entire estate of the deceased had been swallowed up by costs”.

“No win, no fee” agreements and after-the-event legal expenses insurance are starting to crop up in this area — Mishcons put both in place during the Gill case.

Executors also have to think carefully when spending money on such disputes, adds Ms Copeland. “There is always the risk that if they don’t take the right course of action, the beneficiaries could take action against them.”

Charities too can find themselves in a difficult position when a legacy in their favour is challenged by family members. Mr Keenan recognises that “there is a concern within the charitable sector that if charities don’t fight these claims simply to avoid the adverse publicity that goes with a trial, they will be seen as a soft touch”.

Experts agree that it is impossible to draft a bomb-proof will — Mr Ticehurst recalls a case where the testator was even examined by a psychiatrist to confirm that he had capacity to make his will, only for a judge later to prefer the opinion of an expert who had not met him (capacity is a legal, rather than medical, test). But if you intend to exclude someone who might have expected to inherit, at least explain why in the will or a letter of wishes.

In broad terms, the law gives us freedom to dispose of our property after death however we wish. But Mr Ticehurst sees evidence of the courts starting to impose “a civil law-style forced heirship rule”. He says: “Judges’ moral road map is that a father should leave his assets to his children.”

Here’s a story picked up from TimesOnline recently. It asked the question of whether you’d want to be an executor and it went on to describe the burden of being it. Interesting read.
No one tells you how time-consuming death is. The Four Last Things ought to be Death, Judgment, Heaven – and Probate. That desolate telephone call from the hospice tips you down a chute into a nether world of callous, grasping and bewildered people (of all ages) and caring (well, most of them) professionals. Some of these categories overlap.

I don’t worry too much about my own death – like Woody Allen, I just don’t want to be there when it happens – but I should have worried much, much more about that of the old friend who halfway through his long, humorously borne decline asked me if I would be one of the executors of his will, or as lawyers call it, Will. As most of us would be, I was flattered at the implied compliment to my personal integrity and organisational powers – it was like being given a medal for being me. “Executor”: that sounded good, too. So of course I said yes.

This friend – let’s call him Fred – died much sooner than anyone expected; I still don’t think he did it out of malice. He had been a successful businessman who had made a small fortune in the advertising industry, had a good understanding of the basics of personal finance and whose advisers, legal and financial, were reputable firms (which means I’d vaguely heard of them).

He had made a recent will. His money had been earned from fully thought-out, carefully planned, well-executed communication and he was aware that his adored widow – or rather partner and co-habitee of 40 years, which is another story – would be wholly reliant on whatever arrangements he left. So probate would simply be a couple of agreeable lunches reminiscing about our late chum, signing a few papers handed across by old-fashioned lawyers with dandruffy cardigans and Bob’s your uncle. Or so I thought.

This nonchalance turned out to be delusively far from the reality. Oh, and Uncle Bob said “he always wanted me to have that Queen Anne bureau”.

One of the first preconceptions to go is that everything happens at a funereal pace. This is particularly untrue of funerals. How anyone gets one organised in a week or so is beyond me. Although an executor would not necessarily be involved, I was a friend of the family as well. It took nearly two weeks. Even that was possible only because several of us were able in effect to drop everything.

Because no one knew Fred’s wishes, every one of scores of decisions – cremation or burial, wake at the flat, church hall or the pub, where can we find a CD with Zip-A-Dee-Doo-Dah on it – had to be agreed with what seemed like 27 people, not all sane, some of whom opposed what the majority wanted just on principle, many of whom, being media persons of antediluvian habits, enjoy a glass of sherry before lunch. This had to be explained to the bank – which met direct funeral expenses – when later presenting them with a bar bill of more than £1,600.

There’s a lot to think about straightaway apart from the funeral, too. The household was run from Fred’s current account, which was immediately frozen, no money in or out, including standing orders and direct debits for such inessentials as mortgage payments, gas, electricity and the telephone. But Fred had cash savings well into six figures. Can’t BT have just a little bit? No, says caring bank, funeral expenses only.

Partner freezing and starving on street? Should have got married (a true statement, by the way, from the practical point of view). In the end, another family member had to take over the liabilities, with no certainty as to when repayment would be made – and was still bankrolling the whole shooting match three months down the line, which is about average for a “simple” estate.

We had numberless letters, all apparently from the same computer – it’s probably called Deep Sympathy – saying “sorry for your loss, sincere condolences, send us a death certificate, get probate, bye for now”. Quite a number also appeared to say in effect “you can’t have the information you need to get probate until you’ve got probate”. If I were to offer one piece of advice to the first-timer, it would be to get ten copies of the certificate when you register the death: you will need them all.

And you’ll need a lawyer, an accountant, an efficient and friendly estate agent, plus someone to value all Fred’s stuff (not Uncle Bob, however kindly his offer may be meant) and someone else, probably another accountant, to value Fred’s business, all to be appointed with less time to assess the choices than you’d spend in the supermarket wine section on Friday evening. Get them lined up in advance if you can. To my great good fortune, my co-executor is a marvel of energy, practicality and good humour.

This is, of course, to say nothing of tracking down all the insurance companies, building societies, credit cards, shop accounts, club memberships and charities of which a modern urban life is composed – and this is for someone who had, as he thought, left his affairs in good order…. It is also to say nothing of those with an eye to the main chance: we had a little sweepstake about who it would be who first asked “oh, by the way, am I in the will?” The stress is extraordinary.

But it could have been different! Fred had started using, at the end of his life, the website

There is a section for those who want to give formal instructions and express wishes in respect of their own death, whether untimely and sudden, after a long illness or in old age. The topics range from legal and financial issues, who to be informed, personal and business, account numbers, contact names, and so on, to the details of funeral arrangements, for example.

Another section goes into the legal and red tape side, but also pays attention to the emotional side. It is, I believe – and I must declare an interest, having become involved, on a voluntary basis – the only site providing all this diverse material in one place.

Even the elements of the site that Fred had got round to using made our task easier in many ways, not least the avoidance of some of the arguments about “what he would have wanted.” Asked again to be someone’s executor, I would say “yes” again – on condition they use Lasting Post.