How to forge a Will

The title of course is tongue-in-cheek, but it seems that from all of the news lately, there has been a sudden spate of estate disputes and legal challenges. Either because a Will has been forged, signed under duress or written by somebody without the capacity to write the Will. These cases demonstrate that the prospect of an inheritance can bring out the worst in people, create rifts in families, and can result in very expensive legal battles that serve nobody other than the lawyers.

It starts with the bizarre trial of Peter/ Tony Chan who was convicted of forging the Will of Nina Wang – once Asia’s richest woman. Trying to forge a $4 Billion Will is a tricky crime to get away with, and it resulted in a 12 year jail sentence. But Mr Chan was not alone. Next was the Will of Harinder Singh Brar, Maharaja of Faridkot, with another $4 Billion estate. This time it was a team of staff members who connived to leave the entire estate to themselves in Trust, but the courts ruled that the Will was made under duress and therefore illegal.

However, it’s actually more likely that a Will would be manipulated or forged for a more modest estate, and this was the topic of a recent article in the Daily Telegraph discussing the rapid increase in legal battles over estates. There are three key reasons for this rise; firstly, the size of the average estate in the UK has risen from £150k to £265k in a decade. In addition, people are starting to depend on an inheritance as part of their own financial plan – consumer debt is rising and many are banking on an inheritance to get themselves out of debt. And finally, society in general has become more litigious over the years.

Contrary to popular opinion, writing a Will through an online service does not make the document any more likely to be challenged. In fact, just recently, a Will drawn up by a solicitor while in the presence of one daughter, was deemed invalid as the testator did not have mental capacity to write the Will. Turns out that the daughter (who happened to be a magistrate) put pressure on her mother to disinherit the other children. Oh, and she had to pay back the £18,000 in gifts she received in the last few months of her frail life. The real tragedy of this story though is that the estate was worth about £200k, and the whole lot disappeared in legal fees. The whole estate went to the lawyers.

There are some lessons to be taken from this troubling stories. Most importantly, write your Will when you are young enough and have the mental capacity to do it. People procrastinate with their Will writing, thinking that they will prepare it when they are older. We hear all the time people saying “fortunately, I don’t need a Will yet?”. Obviously you don’t, you don’t need a Will until you die, but it’s too late to write one then.

This is one of the reasons that online services like those offered by LegalWills.ca, USLegalWills.com and LegalWills.co.uk are becoming increasingly popular. They allow you to prepare your Will in your own time, on your own terms, but also allow you to update your Will throughout your life, as often as you wish. It makes sense to prepare a Will today, and then just update it as circumstances change.

Protecting your digital assets

Over a year ago we talked about the importance of considering your digital assets as part of your estate plan. We explained that there can be true financial assets online including domain names, paypal accounts, online gambling accounts, iStore accounts, the list in endless. A domain name alone could potentially be worth thousands of dollars or pounds. Research estimates the value of these “cloud-based” assets to add up to £2 Billion for Brits alone.

We were not alone in recommending that people should include user accounts and passwords within their Will so that loved ones, and particularly the Executor, are able to access these accounts at the appropriate time. In this article the professional retirement planner recommends that “people should consider including internet passwords in their Wills otherwise how will friends and family be able to access and save their personal data left of numerous internet websites”

32198448 – hand touch social media,social network concept.

It turns out that this is the worst possible advice. One important consideration is that once a Will is probated it becomes public record. Anybody can read a Will, simply go to your local court house and request a copy. There may be a small fee involved, but once paid, an unscrupulous person can gain access to a dead person’s accounts. If the estate hasn’t been completely wound up, the assets may still be in those accounts.

It may seem a little implausible that scammers would scour through Wills looking for online account credentials, but scammers are an enterprising bunch, and it has already started.  Apparently “More and more people include online banking and PayPal passwords in their last will and testament in a bid to help the executors of their estate. But crafty scammers know they can get a copy of anyone’s – apart from royalty – for just £6 from the Probate Office.”

So our advice has changed. Do not include account credentials in a Will. You can either keep them written down and store them with your Will, or if you use an online service like the one at LegalWills.ca, USLegalWills.com and LegalWills.co.uk you can take advantage of their MyMessages service that allows you to create messages to loved ones that are unlocked by keyholders after you have passed away. This is probably the most secure way of making sure that login credentials get to the right people at the right time and protecting you and your loved ones from thieves.

Do your parents have a Will?

A straightforward blog article today with a simple question; “do your parents have their Last Will and Testaments in place, and updated to reflect their current wishes and circumstances?”. We know that about 60-70% of people don’t have a Will in place, and most of these are not kept up-to-date, but I am guessing that a very few number of people have had the discussion with their parents regarding their estate plans. There are obvious reasons for this; first is the misconception that a talking about estate planning is tantamount to telling them that they’re about to die. This is of course a strange notion because few people plan their death, but everybody should have their estate plan in place.

The other misplaced notion is that you would be prying into the financial affairs of your parents. Of course, asking if your parents have a Will does not require that you are privy to the contents of that Will. Parents can just let you know that yes, they have a Will, you may be the Executor of that Will, the rest can wait until after they have passed away.

Why do you even need to know if a Will is in place? Because a parent dying with a Will, and a parent dying without a Will are two very different experiences.

When a single remaining parent passes away and their Will is in place, the Executor takes that Will to the probate courts, is granted permission to administer the estate and take care of the funeral plans. With this court document they are able to go to the banks and financial institutions and gather the assets of the estate to be distributed according to the wishes outline in the Will. Everything can be resolved in a matter of weeks.

Without a Will different people may apply to the courts to administer the estate. No asset can be touched until the court appointed administrator has been assigned. The estate will then be distributed according to the laws of that jurisdiction which may require certain assets for example, real estate, to be liquidated. The whole process is likely to take months rather than weeks, no asset can be touched in the meantime and the distribution of the assets will not likely match the wishes of the person who died. Arguments and family divisions are far more likely with children squabbling over everything from the funeral plans to the ownership of individual items. And there is actually quite a high probability that some assets are never even discovered.

Parents who die without a Will end up creating problems for their children, so have the discussion. Just ask if a Will is in place and ask if it has been updated in recent memory. You need not pry and you are not hastening the demise of your parents by asking the question. If the answer is no, you should let them know that it need not be expensive, and can be done in 30 minutes or less at sites like LegalWills.ca, LegalWills.co.uk and USLegalWills.com.

Write your Will just before you are about to die !!

It seems that the prevailing attitude towards writing a Last Will and Testament is that the best time to prepare one is right before you die. After all, the statistics show that around 70% of adults don’t have a Will in place.

Today I’ve read two articles that reinforce this strange notion. The first one comes from the memoirs of Dick Cheney. Apparently there was a point where Osama Bin Laden thought he was going to be captured. The memoir explains

“In the first months of the war in Afghanistan, we had bin Laden pinned down. According to the official report of the Senate Foreign Relations Committee, he was trapped like the rat he was in a collection of caves and tunnels in a part of eastern Afghanistan called Tora Bora. Bin Laden was so certain he was about to be killed he wrote his last will and testament.”

It seems astonishing to me that a person with Bin Laden’s resources and “political” position wouldn’t have taken the time at some point in his life to have written a Last Will and Testament. Perhaps there are cultural differences, but even in the Western World people seem to think that a Will is something to be written while lying on your deathbed. In fact, the best time to write a Will is right now. It can be updated as often as you like to reflect changes in your personal or financial situation, but waiting until you are just about to die is really bad planning.

The headline of this article made me laugh. “Anabelle forced to draft last will after death-defying flight”. The story goes that a person faced a near-death experience which made them realize that life was fragile, and they also realized that they didn’t have a Will in place. This happens a lot. When people see tragedy around them , they understand that they are not indestructible and calamity can hit any one of us at any time. The idea that Anabelle was then forced to write her Will is an interesting perspective; as if it’s the last thing any healthy person would want to do. In fact, you should be writing your Will when you are healthy and of sound mind and it should not be a task filled with dread and sorrow.

Everybody should have a Will, young or old, rich or poor, healthy or not.

Same-sex marriage and the Last Will and Testament

Last week, the State of New York passed same-sex marriage legislation; from July 24th 2011, same-sex couples will enjoy the same rights as those in Connecticut, Iowa, Massachusetts, New Hampshire and Vermont. In Canada, all Provinces and Territories recognize same-sex marriage under the 2005 Civil Marriage Act which defines marriage as “”the lawful union of two persons to the exclusion of all others”. In the UK same-sex couples can be joined in a “Civil union” or “registered partnership”.

Why is this of interest to the legalwills blog? well, the most significant implication is for those who choose not to write a Will. There were many cases in the past of a person dying intestate (without a Will) having lived for decades with a life partner. The law used to say that only married partners could have a claim on the estate, and until recently, same-sex couples had no claim (common-law partners still have no claim in most jurisdictions). The “civil union” in the UK and other same-sex marriage legislation gives rights to survivors when no Will has been written. Of course, at LegalWills we would have just advised everybody to write a Will in 30 minutes and save their surviving partner the anguish, but sadly, in many cases people procrastinate when it comes to putting their estate planning affairs in order.

But same-sex marriage legislation also provides some rights for partners who have been left out of a Will. In most jurisdictions it is not possible to completely disinherit one’s spouse, and this now extends to same-sex relationships where applicable.

There are also clear implications for same-sex couples with children. In a Last Will and Testament a guardian for the care of minor children is named, but this only comes into effect when both parents are unable to provide care. With same-sex marriage the parental rights can now extend to both parents.

The recognition of civil unions also has implications for Powers of Attorney and Living Will forms – if you are ever unable to speak for yourself, for example, if you were in a coma. One’s married partner is usually the first point of contact for physicians who need to consult with a family member on important healthcare decisions.

The law is still quite varied across different jurisdictions and the discussion is probably worthy of a Masters thesis rather than a blog post. However, many basic rules still apply for same-sex couples;

  1. Make sure that you have a Will, Power of Attorney and Living Will in place.
  2. If you planning to disinherit your married partner; seek legal advice as the wishes that you have outlined in your Will may not be enforceable.
  3. If you do get married or divorced, make sure that you update all of your estate planning documents. Marriage typically revokes (cancels) any existing Will.

This is a very rapidly changing legal landscape, and so if you read this in a few months, it may be out of date. If you have any comments to add, please feel free. I am happy to provide any clarifications or corrections.

Another Last Will and Testament rewritten by a judge

A couple of months ago we posted an article after a BC judged overturned a man’s Will because the man’s daughters had a “valid moral claim to share in the family wealth.” We explained in our article that this ruling actually forced us to change parts of our service and help text because in Canada there is generally no requirement to leave anything to independent adult children. The ruling reinforced the position that leaves British Columbia out of step with the rest of Canada.

Over in the UK last week, a similar thing happened that is actually even more difficult to understand. In the BC case the judgement was influenced by the fact that the testator seemed to be a disagreeable chap. He treated his daughters very poorly in comparison with his son, and the judge didn’t look kindly on his lifetime of misogyny. Our article questioned this position because individual attitudes are created through experiences and no judge can place themselves in the heart and mind of another person. In our view, just as the man was perfectly entitled to give all of his wealth to his son while he was alive, he should have been equally entitled to do this after he died through his Last Will and Testament.

So to the UK case. This time Melita Jackson died, leaving nothing to her only child, her daughter, Heather Ilott. She left an estate worth £486,000 to the Blue Cross, the Royal Society for the Protection of Birds, and the RSPCA. She even appended to her Will an explanation saying that they had been estranged since her daughter eloped at the age of 17, and the rift had never been healed in her lifetime (some 26 years). The case was first heard by the district courts who awarded her £50,000, but not content with that judgement, Ms Ilott took it to the high courts who ruled in favour of the animal charities and left her with nothing. So it went to the appeals court who over-ruled the high court and back the district courts decision; leaving open the option of a further appeal to increase the district court’s judgement.

It’s a complicated back and forth, but our position on this is the same as that of the solicitor representing the animal charities;

“Solicitor James Aspden, representing the three charities, called the ruling hugely disappointing. “The court of appeal has reinterpreted 30 years of law and left in its place a lack of clear guidance, which creates further uncertainty about a person’s right to leave money to people or organisations of their choice,” he said.”

It seems that we now have to re-write our service and help text for the UK version of LegalWills. According to this ruling, if you are estranged from your child and have had absolutely no contact with them for over 25 years. You then choose to leave your estate to charities that mean something to you personally and write in your Will your reasons for doing so. A district court may still re-write your Will on your behalf.

It actually comes as a surprise to us that  the court determined that a daughter’s need for money is of greater legal standing than a charity’s need. It also begs the question as to whether it was because the estate was going to animal charities that influenced this ruling or whether the testator would have been allowed to leave her estate to human charities, or even to a close friend. It’s now a very tricky legal situation to navigate for estate lawyers in the UK.

And this article is nothing to do with preparing one’s own Will or using a legal professional. I think most estate planning lawyers and solicitors in the UK would have felt that this Will and accompanying letter would have been incontestable. This ruling has left many solicitors wondering how they can ensure that these types of wishes are fulfilled.