This month we are looking at some of the latest developments in the world of wills and probate.
The Law Society Wills and Inheritance Protocol
A new protocol published in July 2013 was linked to the Law Society’s Wills and Inheritance Quality Scheme. The protocol is not currently compulsory for Solicitors unless they are members of the Quality Scheme.
The protocol sets out the ‘preferred practice’ for will drafting, probate and estate administration and covers areas of practice that commonly give rise to risks and errors. The protocol is intended to form the policy that a legal practice should follow to help it meet the high-quality service standards that clients expect. A few examples of key points that are covered on will drafting include these:
• How joint instructions should be taken correctly. Joint instructions are common in will drafting, as couples often wish to make wills at the same time.
• How to safely deal with urgent instructions. A very risky situation arises when a client wants to make a last minute or ‘deathbed’ will.
• What should be contained in a wills client’s attendance note. Generally they should be very detailed, with some thought given to the fact that many more wills disputes now occur. It is also noteworthy that there have been a number of recent cases which emphasised the importance of fully recording instructions.
• How the issue of mental capacity can be dealt with thoroughly (but sensitively).
These are all matters that are considered on ILSPA’s Legal Secretaries Diploma Course.
In previous Journal articles we have considered the possibility of people being able to make ‘e-wills’ at some point in the future in the UK. While this has not moved any closer to reality in this country, there has been an Australian case of a will written on an iPhone. The ‘will’ was tapped out by the testator shortly before he died, with no signature or witnesses to the deed. The document was allowed to stand as the deceased’s will, but the judge did point out that he did not think it was a good idea for wills to be written in this way, as there were serious security and confidentiality issues. Clearly in the UK this type of will would not be allowed, as it would not satisfy the formalities of the Wills Act 1837.
Finally, a case report from Ohio, USA, of a man who reappeared alive 30 years after being declared legally dead had the remarkable decision that he was deemed to still be ‘legally dead’ in the eyes of the law. Whether the man wants to be declared alive with the prospect of a criminal investigation for the benefits paid to his daughter is another question entirely.
The case did remind me of an amusing UK case involving a similar ‘resurrection’. Mr Ahmad Akhtary, a 43-year-old Afghan man living in Gloucester, obtained a fake death certificate from Afghanistan claiming he had died of ‘brain trauma’. His British wife then used the certificate to claim £300,000 from a joint life policy. The funny part was the fact that Mr Akhtary continued to live and work openly in Gloucester. He did not leave his pre-‘death’ employment; he kept paying taxes and attending his GP! Even after he was tracked down and arrested, he denied any wrongdoing or knowledge of the fake death certificate. Sadly for him, he was literally caught red-handed, as his fingerprints were found on the fake death certificate.
It is true what they say about life: just when you think you have heard everything, something around the corner surprises you.