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WHAT YOU NEED TO KNOW ABOUT WILLS & POWER OF ATTORNEY

By Emily Fitzgibbons

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blackstone solicitors

WHAT YOU NEED TO KNOW ABOUT WILLS & POWER OF ATTORNEY

blackstone solicitors

Gareth Morgan, head of Private Client at Blackstone Solicitors, discusses the many facets of his role and how his team can help you.

Gareth, a Former English Teacher in South Korea, began his journey in law 12 years ago. Following a short spell working in the Employment Law field, Gareth has predominantly practiced as a Private Client Solicitor. In summer 2021, he joined the renowned Legal 500 firm Blackstone Solicitors, based in the village of Hale, Cheshire, as the Head of Private Client. We asked Gareth to answer some of the more frequently asked questions faced by a Private Client Solicitor and give us an insight into his area of law.

gavin blackstone solicitors

What does a private client solicitor do?

A Private Client Solicitor Deals with the d i s cussion and drafting of Wills, Lasting Powers of Attorney and Trusts and helps to administer the estate of a person that has passed away. Private Client Law is becoming an increasingly prevalent area of law, as individuals seek to preserve, grow and pass on their assets, whilst minimising tax liabilities. Estate planning is vital for any individual who wishes to get the most from their estate and protect it from issues such as Tax and care home fees in order to ensure their loved ones and their respective inheritance is safeguarded as much as possible.

Issues dealt with by Private Client solicitors are becoming more and more contentious. Many of these contentious issues could be avoided by seeking a solicitor’s advice and with careful drafting of legal documents to minimise or eradicate these potential issues.

Why is a Will important?

It is important for you to make a Will, whether or not you consider you have many possessions or much money. 61% of people in the UK still do not have a valid Will. That equates to approximately 30 million people. This is amazing when you consider the issues which can be avoided for your loved ones by this often- simple document. The problem is that many people often don’t see a Will as something that is necessary. Unfortunately, these people leave things too late, and this can cause serious problems for their family and loved ones following their deaths.

These are some common issues which I find many clients are unaware of :-

● When a person dies without a Will, certain rules known as ‘the rules of intestacy’ apply which dictate how much money, property and possessions should be allocated. This may not be how you had intended your estate to be divided or to whom it is distributed.

● Unmarried partners and unregistered civil partners cannot inherit from each other without a valid Will (There is no such thing as a Common Law husband or Wife!)

● Wills can be used to arrange who will care for your minor children should both parents die.

● Also, a Will is revoked by marriage or civil partnership.

It is particularly advised to use a solicitor to draft your Will where you share property with somebody other than a spouse or civil partner; where you wish to make provision for a dependant who cannot care for themselves; where there is a high probability of somebody contesting your Will; you own property overseas or there is a business involved.

Can my Will be contested following my death?

I often encounter clients who have either f o r gotten to complete a Will or their Will is contested by friends, family or others who believe they are entitled to some or all of the deceased party’s estate.

Even the rich and famous have sometimes had their Wills disputed

Below is a list of 4 of the most famous Will disputes to have occurred in the past few decades.

● Martin Luther King Jr

It is well documented that Martin Luther King Jr’s children have not always seen eye to eye. The executor of Mr King’s Will was Dexter King, one of his sons, and the Will was challenged by two more of his children who accused Dexter of wrongfully appropriating from their father’s estate. Dexter refused to show the two challengers financial records and other documents that divulged in-depth detail of the estate’s operations. The family again fell out over a dispute surrounding Martin Luther King Jr’s travelling Bible and his Nobel Peace Prize medal. The argument here was between two of his sons and his daughter who claimed to have been left the two assets. A court ruled that this wasn’t the case and a settlement was agreed, details of which have remained confidential.

● Jimi Hendrix

The Guitar Legend is a perfect example of why you need to make a Will specifying what you want to happen to your estate in the event of your death. When Jimi Hendrix died in 1970 he left behind an estate valued at approx- imately $80 million. Unfortunately, he hadn’t made a Will and this pitted his half-brother against his adopted sister for control of his assets and his estate. Initially, a lawyer had control over Hendrix’s estate until 1995, when his father gained the rights to his son’s music and a large part of his estate. When his father passed away, Jimi’s father left most of the estate to his daughter and Jimi’s adopted sister Janie. Jimi’s half-brother was not written into Jimi’s father’s Will, and as a result, Jimi’s half-brother contested the Will, suggesting that Janie had manipulated her father into excluding him from the Will. In the end, The Superior Court in America upheld Jimi’s father’s Will and his half-brother remained excluded.

● Nina Wang

Nina Wang was Asia’s richest woman with a reported fortune of £7.1 billion. After her death, her partner Peter Chan made a claim that he should inherit her estate along with all of its financial assets. Unfortunately for Mr Chan, his claim was refuted and her full estate went to charity after she died of cancer in 2007. In another twist, Mr Chan was later sentenced to 12 years in prison after it was dis- covered he had tried to forge Nina Wang’s Will.

● James Brown

James Brown is the second musical icon on this list. He left behind an estate worth $100 million after he died in 2006. His Will stated that his estate was to be separated into two trusts, one for the education of his grandchil- dren, and the second for the disadvantaged youths of South Carolina and Georgia. Brown clearly stated in his Will that he hadn’t mistakenly left anyone out of the Will. Despite this, his wife and children contested the Will in 2009 and were awarded $50 million.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document which allows you to appoint some- body (The Attorney) to deal with matters on your behalf. There are two types of LPA, a Financial Decisions LPA which deals with your finances and property decisions, such as selling your house or managing your bank accounts and other investments. There is also an LPA for Health and Care Decisions, which deals with making medical decisions and liaising with local authorities and social services, care homes when issues arise and ultimately, it enables the Attorney to make life sustaining decisions. You must have sufficient mental capacity to be able to instruct a solicitor to draft a power of attorney.

Where a person lacks capacity, the options become more technical, expensive and limited and must be referred to the Court of Protection. This situation can be avoided for your family and loved ones by ensuring you have an LPA in place.

The tragic case of Kate Garraway

The heart-breaking impact of the coronavirus pandemic has been publicly apparent for jour- nalist and T V presenter, Kate Garraway, whose husband Derek was diagnosed with covid-19 in March 2020 and still needs round-the-clock medical care at the time of writing.

During an already stressful time, Kate has had to juggle the needs of her family with managing their finances. This was made more difficult as Derek was often the named person on the bills, investments, bank, and insurance policies.

Without a lasting power of attorney (LPA) it has been extremely complicated for Kate to sort out financial matters and, in fact, it is impossible to access investments in someone’s sole name without it.

If an LPA for property and finances is not in place, it is possible to apply to the Court of Protection to be appointed as a deputy. However, this is a much more expensive and lengthy process. It also requires the vulnerable person to have lost their ability to make decisions for themselves.

In Derek’s case, this test for mental capacity was borderline because he is still being assessed to understand the effect covid-19 has had on his cognitive health. Without a health and welfare LPA, Kate did not have a legal right to access Derek’s medical notes due to data protection. Only in exceptional circumstances will a deputyship for health and welfare be granted by the Court.

An LPA can be considered to be similar to an insurance policy. Whilst we all hope an LPA will never be required, should the worst happen, your loved ones will have the necessary authority to deal with your finances and make decisions about the care you should receive.

Why instruct a Solicitor to deal with Probate matters?

Probate is the area of law which I find is most challenging to many clients. They are often still grieving for the loss of a loved one and have not appreciated the volume of work that is often necessary to deal with following a death. This can feel incredibly daunting during an already difficult time. An experienced Private Client Solicitor can take away that pressure and assist with obtaining the Grant of Probate or Letters of Administration, liaise with various asset holders such as banks and other financial institutes and complete the relevant forms to deal with any tax implications and ensure any wishes in a Will or intestacy are carried out correctly. The Private Client Solicitor will also speak with other departments within the firm to ensure that issues such as property transfers are carried out and ensuring the process is administered as efficiently and cost-effectively as possible.

Blackstone Solicitors has been successfully advising its clients for over 10 years. The firm is expanding and is very experienced in a number of areas of law.

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