The Importance of Capacity When Making a Will

Mental Capacity

For a Will to be a valid document the person signing the will (‘the Testator or Testarix’) must have capacity. Capacity can be assessed by looking at the testator’s decision making abilities and understanding on the date the document was signed. There is a presumption that a properly executed Will is made by a person with capacity. However this can be challenged with evidence.

The Testator must understand what he or she is doing. Any Will entered into where it can be shown that the Testator did not understand will be void. Key elements of this are;

  1. The Testator must understand the information relevant to the decision.
  2. The Testator must be able to use or weigh up any information when making any decisions in relation to the Will. So the Testator should understand what might happen as a consequence one way or another.
  3. The Testator must be able to communicate their decision. Communication can be verbal, using sign language, writing information down or any other means.
  4. A Testator will likely lack capacity if they suffer from a disorder of the mind. A disorder of the mind would cover any mental disorder that alters the Testator’s ability to make a decision or comprehend their decisions.

Please bear in mind that a person will not to be treated as unable to make a decision merely because they make an unwise decision.

If you have reasonable grounds to believe that your loved one lacked capacity when signing their will and you would like some advice please contact Sharon Matchwick on 01992 558 411

or click here: http://www.breezeandwyles.co.uk/index.php/form-wills/

NOTE:

This article deals only with capacity and does not cover other options that may be available if you have reasonable grounds to challenge the validity of a Will.


Ilott v Mitson - Inheritance Act Claims

to the dogs

Animal Charities succeed in Appeal to Supreme Court.

On the 15th March 2017 the eagerly anticipated judgement on the case of Ilott v The Blue Cross and Others from the Supreme Court was handed down.

Mrs Ilott made an application under the Inheritance (Provision for Family and Dependants) Act 1975 following the death of her mother Mrs Jackson. This legislation allows people to challenge inheritance provision if they can prove that it does not provide “reasonable financial provision”.

Mrs Ilott and her mother had become estranged 26 years prior to Mrs Jacksons death. When Mrs Ilott was 17 years old she had left home to live with and later marry a man that her mother did not like. Despite a few attempted reconciliations over the years, they had remained estranged and Mrs Jackson made in clear in the number of wills over that time, including her last, which stated that she did not wish to leave any of her estate to her daughter.

On her death Mrs Jackson left an estate worth approximately £486,000. Her will stated that other than a small amount to be left to the BBC benevolent fund, the remainder was to be left to three charities.

Mrs Ilott’s position was that she was living in Housing Association Accommodation and was reliant upon state benefits. She stated that she had not had any expectation of receiving anything from her mother’s estate.

When the case was first dealt with, the court awarded her £50,000. Mrs Ilott appealed and in July 2016 the Court of Appeal determined that she should have £143,000 to enable her to purchase her accommodation plus a further £20,000 as maintenance to be paid in such a way as to enable Mrs Illot to continue to receive her state benefits. The charities appealed to the Supreme Court.

The Supreme Court decision was to set aside the order made in the Court of Appeal and restore the original decision.

In the Judgement the court confirmed that in accordance with the legislation, unless the applicant is a spouse or partner “reasonable financial provision” is limited to what is reasonable for maintenance only. They confirmed that what is “reasonable” is an objective standard to be determined by the court and that what is “reasonable” did not extend to everything that the applicant wants but is also not limited to bare essentials.

The court confirmed that the appropriate level is case specific requiring the court to consider various factors and whilst maintenance might usually be considered to be income it could be dealt with by the provision of a lump sum.

The factors which the court have to take into account when dealing with these cases include;

  • The financial needs income and resources of the applicant(s) and any beneficiary.
  • Any obligation or responsibility which the deceased had towards to the applicant(s) and any beneficiary.
  • The size and nature of the estate.
  • Any physical or mental disability of the applicant(s) and any beneficiary.
  • Any other matter including conduct of the applicant(s) or any other person which the court may consider relevant.

The Supreme Court considered that the judge first hearing the matter, had taken into account all the factors that he was supposed to and was entitled to reach the decision that he had after weighing up all of the evidence. As such the Appeal Court should not have interfered and their decision should be set aside.

Whilst there had been much discussion surrounding this case and whether it would provide new hope to disgruntled relatives cut out of a deceased’s will or provide further challenges to our right to leave our property to whoever we want, the outcome has not been quite so dramatic. A testator’s right to deal with his estate as he wishes remains intact subject only to very limited claims that can be bought where “reasonable provision” has not been made so long as the Will itself is valid. More particularly the Supreme Court have essentially confirmed that unless the judge first hearing the matter reaches a decision no other judge given the same information would have come to, gets the law wrong, takes into account something he shouldn’t or fails to take into account something he should have, then the appeal court can not interfere with the award.

The reality of these cases is that the court retains much discretion in their objective assessment of the case. These are challenging cases which require an assessment of competing interests and are made all the more difficult due to the fact that emotions will understandably run high. Early advice is key and ideally every attempt should be made to reach an agreement without going to court subject to the strict time limits that are in place in which to bring a claim.

If you have any issues in relation to an inheritance dispute you can contact our family team. Our team of specialist family solicitors are able to offer appointments at our offices in Bishops Stortford, Hertford and Enfield and Nationally via telephone and Skype.

For more information and advice contact us on 01992 558411 or complete our online enquiry form.

Karen Johnson is Director and Family Mediator of Breeze and Wyles Solicitors Ltd. Karen is a highly skilled and experienced Family Solicitor with in excess of 15 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Abuse and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA).


Safeguarding design is a priority for smaller business

Cheaper registration fees are an opportunity for small businesses and designers to secure greater protection for their intellectual property in future, as well as being a route to protection in the UK post-Brexit.

registered design is one of the options available from the Intellectual Property Office, alongside trade marking, patenting and copyright.

It protects the visual appearance of a product including the shape, texture, materials, colour and pattern and gives the right to prevent others from using the design for up to 25 years through a renewal process every five years.  And since the Intellectual Property Act was introduced two years ago, it has been a criminal offence to copy a registered design intentionally.

The reduction in fees for registered designs sees the cost of a single online application cut by £10 to £50, with bigger savings for multiple applications. An application containing 2-10 designs will cost £70, and each extra block of up to 10 designs an additional £20.  The savings are huge for multiple design registrations: as an example, a batch of 40 designs registered online will cost £130 under the new system, compared to £1620 under the old fee rates.

Commercial Solicitor Donna Bromyard of Hertford town solicitors Breeze & Wyles said:  “This reduction opens the door to much more affordable protection for small businesses seeking to safeguard their business ideas and designs.  They can more easily afford to register different options, such as line drawings, coloured drawings and photographs, which could boost their chances in challenging any copycat competitor.”

She added: “The recent ruling by the Supreme Court, which saw the designer of children’s sit-on suitcase Trunki lose their infringement case against the cheap look-alike Kiddee case, has highlighted the need for a more comprehensive approach to registration of designs”.

The Trunki design was protected with six computer-aided design drawing representations of the exterior of the case from various angles and perspectives. The Supreme Court ruling pointed to the lack of ornamentation on the surface of the Trunki as depicted in the registration, and how this differed from the decoration present on the body of the Kiddee case.

“The Trunki design had been registered under the EU Registered Community Design process, but the outcome of the case translates directly to the UK design registration process,” explained Donna.  “And the lesson is to safeguard your designs with multiple depictions and types of image to give maximum protection.”

The UK process protects designs solely in the UK, so for businesses looking to protect designs in Europe the EU Trade Marks (EUTM) and Registered Community Designs (RCD) will continue to be valid in both the UK and the rest of the EU until Brexit is completed. Post Brexit, UK businesses will still be able to register a Community Design, which will cover all remaining EU Member States, but it will not be valid in the UK.

Also, the government has said it intends to ratify the The Hague System for the International Registration of Industrial Design in a national capacity, to enable continued access for UK designers post Brexit.  This allows registration of up to 100 designs in over 65 territories through one single international application.

Donna added:  “In the run-up to Brexit, it’s important that businesses consider their options for both new or existing design registrations, as to whether they need to protect their design in either the UK and Europe, or in both.”

PMS International Group Plc v Magmatic Limited [2016] UKSC 12 (“Trunki”)

ENDS

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

References

http://www.legislation.gov.uk/ukpga/2014/18/contents

 https://www.gov.uk/register-a-design

https://www.gov.uk/government/news/good-news-for-designers

https://www.gov.uk/government/news/ip-and-brexit-the-facts

http://www.wipo.int/hague/en/

https://www.supremecourt.uk/cases/docs/uksc-2014-0147-judgment.pdf