What Happens to my Digital Information When I Die?

In an age of increasing digital progression, it is more important than ever to ensure that you have a Will. Whereas once upon a time, your loved ones would have accessed to photo albums and video tapes, many of our treasured memories are now stored electronically.

The recent case of Rachel Thompson highlights this important area. Her husband sadly died without making a Will. He was aged just 39 and left behind Rachel and their young daughter. Her husband, like most of us now, was keen on taking photographs and videos of the family using his mobile phone. When he died, Rachel did not have access to his passwords meaning that she was unable to access treasured memories of over 4500 photos and 900 videos of the family. After 3 years of pursuing legal action, Rachel has now won her case with Apple for this information to be released to her.

So what can we do to protect our loved ones from a similar fate?

Firstly, it is important to make a Will. This will mean you are able to appoint a trusted person to deal with your estate upon death. When making your Will, ensure you make your legal representative aware of any information you store digitally e.g. on your mobile phone, computer or cloud. You should ensure that you collect and collate as much information regarding your online accounts as possible, including user names and passwords. These will not form part of your Will which will become a public document upon your death but will be stored separately. You must ensure that these are regularly kept up to date. You should ensure that your passwords are stored securely and discreetly and ensure that it is not in breach of any terms of service with the chosen provider. 

You may also wish to consider preparing a letter of wishes to go with your Will explaining how you would like your digital assets to be dealt with on your death and who you wish to have access.

We are sure that the law will develop in time as the importance of digital assets become more and more recognised. However, until a more unified process is put into effect, you need to ensure that you have a well worded Will which reflects you wishes and feelings not only in relation to your physical assets, but also your digital ones.

To arrange an appointment with our private client team, please contact Paul Aynsley or Kim Busby on 01942 206060.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD

Twitter: @MBHSolicitors

We are Dementia Friends and Age Friendly

Here at McCarthy Bennett Holland we want to ensure all our clients are looked after and feel comfortable and welcomed at all stages through their matter.

Our staff have recently undertaken training with Dementia Friends for the second time to ensure all our staff have a greater understanding of what it is like to live with dementia and are aware as to how to help those who are living with dementia. We want to ensure that we are able to assist people to continue to live independently and to raise awareness to others as to how they can help.

Wigan Borough has previously been named the most dementia friendly town in the UK and we want to ensure that this reputation continues in our local area; supporting local people with local businesses.

We have also been named as the first Age Friendly Solicitors in Wigan town centre. This means that we are able to provide a downstairs seat and meeting room to those who need it. We can make special adaptations to the documents we prepare, including large print. In our private client team specialising in Wills, Lasting Powers of Attorney and Probate matters, we are also able to arrange home visits to ensure our clients with additional needs have all the access they need to specialist legal advice.

If you need legal advice and you are living with dementia, or know someone who is, or if you or any family member requires any special adaptation to make the legal process smoother, we are here to support you and make it as simple and straightforward as possible. Please do not hesitate to contact our friendly and approachable team on to discuss your needs.

To arrange an appointment with our private client team, please contact Paul Aynsley or Kim Busby on 01942 206060.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD

Twitter: @MBHSolicitors

Who Needs a Will? EVERYONE!

Figures tell us that over 60% of the population do not have a Will. Of those people, over 80% have minor children.

Why are so many people without Wills? For the majority of people, it’s likely that we just don’t like to think about death. However, it may also be because of financial reasons, a perceived lack of urgency or just not being able to make our minds up about what we would like to happen to our estate or who we would wish to care for our children without us.

Sadly, the one thing which is certain in life is that we will die but we have no control over how or when this will happen. Whilst this may appear to be a harsh statement, it highlights that a Will at any age is extremely important for a number of reasons.

The main reason is to have control over what will happen to our assets. Many may believe that their assets will pass automatically to those they want to receive their assets, even in the absence of a Will, but this is not necessarily true. Here are some of examples:-

What if you are not married? Your partner will not inherit you estate in the same way as they would if you were married.

What if you are going through a divorce? Until such time of your Decree Absolute, you remain married and your spouse can still inherit even after separation. There are also other situations where your former spouse could inherit which is unlikely to be in line with your wishes.

What if you have step children? Your step children could inherit if you are married because your spouse would inherit your estate and the assets then pass down their line. Your own children could theoretically miss out depending on the value of your estate.

A carefully drafted Will can avoid these pitfalls. It can also allow you to provide your wishes in terms of cremation/burial, appointment of a guardian for your children and charitable donations as well as crucial tax planning.

From as little as £130 plus Vat and disbursements it will ensure that you can provide for the people who matter most to you in the way that you intended. A Will can also make the process much easier for your loved ones to deal with your estate during a difficult and upsetting time for them.

To arrange an appointment with our private client team, please contact Paul Aynsley or Kim Busby on 01942 206060.

 

A New Direction for Legal Privilege and its scope under the Data Protection Act 1998?

The recent case of Dawson-Damer and Others v Taylor Wessing [2017] has shone a light on the extent to which solicitors can rely on the protection of legal professional privilege where an individual wishes to retrieve/see information held about them by others, regardless of their reasons for requesting it.

In short, making a request under the Data Protection Act 1998 is a relatively straight forward process, with a cost of £10, for an individual to submit a request for access to personal data held by someone else. When such a request (a ‘SAR’) is made, the entity holding the information (‘the data controller’) must make that information available to them within 40 days. However, a longstanding reason for not providing that information is because it is subject to legal professional privilege.

In this case, the action concerned the beneficiaries of a trust, who were concerned about the deterioration of the trusts value and served a SAR on the London law firm who were acting on behalf of the Trustees. In recent times, the case of Durant v Financial Services Authority has acted as a precedent, in which the Court of Appeal refused to order the data controller to disclose the information where the person requesting it was wanting it for the purposes of litigation. However, in the Dawson-Damer case, the Court of Appeal have ruled that the reason for the request is immaterial, i.e. it does not matter whether or not the information is going to be used for litigation. A firm cannot refuse to disclose the information and claim that all documents may be privileged, and any issues arising surrounding privilege should be decided by reference to English Law.

This helps demonstrate that Legal Professional Privilege does not extend to documents which are not strictly privileged themselves, but restricted for some other reason and so if the laws surrounding a trust limit the beneficiaries right to information, provided that information is not strictly privileged, they could apply to see it under the DPA 1998. It is important to note that solicitors and law firms are not ‘exempt’ from the provisions of the 1998 Act and must carefully review papers to establish what is and what is not subject to privilege.

It is important to ensure that you always instruct a firm of solicitors who are aware of their duties to you as a client and how to protect your information properly. Privilege covers correspondence seeking or offering legal advice, and so if a solicitor has a meeting with a third party and sends notes of the meeting to their client, without adding legal advice, that information can be disclosed. Whilst it is not entirely unusual for information to be disclosed during litigation between a trustee and a beneficiary, it is worth noting that in much the same way, the information can be disclosed where a beneficiary simply provides a SAR.

In any event, it is an interesting case that has set precedent for many beneficiaries to follow. If you are considering issuing proceedings for breach of trust or another problem with a trustee, please do not hesitate to contact our specialist Private Client team who have extensive experience in the administration of trusts and are aware of the disputes that can arise from them.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your wills, probate & estate management requirements in confidence at:

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD

Twitter: @MBHSolicitors

Cohabitation: What is yours if your partner passes away?

Last week the Supreme Court gave judgment in favour of a Claimant who sought provision under the pension scheme of her deceased cohabitee. In summary, the couple were only engaged for two days before the untimely death of Mr McMullen. Unfortunately, Mr McMullen did not nominate Ms Brewster so as to make her eligible to receive a survivor’s pension in the event of his death, and Mr McMullen had been paying into this Local Government Pension Scheme for approximately 15 years. As they were not married, Ms Brewster did not have any ‘automatic’ right to the pension and so was excluded by way of not having been nominated under the Local Government Pension Scheme 2009 Regulations.

The High Court in Northern Ireland did find that those regulations were incompatible with the European rights prohibiting discrimination and promoting peaceful enjoyment of possessions. Whilst this was reversed by the Court of Appeal on appeal by the Respondents in the case, the equivalent regulations in England, Wales and Scotland were amended following the NI High Court decision and the need to nominate was removed. Subsequently, the appeal was re-opened and the UK Supreme Court unanimously declared that the provisions that she need to be nominated was dis-applied.

Whilst the legislation has now been changed, so the need to nominate is no longer necessary, someone who is not married to their partner can still often face significant problems in respect of any inheritance they can expect to receive. Fortunately, the Inheritance Act 1975, does allow for someone in this position to make a claim against the estate of their recently deceased partner. In 1996, legislation was amended to allow Cohabitees to make claims more easily than ever before, with them now being able to claim that the estate does not provide ‘reasonable provision’ for them. To make the claim, the following must be met:-

  1. The cohabitants were, for the two years immediately preceding the death, living together in the same household as spouses/civil partners; or
  2. If they were not living together, that they were maintained (wholly or partly) by the deceased.

It should be noted that this relationship element does not necessarily require a sexual relationship and is based on a range of relationships. Claims can also be made on behalf of a child of a deceased cohabitant (including a child unborn at the date of death). Claims have also been known to include declarations of beneficial interests in property. In the case of Negus v Bahouse, the son and first Wife of the deceased were granted probate and they issued proceedings for possession of the property which the cohabitant was living in. She had given up work to be a housewife for the deceased and fell within the provisions of the Act. The Court granted her the property without the encumbrance of a mortgage and the sum of £240,000. It is possible to ‘declare’ an interest in your property for a loved one, even if you are not married, and we are readily available to assist with this.In summary, the grounds for bringing a claim and the circumstances to be considered exceed the parameters of this article and so it is always advisable to discuss any prospective claims with an experienced professional. Similarly, ensuring that a properly drafted Cohabitation Agreement is in place to avoid any problems should you separate, is also something that our team can assist with.

Written by our trainee solicitor, James Ford.

Contact our specialist team at McCarthy Bennett Holland on 01942 206060 or send an e-mail to mbh@wigansolicitors.com

Lasting Powers of Attorney: Role of the Attorney

It can be a very difficult time when someone we know or love starts to become unable or incapable of making their own decisions. Without the correct safeguards in place, where someone becomes unable to perform simple tasks such as paying bills or consenting to medical treatment, It can be almost impossible in some circumstances to ensure that their wishes are reflected and carried out.

The Office of the Public Guardian allow a person (‘the Donor’), whilst they have mental capacity, to appoint individuals (‘Attorneys’) of their choosing to step into their shoes and make decisions on their behalf should they ever lose the ability to do so themselves. This enables the individual to be secure in the knowledge that things will be done as they would like them to be, affording a certain amount of autonomy to that individual, which can often be of great comfort. Attorneys can be chosen to deal with (a) your property and financial affairs; and (b) your health and welfare, or both.

If you are ever appointed as an Attorney to handle someone’s affairs, but are unsure what you must do, please bear the following information in mind:-

The Mental Capacity Act (2005)

 This legislation sets out 5 key rules surrounding the loss of mental capacity:-

  1.  The Donor should continue to make their own decisions for as long as they are able;
  2. The Attorney should give them all the help they need in making the decision before deciding they cannot make it;
  3. An unwise or seemingly bad decision does not mean the Donor lacks capacity;
  4. Any decisions made by the Attorney must be in the best interest of the Donor;
  5. All that an Attorney does should restrict the Donor’s basic rights in the least possible way.

These rules should form the foundations of any decision you make on behalf of the Donor whilst acting under a Lasting Power of Attorney. Before making any such decisions, you should always check the physical Lasting Power of Attorney document for any instructions, restrictions or conditions that the Donor may or may not have placed on you, I.e. they may not want you to act in respect of the family business or similar. Attorneys can be appointed alone, together with another person (unanimous agreement on all decisions) or together with others but with the ability to act independently of the other Attorneys. Other Points to Note.  You are, as an Attorney, entitled to claim back any out-of-pocket expenses that you incur in performing your duties, examples may include paying for travel or postage costs. These amounts can be recovered from the Donor’s funds, but they must always be reasonable and you must not benefit from it. If the Office of the Public Guardian feels that they are not proportionate, you may be investigated and have to repay the money. You could also be removed as an Attorney by the Court of Protection.  You cannot be paid for acting, unless you are acting in a professional capacity, I.e. as a solicitor. However, if the Donor has decided that they want to pay you for doing this, they may choose to write instructions to that effect in the LPA, in which case you can be paid in accordance with those wishes.

These are only a few key points surrounding the appointment and duties of Attorneys and if you do require additional advice, or would like to discuss the options surrounding putting Lasting Powers of Attorney into place, please contact our Private Client team who specialise in this area of the law.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your wills, probate & estate management requirements in confidence at:

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD

Twitter: @MBHSolicitors

Survivorship in light of Jump v Lister [2016]

A recent case in the High Court has highlighted some potentially serious problems with the construction of many Mirror Wills. Mirror Wills are wills made by Husband and Wife, in relatively similar terms, but are fully amendable/revocable (even on the death of the first spouse, unlike Mutual Wills).

The problems arise with the use of ‘Survivorship Clauses’, which allow for an additional element of control in that the testator (the person making the will) can decide where his estate goes when the original gifts fail or the recipient is no longer living. Whilst the decision on whether or not to use such a clause (I.e. for an Inheritance Tax advantage) is one for careful consideration and discussion with your solicitor, it is a frequently seen inclusion in most modern mirror wills.

The wills in question did not deal with what would happen in the event that both Husband and Wife died at the same time. As a result, they were deemed to pass gifts (both cash and chattels) to the beneficiaries twice, which is often the exact opposite of what is intended. Usually, the intentions of those making the wills would be that everything would pass to the survivor and only on the death of the surviving spouse would the gifts be made to the beneficiaries, even though both wills detailed the gifts.

It was held that the clause used was wide enough in scope to apply so that the younger spouses failure to survive by 28 days meant that the gift to him did not take effect. The couple had died in circumstances where it was impossible to tell who had died first, thus the gifts under both wills were deemed effective. There is a general statutory rule (‘Commorientes’) that in those circumstances, the younger of the two is deemed to have survived the elder but the Court found that in these circumstances the survivorship clause had overridden this rule.

In this case, both had left their estate to the survivor and then on to other beneficiaries. As it could not be determined who had died first, neither could be deemed (on the wording of the wills) to have survived the other, therefore the primary gifts under both wills fail and the wills have to be administered in accordance with the substitute provisions in the event that the original gifts fail. As a result, all of the gifts under both wills were valid.

In summary, the problem was with the use of a standard precedent clause by the solicitors preparing the mirror wills. If the correct clause/wording had been used, the gifts would not have taken effect twice. This is why it is so important to instruct solicitors experienced in drafting effective mirror wills and gifts that only take effect on the survivors death.

The Wills and Probate team at McCarthy Bennett Holland Solicitors have the relevant expertise to ensure that this sort of problem does not arise on your death and are readily available to assist you. Please note that you should always explore the Inheritance Tax implications of your will in deciding whether or not any such clause should be used.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your wills, probate & estate management requirements in confidence at:

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD

Twitter: @MBHSolicitors