Author Archives: Portcullis Legals

Having been a mere boy of 23 upon entering the profession almost 25 years ago, I’ve seen them come, I’ve seen them go. We are now entering the most challenging period of our business lives as the reality of regulation, Alternative Business Structures and media investigation becomes more intense.

I will say from the outset that my personal view is that we need regulation of the “willwriting” sector as soon as possible. I have believed this from Day One and nothing will ever change my mind. It cannot be right that someone who has no experience or knowledge of estate planning is able to finish their job as a window cleaner, taxidermist, civil servant, mechanic et al one day, buy a software disk for willwriting the next day, (and sometimes not even do that) and then market the service and give advice to the general public for a fee. The issue is that any problem with the document or any advice, will not manifest itself until thirty or forty years down the line. This is wrong, full stop.

I have had the privilege of sitting on the advisory panel for the Legal Services Board over the past 12 months and as a result have met some very interesting people from other organisations including the SRA, the OFT and competitors from other firms across the country. Listening to the perspectives of others, it is clear that a change is needed and the Code of Practice that the Institute operates , was recognized as a model for moving forward.

One comment often raised that I disagree with completely is that all solicitors are better qualified to write wills than any other professional based upon the fact that they are a solicitor. This was proven to be inaccurate in the research we undertook and it opens up a gaping hole in the argument that solicitors are better placed than a qualified willwriter. I prefer to use the term Estate Planner than willwriter as we do so much more than just write wills.

If the profession is to secure itself a credible place in the minds of prospective clients and fellow legal professionals alike, we need to speak with one voice and strive to remove the loophole that allows anyone to set up as a willwriter overnight without the need for examination, due diligence, criminal records bureau check, indemnity insurance and so on. The disparaging perception of what we all do for a living was there for all to see on BBC TV One Show in January. The image of Dominic Littlewood setting up a table top in a city centre to flog wills made me cringe and angry at the same time. We need to start putting real barriers in place to ensure that only credible and honest individuals can enter our profession after having gone through rigorous vetting.

Over the past few months I have had the pleasure of working with one of my colleagues from the Institute, Peter Spillman and two colleagues from the Society of Will Writers, Harvey Gelman and Nick Ash. As a steering group we have been given the task of trying to find the common ground between both organisations in order that we can present to the general public and government, a shared platform and vision for the future. We need to ensure that we are all singing from the same hymn sheet.

Whilst there are inevitable differences, there is a real sense of purpose between us that we can at least agree to a highest common denominator approach to the profession, that would safeguard the public from rogue elements and give the profession a streamlined and defined set of membership levels and qualification levels.

My personal view is that if we are to encourage individuals or businesses into the profession, we need to create a structured examination route. It cannot be right that someone newly qualified at the basic level of willwriting can then advise a business owner with several properties, assets overseas, inheritance tax issues and difficult family situations. This needs to be referred to a more experienced and qualified colleague from within the firm or within their membership organisation. We need to create a tiered structure of examinations to reflect the complexity of the client situations we encounter and to encourage colleagues to take each level of examination at the appropriate time. This would mirror other professions.

I also passionately believe that the sector would be better placed if the Institute and the Society were to merge, creating a much louder and credible voice to represent the sector for all sorts of reasons, including economies of scale, delivery of services, clarity for the general public and most importantly, a stand out body that represents our interests in our sector. Think Council of Licenced Conveyancers for example, one organisation for one profession, does what it says on the tin.

I will acknowledge that members of both organisations will either recoil in horror at this thought or welcome it with open arms, but it is a personal view and it at least should be debated openly in both organisations without interference or recrimination. We all have our careers and businesses to consider and it is under threat from some of the biggest challenges we could imagine, so we at least should consider it. The Institute is rightly proud of the recognition of its Code of Practice by the Office of Fair Trading and that the Code has set the standard for the profession, as recognised by the Legal Services Consumer Panel in their investigation into willwriting. We should encourage and welcome dialogue between the two bodies and whilst our Steering Committee meetings are not always harmonious, they do create a vigorous debate among committed practitioners that want the best for the profession. Watch this space!

A significant area to debate moving forward is the creation / or presence of an independent ombudsman for our sector. The Institute has independent arbitration through the Estate Planning Arbitration scheme but there is a huge void in the rest of the sector that needs to be filled to ensure the public have a right of redress and I believe that it is inevitable that this will come into being. One suggestion I have heard several times now is that every practitioner, whether a one man operation or a large firm, should pay a levy each year to fund this. It is something we are discussing on the Steering Committee and rightly or wrongly, we should all be prepared to invest in a credible solution to allay clients’ fears, as it is one of the sticks currently used to beat willwriters with. We should try and address this collectively at the earliest opportunity. I can understand the concern of further costs, but if you are in this business the sum suggested should not prove unworkable, although I expect there will be a negative response to this. It is something that we can choose to do, or else it ll be forced upon us .

In summary, we all face some wonderful challenges ahead and it is how we embrace them that matters. The focus should be on qualifications, differentiating yourself from the herd, competing on service not price and delivery of a professional, personal service that the big firms that are becoming ABS’s can only dream of. I am very proud of most of our profession, we just need to get together to remove the unsavoury element and if we cannot do that collectively, it may have to be done for us from the outside.

Let’s welcome regulation as it will rid us all of unqualified competitors, help create a better environment in which to trade and give clients what they deserve, a professional, ethical and qualified service.

Trevor Worth
January 2012

When considering whether online Wills should be banned, it might be best to consider that grown people should make their own decisions: albeit, informed ones. Discussions of online Wills likens them to “do it yourself” car repairs. Plenty of people work successfully on their own cars, and they are not certified mechanics. The other school of thought follows: You can probably find instructions on the Internet to remove your own appendix: NOT recommended.

Production of your Will through an online vendor, or via a kit, falls somewhere in between these two extremes. The first question to ask yourself: How confident are you? Are you prepared to do as much research as is necessary to produce what you hope will be not just a valid, legal Will but a comprehensive one that takes the whole of your actual situation into account? And further, a Will that grants you all known advantages in the disposition of your estate?

Understand that online Wills are usually general and vague in the absence of a firm that couples the online creation with customised advice. Quite naturally, the folks who produce these online solutions want them to be serviceable across all jurisdictions, to all people. Unlike an attorney, nothing will be sized, hand-in-glove, to your specific situation. Be aware, and beware if you choose an online firm that offers no personalised support to back up the will writing.

Also, you run a risk that a document that is produced and is viable in one jurisdiction may not be in another. Further, unlike typical products, you can’t take your new online-produced Will out for a test drive. It doesn’t fulfil its purpose until you’re gone: Meantime, if you engage an experienced will writer now to adjudge the DIY’s validity, you may as well have gone to the person in the first place!

However, banning online will services wouldn’t likely stop such services. And, being that people are legally entitled to produce their own Wills absent even the counsel of an online service, sitting at a desk and spilling words to paper for instance, it seems that any individual should at least be able to search around the and judge for themselves what might or might not serve when producing a Will.

Buyer beware, however: You don’t want to live under the ignorance of bliss, with decades passing whilst you believe you have your affairs in order, only to have your potential beneficiaries find that your “Will” is not worth the paper it’s printed on.

When producing your own will, online or otherwise, you may end up doing more harm than good: a minor mistake can invalidate everything – and virtually every online provider of financial and legal services advises having all documents reviewed by a professional. That being the case, it makes more sense start there in the first place!

People often feel they’re paying lawyers for things that are nit-picky – in other words, not really worth it. However, I think we can generally agree that it’s prudent to surmise that lawyers exist for a reason. What about specific conditions? Are warnings and reasons for some things over-rated? What about the venerable “pre-nup”? Worth it? A necessary evil? A waste…? Like most things, it depends on the details and circumstances.

Let’s face it: People get married largely because they’re in love. Their love is “special” – it’s going to last forever. In many cases, that’s true. In a dismaying number of cases, however, that is most assuredly NOT true. And in cases where large stakes are at play in the case of divorce, it is truly wise to have a prenuptial agreement firmly in place. Another benefit of a prenuptial agreement is in preserving clearly separate assets for the purpose of proper passing of assets in accordance with your wishes upon your death. This is particularly useful in the case of blended marriages. Wise people of sound judgment do it all the time, and you can bet there are very, very, very good reasons for it. It is not only the lawyers who “win” – the pre-nup is most assuredly for the benefit of the married parties.

For many, if not most people getting married, they have some measure of their own assets and debt. This is particularly true with late marriages and blended families. When considering a prenuptial agreement and the course of affairs after the agreement is signed, be certain to keep your assets separated from those of your spouse. Don’t use personal assets for any marital purpose; be certain to maintain separate, as opposed to joint, bank accounts. When making purchases, particularly of large assets, don’t mingle funds for such purchases, unless it is with the clear understanding that the investment is a marital, joint, one.

What you are trying to accomplish is minimising issues and risks for a potential divorce later on – brutal, but true – and in succession planning for assets you want maintained outside the course of marriage. For these reasons, be certain that you and your spouse fully disclose and protect what you’re entering into the marriage with. You want to be certain to pull your own assets with you – unless you make a decision to dispose of them otherwise upon dissolution of the marriage or death of one partner.

In speaking of assets, let’s consider the flipside: debts. Be certain to know what your groom’s or bride’s liabilities are and what their credit score is. Be certain your pre-nup excludes you, releases you, or otherwise holds you harmless from pre-marital debt. You want to be free and clear of any liability and responsibility for your spouse’s debts, in protecting your assets.

When done appropriately, prenuptial agreements are understood by both parties as being a pragmatic “insurance” type of arrangement, and these agreements are usually upheld if challenged in court.

Only the lawyers who win? Well, in a way, let’s hope so: For, if you never need the pre-nup, you’ll be blissfully wed in perpetuity. But the pre-nup is there for peace of mind going in to marriage, for the protection of all concerned.

We don’t like to entertain the possibility, but sometimes we lose the capacity to act for ourselves or even to make decisions for ourselves.

There is a legal standing for most everything, and this is where a Lasting Power of Attorney (LPA) applies. The LPA is a legal document whereby a person of legal age and sound mental capacity (also known as a donor) can voluntarily and proactively appoint one or more persons (also referred to as donee[s]), to make decisions on his or her behalf upon loss of mental capacity. These decisions are usually of personal welfare matters, actions regarding property and estates, and so forth.

As opposed to General Power of Attorney – which usually ceases effect when a donor loses mental capacity – the LPA takes effect upon loss of that capacity. Therefore, the LPA is a mechanism that allows a person to plan for such a contingency as loss of mental capacity, with trusted person(s) to act in their stead.

Generally speaking, it could be said that anyone and everyone needs an LPA: No one can be sure what’s to come. However, we can apply some reason against the expense of engaging an attorney and incurring the fee associated with production of an LPA.

If you have sizable assets and are concerned about their proper management or disposition in the absence of your steerage and oversight, then an LPA may be for you. It is wise to identify a trusted associate or associates in advance – people that will make good faith decisions for you when you cannot do so for yourself. With this foresight, you eliminate any worry or stress that may accompany uncertainty; you also alleviate any difficulties your loved ones and close associates may feel in the absence of an LPA and a catastrophic loss of mental capacity.

When you consider the full range of decisions and actions that may be necessary upon your loss, you may wish to consider an LPA. Your donee can be authorized to make personal welfare decision, such as those involving health care. They can authorize activity regarding property, including financial matters. Depending on the level of authority you put into the LPA, they may make decisions on where you live, who you should live with, day-to-day care decisions regarding clothes, diet, sleep, etc. They may decide upon appropriate social activities, may handle your correspondence and even manage who you have personal contact with.

The importance of this decision, in terms of invoking an LPA and the choosing of specific donee(s), is further realised when you consider that you may authorise the approval of buying, selling, renting and even mortgaging property. A donee may open and close bank accounts and manage dividends, income, tax matters, etc. You may wish donees to have authority to purchase vehicles when necessary, in their estimation. The list can go on and on.

What is important is to judge your specific liability in the event that you lose the capacity to perform actions and judgments for yourself. If you gauge your assets, your desires in the absence of your capacity, and the associated complexities involving that scenario, you’re a long way toward deciding on whether a Lasting Power of Attorney is for you.

Most people understand the importance of a Will: It provides for the formal assurance that your wishes, upon death, will be carried out according to and under the law, as understood by virtue of the document (the Will) that you’ve left for legal authorities and beneficiaries.

It is quite natural that many people may entertain notions of crafting their own will: that is, the production of a Will absent formal oversight, lawyers, or firms that have express knowledge and experience in making valid, legal Wills. It may be a matter of saving on legal fees. It may be a matter of privacy. It may also be a matter of, “I know my assets and my own mind best – I don’t need outside authority/authorities involved”.

Regardless of reason, we can examine some pros and cons associated with self-generated, “Do It Yourself” (DIY) Wills.

Advantages in Writing Your Own Will

It may seem obvious, but one of the main advantages in a DIY Will is speed: You can complete it quickly and efficiently (provided you know what you’re doing, cover everything, and produce something that comprises a legal will). Also, you can write the will in a language that you understand: Any updates can be accomplished quickly as well. In support of the DIY Will, there are many online references and resources to assist you.

Another advantage is cost savings: No legal fees, no attorney’s fees. If yours is a fairly simple situation, absent complexities such as blended families, joint ownership of tangled assets, absence of loans and liens, and so forth, the better your chances for crafting a document that has real standing against the disposition of your estate upon your demise.

Disadvantages in Writing Your Own Will

Again, we start with the obvious – but in this case, it’s the elephant in the room: By far the largest con to writing your own DIY Will is that you might make critical mistakes, resulting in a Will that will be judged invalid. In these cases, a probate court assumes control – in effect, taking the same action as if you had no Will at all.

If you have children or complex assets (businesses, trusts, joint properties, etc.) all sorts of complications come into play that few DIY Wills ever accommodate. The risks of getting things wrong are far outweighed by any savings. Using an experienced willwriter to create a Will need not cost an exorbitant amount of money. The resultant Will is something that you can invest confidence in, and you know it will stand up at the critical time – representing you when you are no longer here to represent yourself.

There really is no price that you can put on this sort of peace of mind. Further, an experienced willwriter may be able to “pay for themselves”, by suggesting forms of asset protection and distribution that can yield huge savings via tax protections and other means.

When considering whether a child can have two (legal) fathers or two mothers, the short answer is: Yes. The legal considerations, however, for determining these statuses are rather complex and beyond the scope of a simple article. For example, lesbian partners can be mothers if they entered into a civil partnership prior to insemination of one, or adoption; in the case of insemination, it has to be made by a donor who knows he is donating for purpose of creating a child, and so on. Further, law is evolving quickly in this area, so it is impossible to put forth all the complexities herein.

Having said that, there are many options for couples, whether dads or mums.

Many couples want their “own” children. For gay men, this means having a biological child through one’s donating sperm and having a friend carry the baby to term. For lesbian couples, one of the women may choose to carry a baby to term through donation of sperm from a friend or other source. Indeed, in either relationship, the men or women may choose to alternate in terms of sperm and carry, respectively, in creating a family of multiple children.

An alternative, just as for heterosexual couples, is adoption. The key questions will be whether a couple can provide a secure, stable, and caring home for the duration of childhood, and beyond (into adulthood), regardless of sexual orientation.

Further alternatives are to be had in fostering a child or children. Generally, fostering a child means ultimately returning that child to their natural family at some point. However, this is not always the case, and where returns are not possible, a new permanent family is sought through either fostering or adoption. Today, foster parents can be single, married, gay, lesbian, or hetero.

Another possibility is surrogacy. For gay men and couples, a woman carries the baby for the couple who cannot have a child themselves. Be aware that surrogacy can be difficult to arrange. You cannot advertise for surrogacy, and you can only pay someone in terms of “reasonable expenses.”
For lesbian couples, donor insemination is an option for creating and raising a family. In this case, a male friend usually donates sperm to be inseminated into one of the women. There are also anonymous donations to fertility clinics, but usually lesbian couples wish to know the donor.
Today, gay parenting is less a question of whether it can be done, but more a question of settling on the method of having children and creating the family. As in hetero unions or partnerships, the emphasis is on creating a safe and loving environment.

With evolving law and associated means of family creation in this realm, children most assuredly can, and often do, have two fathers…and others have two mothers. Children of gay and lesbian couples can be afforded the same beneficiary status as children of heterosexual couples provided by a sound, legal Will.


Once upon a time, there was no inheritance tax as we know it today. When someone of means died, they simply passed on their fortune to their heirs.

However, now, when a person is named in a legal will as receiving assets from an estate, that person may be liable for an inheritance tax.

At one time, governments only taxed what any individual estate chose to liquidate (sell). Of course, that didn’t continue: Early on, it was felt that certain families were merely accumulating more and more wealth, passing it down at the expense of those who were not managing to accumulate much themselves. Thus, there came a time when governments chose to levy a tax on substantial inheritances, as passed via the legal will.

However, most do not pay an Inheritance Tax. An inheritance tax only becomes due if the estate is valued over the current Inheritance Tax threshold, which is £325,000 as of 2011-2012 – this includes assets held in trust, along with any gifts made within seven years of death. Tax is payable at 40% on the amount over this threshold.

When taking on inheritance tax planning in the UK, there are two types of property consideration: Your first consideration is what is termed “real property”. This involves land, but not only that – it also comprises any improvements made on that particular land. Further, real property encompasses any oil, gas, and mineral deposits you may have rights to – anything of value, in other words. This real property also includes any immoveable objects on the land, having become part of it, such as buildings and machinery. The other type of property is personal property: this includes monetary objects such as stocks, bonds, and cash.

For some, certain deductions may apply. For example, all assets left to a UK-registered charity are deductible. Some political donations to major parties are deductible. Certain business assets may be deductible under the Business Property Relief (BPR). Some farmland is considerable, under the Agricultural Property Relief (APR). There are the aforementioned gifts made to individuals, and even gifts made in contemplation of marriages or civil partnerships.

Often, giving assets to special trusts can minimise the inheritance tax burden. In these matters, individual considerations require the advice of an experienced will writer.

The stories can be heartbreaking: Against someone’s wishes, an ex-spouse inherits retirement benefits, perhaps a house, and maybe entire bank accounts – even though that someone willed them to their children.

Blended families, whereby husband and/or wife bring their own assets and children from outside the present marriage, seem to be at higher risk for these sorts of unfortunate outcomes. Exacerbating the overall environment for mishaps is the fact that blended families now outnumber traditional nuclear families. And, unlike the former “usual” family model (an “until death do us part” husband, wife, and children), blended families must accommodate the “yours, mine, and ours” of children and assets – plus former spouses, and multiple sets of grandparents.

Quite naturally, people want to pass on the fruits of their labour to their biological offspring. But providing for your present spouse and all associated family is also important. It can be a course of delicate negotiations and a set of fragile agreements – the need for very specific wills and wishes is paramount here.

Because suspicion and resultant anger can arise when discussing these matters, some people avoid addressing these issues until it’s too late to do what’s necessary. However, with appropriate planning, problems can be avoided and appropriate estate planning can be made.

In brief, the heads of families should ensure that they: Disinherit any ex-spouse; protect and provide for their own children; provide for the present spouse and children; do everything they can to minimise estate taxes.

Blended families are complicated; do not have a will that simply leaves everything to your spouse on the theory that this person will follow instructions to take care of your children. You just may be doing the equivalent of disinheriting all of your children.

As in all matters, trust nothing to chance.

Mirror Wills are nearly identical Wills (hence the “mirror” term), usually made by married couples, but which can exist between any sort of partners or pairings. Mirror Wills usually leave an estate to a surviving spouse, for example, and upon the spouse’s death, to any surviving children.

As a term of art, Mirror Wills generally provide for the following: 1) There are two parties involved; 2) Wills are made by both parties in agreed terms; 3) The wills represent an agreement that both parties will leave their estates in accordance with the agreed terms; 4) The death of one party occurs without that party having substantially altered his/her Will.

There is no such thing as a “Joint Will,” so when a couple has a joint interest, such as the passing of an estate to a surviving partner and subsequently to surviving children, two almost identical Wills are invoked. “Nearly identical” is the term usually employed because nothing in this world is quite perfect. As but one example, even mirror Wills have to take into account that one spouse may die with children, in a plane crash for example, and with no surviving children, the potential surviving partner may have an idea as to who the further named beneficiaries are to be, and the other partner may not have had that stipulation or care.

Mirror Wills are a solid way to create estate planning for the heads of the household, and they provide efficiency and surety: Less paperwork, less expense, and the solid comfort to spouses that their wishes are in sync, documented, and will be carried out within the framework of their mirrored desires. As a further measure of comfort, the partners can be both sole beneficiary and sole executor to the other.

However, when partners are each other’s beneficiary and executor, it is imperative to add at minimum an extra executor and beneficiary to each Will. This is a safeguard for the estate in case both partners die together, or in the space of a very short period of time. You may choose to have different second executors and beneficiaries in each will, but naming different guardians can lead to problems, absent very clear directions. Most people, in the spirit of “mirroring,” will choose to have the same person serve as executor and beneficiary in both wills.

Mirror wills are a popular way to ensure that two people’s wishes – usually married, but not always – are carried out in accordance with agreed upon wishes.