The five million fans of BBC Radio 4’s The Archers will know that recently widowed Peggy Woolley has made the decision to announce to her family the contents of her Will.
This emotional storyline from the long-running soap has thrown the spotlight onto areas of law which are relevant to us all.
Powers of Attorney
Peggy’s husband, Jack, had endured robberies, heart attacks, falling off a roof fracturing his skull and panic attacks yet it wasn’t until 2003 that his mental health started to deteriorate.
In 2009 Jack was moved to The Laurels for full-time care. Luckily Peggy was convinced in 2004 to become Jack’s Attorney under an Enduring Power of Attorney (EPA) and therefore had the legal right to deal with his finances when he could no longer deal with them himself. If Peggy had been appointed as Jack’s Attorney after 2007 then a Lasting Power of Attorney (LPA) would have been completed as these replaced EPAs.
But what would have happened if Jack had not agreed to put an EPA in place?
No person is legally entitled to deal with anyone else’s financial affairs without an EPA or LPA and so Peggy would have had to apply to the court to obtain a Deputyship Order appointing her as Jack’s Deputy to access his finances.
Banks can also freeze joint accounts when one party loses capacity. The rationale behind this is that the authority for either party to sign entails a continuing consent, which is broken by incapacity.
On application for the Deputyship Order notice of Peggy’s intention would have been given to Jack’s relatives, including Hazel who may have objected to the appointment.
In a straightforward application, without anyone like Hazel objecting, it would have taken around six months and significant expense before Peggy would have been able to act on Jack’s behalf.
This could mean that for six months Peggy would be funding Jack’s care without access to any of his finances and potentially hers that were held in joint accounts.
Second marriages, or in Jack’s case, third…
Jack had been married twice before he married Peggy in 1991. His daughter Hazel was born to his second wife Valerie. When Jack died his will left his property to Peggy and the remainder to Hazel.
Jack could have left Peggy a ‘life interest’ in his property to ensure that the capital value of the house passed to his daughter Hazel on Peggy’s death, rather than passing to Peggy’s family through her Will. This would have also ensured that Peggy had the security of somewhere to live for the rest of her life.
It’s often a difficult balancing exercise as to what should be left to whom when you have more than one family. It is always a good idea to get professional advice to ensure that you are able to provide for all family members in an appropriate way.
Treating family members unequally
Peggy Woolley has three children of her own, none of whom is set to inherit her estate under the terms of her recently made Will. Her two daughters, Jennifer and Lillian are not in financial need and her son, Tony who runs the family farm, is unable to support his two children, Helen and Tom.
As a result Peggy has decided to leave her property to her granddaughter Helen to ensure that she and her child have a roof over their heads and the remainder of her estate to Tom, her entrepreneurial farming grandson.
While this is a difficult time for the family how much worse would it have been if Peggy had given no explanation and had just let Tony discover the terms of her Will after her death at a time when emotions are particularly raw and the family and personal pressures at their greatest. The frustrated expectations would have surely created a great family rift, a legacy that Peggy would not have wished to have left.
But what are the potential consequences of Peggy’s actions? Does anyone have a legal right to claim against Peggy’s estate on the basis that she has failed to make adequate financial provision for them?
While English law provides for testamentary freedom this is subject to the restrictions of the Inheritance (Provision for Family and Dependants) Act 1975.
Under this Act Peggy’s children all have a right to make a claim against her estate for such financial provision as it would be reasonable in all the circumstances for them to receive for their maintenance.
Tony’s wife, Pat, is particularly upset by the terms of the Will but as she’s not being supported financially by Peggy she does not fall within any of the categories of people who are able to make a claim against her estate.
The children of Jennifer and Lillian may also feel aggrieved by the decision that their cousins, Helen and Tom, will take Peggy’s estate absolutely, however, they will only be entitled to make a claim if Peggy was maintaining them up to her death.
When leaving your estate unequally between family members you should always seek professional advice to ensure that, on your death, any family dispute is minimised.
The costs of such disputes often deplete the whole of the estate leaving everyone with nothing.
by Alexandra Gordon, a Solicitor in the Trusts and Estates Team at law firm Furley Page.