Legal Corner – The SWW
The SWW provide free and unlimited technical advice to all full members*. This means that a member can email our technical email address as many times as they like with technical questions or for case clarification. We are insured for the advice that we give and provide a full written response to the member within 48 working hours (often sooner). Members are required to provide full and clear questions.
Here are a couple of short and less complicated examples from this week:
Q: What happens to a gift where it is left to a child on them attaining the age of 18 and before then it is held in trust for them and that beneficiary dies at the age of 17. Does the gift revert to the testator’s estate or is it part of the beneficiary’s estate?
A: This depends on whether the gift was vested or contingent. If the gift is vested, e.g. ‘to my son NAME on attaining the age of 18’ then it will form part of the beneficiary’s estate on death and will pass to their beneficiaries under the rules of intestacy as they won’t have a Will.
If the gift is contingent, e.g. ‘to my son NAME if he attains the age of 18’ then it will fail and will pass to the substitute beneficiaries, if any, or revert to the testator’s estate and pass to the residuary beneficiaries.
Q: As a Will Writer can I certify a copy of an LPA for my client?
A: Unfortunately not. Under s3 of the Powers of Attorney Act 1971 a power of attorney can only be certified by the donor themselves while they retain capacity, a solicitor, a licensed notary public or a stockbroker.
Q: My client has been advised to add a special authority statement in his LPA to ensure that the management of his discretionary investments can continue.
Please could you advise on a suitable clause or statement to include?
A: “My attorneys may transfer my investments into discretionary management scheme. Or, if I already had investments in a discretionary management scheme before I lost capacity to make financial decisions, I want the scheme to continue. I understand in both cases that managers of the scheme will make investment decisions and my investments will be held in their names or the names of their nominees.”
The OPG suggest that this wording should be checked with the donor’s bank before the LPA is registered to confirm that they will accept it.
*Subject to terms and conditions – available on request/provided to members in the SWW newsletter.
Where a technical or multiple technical questions indicate a gap in knowledge or if the SWW deems training as necessary for protection of the client, then this will be suggested.
Whilst these questions have come from SWW members, all reference to personally identifiable information has been removed and fictional names or details may have been used.
This article was submitted to be published by The Society of Will Writers as part of their advertising agreement with Today’s Wills & Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills & Probate.