Currently there is no obvious method for a point of intervention to review the validity of a potential change of Will in someone you might deem as vulnerable, such as someone who has become frail or dependent such as with age or illness.  So, we are looking at how you can formally create a self built check list to help protect you, which comes into effect whenever you wish to change your Will.  You will have stipulated previously with us when your Lock Clause Letter should be used by you whilst you are of strong and sound mind so that you can help protect yourself later, particularly in your older years. 

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If you make another Will, your Lock Clause Letter will record the date you did that and ask you to fill in some questions.  For example, why you made the changes and whether anyone was asking you to do that and who you would like to notify that you have done this.  You keep the Lock Clause Letter as private as possible and fill it in alone or ask us to do it with you and we print you a fresh copy (this is a free service).  We will then give you instructions how to store and use your Lock Clause Letter.   a  If anyone else helps you to fill in your Lock Clause Letter then you immediately invalidate the point of it so you must not do that.

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There is no process of checking and ensuring an elderly person's intentions are their own and not a result of some kind of persuasion other than whether the legal professional may spot anything when taking your instructions to make a Will.  It is not always easy to spot an issue, particularly if someone else has brought you to the legal practitioner.  This is why a legal professional should speak to the client alone to take instructions for a Will, but it is not always possible or the case, especially these days with computer links.  There are no protections for you if you are being discouraged from speaking to your own legal practitioner and yet you may be becoming frail, fearful or anxious, and more dependent on others, which can start suprisingly young, opening you up to potential problems. It is too easy for the person persuading you, to simply bring in a Will maker to make a new Will that contains whatever he or she, has persuaded you to put in there.  You may become more open to suggestion, threats and manipulation for various reasons.  It is in this window that a large number of abuses and exploitations occur.

 

Each of us must, and do, have full freedom to write the Will of our choice, at any time and a professional must follow the client’s instructions.  There is also no obligation (in the UK at least, although that has changed a little too under case law) to provide for offspring or dependents in our Will (although that does not prevent them from making a claim). 

 

A regulated Legal Consultant (such as a SWEPP Wills & Estate Planner) or solicitor merely has to follow procedure and record whether they believe there is duress or suspicious circumstances, in case a Will is later challenged, but it does not prevent the Will being made or trigger any protective measures which is really where the flaw lies.  It leaves disinherited family members, or others or dependants, who might have been relying on an inheritance and/or home, having to fight to claim on the Will.  This in itself is very difficult as there are specific criteria only, to allow a claim, given that they even knew they had been left out of the new Will in the first place.  There is no obligation to leave anyone anything however, you can spend your later years reaping the rewards of all your hard work and efforts and having a jolly good time.  It certainly does not give any person the right to actively exploit an elderly person for their own gain.

 

There is also a point of exploitation, which we have seen first hand, where it is believed there are no family members around to intefere, or at all.  A male neighbour suddenly befriended the elderly lady by offering to cut her lawns and then persuaded her to change her Will and leave her house and money to him (that is the simplified version of a very unpleasant story).  He organised for two men from a Wills company to visit her and a new Will was made (another reason why I’m not at all sure about Wills “only for profit” organisations and charities).  This clearly takes away the choices the lady had made in her previous Will and she had said she was worried she had to do what the men wanted.  Through exploitation, and quite frankly abuse, the neighbour successfully receives, unchallenged, a significant benefit.  This event is often known as suspicious amongst the people around her but they tend to feel they don’t want to get involved in a messy situation and feel what can anyone do anyway?  After the Will becomes effective, who is left to fight this and who would have the funds to do so, particularly if you did not even know you had been a beneficiary of the Will?  The Will becomes a public document after death, but it relies on chance that it will even be looked at and certainly not the former Will by those left out, who would be none the wiser anyway as that has now gone. 

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A sadly common scenario is where the children become the problem:  A parent is discouraged from going to get independent legal advice, encouraged to change various property into joint names to exclude siblings, encouraged to leave their home and go into care, or any other host of shenanigans you can think of.  The stories are pretty damning.  Whilst we all hope this doesnt happen to us, it is never a bad thing to provide belt and braces protection as you do not know what challenges life is going to bring.

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Variations of these scenarios are very common and its a huge grey area.  Of course there are certain remedies criminally and civilly, but very limited and challenging if they are spotted at all.

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So, we set ourselves the task, to see if we can create at least some protection, along the lines of a Lock Clause.  If you decide to change your Will (or any other property such as bank accounts for that matter)  your Lock Clause Letter would come into effect. 

 

Of course it is not legally binding on you, it is something you decide to put in place whilst you are of strong and sound mind to protect your future self from being exploited.  It will give you the confidence, if you need it, to follow the instructions within it which you have already created.

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The aim is not to prevent you making a new Will, simply to allow you to build in private breathing space that facilitates you taking independent advice in case you are being pressured to make changes you are not sure about.  The lock clause would trigger that check list if certain events occur.

 

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Because of the clause, there have now been opportunities and conditions that were not there before : 

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a)  you have had the opportunity to hear another voice wholly on your side, that independently considered your decisions, free of any person/people who might be creating duress 

b)  required you to receive alternative independent advice and make you aware of the consequences of your decisions  eg if you are excluding someone who was previously in your Will

c) have the letter recording the proof of independent consultation and advice attached to your Will if you wish 

d) if you are going against independent legal advice for whatever reason, the clause triggers safeguarding enquiries for your protection.

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The obvious person who should keep your Lock Clause Letter as it changes, is the person who made your Will and any future changes to the Will.  That person should have a system where your Will is kept under review for example with annual contact, and it is up to you to notifiy them of a change of address or contact details. 

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This advice applies to decisions to change from your sole name of bank accounts and other property, into joint names or other names.  You have no protection if you have not made a Will.  If your family member or "friend" is encouraging you not to bother making a Will, this is precisely the time you must go and seek independent legal advice.

 

All of this should be dealt with via planning for your future, especially when doing a Will or other legal documents, with an independent legal professional.  This is not going happen if you buy an off the shelf Will or a cheap Will from an organisation that is not interested in consulting properly with you because it is not profitable for them to do so.  One hour with a independent legal professional before handing over thousands or hundreds of thousands of pounds of assets, seems to be a small trade of excellent value.

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