North London Solicitors

A recent case illustrates how strong the evidence must be before the presumption that a person making a will has the mental capacity to so will be overturned.

• the woman lacked testamentary capacity (i.e. was not ‘of sound mind’ when she executed the will);
• she did not know and approve of the contents of the will; and
• the will was procured by undue influence.

A recent case illustrates how strong the evidence must be before the presumption that a person making a will has the mental capacity to so will be overturned.

It involved an elderly woman who died leaving an estate of a little under £150,000. Her only relative was her granddaughter. The woman had been looked after by a neighbour for some years and appointed him to be her executor and the beneficiary of her estate.
The woman’s granddaughter sought to have both the will and the man’s appointment as executor overturned, alleging that:

• the woman lacked testamentary capacity (i.e. was not ‘of sound mind’ when she executed the will);
• she did not know and approve of the contents of the will; and
• the will was procured by undue influence.

It was in point that the woman had previously instructed a firm of solicitors to pr epare her will, but had not proceeded with it. Evidence was given by the firm that they had reservations about her testamentary capacity when she instructed them.

The court ruled against the granddaughter. There was almost no evidence that she did not know and approve of the contents of the will or that it was procured by undue influence. As regards the issue of testamentary capacity, the judge considered that she had ‘good days and bad days’, and that she could therefore be presumed to be of sound mind.

A family that leapt into action in order to make a claim against their late father’s estate had their claim thrown out by the court recently.

The family of Timothy Milburn, who died intestate, went to court to claim a half share in the farm and riding school he had occupied for several years with his partner.

A scam which traded on the greed of the gullible has been closed down by the the Financial Services Authority (FSA) after nearly £4 million was ‘invested’ by people seeking returns promised to be between 200-300 per cent.

After making a series of injunctions against so-called ‘landbank’ companies, the FSA has started to issue winding-up proceedings

against them

One of the often forgotten issues in retirement planning is the possibility of having to fund long-term care at some future time. Such care is means-tested and most care home residents of means will pay in full for their care. With an ageing population and severe pressure on government finances, this situation is only likely to get worse.

Are the conditions of entitlement to state pension credit under the 2002 State Pension Credit Regulations compatible with EU law? That is the question raised by a recent Supreme Court case in which a Latvian national attempted to claim the same pension credit rights afforded to British and Irish citizens.

Are the conditions of entitlement to state pension credit under the 2002 State Pension Credit Regulations compatible with EU law? That is the question raised by a recent Supreme Court case in which a Latvian national attempted to claim the same pension credit rights afforded to British and Irish citizens.

Under the general provisions of European law, citizens of any EU member state are subject to the same obligations and enjoy the same benefits under the legislation of any member state as the nationals of that state.

However, the basis of entitlement under the 2002 State Pension Credit Act is whether the claimant is ‘in Great Britain’. Regulations under the Act set out the circumstances in which a person is treated as being in, or not being in, Great Britain. The test is whether or not the person is ‘habitually resident’ in the United Kingdom or elsewhere in the ‘Common Travel Area’ of Great Britain, Ireland, the Isle of Man and Channel Islands. But the rules as to when a person is or is not to be treated as ‘habitually resident’ do introduce tests that raise issues about nationality.
‘Habitually resident’ means that the person must be resident for the purposes of work or other prescribed purposes. Everyone, including United Kingdom nationals, must meet this requirement. But while all United Kingdom nationals have a right to reside in the United Kingdom, not all of them would be able to meet the test of habitual residence.

When retired factory worker Galina Patmalniece, a Latvian national of Russian origin, moved to the UK in 2000, she hoped to win refugee status. Although she failed in her applications, she became entitled to remain in Britain as a consequence of Latvia’s accession to the EU in 2004. Ms Patmalniece was not able to acquire a right to ‘habitual residence’ however, because she is no longer a worker, is not self-employed, is not self-sufficient or a member of a family of such a person.

Counsel for Ms Patmalniece submitted that the requirement to have a right to reside here discriminated directly between citizens of the United Kingdom and citizens of other Member States. It was argued for the Department of Work and Pensions, however, that a person would only be eligible to receive state pension credit if they could show economic integration in the United Kingdom or a sufficient degree of social integration here. What the regulations sought to do was to prevent exploitation of welfare benefits by people who came to this country simply to live off benefits, without working or having worked here.

The conclusion of the Supreme Court was that, although the 2002 Regulations discriminated against nationals of other EU member states, the conditions laid down are objectively justifiable on grounds independent of a claimant’s nationality.

The appeal by Ms Patmalniece was duly dismissed.

This area is complex, and is complicated further by the obscure language of the relevant legislation. British nationals who spend considerable time out of the UK, as much as nationals of other member states, could be in danger of falling foul of the ‘habitual residence’ requirement and should seek expert advice if concerned.