If you should become incapacitated without an Enduring Power of Attorney, an application to the Supreme Court for the appointment of a receiver may be the only option for your loved ones to manage your affairs.
The baby boomers are growing older and those of us who fall into this category need to be prepared for what may lie ahead. Do you know what will happen to you and your property in the event that you become incapacitated? Those who have planned ahead will have signed an Enduring Power of Attorney, giving someone authority to manage their property and affairs in such circumstances, and an Advance Treatment Directive, giving someone the power to make medical treatment decisions on their behalf. This option will still be available to you if your incapacity should be physical, but it will be altogether too late if you should become mentally incapacitated.
There has been a significant increase in contentious and non-contentious trust matters arising from family disputes in relation to Bermuda trusts. Most often these involve wealthy international dynastic families or family corporations.
The type of matters we see before the Bermuda Courts include applications for variation of trusts or sanctions of a compromise between the trustees and various classes of beneficiary and/or the consent of the court on behalf of minor beneficiaries; applications for directions eg. relating to disclosure or distribution of assets; applications to remove trustees for breach of their duties or recovery assets allegedly lost as a result of breach of the trustees’ duties; and applications to set aside the whole trust on the grounds of fraud, undue influence or the uncertainty and failure of the trust objects.
The principle of separate legal personality of a company has been affirmed in yesterday’s Supreme Court case of Prest v. Petrodel Resources Limited, and the principles upon which the court will act to “pierce the corporate veil” have been clarified, but it remains the case that upon divorce, the court will look carefully at the reality of the structure to achieve a fair distribution of assets. The decision has important implications for all those engaged in the trusts and corporate services business.
A unanimous Supreme Court overturned the decision of the Court of Appeal yesterday in the case of Prest v. Petrodel Resources Limited and others  UKSC 34 (400 KB PDF). At stake was the issue of whether it is open to the court, in an application for ancillary relief in divorce proceedings, to treat assets of a company of which one spouse is the sole controller as being assets to which that spouse is “entitled” for the purposes of Section 24(1)(a) of the Matrimonial Causes Act 1973. Lying at the heart of the matter are the competing objectives of the commercial and family law divisions, the former of which seeks adherence to established legal principles to ensure commercial certainty for parties dealing at arm’s length, while the latter aims to achieve a “fair result” in circumstances where the parties are dealing at anything but arm’s length.
The internet should give us all pause for thought, particularly in the context of estate planning. In preparing a will, we focus on home, bank accounts and a lifetime of accumulated tangible treasures that we wish to pass on to loved ones. And we select trusted friends or family members to take responsibility for the task of seeing these things make it into the right hands.
Social networking accounts, and the data they store, are rarely contemplated in this context. For those of us less tech-savvy than the rest, the question may well be, does it matter? The answer must be a resounding YES, as the information that has the potential to be lost can be irreplaceable. Many people use their Facebook or Google account as a personal databank, or store all of their pictures, music, videos and other digital content in “the cloud”. While there is some variation amongst social networking providers as to what happens to the account on the death of the account holder, one thing seems to be certain: access by next of kin to information stored in the account will be limited at best. Some sites will delete data stored in an account after a period of inactivity, while others allow an account holder to nominate a person to “inherit” the content in certain proscribed circumstances. Others, still, like Facebook, “memorialize” an account, which means the profile remains in existence forever, access being restricted to friends only. In part, the lack of consistency in approach with regards to the death of account holders is the result of privacy and probate laws not keeping pace with the reality of the internet, as well as a failure to properly define “digital assets”. As well, establishing policies to deal with the death of account holders is neither sexy nor fun.
In an effort to achieve a fair division of matrimonial assets, the Court is increasingly demonstrating its willingness to scrutinise the beneficial interests of divorcing spouses under family trusts.
A high divorce rate seems to have become the norm rather than the exception in the western world. This reality, and the Court’s determination to achieve fairness on the dissolution of marriage, has generated a measure of uncertainty with respect to the treatment of trusts. In a discretionary trust context, a beneficiary has only a right to be considered in the exercise of the trustees’ discretion and this has shielded beneficiaries on divorce, who had no fixed entitlement to any portion of the trust fund. However, the Court, in divorce matters, is concerned about achieving a fair division of marital assets and increasingly has taken the view that a divorcing spouse’s interests under a trust should be subjected to closer scrutiny.
Litigation surrounding Wills is steadily on the increase. In particular, issues of disputed testamentary capacity are becoming more frequent and as such, attorneys must be extremely cautious when taking Will instructions from individuals. What does this mean? Disputes involving lack of testamentary capacity refer to those that have to do with the determination of the mental state of the testator. When an attorney drafts a Will, he or she has the duty to be aware of the client’s competency, to ascertain whether the client is being subjected to undue influence and to make a reasonable assessment of the mental capacity of the client. An attorney should not draft a Will for a client unless the attorney believes that the client has testamentary capacity and a full comprehension of the nature and extent of the estate that he or she is distributing.
This year’s event marked the seventh legal clinic that MJM Limited has hosted with Age Concern, a registered charity (#561) dedicated to meeting the needs of seniors in the local Bermuda community. Attendees were able to participate in a seminar on essential estate planning tools, which was led by MJM Director Hil de Frias, as well as attend interview sessions with individual attorneys from the firm.
Here’s a short 6 minute video about the event: Age Concern Bermuda and MJM present the 2013 Annual Free Legal Clinic (video).
Two of the more pressing items that were identified during this year’s legal advice sessions were Powers of Attorney and Wills. My colleague Emily Deane and I have written on Wills in recent posts Advantages of using an Attorney to prepare your Will and With a Will There is a Way so this article will focus on the value of Powers of Attorney.
It is essential that every individual, regardless of age, makes their own Will. If you die without making a Will then you die intestate which means that a court can distribute your assets in accordance with the law at that time. This may result in your home and hard earned investments being distributed to siblings, cousins, even further removed relatives or the Bermuda Government! It is fundamental that you make a Will in order to maintain control over your assets even when you have passed.
There are a few options when contemplating making your Will.
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