Expression of Wishes Advice

missterri · 7 July 2018 at 8:37PM

Please can you help me, I am in dispute with my late husbands Pension Company, are they duty bound to keep a copy of all Expression of Wishes? - they are saying they dont have a copy of/or the original document just a note on his file - is this adequate proof of an EOW ??..

dunstonh · 8 July 2018 at 2:00PM

If a board guide spots this thread, please can they move it to the pensions section as it isnt an auto-enrolment issue.

are they duty bound to keep a copy of all Expression of Wishes?

no.

is this adequate proof of an EOW ??..

Not ideal but adequate.

At the end of the day, an expression of wish is not binding on the scheme trustees. So, they get the final choice regardless of what it says. So, they just need to know what the expression of wish is and note that. It isnt a document that binds them.

If your husband used an IFA, they will usually keep a copy.

Silvertabby · 8 July 2018 at 2:50PM

missterri wrote: »

Please can you help me, I am in dispute with my late husbands Pension Company, are they duty bound to keep a copy of all Expression of Wishes? - they are saying they dont have a copy of/or the original document just a note on his file - is this adequate proof of an EOW ??..

Different schemes will have different rules. The LGPS, for example, no longer use paper files - instead, documents (including EOW forms) are scanned to the computer record as an image, then the paper copy is destroyed after 3 or 6 months.

grey_gym_sock · 8 July 2018 at 6:03PM

if you think the trustees should not be following the expression of wishes which they say they have on record, it might be more useful for you to concentrate on looking for reasons for that (since they do have a discretion about whether to follow the expression of wishes). such as:

- the expression of wishes is out of date, because your husband's family situation changed after the expression was made, and he never got around to updating it; or

- following the expression of wishes would leave his dependent(s) without the support they ought to have, so it is not appropriate to follow the expression.

(i'm not trying to put words into your mouth. i don't know the situation. just trying to give an idea of some things that could be relevant.)

missterri · 8 July 2018 at 11:18PM

Thanks everyone for your responses..
This is the situation -- My CL husband of 18 years made his EOW many years ago as a 20 something year old young man with no family. Many years later my CL husband called the pension company asking to remove his beneficiaries and replace with myself; he was told that the Pension had "changed hands" many times and that there were no longer any beneficiaries attached to his pension, when asked what would happen to the fund if he died before he took his pension he was told it would be paid to his estate, we accepted this and so my husband wrote a will and bequeathed everything to me ... simple !!
Long story short, after the passing of my CL husband (9 months ago at just 53 years old) I have been in battle with the pension company and have asked for proof of my husbands EOW as I do not believe the "claimed beneficiary" is whom my late husband had wanted his fund to go to so I have asked for a copy of his signed EOW - which they say they dont have .. also I have asked for a transcript of my husbands telephone conversation when he tried to change the beneficiary to myself (which they still havent provided me with) However; the Pension company say they have listened to that call and have admitted in writing that my husband was given incorrect information when they told him there were no longer any beneficiaries attached to his pension --- hence, through their error they have denied me of £1000's of pounds that my husband wanted to secure for me - and are now offering me a gesture apology in the sum of a measly few hundred pounds for their incompetence ...
I want to see the EOW as the pension company are planning to pay out to somebody that my husband would never ever have wanted to receive his money and not to the people I believe my husband had made his beneficiaries in his original EOW.
Where do I stand with this one... there are also other errors on the pension companies part that they have admitted to in writing.. any advice would be very welcome please.
TYIA x

dunstonh · 9 July 2018 at 10:41AM

The trustees have the overall say where the money goes irrespective of the expression of wish.

What you describe is pretty routine. i.e. old expression of wish from before marriage (no family). Gets married but doesn't change expression of wish. Trustees need to do a reassessment of the situation at the point of death. This happens all the time and usually only results in the spouse getting nothing if they were estranged and there were no dependent children.

A form doesn't matter. The telephone call can act as an expression of wish if he gave that over the phone. Your focus doesn't need to be on the form as that is out of date.

Who are the trustees proposing they sending the money to? What reasoning have the trustees given for that person/persons being more entitled to the money than his spouse?

Silvertabby · 9 July 2018 at 11:58AM

So sorry for your loss. 53 was no age.

You say 'CL husband'. Do you mean 'common law' - because there sadly lies the bulk of your problem as, contrary to popular belief, 'common law' actually has no basis in law.

Different schemes have different rules - but I feel that whoever told him that the payment default would be his 'estate' was wrong. The reason that the trustees have overall say is so the death grant payments can be paid direct to the nominated beneficiary, and therefore ring-fenced from IHT, estate debts, etc. Sadly, if your late husband had referred to you as 'my common law wife' instead of 'wife' to the pension advisor, then the advice given could have been very different.

Do you have any children together? As they would have been born after the EOW was completed, then the trustees should/could consider making payment to them. Alternatively, as a very last resort in a dispute case such as this, the trustees could have paid the money to his estate, where they would have been covered by his Will.

As it stands, as harsh as it sounds, the trustees are duty bound to abide with the EOW whenever possible - and if that nominates a parent/sibling over a live-in girlfriend, then I can understand why they have gone down that route - but feel that they should have at least considered the 'payment to the estate' option in view of the age of the EOW and his wishes in accordance with his Will.

LHW99 · 9 July 2018 at 1:12PM

Perhaps you may ned the advice of a solicitor experienced in family law and wills?

missterri · 9 July 2018 at 1:13PM

Basically when my cl husband/partner passed away the pension company asked me to provide details of all NOK - there was only one person, a sister, whom my husband has not spoken to for over 15 years and he would "turn in his grave" if his sister was to ever get his money- my CL husband/partner always told me and all that knew him that the 2 "beneficiaries" in his EOW were his two nephews, hence why I want to see his signed EOW (nothing to do with me trying to get my hands on the money!!). - The Pension company admit they do not have a signed copy of the EOW, what I strongly believe is that the pension company (may?) have a note on their computer system saying there was an EOW in place (but obviously no name/s) - and because I have only named his sister as a NOK they are clutching at straws and guessing the EOW must have been made to his sisters' benefit when in fact I know that he had named his two nephews as beneficiaries. If I was to "lose out" to his nephews that would be fine, but to lose out to his sister would be plain awful and unjust as that is the last thing my other half would have ever wanted, I can not let him RIP without fighting my hardest for what I know he would have wanted me to fight for.

EOW aside; The pension company has acknowledged that in a phone call some 8 years ago my cl husband/partner had asked to change the beneficiaries and name me as the sole beneficiary, but due to customer service mis-information (which they have openly admitted in writing and offered to compensate me) the change of name never happened as we were told there were no longer any beneficiaries attached to the pension ... how can this be overlooked??

My cl husband/partner and myself did not have any children together but I have two sons that he took on as his own, they are both in their mid twenties now and are no longer children, obviously my husband wanted me to have the fund to help both myself and "our" children - he always told everyone they were his sons, he was proud of them

Silvertabby · 9 July 2018 at 1:41PM

I take it that the money hasn't been paid yet? In view of the time since your husband/partner died, the trustees are obviously looking at all options.

As you benefit from the terms of the Will, I would push (with legal help if needs be) for the death grant to be paid to the estate, to be distributed by the executor (you?) in accordance with the Will. That way the trustees will have covered their sixes - and you could always give some of (what would then be your) the money to the nephews as a gift.

dunstonh · 9 July 2018 at 1:55PM

Sorry, I didn't recognise the term CL in this context. In the first post you said husband. In a later post you used shorthand that silvertabby picked up as common law. And now you are using "partner". It makes a massive difference to the trustees depending on your legal status. So, it is important to refer to your legal status correctly.

You should seek legal support in this. The expectation would be that you are able to show your finances being linked (e.g. was there a joint mortgage, joint bank accounts, joint bills etc). Being able to show you were dependent on each other and your finances linked and that you were living together evening though you were not married and that this started after the expression of wish was made.

As Silvertabby says, the Will can be important here. It has no legal impact on the pension (as its outside of the estate). However, it does serve as evidence of wishes made for the estate. If this was written many years after the original expression of wish, then the trustees will take it into account in their decision making.

Have the trustees yet given any indication of how they are thinking of splitting the money up (as it doesn't have to be 100% to one person and I suspect a split payment may be on the cards)?

Expression of Wishes Advice

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