Families who leave court the losers after inheritance claims

Families who leave court the losers after inheritance claims

 

 

Record numbers of inheritance disputes are going through the courts as modern family structures and rising house prices push more families to contest unfavourable outcomes.  

 

Two recent cases which have seen families losing out after legal action include two brothers who have run up fees of more than their entire inheritance by disputing a stepmothers’ share of their father’s estate, and estranged daughter Heather Ilott who challenged her mother’s will after discovering she had been excluded.  

 

That challenge set her on a ten-year battle which ended this month, when the Supreme Court gave its ruling on Ilott v The Blue Cross and others.  Heather Ilott was excluded from her mother’s will following a long estrangement after she left home as a teenager.  After her mother’s death, finding that the entire estate had been left to three animal charities, she claimed provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the I(PFD)A 1975), which is designed to protect a surviving spouse or civil partner and dependents who are in need of maintenance  but are not left adequate financial provision under the will of a deceased person or under the rules that apply when there is no will.

 

Heather Ilott’s case rested on her claim that she would be in a position of poverty, reliant upon state benefits.   That claim was successful, with the Court of Appeal making an award of £143,000 plus an option on a £20,000 fund.  Now, that has been overturned by the Supreme Court, who have reduced it to £50,000.  In making their decision, the Law Lords resolved many concerns around the general principle of testamentary freedom which had arisen following the Court of Appeal judgement, and clarified a number of issues under the I(PFD) Act.

 

Said wills and trusts expert Carolyn Snellgrove, Gamlins Law:  “The reduction in the award to Heather Ilott by the Supreme Court is a good sign for anyone wishing to make a potentially difficult decision over where they leave their estate, as it reinforces the right of individuals to make their own choices when writing their will.   It pushes back against the earlier ruling, a landmark judgement which had caused concern that it might prove harder for parents to disinherit children in future, unless they had very strong grounds for doing so.”   

 

The trend towards increased inheritance disputes has been attributed to a number of factors.  Increasing numbers of so-called ‘blended’ families where divorced parents re-marry is one such factor, with original family members not wishing to share with newer members, such as step-parents or step-siblings.

 

That was the reason behind the recent legal action by two farmer’s sons, who attempted to block their stepmother getting an extra £25,000 in their father’s will. Their action has cost them their entire inheritance of £62,500 each, as Richard and Jonathan Powell have been ordered to pay £200,000 in legal fees, after claiming that their disabled father was unfit to make the final will which left £125,000 to his second wife. The sons had maintained that an earlier will should stand, which would have seen their stepmother receive £100,000. 

 

Another factor behind many inheritance challenges is property values. Where family are excluded, or receive less than expected, a large property price tag is believed to be fuelling many more claims, as more people are inclined to take the costly step of litigation to get the matters before the courts.

 

 

To make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, a claim must be made within six months from the date of the grant of probate. For cohabitees, they need to show they were living as husband and wife or as civil partners with their partner throughout the two-year period before they died.  

 

She added: “It all comes down to careful planning and, wherever possible, communicating your decision to family, to try and avoid later rifts.  And if you are excluding children, a spouse or civil partner from your will, you should certainly get specialist advice, to be sure that your plans will not cause problems down the line.  Doing so also means there is clear evidence of what you intended to do if a will is challenged at a later date.”   

 

Most disputed wills are settled at County Court, but figures released in September last year showed that a record 116 such cases reached the High Court in 2015, eight times the number heard in 2005. 

 

 

 

Web site content note:   

This is not legal advice; it is intended to provide information of general interest about current legal issues. 

 

Safety Checking the School Run

Safety checking the school run

 

The clocks will be going back at 2am on Sunday 30^th October, bringing lighter mornings and darker evenings, and parents are being encouraged to take a safety check with children in readiness for the change. 

This year marks the centenary for daylight saving, a practice introduced during the First World War to save on energy costs and offer people more time outdoors.

But even though it’s been around for 100 years, the change still catches many people out, particularly when it comes to the darker end to the school day. 

And for those heading home alone to an empty house or in the charge of older children, and for the huge numbers of children using push scooters and bikes to travel, it’s a good time to make sure they all feel safe and out of danger. 

The law does not set out an age when it’s OK to leave a child on their own, or a minimum age for a babysitter.  Instead, parents are legally responsible for their child’s safety and must make decisions that will protect their child from risk of injury or emotional suffering.  Where parents fail to keep their children safe, they can face prosecution for neglect, and a fine or even imprisonment.  

Guidance from NSPCC, the child protection charity, suggests that under-5s should never be left, even for a few minutes, and between five and 12, children should be left for only very short periods.  Older children may be left alone during the day or evening, but while they are still under 16 they should not be left alone overnight.  It’s also recommended that babysitters are at least 16.

Said Delyth Williams with Gamlins Law:  “Guidelines are helpful, but age should not be the determining factor,  much more important is whether the child feels happy about the situation. Much depends on the circumstances, and a young person may be happy if they know that they have neighbours or friends who are close enough to call for any help, or if they simply feel uneasy, but the same child may not be happy in different circumstances, where they may feel isolated and vulnerable. 

“Similarly, if an older sibling or babysitter is being left in charge, it’s important they feel confident that they can exert authority if it’s needed and know what to do if there’s an emergency.” 

The same considerations come into play when deciding about travel to and from school, to ensure children are confident and understand how to stay safe if they travel alone, what to do if they get lost and how to handle themselves around traffic.   

Children travelling to school on two wheels is another thorny issue for parents.  It is against the law to cycle on a footway set aside for pedestrians, unless you are using a designated cycle track, and there’s a fixed penalty system to deal with the issue.  Similarly, cycling on footpaths and through parks may be restricted by local by-laws.  In practice, however, a fixed penalty notice cannot be issued to anyone under the age of 10 as they cannot be held criminally responsible and Home Office guidance recognises that children and young people may be afraid to cycle on the road.  The guidance says the fixed penalty notices should only be used where a cyclist is riding in a way that may endanger others, as the aim is not to penalise responsible cyclists who show consideration to other pavement users. 

It’s even more confusing when it comes to the current craze for push scooters, as their use has not been categorised and set out in the rules of the road.  The general view is that they should not be used on the road, as they are propelled by foot, but using one on the footpath is likely to be treated in the same way as a bike. 

She added: “The lack of clarity certainly leaves parents in a difficult position.  A sensible approach is to make sure young people have good road safety awareness, have sensible protective and reflective kit, and that they understand about taking care around pedestrians and giving way.” 

 

 

 

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.  

Life Lessons from Headline Breakdowns

Life lessons from headline breakdowns

Marriage breakdown hits headlines when it involves stars and celebrities.  But there is a lesson to learn from the way the breakdown is handled for anyone facing the worst, with divorce impending.

Whether fiction or fact, marriage breakdown issues have been stealing more than their fair share of headlines in recent weeks.

BBC Radio 4 listeners tuned in to hear revelations about the oppressive relationship endured by Helen Titchener in the Archers storyline. And in celebrity news, the announcements by Angelina Jolie and Zoe Ball have resulted in many column inches of speculation and rumour.  

It may seem like coincidence, but post-summer is a peak for relationship breakdown, a close second to so-called ‘divorce day’ in early January. According to divorce professionals, it’s often the result of families being forced into each other’s company during holidays, whether on the beach or around the Christmas tree, with those in fragile relationships finding the extra strain too much.  

And while high profile cases may seem a world away from reality, according to the professionals it’s worth trying to learn lessons from them, if your relationship is going through hard times and the worst happens. 

The Pitt-Jolie divorce has the potential of a bitter battle, with Jolie seeking to secure sole custody of the couple’s six children.  Apparently, the divorce petition was revealed to Pitt just hours before the papers were filed with the court, and the world was aflame with the news.  In stark contrast is the muted note of the joint statement put out by Zoe Ball and DJ husband Norman Cook, best known by his stage name Fat Boy Slim.  They spoke of their sadness and promised to support each other and to raise their children together.  

Family law expert Sian Williams of Gamlins Law said:  “It’s always a sad situation when a couple splits, but avoiding anger, managing emotion and making a conscious decision to work towards co-operation from the outset can help reduce the pain of break-up, especially when children are involved. 

“Under the Children and Families Act 2014, a separating couple must consider using mediation before they can ask for a Court decision, and that will be easier if you can approach it with some form of accord in place.”

She  added: “One advantage the Jolie-Pitts have is that they are able to apply for an immediate no-fault divorce without proving wrong-doing or placing blame on one partner.  That’s not available here, and having to ascribe blame to get a swift divorce can fan the flames, by stirring up grievances to make a case.  Again, seeking agreement and avoiding nasty surprises can help.  There must be sufficient reason for the divorce, but the bare facts are usually enough, without the detail.”

Unlike California, no-fault divorce is allowed in England and Wales only after a two-year separation, something which can be difficult for many couples to manage without the financial settlement that comes with divorce.  As a result, spouses are likely to resort to citing grounds to get a speedier divorce, which can be on the basis of unreasonable behaviour or adultery.   

But coming together, or attending mediation, is not always possible, particularly in cases of domestic abuse, such as that portrayed by the fictional Titchener characters in Radio 4’s Ambridge.  As Sian Williams explained: “The storyline in the Archers is a more complex one.  The issue of child custody has been portrayed in a series of court hearings, highlighting the dilemmas involved in maintaining parental contact in such situations.  Clearly it would be difficult for the parents to sit down and work things out together, or even to cooperate over visitation rights.  The courts recognise that, and where there has been domestic abuse, a couple would not be required to attend mediation together. 

“Importantly, this story has depicted a situation that reflects the new offence of controlling or coercive behaviour in intimate or familial relationships, which became law earlier this year under the Serious Crime Act 2015.  It’s a criminal offence, quite separate to any action for divorce, although such conduct could be the grounds to end a marriage, if used as evidence of unreasonable behaviour.  

“We don’t know what the story editors are planning for future instalments of the programme, but in the meantime, raising awareness of such situations, and how such abuse may not be visible to those outside the relationship, is an important message.”  

 

Aiming for a win-win separation

Aiming for a win-win separation

When celebrities divorce, it makes for big headlines. Since Johnny Depp and Amber Heard announced their intention to split a few weeks ago, the most private aspects of their life together has been played out in public and open for examination by the media and online commentators.

With court documents detailing lavish lifestyles and counter-accusations of drug taking and abuse, the proceedings look set to secure many more headlines as they unfold. 

By contrast, BBC2’s TV latest series, Mr & Mrs : Call the Mediator, shows a different side to divorce, with negotiated outcomes, as couples are helped through the separation of their finances and childcare arrangements outside the courts. 

Every relationship breakdown is painful, especially when children are involved, but with all of us living ever more public lives, played out on social media, what may have a significant impact on the process is the way that couples conduct themselves through their Twitter thoughts or Instagram images. 

Here, family law expert Sion Williams of Gamlins Law explains some of the ways that separating couples can make the journey to divorce less painful. 

Mediation:

The Depp/Heard divorce started with a war of words and flying accusations.  It would be hard not to know what was going on between the couple, with their pictures splashed across front pages in both the print and online media. 

As I write, the headlines are focused on another ‘divorce’: that of the UK’s split with Europe, and emotions are running high, as with the break-up of any long term relationship.

It’s a thorny issue, but it’s fair to assume that the majority, whatever their voting preference, will be hoping that any withdrawal by the UK from the EU will be approached in a positive spirit, to achieve the best possible negotiated outcome. 

It’s an attitude that can make the difference for couples and their families too.  The Children and Families Act 2014 says that before a separating couple can ask a court to sort things out for them, they must consider using mediation.

The BBC2 series Mr & Mrs shows that it’s not plain sailing, even with experienced and impartial mediation, but it gives a good idea of how it all works.  Many people reject mediation if they are concerned about having to face their ex; perhaps they fear they’ll be intimidated, but it’s a flexible process and you don’t have to do anything that makes you uncomfortable.  If you want, you can have a legal adviser with you, to help put your case.

 

The big difference between going to court and mediation is that a judge has much wider discretion and does not have to come up with a solution where both sides are happy.  Mediation can give more control over the outcome as each side can keep on negotiating, until an agreeable compromise is reached.  

 

Social media:

As we live ever more public lives, played out on social media, reliving some of the pain of divorce is the way that couples conduct themselves through their Twitter thoughts or Instagram images. 

The privacy risks around social media should be obvious: one has only to look at the chatter around recent celebrity injunctions.  But for some people, translating that into their own day-to-day lives does not seem to be so obvious.  It may be hard to maintain privacy in this always-on, digital world, but re-thinking how you use social media when you’re going through a break-up should be a priority – not just for your own peace of mind, as where children are involved, it’s even more important.  

Just type “divorce and social media” into a search engine and you’ll find millions of results, covering everything from advice to academic research.  The use of social media is even given as the reason that people separate, whether because of discovery of illicit affairs or because of postings made by a partner. 

There are all sorts of simple things you can do to avoid becoming drawn into damaging dialogues with your ex or upsetting each other by showing what is happening in the new life you are each living. 

First, it’s a good idea to break all links and connections with your ex on each site you use. Check your settings to be sure that your profile is set to private and that you can’t be tagged by friends in newly posted pictures so you’re not sharing with your ex.  You may be drawn to see what is happening with your former partner, and they with you, but it’s unlikely to help the process of moving on.

And think carefully before you post, so you avoid posting anything in anger or to try and score against your ex.  Remember that once it’s out there, it’s in the public domain and can be seen by family, children, and even by a judge, if things come to court.  It’s sometimes easy to imagine you are just ‘talking’ to close friends and followers when you post, but these are public platforms with a world-wide audience.   

 

Across borders:

In the EU referendum aftermath, those in a relationship where one is a national of another EU country, may be wondering what is going to happen in future if their marriage suffers a break-down.  But for now, there’s no change, while the UK remains a member of the EU. It’s likely there will be changes ahead, but those will be revealed as we progress through the lengthy negotiations that will be required.

 

For now, let’s focus on how sparring can be turned into conciliation and positive outcomes.      

When to unravel the web of deceit in divorce

When to unravel the web of deceit in divorce 

 

Unhappy ex-spouses hoping to get their divorce settlements reviewed following a landmark judgment last month are being urged to check their facts first.

It was predicted that the Supreme Court rulings in the cases of Alison Sharland and Varsha Gohil would open the floodgates to thousands of couples wanting to revisit agreements made under a financial consent order, where one party had deliberately concealed their true financial worth during divorce proceedings. 

In both cases - Sharland v Sharland and Gohil v Gohil - the Supreme Court gave the former wives the right to re-open their divorce settlements on the grounds of fraud, which the two women claimed had led them to accept far lower financial settlements than they otherwise would have done. 

:  “The message from the Sharland and Gohil judgments is the fundamental principle that ‘fraud unravels all’, but before anyone rushes to take their former spouse back to court, they need to be sure as to whether they have just a grumbling dissatisfaction or legitimate grounds.”

Critical to proving misrepresentation will be showing that the ex-spouse lied or deliberately distorted their position when they made the original financial disclosure.  This statement will have set out what each declared to be a full and accurate list of their assets and liabilities at that point, and will be the basis for seeing whether either party has tried to make themselves appear less well off.  It won’t be enough for an unhappy ex-spouse to point to an improved financial position without evidence.  

An example could be where the value of property or a company has increased significantly.  In many cases, it can be very hard to pinpoint whether this was due to deliberate misrepresentation or is simply the result of an unexpectedly good performance on the part of the asset.  Demonstrating fraudulent intent will be clearer cut if someone denied owning a particular asset at the time, or had received an inheritance which they didn’t declare.

Whether or not Mrs Sharland and Mrs Gohil reach a different financial settlement is difficult to predict, but what is clear is that in cases of fraud such as this, an agreed financial settlement will be set aside.  Full financial disclosure is a duty to the Court and the message to anyone currently facing divorce is to recognise that you must be open and honest.  You otherwise risk having the case reopened in future and if that were to happen, you would be the one bearing the costs.

In the case of Alison Sharland, she agreed a divorce settlement with her husband but later discovered that he intended to float his company, making his shares much more valuable. For Varsha Gohil, she had thought her husband was concealing his assets, but lacking the necessary evidence agreed a divorce settlement. When he was later convicted of money laundering, the true picture came to light, and although some of the material obtained in the criminal case was ruled inadmissible evidence in the divorce, there was sufficient enough to support the finding of non-disclosure.

In terms of procedure, both judgments strongly suggest that applications to reopen divorce settlements on grounds of fraud should be made to the family court, which has power to set aside its own financial orders - and not by appeal, or by commencing a new action.

Gohil v Gohil [2015] UKSC 61
Sharland v Sharland [2015] UKSC 60

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Nailing down agreements on divorce

Nailing down agreements on divorce 

A Supreme Court ruling will allow a former wife to make a claim for a share of the fortune amassed by her husband 30 years after they parted, as no binding consent order was made when they divorced.

Kathleen Wyatt has been granted permission to lodge a belated claim against multi-millionaire Dale Vince, who made his fortune through a green energy company founded in the 1990s, which is said to be worth £57m.

The couple met and married in 1981 and had a child in 1983, separating just one year later. The wife became a full time single parent with little income, and had little contact with her ex-husband. 

There is no time limit in the UK within which a spouse must seek an order for financial provision following a divorce and in 2011 the wife put forward an application.  This was dismissed by the Court of Appeal and the application was taken to the Supreme Court to decide whether due consideration had been given to section 25 of the Matrimonial Causes Act 1973.

Having given Ms Wyatt permission to apply, it will be up to the trial judge when the case is heard as to whether any financial order is made. The wife could argue that she cared for the child leaving her ex-husband free to succeed in his business.  

Family law expert Angharad Mullarkey of  our Abergele office explains:  “It is certainly unusual to hear of a claim being made after all this time but without a consent order in place, the opportunity remains open.

“More people are thinking about pre or post nuptial agreements, following media coverage of high profile cases where these have been involved, such as German heiress Katrin Radmacher.  Certainly they are a sensible option for anyone getting married, but they are for use at the start of the relationship to set out what you wish to have happen if things go wrong. They are not legally binding in the UK, but will be a persuasive factor if both parties received independent legal advice at the time. 

“What’s involved here is the way in which a divorce is finalised. Once you’ve reached agreement, you can get the court to make it legally binding, by applying for what is known as a consent order and that’s what was missing in this case.” 

A consent order confirms what has been agreed and can include details on how assets will be divided, including cash, property, pension funds and other investments, and can also include arrangements for maintenance payments, including child maintenance.  Both parties have to agree and sign the draft consent order and a judge will consider the terms to see if they appear fair and reasonable, and if so will approve the agreement to make it legally binding. 

Going through the process of obtaining a consent order should mean that both parties come out with a fair settlement and there will be no surprises some years down the line.

 

WYATT V VINCE [2015] UKSC 14

 

 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Involvement of a Parent

Section 11 of the Children and Families Act 2014 has come in to force today introducing a rebuttable presumption that the involvement of both parents in a child’s life will further the child’s welfare.

The introduction of this section confirms that ‘involvement’ can be either direct or indirect and does not therefore provide an unequivocal right for the child to spend an equal division of time with both parents.

In reality the introduction of this section of the act is unlikely to impact upon proceedings before the court as in considering what is in the child’s best interests the Court must continue to have regard to the Section 1 criteria.  This provides that the Court shall have regard to:-

(a)                The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);

(b)              Their physical, emotional and educational needs;

(c)                The likely effect on the child of any change in their circumstances;

(d)               Their age, sex, background and any characteristics of theirs which the court considers relevant;

(e)               Any harm which the child has suffered or is at risk of suffering;

(f)                 How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;

(g)                The range of powers available to the court in the proceedings in question.

There will also be other changes coming in to effect from 3^rd November 2014 to hopefully assist more parents and separated couples in accessing mediation.  From the 3^rd November if one party qualifies for Legal Aid to assist with mediation then a non-qualifying party will be entitled to attend the MIAM (Mediation Information and Assessment Meeting) at no cost to them as well as the first mediation session.  There after, any non-qualifying party will have to pay for their costs associated with the ongoing mediation. 

If you wish to discuss any issues relating to the care of your child or family matters generally please contact our team of experts.  Contact details can be found at www.gamlinslaw.co.uk.  Alternatively please email me on sian.williams@gamlins.co.uk