Challenging a Will – Undue Influence

When a loved one dies it will understandably be a difficult time. However, things can be even more difficult if it transpires that the deceased has left their estate to someone unexpected, such as their carer rather than family members. In such situations there may be suspicions that the deceased was pressured into leaving their estate in such a way. The legal term for this is ‘undue influence’.

As the name suggests, undue influence is where a testator (the person making the Will) is influenced in a way that is not appropriate and generally there must be a level of coercion. A very old case made this clear by stating:

‘To be undue influence in the eye of the law there must be – to sum it up in a word –       coercion…’

However, under English law individuals have the right to make their Will leaving their estate to whomever they wish. Therefore just because a parent has not left their estate to their children does necessarily not mean that there has been undue influence.

Instead, an individual wishing to challenge a Will on the basis of undue influence must prove that:

  • the defendant was in a position to exercise influence;
  • the defendant did exercise influence over the testator;
  • the influence was undue;
  • the undue influence was exercised in relation to the Will in dispute;
  • it was by means of the exercise of that undue influence that the disputed Will came to be drawn up.

Therefore claims on the basis of undue influence are difficult to prove because the above must be established. Further, the fact that the testator has passed away makes proving undue influence doubly difficult because they are no longer alive to provide their reasons as to why they left their estate as they did.

The process of establishing undue influence can be complicated and lengthy. Here at Waller Needham & Green we have experts in contentious probate matters who have experience of dealing with cases:

  • in the local County Court;
  • in the High Court;
  • through Alternative Dispute Resolution (ADR);
  • through Mediation.

We have dealt with cases in Peterborough, London as well as those with an international element. We can therefore guide you through the process wherever you are based. For more information or advice please contact Nick Robertshaw from our Dispute Resolution department on 01733 262182 or bretton@wngsolicitors.co.uk

Financial Assistance for Cohabitants – Schedule 1 Children Act

Although the myth of ‘common law marriage’ persists, on separation cohabitants do not have the same entitlement to a fair share of the assets, or financial support, than those who are divorcing. Instead, separating cohabitants will generally only be eligible to a share of the assets that they actually jointly own with their former partner, such as the family home. However, they would not have any claim to the other’s pension, income, savings etc.

This can mean that on separation one of the cohabitants can be left in a very precarious financial situation, particularly if they do not jointly own the family home. Even when the parties do own the family home together, they can still find themselves in a difficult situation because the law presumes there should be sale of the property. This may well not be suitable, particularly when there are young children.

Helpfully, in these situations there is a piece of legislation called Schedule 1 of the Children Act which allows a cohabitant with children to apply for:

  • Maintenance;
  • A lump sum payment or series of lump sums;
  • To be allowed to remain in the property with the children;
  • A transfer of the property into the name of the cohabitant who has the children living with them.

This therefore means that in a situation where one of the cohabitants (usually the woman) does not jointly own the property, but has children, then they can request that they be allowed to remain living in the family home either on a permanent basis (i.e. a transfer into their name) or more usually that they may remain there until the youngest child reaches 18.

Cases regarding Schedule 1 applications have made the headlines in recent years when they have involved famous football players who have fathered children after a one night stand. The footballers have then found the Courts making orders that they must support not only the child, but also the mother, and generally to a very good standard in order that the child does not see a significant disparity in their parent’s standard of living.

However, Schedule 1 cases are not just for the rich and famous. Instead, they are suitable for most separating cohabitants where the party with the children needs financial support.

For more information, or if you have any Family Law questions, please contact Nick Robertshaw from our Family Law department on 01733 262182 or bretton@wngsolicitors.co.uk

Coronavirus & Problem Tenants

Due to the coronavirus pandemic the government has changed the rules for landlords wanting to obtain possession of their property. In most cases this has made the process longer and more complicated. The steps that need to be followed are detailed below.

Stage 1 – Negotiation

Whilst not essential, there is an expectation that landlords will have tried to resolve any disputes with their tenants before taking any more formal steps. The situation that the government are wanting to avoid is that of tenants being evicted for rent arrears when the reason the tenant cannot pay their rent is due to having lost their job for a coronavirus-related reason. It will be seen in Stage 3 (below) that in the application for possession the landlord must say how the pandemic has affected the tenant and therefore best to have this conversation with the tenant at an early stage.

Stage 2 – Notice

The notice period that must be given to tenants has changed significantly in that if a landlord is giving notice to their tenant between 29.8.20 to at least 31.3.21 (this date may be extended depending how the pandemic progresses) they must give at least 6 months’ notice for most grounds. This includes s.21 notices.

There are exceptions to this where in certain circumstances a shorter notice period can be given and we can advise landlords regarding these.

Stage 3 – Court Application

Assuming the tenant has not vacated the premises after being given notice, then on expiry of the notice period the landlord may apply to the Court for possession. It is at this stage that the landlord has to file evidence setting out what effect, if any, the coronavirus pandemic has had on either the landlord or the tenant. It is for this reason that the negotiation stage above should be the first step.

Should the tenant subsequently file a defence then the landlord will receive a copy. However, with a s. 8 notice just because a tenant does not file a defence does not mean that they will not turn up at the hearing a Stage 5 and put forward a defence then.

Alternatively, if the application is based on a s.21 notice and no defence is filed then possession should be ordered without the following 2 steps being necessary.

Stage 4 – Review Appointment

This is a new step in the procedure.

This is not a Court hearing as such because there will not be a hearing in front of a judge. Instead, both the landlord and tenant will attend (for the time being by telephone rather than physically at the Court) with the expectation that they will try and negotiate a settlement.

The guidance states that there will be a duty legal advisor scheme available for tenants at the Review Appointment to allow them be able to obtain advice with the hope that this will assist settlement.

Stage 5 – Court Hearing

If a settlement cannot be reached at the Review then a date will be set for a formal hearing before a Judge. This will take place a minimum of 28 days after the Review.

At this hearing the Judge will either:

  1. Order possession of the property; or
  2. Set directions if further information/documentation is required because of matters raised in the defence.

Stage 6 – Eviction

Once possession is ordered the tenant must vacate the property by a certain date. However, if the tenant does not leave then the landlord will then need to apply to evict the tenant by either:

  1. The Court bailiff – this is the cheapest option, but generally rather slow; or
  2. A High Court enforcement officer – this is considerably more expensive, but usually quicker than the bailiff.

Reactivation Notice

If a landlord made an application for possession prior to 3.8.20 then they must issue a Reactivation Notice stating that they wish to continue with the claim.

The process can be complicated and lengthy. Here at Waller Needham & Green we have experts who can guide you through the process. For more information or advice please contact Nick Robertshaw from our Dispute Resolution department on 01733 262182 or bretton@wngsolicitors.co.uk

Court Delays? Go Private!

Court delays seem to have become worse in recent years with it taking longer than ever for hearings to be scheduled. There’s then the issue of contacting the Court which is almost impossible by phone and by email they will only accept certain documents. With the current coronavirus pandemic things have only got worse as this BBC article shows. An example of this is a case that I was recently dealing with that was cancelled by the Court with less than 24 hours notice. This was bad enough, but then the new date for the hearing was 4 months away! Therefore rather than my client resolving matters in Summer, she was now looking at Christmas before things will be concluded.

When the case eventually gets to Court things unfortunately do not get any better. The buildings for the most part are completely unsatisfactory with there being insufficient waiting rooms and generally they are too cold in Winter and too hot in Summer.

This is of course not the fault of the Court as they are working with what they have and due to budget cuts they have less staff and less money to spend on IT and buildings etc. However, it is understandably very frustrating for clients who are spending thousands of pounds on legal fees to have to endure such delays, poor communication from the Court and substandard facilities.

However, there is another way. Arbitration.

The traditional view of arbitration is perhaps of cases involving international businesses trying to resolve a high value dispute. However, arbitration is no longer just for commercial parties with very deep pockets; it’s now available for divorcing couples trying to resolve financial matters as an alternative to going through Court.

Rather than making an application to Court, waiting 6 months for the 1st hearing then another 4 months for the next hearing and having a different judge each time, with arbitration the situation is very different. The parties decide who the arbitrator should be (usually a practicing barrister or retired judge), when financial disclosure should happen, when the hearings should take place and where – usually at a nice hotel/conference centre with good facilities. This means that it is possible to have a hearing very quickly and to have the same arbitrator at each hearing meaning the case is dealt with promptly and consistently.

There is of course a downside to this and that is cost. As usual, to have something bespoke where you pick the judge (arbitrator), date and venue this is going to come at a cost. However, with arbitration it is possible to have a case dealt with in a fraction of the time of a case going through the Courts. This brings its own savings in terms of potentially lower legal costs as parties are only instructing solicitors for a matter of months as opposed to perhaps over a year if going through Court. There is also the fact that rather than having to think about your case for perhaps well over a year, with arbitration it could be finalised in months allowing you to move on with your life quicker.

Therefore whilst arbitration was once the preserve of the wealthy, given the ever increasing delays at Court which have only been made worse by coronavirus, arbitration may well now make financial sense for most financial remedy cases.

Arbitration can also be used in Children cases and this is a useful article on the subject.

For more information, or if you have any Family Law questions, please contact Nick Robertshaw from our Family Law department on 01733 262182 or bretton@wngsolicitors.co.uk

Child Arrangement Orders & Coronavirus

When ‘lockdown’ came into effect the Courts were clear that parents who had Child Arrangement Orders (CAO) were expected to continue to comply with the terms. This meant that children of separated parents were still allowed to go between their father’s and mother’s homes to comply with the child custody arrangements of any Court Order.

However, the Courts were aware that some parents would be very concerned about their children moving between households when schools had been closed and everyone was told not to go out except for essential activities. As such, the Courts encouraged concerned parents to try and agree between themselves to vary their CAO such as from direct contact to FaceTime or to suspend them until lockdown ended.

There were of course going to be situations where one parent wanted the CAO to continue, but the other parent did not. In these circumstances the Courts issued the following guidance:

Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.

This therefore allowed sufficiently concerned parents to unilaterally suspend their CAO.

After an Easing of Lockdown

However, now that lockdown is being eased there is an argument that parents who still refuse to comply with the CAO may no longer be entitled to do so. Certainly, if the non-resident parent can show that they are taking reasonable safety precautions there would appear to be a strong argument that the previous child custody arrangements set out in the CAO should resume.

Suggested steps that should be taken if one parent will still not comply with the CAO post an easing of lockdown:

  1. The starting point would of course be to try and explain to the reluctant parent why the contact arrangements are now safe and what precautions you are taking.
  • If this does not work then Mediation may be a suitable way of negotiating an interim arrangement.
  • Should progress still not be possible then instructing a solicitor to provide you with specialist guidance may be appropriate. Often a letter from a solicitor explaining the situation to the other parent can be sufficient to resolve matters.

Ultimately if none of the above prove successful then an application to the Court to enforce the CAO may be necessary. However, we would strongly recommend that legal advice is taken before embarking on this step.

For further advice or assistance please contact us on 01733 262182 or bretton@wngsolicitors.co.uk

VALIDITY OF WILLS REMOTELY WITNESSED

The terrifying C-19 Pandemic has caused many to face up to their mortality. Consequently, many people have been thinking about Wills. It is a requirement in English Law that there are two adult independent witnesses to a Will. Anecdotally, there have been many Wills executed using modern technology such as by Zoom, Skype, Facetime or WhatsApp.   Unlike Scottish Law, English Law requires the witnesses to be physically present so that all such Wills are rendered invalid.  Luckily though the Government has announced that it will retrospectively validate such Wills made after the 31st January 2020 and any new Wills witnessed remotely before the 31st January 2020 may also be valid. 

This interim legislation is due in September 2020 but there is always a risk that it might not happen.   It is very unusual for retroactive legislation to be made as it undermines the certainty of the Law.   In this case, so many have unwittingly committed a faux pas, it does make sense. 

The rules for making valid Wills are highly technical.  It is sound advice not to be tempted to treat them as a DIY task.  Fortunately, simple Wills come at a modest price from qualified professionals at £200.00 plus VAT upward and often with a discount for married couples. By all means contact our Mr Trayford, Mr Willatt or Mr Waller through enquiries@wngsolicitors.co.uk.

Flexible Virtual Opening Hours

With coronavirus unfortunately looking like it’s effects will be with us for some time to come, here at Waller Needham & Green we’ve introduced flexible virtual opening hours.

Although our physical offices remain closed, we are very much open for business.

Because we are working from home for the majority of time we can offer flexibility to our clients because we do not need to be at our offices 9 – 5. This also benefits our staff as they can work flexibly which assists them if they have to home school their children due to schools being closed or are shielding.

Further, we recognize that many of our clients work full-time and therefore fitting in meetings with their solicitor during 9 – 5 can be difficult.

As such, if you would prefer a virtual meeting via Zoom at 8am or perhaps a telephone conference at 6pm we will do our best to accommodate you.

Please contact us today at our Bretton office on 01733 262182 or bretton@wngsolicitors.co.uk

Delay Not Fatal in Inheritance Act Claims

Delay Not Fatal in Inheritance Act Claims

Under the Inheritance (Provision for Family and Dependants) Act 1975 certain family members, particularly spouses, can make an application to the Court for financial provision if they do not feel that they have been adequately provided for on the death of a close family member.

Claims of inadequate financial provision are becoming increasingly common as couples are entering into second marriages, but making Wills leaving their assets to the children from their first marriage meaning that their surviving spouse receives little or nothing.

Should a spouse need to challenge the Will there is a strict 6 month time limit after the grant of probate, but what happens when the surviving spouse didn’t know that they could make a claim and certainly wasn’t aware that there was a 6 month time limit?

The recent cases of Bhusate v Patel and Cowan v Foreman show that failing to bring a claim within the required time is not fatal and in the case of Bhusate the claim was allowed 25 years after the death of the spouse.

The Cowan v Foreman case confirmed that Courts should consider the following matters on any application after the 6 month limit:

  1. The court’s discretion is unfettered but must be exercised judicially in accordance with what is right and proper.
  1. The onus is on the Applicant to show sufficient grounds for the granting of permission to apply out of time.
  1. The court must consider whether the Applicant has acted promptly and the circumstances in which they applied for an extension of time after the expiry of the time limit.
  1. Were negotiations begun within the time limit?
  • Has the estate been distributed before the claim was notified to the Defendants?
  • Would dismissal of the claim leave the Applicant without recourse to other remedies?
  • Looking at the position as it is now, has the Applicant an arguable case under the Inheritance Act if I allowed the application to proceed?

An interesting point raised by the Court of Appeal in the Cowan v Foreman case was that the Judge commented that it is not necessarily true that there must be a good reason for the delay in every case.

The above cases appear to show that the Courts may have sympathy with individuals bringing claims after the 6 month limit, particularly where they can show that they have a good claim to financial provision from the Estate of the deceased. Delay therefore may not mean the end of a potential claim.

Ethical Veganism Protected by Employment Law

Ethical Veganism Protected by Employment Law

With veganism gaining significantly in popularity over the last 12 months or so it is perhaps timely that the question of whether Veganism is a belief that can be protected by law has been raised in the Employment Tribunal.

The case in question was brought by an employee of the League Against Cruel Sports. The employee, Mr Casamitjana, stated that he had been dismissed by his employer due to his ethical veganism. His employer on the other hand stated that his sacking was a result of his gross misconduct.

Although the Judge is yet to make a decision as to whether Mr Casamitjana’s dismissal was fair or not, he did make an interim decision that ethical veganism satisfied the tests required for it to be a philosophical belief protected under the Equality Act 2010.

This decision comes not long after a different Employment Tribunal in the case of Conisbee v Crossley Farms ruled that vegetarianism was not a belief that could be protected under the Equality Act.

For a belief to be protected it must meet a series of tests including being worthy of respect in a democratic society, not being incompatible with human dignity, and not conflicting with the fundamental rights of others.

Given the different decisions in the above cases it would seem that there may not be joined-up thinking going at the Tribunal on these matters as yet. However, it should be noted that both decisions referred to above were made at the lowest level of the Employment Tribunal and therefore they are not binding on future decisions. Therefore whilst raising interesting issues, it will take a decision by a higher Court before it is clear what effect this ruling may have on employers and employees.

Should you require advice about an Employment Law matter please contact us today.

The Dangers of Legal Advice on the Web

The Dangers of Legal Advice on the Web

Researchers at the University of Bristol and University of Leeds have published a study that is concerning for those looking to the internet and social media for legal advice on Family Law matters.

The research considered the advice provided online by 30 McKenzie Friends in various online platforms and social media threads. They found that the advice given was biased and misinformed, with some of the McKenzie Friends suggesting that individuals should ignore the advice of their lawyers and stating that the Courts were institutionally unfair.

One of the authors of the study, Dr Tatiana Tkacukova, commented:

“While there are many positive experiences, the unregulated environment online means that our research found several instances of worrying, biased and misleading advice. The negative portrayals of the courts and social services, alongside the advice to ignore specialised legal advice show a worrying trend towards personal viewpoints and agendas clouding impartial and objective support.”

What are McKenzie Friends

McKenzie Friends are individuals who may assist someone with a dispute (usually Family Law matters) in terms of providing moral support, attending at Court with them and taking notes at Court. However, they are not allowed to conduct the case or address the Court.

A McKenzie Friend can be a family member, friend, work colleague etc. However, some McKenzie Friends offer their services to people they do not know, such as on the internet as per the study above and charge for their services. This is despite the fact that they are not qualified Solicitors or Barristers and in the majority of cases do not have any legal training.

How We can Help

Whilst it is understandable that people may look to the internet and social media for advice, this study shows that it is highly questionable that the advice given in these threads can be relied on.

At Waller Needham & Green you will always receive unbiased legal advice from a Solicitor specialising in Family Law. We offer a fixed fee initial meeting for £120 (inclusive of VAT) which includes a letter following the meeting confirming the advice given.

Contact us here