Six common reasons to contest a will

The number of families contesting wills has risen dramatically since the recession. In 2008 some law firms estimated that the amount of wills being contested in court had doubled, or even tripled, in the UK. Studies indicate they have continued to soar since then.

A high proportion of these court cases are caused by incidents which are entirely preventable, meaning thousands of pounds worth of money is being wasted on legal costs every year. Let’s explore some of the main reasons why people decide to contest a will.

Wills are ‘unfair’

The main cause of a will being contested in the UK is that a family member believes that it is unfair on them. When writing their will, some people believe they have the right so spread their money however they like, but that’s not necessarily true. Family members do have a legal right to contest a will if they have not been allotted what they deserve. If the deceased leaves one son out of their will, whilst keeping all their brothers and sisters in, this could legally be deemed unfair.

Lack of mental capacity

Wills can be contested if it is believed that the testator lacked the mental capacity to write a sensible will. If it can be proved that the testator lacked the capacity to understand how much property they owned, the identity of their loved ones or the basic logic behind what a will is then a will could be contested. This type of contest would typically occur if the testator had a mental illness when writing their will.

Duress

If it can be proved that the testator was forced or blackmailed into executing their will a certain way, it can be contested.

Fraud

If the testator was deceived into writing their will a certain way, this could be judged as probate fraud. In this case, there are two main types of deception. The first of these is fraud in the execution, such as making the testator believe they are signing something other than a will. The second type is fraud in the inducement, which could involve deliberately mis-leading the testator in order to change their course of action.

Disputed ownership

If the deceased appears to be giving away something that doesn’t actually belong to them, then this represents strong grounds for appeal.

Incorrectly drafted will

A will can be contested if it is believed that an accidental error was made. This contest might come in the form of a lawsuit against the person who drafted the will. It can be hard to prove though. If the wronged person was left out of the will altogether is not a family member and was left out of their will altogether, they have no grounds for appeal.

The common theme linking all six of these scenarios is that the odds of them occurring are significantly reduced when the testator hires a professional will writing service. These services are staffed with experts on probate law and will can offer advice that can prevent wills being appealed against once you die.

The small fee paid to the professional will writer could save a family thousands of pounds in legal costs later on down the line.

Matrimonial property rules cannot be maintained says family lawyers group

Law Commission was backed by the Resolution on need for reform to avoid postcode lottery saying that the current laws on matrimonial property was not sustainable policy choice and the rules should be reformed on a principled basis.

The Family Law Bar Association yesterday questioned Law Commission’s plans to introduce a “clear, principled basis” for sorting out disputes, warning that they could make settlements harder to achieve.

Responding to the commission’s consultation on matrimonial property, Resolution said it shared concerns of the commission about the lack of an ‘objectives clause’ in section 25 of the Matrimonial Causes Act 1973.

The family lawyers group said there were currently “wide differences of approach” in the way courts across the country dealt with disputes, resulting in a “postcode lottery” on orders for periodical payments raising difficulties in advising some clients, but also the issue of forum shopping.

An expert practitioner would have the knowledge of whether a particular court would transfer a matter back to the home court and the possibility of a different type of order likely to be made against the home courts orders.

Resolution said that unreliable evidence meant that clients were more likely to get a joint lives order if the matter was heard at the Principal Registry of the Family Division in London rather than a less generous order if issued in Birmingham.

The family lawyers group stressed that litigants in person were unlikely to make a starting point for the payment of spousal support from section 25 of the MCA in principle or guidance. The group said that principled reform should take the place of a “reformed discretionary approach” rather than a formulaic calculation.

It favoured “non-absolute limits” on the extent of financial support for former spouses, both on the percentage of net income one should pay the other and the length of time the payments should last.

The group illustrated that the limits should not cause hardship to wives over 55 years of age who have not worked during the marriage. It also said that there was merit in reform to prompt the courts to fully and properly consider the exercise of their powers. The courts normally ignore question of any increase in earning capacity which should be reasonable for a party to expect to take steps to acquire.

Resolution said courts should be under a stronger obligation than that contained in section 25(a) of the MCA to decide whether it would be possible for support to be terminated, but the hardship rule should be retained. A term order could encourage increasing income and earning capacity and recognise the vanishing of the historic gender imbalance in earning capacity.

Resolution added that there could be guidance warning clients not expect to get ‘half’ of the other party’s income, “to provide more certainty, soften the unrealistic expectations of some claimants and avoid discouragement to payers making them seeking to reach agreements on their own or in mediation.

Contesting a will

It’s something that will happen to us all and when it happens to a loved one we are devastated. It happens every day around the world and it’s part of the life cycle, but we’re never fully prepared for it. We’re never prepared for death.

Death is inevitable and the stress of dealing with the loss of a loved one can be hard, especially when there is the added trauma of finding out you have not been provided for adequately in the will. So what can you do if this happens?

What is a will?

A will is made to decide what happens to someone’s possessions and property after they die. Although a will does not have to be made by law, it is the best way to make sure an estate is passed on to family and friends exactly as you wish. By making a will you can decide who in your family gets what. If you don’t make a will then the law will make this decision for you.

When a person dies without making a will they are said to have died ‘intestate’. This means that the law decides how the assets of the deceased person should be split between the surviving relatives.

DIY will kits can be purchased online and in shops. However, it is advisable to use a solicitor as there maybe some legal formalities you will need to follow to make sure your will is valid. A solicitor can advise you on more complicated matters and can also suggest how inheritance tax may affect you.

The cost of writing a will can vary so voluntary organisations like the Citizens’ Advice Bureau and Age UK can also help with making a will.

Contesting a will

If you weren’t married or registered civil partners, you won’t automatically get a share of your partner’s estate if they don’t make a will. This is a complicated area and if you contest a will you may not succeed. There are certain conditions to meet if you were living with the deceased as a partner but weren’t married, however.

Family structures nowadays are more complex than they were years ago and due to this, it is common for relatives to feel they are entitled to more than they have received in a will.

If you feel you have not received reasonable financial provisions from a will then you may be entitled to contest a will and make a claim. To claim you have to be a particular relationship to the deceased, such as a child, spouse, civil partner or dependant.

Solicitor

If you are unhappy with the terms set out in a will, then it is advisable to get in touch with a solicitor. A solicitor will be able to guide you through the complex process, will be able to help you make a successful challenge and gain an appropriate share of your loved one’s inheritance.

Death is hard for all members of a family and financial problems can make things even worse. If you think that contesting a will is what you need to do remember that it can be costly and sometimes unpleasant, but finding the right solicitor – one who is helpful and professional in your time of need – could make things a lot better.

Author Bio: Mason Brown has a great deal of experience with solicitors in UK and hopes you will find his articles of use. To know more visit http://www.adamslaw.co.uk/

Married couples to become a minority

Guest post from family lawyers and psychological strategists, GE Law http://www.gelaw.co.uk/

Families headed by married couples will be in a minority by 2050, according to a new report from the Centre for Social Justice (CSJ). The report also finds that marriage is increasingly the preserve of the middle and upper classes.

According to the independent think tank, only about 50% of new parents on low income are married. This rises to nearly 80% for couples on £21,000 to £31,000 a year and to nearly 90% for those earning over £50,000 a year.

The report concedes that there have been some “promising” moves by Ministers to promote family stability, such as the publication of their Social Justice Strategy and the release of public money to provide relationship support. But overall the CSJ is deeply dismayed by the lack of progress since the Coalition was formed in 2010, warning that official efforts to promote stable families are “dwarfed by the scale and cost of family breakdown”.

The CSJ study draws on new data from the 2011 census and the Millennium Cohort Study to chart the decline of the married family.

The proportion of families headed by a married couple has dropped by 5% over the last decade while there has been a % rise in cohabiting couple families and a 2% rise in lone parent families.

The rise in cohabitation is actually fuelling lone parenthood because cohabiting couples with children are far less stable than those who are married, says the CSJ.

The report calculates that on current trends, by 2031 only 57% of families will be headed by married couples. By 2047, 35 years from now, families headed by a married couple would be a minority – 49.5% of all families.

What To Look For When Seeking a Family Lawyer

What To Look For When Seeking a Family Lawyer

If you’ve never been through the legal process before, realizing the amount of time, effort, and stress that go into it can be more than daunting.  Hiring a lawyer alone is intimidating; how can you determine a good lawyer from a bad one if you’ve never had to hire one before?  Below you’ll find the qualities you should look for when seeking the right lawyer for your family law case.

Background Information on the Practice of Law
There’s a misconception that a lawyer is a lawyer, in the sense that they all have the same knowledge and practice law.  However, this is simply not the case.  There are three types of lawyers you’ll come across on your lawyer search.  Specialized lawyers are those whose practice is specialized in a specific type of law, such as personal injury law.   General lawyers, i.e. lawyers that practice a broader area of law, might practice personal injury law and business law simultaneously.  Then there are Referral lawyers.  These lawyers may be either specialized or general lawyers, but they advertise as if they practice various types of law.  When clients come to them in a specialty outside of their practice area, which is typical due to referral lawyers affinity to advertise a broad range of specialties, referral lawyers then refer the client to another attorney.  The reason they do this is because referral lawyers get a percentage of the lawyer fees for all cases they refer out.  For instance, Lawyer A refers a client to Lawyer B.  When Lawyer B wins the case, Lawyer B must forfeit a percentage of his/her fees from the case.  So, put bluntly, referral lawyers get paid for doing absolutely nothing in a case they’ve referred to another lawyer.

Qualities You Want in a Family Lawyer
You should look for three factors when determining if a lawyer is right for your divorce, separation, will, children’s rights or divorce settlement legal needs.

First, you should look for a lawyer who has experience handling family law cases.  You will want to avoid “referral lawyers” as the fees they take can deter the lawyers they refer your case to from actually taking it; lawyers, like any professional, are in it for the money and if they have to forfeit percentage of their winnings on a case that already isn’t worth that much, they aren’t going to take it.  You should seek out lawyers who have a long history of experience with family law cases and who have been successful with such cases.  While a general attorney might have a lot of experience with family law cases, you should generally look for a lawyer who specializes in family law as he/she is the more likely to be adept to the legal procedures of such a case.

And do not rely on lawyer rating sites, like Super Lawyers, AVVO, and Best Lawyers to give you reliable information on a lawyer’s success rate and the like.  These sites’ “rankings” are determined by how much a lawyer is willing to pay and the information on the lawyers is not generally verified by the lawyers themselves.  For example, attorney John Smith might be stated as a family lawyer on a lawyer ranking site when in fact he is a slip and fall lawyer.  You don’t want a personal injury lawyer handling your family law case, do you?  It would be like having an accountant acting as your stock market investment advisor; it’s simply the wrong specialist handling the wrong specialty.

Second, you need a lawyer who is capable of giving your case the time and attention it deserves.  And third, you need a lawyer with knowledge about your case type.  General lawyers handle many different types of cases, which means they must have a vast working knowledge of different laws and law procedures.  For instance, a general lawyer handling a business law case, a personal injury case, and a criminal case will need to know the necessary laws for each of those law specialties as well as the procedures required by each.  That’s a lot of work and knowledge that a single person must endure and retain.  A general lawyer may be less knowledgeable about your case type and less able to spend time on your case because he/she is handling so many different types of cases.

Amber Paley is a guest post and article writer bringing to us what qualities one should look for when seeking a family lawyer.  Outraged by the prevalence of elder neglect in the U.S., Amber spends much of her professional life writing education articles to help those affected another’s negligible care find good nursing home abuse attorneys.

Is relying on the integrity of a solicitor appropriate in Hildebrand cases? Is lodging documents with a third party solicitor the answer?

Vardags Solicitors are a Top Divorce Lawyer  based in Central London that specialise in complex and substantial cases

The Court of Appeal decision of Imerman v Tchenguiz [2010] 2 FLR 814 confirmed various principles, including but not limited to the following, in summary:

  1. The need to ensure full and frank disclosure in family law proceedings does not allow a party, or another person on their behalf, to breach the other party’s right to confidentiality of their documents / information.  Likewise, the process of disclosure does not entitle a person to breach the law (for instance, committing theft, or hacking into a person’s computer in order to obtain their confidential documents).
  2. It is an actionable breach of confidence for a party, without authority, to review confidential documents belonging to another person.  This is also the case where the party makes and retains copies of the confidential documents, or provides copies of those documents to a third party, or seeks to use the information contained in the confidential documents.
  3. In principle, spouses enjoy rights of confidence as against the other in respect of documents and information which would otherwise be confidential if they were not married.
  4. Confidence may be lost in respect of documents that are left out in the open in the matrimonial home (for instance, on the “shared desk”).
  5. For the reasons outlined above, “self-help” disclosure is not acceptable.  Where a party has concerns that the other party intends to conceal or dispose of assets, or destroy or conceal evidence, then there are remedies available to that party in the form of search and seize, freezing, preservation, and other similar orders.

If a party does have possession of confidential documents, they must promptly return those documents to the other party and destroy any copies they have made.  If the party is represented by solicitors, those solicitors must not look at the documents nor retain copies (or else they may be required to cease acting for their client).  In default of compliance, the aggrieved party will be able to seek appropriate injunctive relief with possible costs and other consequences.

However, there are corresponding obligations in respect of the owner of the confidential documents.  The breach of confidence does not override the obligation to make full and frank disclosure of all relevant documents within the family law proceedings.  If the owner of the confidential documents is represented by solicitors, those solicitors are obliged to take reasonable steps to consider and advise on the documents, with a view to ensuring that their client complies with their obligations of disclosure.  If the owner of the documents ceases to instruct their solicitors, then those solicitors are obliged to retain copies of the documents unless otherwise agreed or ordered.  These obligations are designed to ensure the preservation of the confidential documents, with a view to a party complying with their obligations of disclosure or alternatively the other party seeking the production of the documents by way of an application to the Court.

Clearly a great deal hinges upon the solicitors for each party doing the “right” thing and following the correct protocol.  Is it therefore appropriate to rely on the integrity of the solicitors who are obliged to retain the Imerman documents?

Unless there is significant and persuasive evidence to suggest otherwise, it must be assumed that the relevant solicitors will comply with their obligations to retain copies of the documents and advise their clients to make any relevant disclosure.  Solicitors are under strict professional and ethical obligations, and their duties to the Court extend beyond even their duties to their client.

This, however, may be of little comfort to the party who came across the confidential documents, particularly where the matter is fiercely contested as can often be the case in family law cases and associated litigation.

An alternative approach going forward might be to require that Imerman documents be lodged with independent third party solicitors.  This may provide the party returning the confidential documents with some peace of mind and ensure that the issue is dealt with, at least at first instance, by solicitors entirely independent of the parties and removed from the adversarial process.

However, one can also perceive some possible difficulties with this approach.  For instance, to what extent would the third party solicitor be involved in the process of reviewing, considering and advising on the relevance of the documents?  It may be that they are simply required to prepare a list of the confidential documents, but this in turn gives rise to further questions regarding the subsequent disclosure of that list and the appropriate procedure going forward.  Finally, the use of independent third party solicitors is likely to increase the costs of the case by some degree (which could be significant depending on the extent of their role) and will be even more problematic when the parties are self-represented or on legal aid.

An alternative to the use of independent third party solicitors might be for the confidential documents to be lodged with and considered by a Judge, who can then make appropriate directions.  This idea is also problematic for various reasons, not least because wide-spread use of such an approach might inundate the Court system with significant numbers of applications in respect of documents with little or no relevance to the case.

There is little doubt that the issue of Imerman documents and related procedure is and will continue to be fraught with difficulty – and many agree that greater direction and clarity is required to enable parties and practitioners alike to navigate this challenging legal obstacle course with greater confidence.

To find out more about Vardags Solicitors, visit their website.

The Divorce Process: Family Law Information

The Divorce Process

Divorce is the legal process through which two people end their marriage and the legal status that it provides. It is usually an extremely emotional time for the parties involved and also for their children, if they have any. The best way to make your divorce process as smooth as possible is to find a solicitor who you can trust and work comfortably with.

It is important that both parties understand their legal position on divorce and know exactly to what they are entitled. A divorce solicitor can make sure finances and property are properly distributed and arrangements are made for children, leaving no room for disagreements.

Petitioning for divorce

In order to begin the process of divorce one party to the marriage must present a petition for divorce on the grounds that the marriage has broken down irretrievably. It is important to note that the parties must have been married for at least a year before they are able to make such a petition.

Whether the marriage is broken down irretrievably is not simply a matter of opinion, and there is legislation stating that at least one of five factors must be present before any court will make a ruling that the marriage has in fact broken down irretrievably. These five grounds for divorce are as follows: unreasonable behaviour, adultery, living apart for two years and both parties consent to the divorce, living apart for five years, and desertion.

Acknowledgment of service

A copy of the petition must be sent to the other party along with a statement of arrangements for the children (if applicable) and an acknowledgment of service. The respondent must inform the petitioner in the acknowledgment of service whether they will be contesting the divorce. The acknowledgment of service is therefore an extremely important document as it shows the court that the other party is aware of the petition. If the other party refuses to return the acknowledgment of service you may have to arrange for a process server or bailiff to serve the document and make an affidavit stating that they have done so.

Decree nisi

If the court is satisfied that there are valid grounds for divorce it may well grant what is known as a decree nisi. A decree nisi will generally be granted when a divorce is not being contested and there are valid grounds for divorce. The party who made the petition must then apply to have the decree made absolute which they cannot do until at least six weeks and one day from the date of the decree nisi.

Decree absolute

The decree absolute is what actually ends the marriage, as opposed to the decree nisi which merely declares there are satisfactory grounds. Once the decree absolute has been pronounced the marriage has officially ended and usually the parties will begin ancillary relief proceedings: the name given for deciding how the matrimonial assets should be split.

Ancillary relief proceedings

The ancillary relief proceedings are often fiercely contested as a judge will rule on who should have what from the matrimonial assets. The ancillary relief process can be quite long and usually involves three trips to court.

  • A first appointment in which a judge outlines his position and ensures appropriate disclosure has taken place.
  • A financial dispute resolution hearing in which a judge (a different judge from who will be in attendance at the final hearing) will give an indication of what he would order in the hope the parties then settle on similar terms and avoid a final hearing.
  • A final hearing in which an order will be made.

With the potential for several court visits, it is in both parties’ interests to try to facilitate an early settlement to avoid significant legal costs.

My spouse and I are looking to divorce but are worried about the costs involved in the process, is there any help we can get on this matter?

The result of a divorce or separation is that two households will often have to exist on the same amount of money as one did previously. This is unfortunately made worse by the costs that will flow from your divorce. There are three main ways in which you can reduce on your legal costs in this procedure.

The first method would be to attempt to carry out the divorce informally, known as informal separation. If you and your partner are married, you can separate by such an informal arrangement. If you and your partner agree, you can also make arrangements about children, money, housing and other property without going to court. However, any informal arrangement made when you separate may affect future decisions if you do ever go to court. You should be aware that a court may change an arrangement you and your spouse made if it considers it to be unreasonable or, in the case of a child, not in their best interests.

Another method that can be employed to reduce legal costs is through what is known as a separation agreement. This is a written agreement between you and your spouse when you intend to stop living together. It sets out how you wish to sort out financial arrangements, property, and arrangements for the children. It is advisable to consult a divorce solicitor when drawing up a separation agreement, but you should work out in advance the general areas you want to cover. This will help to reduce your legal costs.

A final method that may be used in such circumstances would be for you to utilize the services of Legal Help. Legal Help allows people with a low income to get free legal advice and help from a specialist divorce solicitor or an experienced legal adviser. The solicitor or adviser must have a contract with the Legal Services Commission (LSC) to be able to provide Legal Help. You should be aware that in such cases the divorce solicitor will only be able to help you with legal advice and not with the drafting or endorsement of any legal documents.

There’s no place like home…but where is home for your children?

With the opening of borders across Europe and the recent growth of the internet and cheap travel, it is becoming increasingly common for children to have parents who are of different nationality to one another.  However, should the parents separate, what happens if one parent wants to return to their home country with the child?

This is a question I am frequently asked as a family lawyer and it is understandably a highly emotive issue between parents.  Should a parent leave the country with their child without the other parent’s consent they could face criminal charges for child abduction.  Therefore consent is essential and if it is not forthcoming from the other parent you will need to apply to the court for a judge to decide.

When the court considers whether such a move with the child should be allowed, the child’s welfare is paramount and the court will apply what is known as the welfare checklist.  The checklist includes factors such as the physical, emotional and educational needs of the child, the wishes and feelings of the child, the capability of the parent to meet the child’s needs and the likely effect on the child.  The proposed arrangements need to be considered carefully and the greater part the parent who would be left behind plays in the child’s life, the greater impact/damage upon the child if the move is allowed.

If you wish to make the move with your child, preparation and research is imperative.  Also focus on how your child’s relationship with their other parent can be maintained if the move is allowed.  The court needs to be sure that the proposed move is genuine, realistic and above all in the child’s best interests.

It is a very difficult issue with many factors to consider. Whether you are the parent wishing to make the move or the parent opposing the move, early legal advice is essential.

This was a guest post by Patricia Robinson Senior Associate at divorce solicitors Pannone LLP. For more information visit their website at http://www.pannone.com/