The Will To Make A Will

I read an article today that said that January is never a good time to make a New Year’s Resolution. Personally, whether it is a good time or a bad time depends on you. We all like to put some things off until another day, some things we like to do straight away and some things we need to do but don’t quite get round to doing ……ever.

Wills are like that. Only a very small percentage of the population has a Will. yet, it is one of the most cost effective ways of avoiding paying tax legally and giving you peace of mind and appointing a Guardian for any children you may have (saving them from going into care as the worst possible scenario).

So the million dollar question ought to be not when do I make a Will (because you know that should be now; since none of us can predict when our day will be upon us) but more importantly WHO should prepare my will.
I have seen several options:

a) Online kits which usually cost around £25
b) Will writers – whose charges start at around £100
c) Solicitors – whose charges range from around £250 to £1,000 depending on the complexity of your Will, size of your estate etc.

You know the answer I am going to recommend. Not because I am a Solicitor, but because honestly, it makes total sense.

We used to hear comments of

“You pay for what you get”, or
“You get what you pay for” or
“Pay peanuts and get monkeys” etc

My favourite one is apparently a common one in Russia and other eastern European countries which is

“I am not rich enough to buy cheap things”

Think about it – its makes perfect sense. Remember that jumper you were going to buy from Markus Sparkus (that nice shop you love to buy your jumpers from) worth £50 which would have lasted you for several winters but instead you bought a similar jumper from Primus Dimus (that ok shop you bought your odds and sods from) for a fantastic £25 saving you £25 !!

And remember that the Primus Dimus jumper was ragged after one wash and you ended up having to buy that £50 jumper from Markus Sparkus anyway?

The same principles can be applied to pretty much everything we do and buy in life.

Oh, and by the way, if you prepare your Will incorrectly, your loved ones will only find out that they are not the beneficiaries as you had thought would be the case until after you pass away – which is sadly too late to put things right.

Now, do you really want to buy a cheap £25 quid Will?

This information provided in this article is not intended to constitute legal advice and each case requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Divorce Made Simple 5 – Alternative Methods Of Service

In Divorce made Simple 3 I explained I would, in this blog, attend to the issue of what to do if you have not been able to illicit a response from the respondent when the Court originally served the divorce papers by post AND you tried to serve the papers either using a bailiff or private process server and they were also unsuccessful in serving the divorce papers on the respondent.

This means that you are unable, in effect, to proceed on to the next stage of your divorce.  The reason for this, simply put, is that you cannot prove to the Court that the respondent has received the divorce papers and as a consequence of that the Court cannot permit your case to proceed further.  There may be a genuine reason why the respondent has not been served with the divorce papers, for example they are on holiday abroad or they have moved or other such circumstances, in which case simple sensible enquiries may lead you to the correct address details for the respondent and you can go back to asking the Court to serve the papers again or use a process server again etc.

1. Substituted Service

However it may be the case that the respondent is trying to evade the service of documents.  This is when things get a little bit more interesting.  The Courts have now accepted that if you are able to show that, for example, the respondent regularly attends their parents home or regularly go to work or they have perhaps a facebook account which is regularly in use or linked-in account etc then you may be able to serve them by alternative means.  This is known as substituted service.

You would need to make an application to the Court which would involve a fee (or you could apply to be exempted from the fee if you are of very limited means) for substituted service.  This will usually mean you will need to appear before a Judge but it may be dealt with in writing by way of a long and detailed letter and in these circumstances, in among other things, you would need to explain to the Judge how you have tried to serve the respondent previously and, more importantly, how you intend to serve the respondent and how you believe that the respondent will definitely become aware of the papers being served upon him or her by this method of substituted service.

1a) Service of Papers at Work

The simplest example of that is being able to serve the respondent with the papers at work.  For example we are aware that Lucy works at XYZ Limited at 123 Anytown Road and that she works usually from 9am to 5pm.  You could arrange for the papers to be served by a process server at her place of work but usually that is something that would already been considered.  Making things a little bit more complicated let’s assume we do not know where Lucy works or that she does not work at all and that she has, in fact, moved towns and we do not know which town she is presently located in.

1b) Facebook Etc

If you see regular activity on, for example, facebook and you can perhaps take screen shots of her postings on facebook then you may be able to convince the Judge that serving the papers on facebook or linked-in etc would come to the attention of the respondent and as a consequence once that has come to their attention the Court may state that service can be substituted that way.

1c) Newspapers

More traditional methods of substituted service previously adopted by the Court where advertisements put in local newspapers in the last area that the respondent was known to live.  Usually their parents address can be a useful alternative place of service in which case you would want the documents either sent by recorded delivery or to be personally posted at that address knowing that perhaps the respondent once or month or so visits and at some stage they will become aware of the legal proceedings you have issued.

2 Deemed Service

If none of the above is possible there is an alternative of deemed service.  This is where you would invite the Court to accept that service of the documents has taken place even though the respondent has not formally returned the Acknowledgement of Service form and a process server has not been engaged.

For example you may receive an email from the respondent stating he or she has received the divorce paperwork and there is no way they are willing to sign the paperwork and that for example they have torn the paperwork up and have no intention of assisting in the proceedings.

If you make an application to the Court (again involving a fee unless you can make an application for exemption of the fee or seek a reduced fee) by appearing before the Judge or in the alternative by way of a long letter, the Judge may accept the evidence clearly indicates the respondent has had the papers and will therefore deem (i.e. assume) that service of the papers took place on day X.

Whatever that day is you will need to wait a further 29 days before you can proceed to the next stage.

If you are dealing with issues of personal service or bailiff service and in particular if you are dealing with issues of substituted service or deemed service then it is a case that is becoming somewhat more complex and in these circumstances our belief is that independent legal advice would be beneficial as you could create more difficulties in your case and certainly will more likely than not increase your stress and very likely also delay matters.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

Divorce Made Simple 4 – Personal Service

As I stated in my earlier blog entitled Divorce made Simple 3 – Issuing Proceedings, if your spouse (the respondent) fails to return the Court papers known as the Acknowledgment of Service Form to the Court within 7 days you need to wait a further 7 days before you can take further action.

On a practical level it would be worthwhile for you to contact the Court on around the fourteenth day to see if the Acknowledgement of Service form has been returned or not.  When telephoning the Court make sure that you have your case number, which is usually found on the top right hand corner of all Court documents received from the Court, so that the Court can quickly process your query.

If the respondent has not returned the paperwork then essentially you have four options:

1.         Simply wait a further period of time (as long as you wish) to see if the respondent will return the paperwork to the Court and it may simply be the case that the respondent was busy or otherwise unable to return the paperwork within the relatively short time scale;

2.         Arrange for the Court to re-serve by post the Court papers on the respondent.  This will entail you providing full copies of all the original documentation that you had to the Court and they will re-issue them for you.  If you do not have copies then be warned, if you ask the Court to provide you with copies they will charge you quite a hefty photocopying fee;

3.         You could arrange for a bailiff (a Court Officer who will act as a process server) to serve the papers on the respondent.  You need to complete a Form EX160 and pay a Court fee which was only £10 and was worth the while. However it has very sharply risen to over £100 for the privilege of having a Court Bailiff serve the papers on the respondent.  The court bailiff will make several attempts to serve the respondent with the papers and will either confirm with documentation to indicate they have been successful in serving the papers, in which case you follow a course of action referred to below, or that they have not been successful in serving the papers in which case you will need to consider your alternatives;

4.         You could arrange for a private process server (google “process servers”) to arrange for service of the documents.  Previously private process servers were far more expensive than Court Bailiffs but nowadays the costs are pretty much the same.  My personal view of private process servers is that they like to maintain their reputation as being successful process servers and work just that little bit harder to ensure the paperwork is served on the respondent.  Hence of the latter to options I tend to prefer private process servers.

As with Court bailiffs mentioned at point three above the process server will either be successful, in which case they will provide you with a Statement of Service, or they will be unsuccessful and notify you accordingly.

Looking at options 3 & 4 then, the process server or the Court Bailiff may have been successful in serving the papers on the respondent and as a consequence you would need to wait a further 29 days (I will not go into the reasons why those dates apply on this blog) before you can ask the Court to proceed to the next stage.  Please see later blogs for further details in that regard.  It may be the case that the respondent now having been personally served with the papers will behave more sensibly in returning the Acknowledgement of Service form.  That is not, unfortunately, usually the case.

If the process server has been unsuccessful in serving the papers then you need to consider what your alternatives are.  I will cover this process in the next blog.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

Divorce Made Simple 3 – Issuing Proceedings

Having followed the pre action protocol and if you are still of the opinion that your marriage has come to an end then you will need to issue proceedings.

To issue an application you need to deal with the following preliminary issues:

a) have you been married at leat one year?

b) have there been any periods of reconciliation that would prevent you from issuing proceedings

c) which court do you wish to issue in?

d) WHEN should you issue.

These are strategic and legal questions that need to be considered and this blog is not the easiest place to discuss the same. If you have any concerns that you may have issues with any of the above items you should take legal advice from us.

Once you have decided that you can issue proceedings you need to prepare the following documents:

a) divorce petition (application form for the divorce)

b) statement of arrangements for children (if you have children)

c) notice of acting in person

d) Form FM1 (which shows that you attended mediation and that for example it failed

[ e) if you have limited means, then you can also complete an application for exemption from fees form to have your court fees either exempted completely or reduced according to your means ].

All these documents are available free of charge at any local divorce county court.

Having prepared all the forms above mentioned you would then need to send them to the DIVORCE COUNTY COURT in which you wish to issue proceedings. Please note that you can issue in ANY divorce county court and it need not be the court nearest the place where you got married or near where you live. Please also note that not all county courts deal with divorces so you should check first before sending your paperwork to that particular court. Practically however, it often makes sense to issue proceedings in the divorce county court that is located closest to where your children reside if you have any.

The court in approximately 1-2 weeks will send you as the Petitioner (the person who started the divorce) a Notice of Issue of Petition and Postal Service. This document shows when the petition (divorce application) was started as a case by the courts (ie issued) and when it was served by post on your spouse.

This second date is important as it is 7 days from that date that your spouse should return the Acknowledgement of Service Form back to the court indicating whether they intend to allow your divorce to proceed without challenge or if they are going to try to stop it by defending it . Very few divorces are defended nowadays.

If you have still not heard anything from your spouse in 14 days from the date of postal service, then you can consider your options and how to best proceed to the next stage.

I will discuss personal service in the next blog.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

Divorce Made Simple 2 – Pre Action Protocol

Before Issuing proceedings you are obliged to follow certain legal rules and I would say it is also worth bearing in mind a few other simple rules for your own peace of mind and sanity.

These simple practical rules apply to dissolution of civil partnerships (for same sex couples) as they do for marriages

The Non -Legal Rules

Think about this – you may be angry, you may be upset, you may want revenge, you may want to hurt your spouse like they have hurt you……but it does not get you anywhere.

A Solicitor makes MORE money the more angry that you are. This is simply because you instruct your Solicitor to take a course of action that is primarily designed to antagonise of anger or hurt your former spouse and that will have the desired effect more often than not.

The net result? Your spouse will instruct his/her solicitor to write equally inflammatory letters (they will say only to protect their client’s position – and they do have a point) and the outcome is that there is a flurry of hostile communication going back and forth faster that a shuttle train and you don’t feel any better and you certainly will not feel any better when your invoice arrives, that is for sure.

So here are my 3 simple non legal rules:

1. Do not use your Solicitor as a weapon but rather as a means to an end (ie get you your divorce in the most painless and cost effective way possible

2. I know this is hard ( I speak from personal experience) but try to treat others as you wish to be treated yourself

3. Resist the temptation to “fight back” – think instead of your children and how they will view all this in years to come – and if you have no children – think how YOU  will feel in years to come having expending thousands of pounds paying lawyers what could have ultimately be done in a fraction of the cost with the same lawyer if you had not been so hostile etc.

The legal bit – the pre-action protocol:

The courts do expect you to follow this and it makes sense. In simple terms

1. As I explained in my Divorce Made Simple 1 blog you will have already attended a MIAM ( mediation information and advice meeting) and at least attempted to resolve matters through mediation. If you have not already done so, you must do this first unless you meet certain criteria such as there has been incidents of domestic violence in your marriage and that they have been reported to the Police.

2. Prepare the allegations in your draft petition (application for a divorce) in the least contentious way possible – it does not change the truth but it does save on lawyers feels ultimately. For example, in a behaviour petition, it is not necessary to cite each and every allegation or complaint you have against your spouse, several – perhaps 3 or 4 max points will suffice.

3. Then send the draft of the petition to your spouse and allow then 14 days in which to reply with suggestions for change. Accept any reasonable requests I would say (again to save on lawyers fees and hostility).

4. Then and only then (except in exceptional circumstances) should you issue your petition for divorce

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

Divorce Made Simple 1 – First Considerations

Deciding to divorce is never an easy decision and should not be taken lightly.

There are a number of considerations to take into account before pressing on with making a divorce application (known as a petition) and we will look at some of the considerations here.

First and foremost, we would always recommend that you talk to your family or friends. People who are close to you that you trust can often provide sound honest advice and if you do decide to go ahead – they provide invaluable support during the often traumatic if not stressful experience.

The main options available to you when you consider your marriage is over are as follows:

1. Reconciliation

We spend considerable time and money in getting married, often children are involved and they need to be at the forefront of everyone’s minds when the marriage is not working out. Would it be better to attempt to reconcile your differences or would staying together have an even greater detrimental impact on you and/or the children if you were to try to muddle through and stay together.

2. Separation

Would a period of time of separation help to cool things down? Often when one spouse has done something that we find it difficult to forgive immediately, can over time seem less important or we find it in our hearts to forgive those misdeeds with the effluxion of time. Being too hasty to start divorce proceedings can be time consuming and very costly and often can antagonise the situation and that is unhealthy for everyone concerned, especially any children that you may have.

3. Judicial Separation

An alternative to divorce, especially for those of a religious conviction that prevents them from divorcing, such as those of the Catholic faith, can obtain a judicial or legal separation instead. A judicial separation is like a formal separation; unlike point 2 above, this is dealt with through the court process and is a formal, legal recognition that you are separated. The criteria for obtaining a judicial separation are the same for obtaining a divorce. However, if you subsequently do decide to divorce, having first judicially separated could simply have been an expensive half way house and an unnecessary additional financial and emotional burden you could have done without.

4. Divorce

If you feel that your marriage has broken down irretrievably, then you could obtain a divorce to permanently bring your marriage to an end.   We will look at the criteria for obtaining a divorce in subsequent articles.

As far as we are concerned, the next stage before you embark on your chosen path would be to consider two main other matters:

5. Legal Advice

Which Solicitor should you choose or could you even do the divorce yourself or online. This is such an important point that we will write a whole article on this point alone and help you determine how to find and choose a good solicitor.

6Mediation

Nowadays with more and more emphasis on mediation by the politicians and the judiciary it is now hard to ignore the impact on mediation in family matters and before you start your case. In some cases, you are obliged (i.e. must) attend at least a mediation information and advice session (MIAM) before you can issue proceedings. In some instances to ignore mediation, you do so at your own peril – as mediation can be a civilised, healthy and constructive way of bringing your relationship to an end and resolving conflicts and issues relating to not only the divorce, but also in relation to children and finances and property.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898