Seven Good Reasons To Make A Will Now

Making a Will is not normally high on a list of priorities, nor is it a particularly engaging activity, but there are a number of excellent reasons why you should make a Will, and do it soon.

Your wishes will be fulfilled – whatever you decide should happen after your death, both to your estate but also regarding your funeral, can be stipulated in your Will. Therefore, if you want specific music played at your funeral or you want a portion of your estate to be given to a favourite charity, this can be made a certainty by using a Will.

Intestacy won’t apply – the laws of intestacy, which are applied to an estate if no Will is made can be very strict and depending on the size of your estate, there may be a limit as to how much your spouse will be given. In the event of you dying with no blood relatives, your estate will be given over in total to the Crown.

Your children will be provided for – if you have children, you will be able to stipulate who you wish to be their legal guardian. You will also be able to make financial provisions for them, for example, to remain in the family home until they reach adulthood. Without a Will, they could be taken into care until a decision over who will look after them can be made by the court, and even then, they could be placed with someone you would not have chosen.

Protect your partner if you are not married – common law partners have no legal rights at all so if you and your partner have never married and you die leaving no Will, there is the very real possibility that your partner will be in financial difficulty. Your Will should be used to protect your partner from such an event.

Inheritance Tax Issues – any estate worth over £325,000 is subject to inheritance tax and a Will can help you plan more tax efficiently, as many properties are worth more than this alone.

Divorced but not remarried – many people do not realise that if you are divorced and not remarried and you leave no Will, your ex-spouse will inherit your estate.

To help out your family – when you die intestate the whole process of probate takes much longer and is much more complicated. This will leave your loved ones with a complicated legal process and all of the funeral costs to find, whilst also grieving for you. This has to be one of the best reasons to act now and make your Will.

Whilst some of these points raised may not apply to you and your circumstances, some of them will and those should be enough for you to recognise the value of making a Will soon.

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

Are Legal Aid Cuts Having An Effect On Family Courts?

Government cuts across all sectors have been biting for a number of years now, but the cuts in the legal budget have taken time to be fully realised and the impact on the family courts are hitting some of the most vulnerable people in our society.

The knock on effect of the changes in legal aid mean that in 42 per cent of cases now coming to the family court neither party have a solicitor, compared with just 12 per cent before the legal aid cuts. People without legal representation are known as Litigants in Person, or LIPs and a lack of legal advice can have a negative effect both on the court system and on the people involved.

A lack of representation brings a number of issues. The first is on the parents who are struggling to manage the access arrangements for their children. Without legal advice and representation, they will certainly find it difficult to know what processes need to be followed and they will also not have the experience to be able to argue their case effectively in court.

When taking a custody case to court, there are a number of tests which could be utilised if there are allegations of alcohol or drug abuse, such as hair follicle sampling, but tests like these are proving too expensive for the normal person on the street and this is affecting the outcome of some cases.

Victims of domestic abuse are sometimes having to face their abuser in court now because in order to qualify for legal aid – thus to be represented and supported, they have to have a doctor’s letter, which can cost up to £75 and some cannot afford this cost.

The knock on effect of litigants in person in the courts are that judges are having to guide them and use lots of discretion during the case, which would not be necessary with a  lawyer present. Therefore cases are taking longer to resolve in an already backed up court system and some private custody hearings are now taking 6 months or longer to be resolved.

Whilst no one can deny that savings need to be made, should these cuts really have to affect the most vulnerable in our society?

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

How Much Will I Get?

A Brief And Simple Guide To s25 Matrimonial Causes Act 1973

In my view, the biggest and most difficult question client’s ask me relate to “how much will I get” following on from their divorce or dissolution of their (same sex) partnership.

It is not an easy question to answer and whilst clients may desire direct straightforward answers, the reality is straightforward answers are easy to provide in determining this question. It is difficult providing a range of figures that make be a likely award when full financial disclosure has been given, but it is dangerous and nigh on impossible at the outset of a case when there is no financial or very limited financial disclosure.

There are many reasons why Solicitors are evasive initially when it comes to giving this advice and never 100% confident even when they do. This does not reflect on the Solicitor but on the current state of the law.

The easiest way to explain this is to consider the following:

a)      Stare Decisis

b)     The sources of the law

c)      The process of coming to a decision

 

Stare Decisis

Sorry to be a bit technical at this juncture. Stare Decisis the process putting it simply, where courts follow the decision of a previous court to ensure consistency. So, if two very similar people say, undertake the same criminal activity anywhere in the country, they should, at least in theory receive the same punishment or sentence.

In family proceedings, this does not happen. The previous decisions of the court are not binding in a subsequent court on a similar matter (and many would argue that no two family cases are ever the same anyway).

Instead, in family proceedings, previous decisions of the courts are persuasive. That is, they should be sufficient to persuade a subsequent judge in a similar matter – but may not automatically do so.

So even very experienced practitioners who understand the law and keep abreast of the ne legal cases coming out of the higher courts will not with any degree of certainty be able to tell you always, certainly not initially, “how much will I get”.

 

Sources of the Law

The law that we rely on as professionals in helping us come to a decision on what we think may be a possible outcome of a financial case are mainly as follows:

a)      Case law – previous cases that have taken place that may be similar in at least some ways to your case and thus give us some guidance. But note, Stare Decisis applies as I have mentioned above.

b)     Statute – these are laws passed by Parliament, there are many, many laws passed by Parliament and we still refer to the ones that have not been repealed from the Married Women’s Property Act 1882 to the Matrimonial Causes Act 1973 and so on. Familiarity with these Acts of Parliament is essential but do not provide the whole picture.

c)      Secondary Legislation – often when an Act of Parliament is passed, a lot of the fine detail if often left to a later date to be dealt with, usually by a Minister. This secondary legislation does not often have the same scrutiny as the Act itself does. Nonetheless, often these Statutory Instruments contain the “meat” of the “bones” of the Act of Parliament

d)     Love them or hate them, the EU also passes legislation which impacts on family law. We always need to keep an eye on what is happening at EU level to ensure that our domestic laws are compliant. Sometimes the EU legislation directly relates to family law, such as Brussels II, but often there are indirect consequences of EU legislation which permeates its way into family law such as The Human Rights legislation (as I shall generically put it).

All that information combined, helps us to come to some idea of what you may be entitled to when considering the financial aspects of a divorce or civil partnership dissolution. That is not the end of it.

 

The Process of Coming to a Decision

The main piece of legislation (in this case an Act of Parliament) is the Matrimonial Causes Act 1973. In that legislation, when deciding how much each party will get in a financial settlement we of course consider section 25. Often this is referred to as the “s25 factors”. Lawyers consider this section in detail and those who don’t do so at their own peril:
Section 25 (2) says: As regards the exercise of the powers of the court [in relation to the financial aspects of a divorce or civil partnership dissolution ] in relation to a party to the marriage, the court shall in particular have regard to the following matters-

(a)    the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future including in the case of earning capacity any increase in that capacity which it would in the marriage to take steps to acquire;

(b)    the financial needs, obligation and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)    the standard of living enjoyed by the family before the breakdown of the marriage’

(d)   the age of each party to the marriage and the duration of the marriage;

(e)    any physical or mental disability of either of the parties to the marriage;

(f)     the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g)   the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it’

(h)   in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Having considered all these matters, we can come to a view. It’s not as straight forward as it looks, or is it?

I have been undertaking family law since 1995 and I still have to sit and think and deal with competing dilemmas of the law before coming to a conclusion that I can convey with some confidence and some sense to a client.

Please note that this article has been written with the lay person in mind. There are some technical inaccuracies where I have taken poetic licence to convey the point or sentiment. At no stage whatsoever should you at all rely on the information included herein.

 

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

E-Z Legal Form

Ann Aldrich used an “E-Z Legal Form” when she made out her will in 2004, a decision that proved to be a good choice for two nieces who cited the document’s lack of a residuary clause.

In a decision issued last week, the Florida Supreme Court ruled for the nieces, though they weren’t mentioned in the will. The court said money acquired by Aldrich after the will was made out should be distributed under the laws of intestacy, which govern distribution of property for those who die without a will. The reason: The E-Z form did not have a residuary clause providing for the disposition of property not listed in the document.

Concurring Justice Barbara Pariente saw the ruling as a cautionary tale. “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer,” Pariente said, “this case does remind me of the old adage ‘penny-wise and pound-foolish.’ …

“I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.”

Aldrich’s will had left all her property to her sister, and then to her brother if her sister predeceased her. Because the sister died first, the brother had claimed he was entitled to the entire estate.

The will specifically said all “listed” items should go to Aldrich’s brother, the Florida Supreme Court said in an opinion by Justice Peggy Quince. “Therefore, it is clear that the testator did not intend for any property not listed to be distributed by the will. Any other interpretation of the testator’s actions would require this court to rewrite the will to include provisions regarding property for which the testator made none.”

Aldrich had signed a handwritten note after her sister’s death saying all her “worldly possessions” should pass to her brother, with the exception of certain bank accounts that should pass to a niece, the brother’s daughter. The document had just one witness—the niece who was to get the bank accounts—and was unenforceable under Florida law.

The nieces who asserted an interest in the estate were the daughters of a different brother who had already died.

The comments in this article are not intended to constitute legal advice. As ever, in all the articles written, it is imperative that you take independent legal advice before acting on any of the information contained herein.

Shak Inayat
Solicitor
0207 183 2898