Blog

Under the Influence

21-11-2017

Posted by Helena Taylor

Undue influence occurs when a person is pressured into acting other than by their own free will. The result of this may be that a person making a will (referred to as the testator) does not express their own last wishes in their will, but rather those of another person. The bar for proving a claim of undue influence is exceptionally high. For a challenge to a will to succeed on this basis, the person challenging the will must be able to prove that the influence exercised over the testator was such that it overpowered the testator’s discretion to make their own decisions and that there is no other explanation for the contents of their will. The level of proof required in order to prove a claim of undue influence may be problematic, as the act of undue influence will often be a secretive one in nature. This has recently been highlighted by the Law Commission of England and Wales. The Law Commission is an independent body whose role it is to keep the law under review and recommend reforms when necessary. In July 2017, the Law Commission acknowledged the issues surrounding this area and published proposals for reforming the […]

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Happy 10th Birthday to the Mental Capacity Act!

21-11-2017

Posted by Tamsin Wooldridge

Last month marked the 10th anniversary of the establishment of the Court of Protection and the introduction of the Mental Capacity Act 2005 (‘MCA’). The MCA came into force on 1 October 2007 and created a new Court of Protection with jurisdiction to adjudicate decisions for anyone whom was not found to have decision-making capacity.  Previously, there had been a common law presumption that individuals had the requisite mental capacity to make decisions and although the MCA was consistent with there being a presumption of capacity, it also provided a test for incapacity. In circumstances where a person lacks capacity, the MCA permitted decision-makers to act on behalf of the person (‘P’) in accordance with his best interests. At first, the Court of Protection was subject to criticism as it was seen to be a secretive court where life-changing decisions were made behind closed doors. As such, there were few decisions made during the starting years, however, the transparency rules introduced in 2014 has seen a number of reported cases and has to the most degree eliminated this concern. Although, perhaps now the worry is that family members do not always get the closure and privacy they need during challenging […]

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Should Pensions Be Shared in a Divorce?

16-11-2017

Posted by Nicola Brocklehurst, Associate in the Family Team

Do you have a pension?   Does your spouse have a pension?   Do you and your spouse know what would happen to these pensions if you decided to divorce?   Recent research carried out by Scottish Widows showed that 71% of divorced couples did not discuss pensions as part of their financial settlement arising out of divorce. This means that seven in ten couples may not have considered this asset properly. How does this compare to other assets the parties might own? As part of the research undertaken by Scottish Widows, married people were asked what they would consider in the event of a divorce; 56% of married people would make sure that they secured a share of jointly owned property and 36% would want to split combined savings. In comparison, only 9% of married people would want to make sure they received a fair share of their spouse’s pension. This is in spite of the fact that, on average, a married couple is likely to have around £132,000 invested in pensions, which is almost 5 times the average UK salary (£26,000). It is clear that pensions are still an unexplored area for many and that they not being […]

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Can voice recordings be used in Court?

09-11-2017

Posted by Seona Myerscough, Children’s Lawyer, Partner and Head of the Family Team

Are you fighting over the arrangements for your children and do you ever think about recording on your phone what the children say to you about the other parent or recording what the other parent says to you? Sadly if you are in conflict with the other parent about your children then you might find yourselves in court. I am very strongly of the view that you should do everything you can to avoid court hearings about the children. It is not a good process for the welfare of your family. You should seek advice from a solicitor, you should consider mediation and you should try to compromise. But sometimes even the most reasonable people can find that they have no alternative but to be in court. Two reasonable people can find that they just don’t agree, or, you are reasonable but the other person is not. Let us assume that you have a court hearing coming up which is going to decide the arrangements for your children. You could either be representing yourself or instructing a solicitor. You might think that if you record the children or the other parent then it will help you in court. You can […]

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Pound for Pound – Spousal Maintenance vs. Universal Credit

20-10-2017

Posted by Stephanie Newton, Solicitor in the Family Team

Universal Credit is a hot topic of discussion in the media at the moment as it becomes more widely introduced, with the management of its introduction and the difficult financial position that it may leave claimants in, being criticised. Although Universal Credit has been in existence since 2013 when it was first piloted, it is only expected to be introduced as a full service in West Berkshire in December 2017. Universal Credit will replace the following benefits: Child Tax Credit Housing Benefit Income Support income-based Jobseeker’s Allowance (JSA) income-related Employment and Support Allowance (ESA) Working Tax Credit Why is spousal maintenance relevant to Universal Credit? The position of state received benefits and spousal maintenance and child maintenance has previously been clear – neither spousal nor child maintenance are included when calculating entitlement. With the introduction of Universal Credit, that position has changed! Although child maintenance will still be disregarded for calculation of entitlement purposes, any spousal maintenance that you are in receipt of will be included in the calculation and your entitlement will be reduced on a pound for pound basis, e.g. if you are entitled to receive £300 per month in Universal Credits and you also receive £300 per […]

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How BIG DAYS and BIG BUST-UPS can affect the operation of your Will

19-10-2017

Posted by Jack Hobbs, Paralegal in Dispute Resolution Team

“DING DONG the bells are going to chime” will soon be ringing out across the nation as couples dream not only of a white Christmas but also of a magical white wedding. Amongst the invitation writing, dress fittings and flower arranging in the run up to the big day there is a real chance that important matters can get overlooked, especially your will. It would therefore be a prudent investment of time to investigate and understand the effects that getting married, and indeed divorced, have on what you leave behind to your loved ones. The basic effect of marriage or formation of a civil partnership on a will is that it will immediately become invalid and be automatically revoked (s18, Wills Act 1837). This means that should you marry after executing a will and then die without making a subsequent will, you will be treated as having died intestate. Consequently, any special provisions, donations or specific gifts will not be honoured and your estate will become subject to Intestacy Rules. An exception to the rule occurs where a will is made in contemplation of marriage but this type of will needs particular wording. A contemplation of marriage clause is found […]

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If there’s a will, there’s a way to challenge that will

14-09-2017

Posted by Farah Ali, Paralegal in Dispute Resolution Team

The courts have never fallen short of providing thought-provoking stories of people challenging wills made by their nearest and dearest. Below are a selection of three recent cases from the legal press that have sparked interest. Ball v Ball [2017], involved a challenge against a late mother’s (Mrs Ball) will by three of her children (out of a total eleven siblings!). Mrs Ball disapproved of the three children making allegations of sexual assault against their father (Mr Ball) and executed her will the following year excluding those three children from her will. The children argued that she lacked mental ability (capacity) to make a will, or alternatively that she was forced by their father (undue influence) into making the will. They argued that Mr Ball told Mrs Ball that he was innocent of the accusations and this is why Mrs Ball decided to disinherit the children. The judge considered the arguments of capacity and undue influence and rejected these as he considered that the mother was entitled to make whatever provision she wanted in her will and the fact that others did not like her choice did not mean that it was made under influence. He also said that since […]

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M&A: Earn-out or no Earn-out by Ami Bhatt, Associate in Commercial Team

25-08-2017

Posted by Ami Bhatt, Associate - Commercial Team

Earn-out is that part of purchase price that buyers agree to pay to sellers in future based on future performance of the business. It can be linked to profitability or turnover or other parameters depending on the nature of the business. Earn-outs are often used in acquisitions when there is a substantial gap between valuation of buyer and seller. The gap can be bridged by structuring a payment at completion followed by one or more payments over a period of time based on the future performance of the business. Earn-outs would give a seller an opportunity to realise the future potentials of the business and synergy and expertise that a buyer will be bringing in. From buyers perspective that part of consideration is dependent on the future success of the business so a part of financial acquisition risk relating to the acquisition is covered in the event the business fails to perform following the acquisition. However, either as a seller or a buyer you need to be careful of the pitfalls this arrangement carries. As a buyer you would want to ensure that any earn-outs are determined by a measurable performance in the ordinary course of the business and giving […]

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Joining Gardner Leader – The Role of a Litigation Paralegal

14-08-2017

Posted by Helena Taylor, Paralegal in Dispute Resolution Team

A key factor that sparked my interest in a career in litigation is the diverse range of cases it covers. Since joining Gardner Leader as a litigation paralegal, I have certainly experienced this. In just a matter of weeks I have been given the opportunity to assist with a variety of cases, no two of which are comparable. This has allowed me to build upon my knowledge and gain confidence in my work far quicker than I would have expected to. During my first week at Gardner Leader, I was provided with two days of in depth IT training. Although I was keen to get to grips with legal work, this was the platform I needed to get started. It gave me essential knowledge of the firm’s software and an understanding of how it can assist in daily tasks. During this time, I was also personally introduced to everyone at the firm. Thankfully, I was reassured that I was not expected to learn everyone’s names just yet! After my initial induction, I joined the dispute resolution team. I got settled at my desk and almost immediately, I was given my first client. Although this was slightly daunting, I was supported […]

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Estranged daughter follows in the footsteps of Ilott v Mitson with a £30,000 Inheritance Act claim

02-08-2017

Posted by Tamsin Wooldrige, Paralegal in Dispute Resolution Team

No doubt, most of you will have heard about the recent decision in the case of Illott v Blue Cross (previously Mitson). This was the case where an adult child, estranged from her late mother claimed against the estate for reasonable financial provision. The mother had left a letter of wishes with her will expressly excluding the daughter and left the majority of her £486,000 estate to charity. In March of this year, The Supreme Court upheld an earlier award of £50,000 for the daughter to enable her to purchase white items for her home. The Supreme Court’s decision highlighted the need for an adult child claimant under the Inheritance Act’s award to be limited to their maintenance.  It considered that the period of estrangement was relevant and only awarded 10% of the value of the estate. A similar case has since come before the courts in the case of Nahajec v Fowle this is the first Inheritance Act Claim to be heard since the Supreme Court’s ruling in Illot. So how does the recent decision in Nahajec differ from the Illott matter and what does this mean for people bringing or defending claims against an estate? The Facts The […]

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Adopted children considered beneficiaries under a 1946 will

06-07-2017

Posted by Hannah McEwen

The recent case of Hand & another v George & another questioned whether, at the time a will was executed, adopted children should be classified as ‘children’ for the purposes of a will. The Facts Henry Hand (the testator) passed away in 1947 and left the residue of his estate on trust to his three children in equal shares for life and the remainder to their children who attained the age of 21 in equal shares. Two of Henry Hand’s grandchildren (the Claimants) were adopted. Under section 5(2) of the Adoption of Children Act 1926 in force at the time the will was written in 1946, adopted children were not counted as ‘children’ in respect of estate entitlements of their natural or adopted parents. Therefore, the Claimants would not be able to benefit from the remainder of their father’s part of the estate held on trust under the will. Instead, their cousins (the Defendants), as birth-grandchildren, would receive the Claimants’ share of Henry Hand’s Trust. The Claimants argued that their Article 14 (anti-discrimination) and Article 8 (right to respect for private and family life) ECHR rights should override the discriminatory effects of the Adoption of Children Act 1926. The Defendants […]

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