Did you make a power of attorney between 1 April 2013 and 31 March 2017?


Posted by Becky Reilly

On 1 February 2018 the government launched a power of attorney partial refund scheme to those who were overcharged by the Office of the Public Guardian to apply to register lasting or enduring powers of attorney between 1 April 2013 and 31 March 2017. A reduced application fee took effect from 1 April 2017 and the refund scheme has been launched to refund those that paid a higher fee in the qualifying period. The maximum refund for each power of attorney is £54 and the total refundable amount is dependent on when the initial fee was paid. In order to qualify for a refund, the following criteria must be met: The donor must still be alive; The registration fee must have been paid between April 2013 and March 2017; The person applying for the refund must be the donor or one of their attorneys; and The refund must be paid to the donor. You will also need to provide full details of the donor and one of the attorneys together with a 7 or 12 digit Power of Attorney reference number. You can claim the refund online using the following link: Alternatively, you can make a claim by phone […]

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Homemade Wills: How the approach differs globally


Posted by Helena Taylor

For a person’s will to be legally binding in England and Wales, certain requirements must be met. These are briefly set out below: The person making the will (‘the testator’) must be aged 18 or over; The testator must have the requisite capacity as set out under the Mental Capacity Act 2005; The testator must have knowledge and understanding of the effects of their will; The testator must intend to dispose of their assets in accordance with the will; The will must be signed by the testator in the presence of 2 witnesses; Both witnesses must sign the will in the presence of the testator. These are the minimum requirements for a valid will. The results of not meeting these requirements can cause great stress and hardship for a family after a loved one has passed away. The will could be rendered invalid and would then pass under what are known as the intestacy rules. These rules often differ greatly from what the testator had intended. The significant problems that can be caused by errors in the making of a will is the key reason why most people feel comfortable with a solicitor drafting their will. This is undoubtedly the […]

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Capital Gains Tax Savings on Divorce


Posted by Stephanie Buckeridge

In the majority of cases sadly the transfer of the family or the sale of the home is very common. However how that sale is structured and the timing of a transfer or sale can be essential to the outcome of a settlement. The issue of Capital Gains Tax is frequently forgotten until its impact bites and tax savings are no longer possible. Married couples living together do not attract Capital Gains Tax which includes transfers of property however this changes position when a married couple separates. It is important to establish the date of separation for tax purposes. It can be quite tricky to establish the date of separation as each spouse may have a different view as to the point at which there relationship had broken down to such an extent that the separation was likely to be permanent. The date of permanent separation is critical for the purposes of a Capital Gains Tax calculation. In the tax year of separation, assets can be transferred between spouses as if they remain living together. This means for example if a married couple separate permanently at the beginning of May 2018 they will have until 5th April 2019 to complete […]

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Are you in a row with your neighbour over a boundary?


Posted by Farah Ali

If you have ever found yourself involved in an argument with your neighbour over the boundaries of your property then you would know the frustrations of trying to resolve the dispute whilst keeping legal costs to a minimum. If the matter reaches court then your legal costs may end up being far more than the value of the dispute itself. To manage these cases and minimise costs and court proceedings, the Boundary Disputes Protocol (‘The Protocol’) was issued in September 2017. This is a voluntary tool that aims to provide neighbours involved in a boundary dispute with an alternative process to avoid expensive court proceedings, yet still reach an agreement on the boundary issues. The Protocol narrows the issues to help resolve disputes and ultimately save on legal costs. The Protocol warns that boundary disputes often involve legal interpretation and the input of a surveyor which end up costing more than the value of the land you are arguing over. There is merit in mentioning this at the outset so that neighbours do not underestimate the costs of unnecessarily exacerbating matters. The Protocol provides a framework for neighbours to follow in terms of ideal timescales and relevant information to exchange. […]

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Thousands of unmarried couples in Newbury, Thatcham and Maidenhead are at risk of losing everything if their relationship breaks down


Posted by Suzy Hamshaw

As a family lawyer in the area I regularly work with couples whose relationships have, sadly, broken down. Increasingly these couples are cohabiting – living together but unmarried. They are the fastest growing family type, with recent figures showing there are over 3.3m cohabiting couples in the UK. Unfortunately, as well as being the fastest growing family type, couples in cohabiting relationships are amongst the most vulnerable in the event of relationship breakdown. Despite the commonly held myth, there is no such thing as a ‘common law marriage,’ and these couples have little or no legal protection should they separate.  Under the current law it’s possible to live with someone for decades – even to have children together – and then simply walk away without taking any responsibility for their partner.  Yet a large number of unmarried couples we work with at Gardner Leader mistakenly believe that they acquire “common law” rights after living with their partner for a certain amount of time or having children together. I regularly meet people who have been affected in this way, and because of the lack of legal protection, there are times when I simply can’t help them This week is Cohabitation Awareness […]

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Under the Influence


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!


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?


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?


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


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


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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