Preparing for your divorce appointment

Preparing for your divorce appointment

Preparing for your divorce appointment
Posted on 5th January, 2021

Preparing for your divorce appointment – what do I need to bring with me?

In order to assist clients with their initial divorce and finance appointments, I thought it useful to list some of the things that would be helpful for the solicitor to have at that first divorce appointment. This is not an exhaustive list because everyone’s circumstances are very individual but I hope it assists some in preparing for their divorce consultation. I am often told that there is apprehension around an initial divorce consultation and around what the divorce lawyer may ask or what documents are needed to start a divorce, so, hopefully, this will allay some concerns.

Correspondence

Those that have received correspondence from solicitors already, whether that be a draft divorce petition or a letter from the other party’s solicitors, it will be imperative that you provide this correspondence to the solicitor beforehand so that they can provide advice on the contents.

Details of the marriage

Full names of both parties, as detailed on the marriage certificate, would be helpful for your solicitor so that they have the details ready if they are instructed to draft a divorce petition. Further, if you have the marriage certificate, it would be helpful to provide this to your solicitor as it will be required to start your divorce petition. The date of the marriage is important so that the solicitor knows the length of the marriage when discussing financial settlement but also so that the solicitor has the date ready for the drafting of the petition.

In order to advise a client, the solicitor will need to know the date of the separation. The solicitor may also ask for information as to why you have separated. This can often be very sensitive and emotive but if you have the right solicitor for you, they will make you feel at ease with this and, certainly, if you instruct them, you will build a relationship with them throughout the divorce process. The solicitor requires this information to enable them to advise you on how to begin your divorce.

Assets

In order for a solicitor to advise, they will require information about your current assets and liabilities. It is important to go into your appointment with as much information as possible. However, sometimes there will be only very limited information that is known, and please do not feel you cannot have the appointment if this is the case. Your solicitor will advise you the best they can with the information they have.

Property – your solicitor will want to know the full addresses of all property owned by the parties either jointly or in sole names. If the property is owned jointly, a couple can own it as joint tenants or tenants in common. This is often something that people do not know so if this isn’t known, it can easily be obtained at a later date. The solicitor will want to know full details of the properties, i.e. when the property was bought, how much it was bought for, any recent valuation of the property, whether there is already any agreement on sale or transfer, mortgage details including the amount owed, the mortgage lender, if there is a fixed term etc. All of these details will assist the solicitor in providing advice.

Pensions – your solicitor will want to know whether either of you has any pensions and whether these were accumulated prior to the marriage, during the marriage or after separation. The solicitor will want to know the value of the pension which is also known as the cash equivalent transfer values (CETV). It is likely that you may not know this prior to your appointment but it will be something that you will need to obtain at some point during the divorce process, so it would be a good idea to obtain it as soon as you can. Further, if any of the pensions are in drawdown, information on the income received from these would be helpful.

Income – your solicitor will likely ask for details of all income received from employment / business / benefits / pension / child maintenance etc and, therefore, having these to hand for both parties would be helpful. Details of employers and length of service may also be beneficial, as well as any benefits received from employers such as bonuses.

Bank accounts / Savings / Shares – your solicitor will likely want to know of details of any joint / sole accounts, whether that be standard accounts or savings / ISA’s and the balances of those accounts. Information on any shares / life insurance policies would also be helpful.

Anything else – your solicitor may ask if there are any other assets that either of you has, over an amount of £500 as these may be included as part of any financial settlement, i.e. cars, jewellery, sports equipment etc.

Children

When discussing divorce and finances with your solicitor, they will want to know if there are any children between you or if there are any other children involved. Contact issues can often arise during separation so you may need advice on this, but also child maintenance is an important provision. The solicitor will likely ask for full names and dates of birth.

Conclusion

Your solicitor will not expect you to have all of this information, and, certainly, you will still be able to have your appointment and receive advice without it all. This is simply a guide to prepare you for the kinds of things your solicitor will ask you during the appointment and will likely ask you to obtain after the appointment if you instruct them. At Everys, your initial divorce consultation will enable your solicitor to get a snapshot of the relationship and the finances so they can advise you on the process, what will be required throughout, discuss any potential financial settlement and also provide advice on costs and time estimates.

At Everys we offer a fixed fee of £99 plus VAT initial appointment for all aspects of family law. These are currently being held remotely via telephone or Microsoft Teams with a solicitor. If you are interested in an appointment for some initial advice please do not hesitate to contact us.

Commercial Admin Secretary – Taunton

We currently have a vacancy for a secretary with commercial property experience and an interest in farming and rural affairs for our Taunton office. This is a full-time vacancy.  We are looking for an organised individual with previous commercial/conveyancing experience, confident managing a busy workload in a fast-paced environment with the ability to use own initiative and work well under pressure.

The successful candidate will need to be able to:

  • Undertake online searches
  • Complete Land Registry and SDLT forms online
  • Assist in the progression of a conveyancing transaction to include:

Exchanging contracts and dealing with completions; Preparation of contracts, transfers, trust deeds and correspondence; Dealing with completion statements; Raising solicitors invoices; Drawing up contracts; Taking instructions from and liaising with clients

  • Deal with telephone calls in a confident manner providing clear, accurate and up to date information
  • Produce documents using the firm’s case management software
  • Demonstrate good administrative skills with excellent attention to detail
  • Demonstrate good organisation skills
  • Demonstrate effective communication skills, both written and spoken
  • Cope well under pressure, with an ability to work flexibly and cope with changing priorities
  • Take a positive and proactive approach to work, anticipating and meeting the needs of the department
  • Be receptive to receiving and acting on instructions given by immediate supervisor
  • Be competent in using Word and other Microsoft Products (Outlook and Powerpoint)

This is an excellent opportunity to become an integral member of our Commercial Property Department and to thrive in a professional and friendly environment.  If you are looking for a new challenge please send your CV to jo.garrod@everys.co.uk.

Legal Secretary – Family Department – Exeter

EXETER OFFICE

We currently have a full-time vacancy for an experienced Family Secretary in our Exeter office. Our Family Department has a highly regarded childcare team and specialists dealing with a broad range of work including advice on divorce, separation, children, domestic abuse, and financial matters arising from relationship breakdown. We are proud of our inclusive team ethos with everyone working together to achieve a high-quality service for clients and colleagues.

We are looking for an organised individual with previous family/childcare experience. You will be confident managing a busy workload in a fast-paced environment with the ability to use your own initiative and work well under pressure. The role also includes the need to support members of the Family Department on a remote basis by means of winscribe digital dictation.

You will also be required to assist with the provision of cover on our Reception desk and general office duties that might be assigned to you.

The successful candidate will need to be able to:

  • Demonstrate excellent secretarial and typing skills (both audio and copy typing) with good attention to detail
  • Manage a busy workload using own initiative
  • Demonstrate previous experience in the use of digital dictation and case management software
  • Manage fee earners’ diaries
  • Demonstrate good organisation skills
  • Demonstrate effective communication skills, both written and spoken
  • Cope well under pressure, with an ability to work flexibly and cope with changing priorities
  • Take a positive and proactive approach to work, anticipating and meeting the needs of the department
  • Be competent in using Word and other Microsoft Products (Outlook and Powerpoint)
  • Previous legal secretarial experience is essential
  • Previous family experience is preferable

This is an excellent opportunity to become an integral member of our Family Department and to thrive in a professional and friendly atmosphere. If you are a competent legal secretary looking for a new challenge please send your CV to jo.garrod@everys.co.uk

UPDATE ON REMOTE SIGNING AND WITNESSING OF WILLS

UPDATE ON REMOTE SIGNING AND WITNESSING OF WILLS

UPDATE ON REMOTE SIGNING AND WITNESSING OF WILLS
Posted on 30th November, 2020

Update on remote signing and witnessing of wills

Following on from our recent article on remote signing and witnessing of wills, we want to offer an update now as a result of the new law being in place.

The technical bit

A change to the Wills Act 1837 has been brought about by Statutory Instrument. The change is made pursuant to s. 8 of the Electronic Communications Act 2000, which creates the power to modify other Acts so as to authorise the use of electronic communications for a wide variety of purposes, including anything that requires a witness (s.8(2)(c)).

The long-standing position has always been that two witnesses’ signatures must be made in the physical presence of the testator for the will to be valid. The new change to the legislation amends the definition of “presence” to include presence by means of videoconference or other visual transmission.

There is debate amongst practitioners and academics as to whether the old provisions already allowed for remote witnessing of wills, but the new legislation leaves us in no doubt.

The legislation is retrospective from 31st January 2020, which is the date of the first UK case of COVID19.  This will give some peace to those who felt their only option was to make a will remotely.

The legislation is time-limited until 31st January 2022, after which, without further legislation, the requirement for physical presence will return to the position prior to COVID 19. I would say that the jury is out as to whether this will remain a permanent way to make wills going forward.

It is important to note the retrospective element of the legislation does not apply to the following situations:

  • Where a Grant of Probate has already been issued in respect of the deceased person; and
  • Where the application for a grant is already in the process of being “administered”.

What are the practicalities of remote witnessing of wills?

Making a remote will is not an easy option and there are many drawbacks.

Guidance has been issued by the Ministry of Justice as to how this should take place as follows:

Signing by the party making the will 

  • All parties need to be on a video link, so you and your witnesses will need to be confident with the technology required to do this. The person making the will ensures that their two witnesses can see them, each other and their actions;
  • The signing will need to be recorded;
  • The will-maker should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well;
  • By law, the witnesses must see the will-maker (or someone signing at their direction, on their behalf) signing the will. Before signing, the will-maker should ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders. This may make it difficult for the person making the will to be on their own as it could need the camera to be held at an angle to catch the image required to validate the will;
  • If the witnesses do not know the person making the will they should ask for confirmation of the person’s identity – such as a passport or driving licence;
  • The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link;
  • The will document should then be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document. The longer this takes the greater potential for problems to arise; and
  • A will is fully validated only when testators (or someone at their direction) and both witnesses have signed it, and either been witnessed signing it or have acknowledged their signature to the testator. This means there is a risk that if the will-maker dies before the full process has taken place the partly completed will is not legally effective.

Witnessing of wills

The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign. This will require a further recorded session.

  • Both parties (the witness and the will-maker) must be able to see and understand what is happening;
  • The witnesses should hold up the will to the will-maker to show them that they are signing it and should then sign it (again the will-maker should see them writing their names, not just see their heads and shoulders);
  • Alternatively, the witness should hold up the signed will so that the will-maker can clearly see the signature and confirm to the will-maker that it is their signature. They may wish to reiterate their intention, for example saying: “This is my signature, intended to give effect to my intention to make this will”; and
  • If the two witnesses are not physically present with each other when they sign then step four will need to take place twice, in both cases ensuring that the will-maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.

Key points to note

  • This will take longer than making a normal will which may impact on the overall cost of a will, and runs a greater danger of someone dying before the completion of a will;
  • Problems may arise in relation to internet connection especially where people live more remotely; and
  • If the recording is not adequate to demonstrate the signing, the will may not be valid.

I would argue that if remote signing and witnessing of wills is to stay, then more work needs to be done to make this a practical and viable choice over the traditional way, and, in my opinion, the current procedure does not make it a viable option for clients.

Our Advice

  • Where possible, make a will in the traditional way: discuss your circumstances with your solicitor to see what can be done to facilitate this. Solicitors have thought of many ways to get wills signed, including drive-through and looking through the window, amongst other ideas. This will save time and money.
  • If you do have to make a will remotely, re-sign it in the normal way at the first opportunity you get as there are fewer risks with a traditionally signed will.

Should you have any questions regarding the making of a will please contact a member of our Private Client team on 0800 8840 640.

Inheritance Tax – Fulfilling your obligation

Inheritance Tax – Fulfilling your obligation

Inheritance Tax – Fulfilling your obligation
Posted on 9th October, 2020

When someone dies, their assets are valued as at the date of death (known as the probate value). These values are reported to HMRC with the total value determining whether any inheritance tax liability arises. In certain circumstances and with certain assets, various exemptions/reliefs can be claimed to reduce an inheritance tax liability. Where inheritance tax is due this is payable before the Grant is issued, although it is possible to elect to pay the tax due on certain assets in instalments.

The initial tax settled when submitting the values to HMRC may not necessarily finalise the estate’s liability, as the tax may need to be recalculated due to a change in the date of death value. This can be due to an additional asset being found or simply matters which were unknown at the date of death coming to light. The date of death values and any claimed relief/exemptions are also subject to HMRC’s approval and they may negotiate the values where they feel this is appropriate i.e. the value of a property.

It is not just the change of a date of death value which can mean the inheritance tax liability being amended. Where qualifying securities and property/land are sold for less than their probate value, a claim can be submitted for the sale value to be substituted for the probate value. This can result in a refund to the estate of the tax paid on the difference between the two figures. This is of particular relevance at present due to the economic volatility and market swings caused by the coronavirus pandemic.

The relevant period for a claim for qualifying securities is those sold within 12 months of the date of death and this period extends to four years for property/land. Qualifying investments include shares and securities listed on the stock exchange and unit trusts but do not include holdings in unlisted companies or companies listed on the Alternative Investment Market. It is worth noting that there are strict timescales for the claim to be submitted.

For qualifying investments, such relief is based on the net loss figure of all the sales and purchases during the period and not just the ones which have been sold at a loss. The value is based on the disposal price, ignoring commission and costs. For property/land the relief is based on the gross sale price without taking into account the sale cost.

It is important to note that the relief is not available in certain circumstances notably where the difference between the date of death value and the sale price is less than £1,000 or 5% of the value on death, where the only sale is of an asset covered by agricultural or business relief at 100%, the disposal is not undertaken by the Personal Representatives or the disposal is to a beneficiary or their relatives.

Where a claim is accepted by HMRC, the gross sale proceeds are then treated as the estate’s base cost for Capital Gains Tax purposes. It should be noted that residential property gains, until now, have been generally due by 31 January in the year following the end of the tax year in which the gain occurred. However, since 6 April 2020, any capital gains tax due on residential property is now payable within 30 days of the gain.

Dealing with an estate’s inheritance tax liability can be an onerous task, and it is very easy for someone unfamiliar with such taxes to overlook a potential relief/exemption or something that might be material when assessing the estate’s liability.  A Personal Representative can be personally liable if they fail to disclose relevant information for tax purposes and/or pay any tax due. Our private client lawyers have years of experience in helping administer estates and ensuring all the responsibilities are fulfilled as tax-efficiently as possible while ensuring that all the obligations to HMRC are met. Please do not hesitate to contact a member of the team to discuss matters further or see how we can help.

Do I need a Financial Consent Order when getting a divorce or dissolution?

Do I need a Financial Consent Order when getting a divorce or dissolution?

Do I need a Financial Consent Order when getting a divorce or dissolution?
Posted on 12th August, 2020

This is a question that I am asked many times and one where the consequences of not obtaining one can be devastating. The simple answer to this question is yes.

It is often a misconception that once you are divorced or your civil partnership is dissolved, your ex-husband/ex-wife cannot make any claim against your assets. This will only be the case if you are divorced/have a dissolution, and you have a Financial Consent/Remedy Order.

The best way to explain this is in a real-life scenario that I often see:

A husband and wife get a divorce without any legal advice. They share a house together but decide that one party will carry on paying the mortgage for the time being and they will sort out the equity in the property at a later date. Years go by, and perhaps both parties now have other partners. One party then decides that they would like the property sold so their equity can be released. The other party does not want the property sold. They both, at that stage, seek legal advice. There is a risk that the parties cannot agree, in which case they will then need to attend Court, despite it being many years later after their divorce.

In this scenario, both parties have left themselves wide open to financial claims against each other’s assets. Yes, they only have one joint asset but, by this point, one party may have bought another property, the parties may have considerably increased their pensions, they may have significant savings, or they may have received an inheritance. All of this would be open to a claim being made by their ex-wife/ex-husband because they did not have a Financial Consent Order. Further, their new partner’s assets may be taken into account in proceedings.

The only way to have security over your assets in divorce/dissolution is to have a Financial Consent Order as well. There are many ways in which this can be obtained and there doesn’t have to be huge expense or Court hearings.

If you would like further advice, please do not hesitate to contact the Family team for a one-hour appointment, at a reduced fixed fee of £99 plus VAT.

 

Related Services

Wills

Changes to the Witnessing of Wills

Changes to the Witnessing of Wills

Changes to the Witnessing of Wills
Posted on 28th July, 2020

Time to read: two minutes

The Government has recently announced that there will be a relaxation of the rules relating to the execution of wills. Jane Flaherty, Associate Solicitor at Everys and a fully accredited member of Solicitors for the Elderly, advises of the changes in the law relating to the witnessing of wills.

In a press release dated 25th July 2020, the Government announced that the Ministry of Justice will amend the Electronic Communications Act of 2000 which will allow the use of video links for executing wills. This has come about due to the levels of concern expressed during the pandemic, as some practitioners have facilitated wills being witnessed via video link, which is in contravention to current law. There has been a lot of concern regarding whether such wills will be valid and, therefore, possibly open to challenge in the Courts.

The legislation will take effect in September 2020 and will be back dated to 31st January 2020 to cover the full period of the pandemic. The legislation is time-limited and is expected to end on 31st January 2022; however, it could potentially last longer, if deemed necessary, and will be reviewed in line with other legislation that has been passed to deal with issues stemming from COVID-19.

This will be a huge departure from the current process of signing wills which has remained untouched since the Wills Act of 1837. This dictates that there has to be two witnesses physically present to validly witness the testator’s signature.

During lockdown, this has caused difficulties in people being able to sign their wills, especially if the client has been vulnerable and has not been able to find or have access to witnesses to enable them to put their affairs in order. Some people have been self-isolating and have been fearful of coming into contact with others. At Everys, we have implemented various ways to ensure any client that needs to have their will signed has been able to do so. Examples have been witnessing wills over car bonnets, having a portable table to visit clients outside their homes and also having drive-through will signing facilities.

Whilst the pandemic has caused difficulties and introduced the logic of offering some relief to people who have had no choice but to sign remotely, it is imperative that we do not make a change to the law on a permanent basis without fully evaluating the consequences of doing so. The priority must be to ensure that vulnerable people will not be taken advantage of because we have kept to a lowered standard for convenience. I would hope that when we are able to return to ‘normality’, we give serious consideration to returning to the law as it stands today. In the meantime, the traditional ways of executing a will should be followed, if at all possible, as we are unaware of the pitfalls that may occur as a result of this change.

 

 

 

The Overhaul of Divorce Proceedings

The Overhaul of Divorce Proceedings

The Overhaul of Divorce Proceedings
Posted on 14th July, 2020

Divorce proceedings can often be portrayed as being lengthy, costly and contentious. This certainly is not the case for everyone, but, unfortunately, this can be the reality for some. I, for one, am extremely welcoming of the new legislation, Divorce, Dissolution and Separation Act 2020.

When will it be implemented?

The Royal Assent was received in June 2020, but this doesn’t quite mean it is law yet. Receiving Royal Assent means that the Bill has passed through the required stages in Parliament and has now passed the formality in which the Queen agrees it can be law. The Government is now working on the implementation and, therefore, it is expected that it will become law in autumn 2021.

How does the divorce process work under the current law?

The current process for divorce is that you must show that your marriage has irretrievably broken down by evidencing this with one of five facts: adultery, unreasonable behaviour, desertion, a two-year separation with consent, or a five-year separation without consent. Not all situations fit into one of these categories and, therefore, if you want to begin your divorce before two years of separation, adultery or unreasonable behaviour are often used. These are both used by asserting blame to one party for the breakdown of the marriage. Placing blame on one party’s behaviour can cause bad feeling from the very beginning which then sets the tone for the rest of the proceedings and can often cause contested, costly and lengthy proceedings.

How will the new law change the way divorce is dealt with in the future?

It is often difficult to look at how a new law will work until it is in practice. However, we do know that the new legislation will remove the five facts that are currently relied upon, so that you will simply need to show, by way of a statement, that the marriage has irretrievably broken down. This means that in situations where the parties are in agreement their marriage has broken down but do not want to have to assert blame, they can begin their divorce process immediately, rather than waiting for two years. Further, parties will be able to make a joint application for divorce to show that they are both in agreement.

The new law has been known within the media as the “no-fault divorce”. The idea is that the new law will encourage and enable parties to focus their attention on the financial settlement and the children, rather than asserting blame on the breakdown of the marriage. If there are children within the marriage, it is extremely important that the relationship as parents is not affected, so that the children are protected from the divorce proceedings and a no-fault divorce will aim to assist with this.

As a Solicitor and member of Resolution, my priority is to settle matters for my clients as effectively as possible. I am sure the new legislation will have its initial teething problems like all new processes, but I welcome any amendment that will look to reduce conflict and confrontation for my clients.

If you have a matrimonial query, please do not hesitate to contact me for advice.

Lisa Miller

 

 

Related Services

Family Law

Can an estate be diverted to someone else?

Can an estate be diverted to someone else?

Can an estate be diverted to someone else?
Posted on 6th July, 2020

Read time: about 8 – 10 mins

A wife (W) has died, leaving her entire estate of £700,000 to her husband (H), which includes the family home and a rental property from which she received an income. However, H believes that W would have preferred to leave her estate to her childhood friend (F). H is trustee and executor of W’s will so what options could he use, in his capacity as beneficiary of W’s will, to divert the estate to F?

First of all, caution should be exercised by the adviser here: a full understanding of the circumstances surrounding the matter is required.

We would need to satisfy ourselves that H wishes to give the gift freely and is not under any undue influence from F and that he has the requisite mental capacity to gift the assets.

An understanding of why H believes that W had wished to gift the asset should also be considered as well as knowledge of the circumstances in which W’s will was drafted.[1] Any letter of wishes or other accompanying documents should also be taken into account to obtain a clear understanding of H’s motivation.

Financial advice would clearly need to be sought by H. Consideration should also be given as to whether he is likely to require care from the local authority in the not too distant future.[2]

Should the adviser be satisfied that H has the ability to make the gift, having taken all the circumstances into account, then the following options would be available to H as beneficiary:

Deed of Variation

1) An absolute gift of assets held in the wife’s sole name

H can vary the provisions of W’s will at any time. If H signs an instrument of variation within two years of W’s death, then special tax treatment of the disposal should apply so that any disposal is treated as being a disposal directly from the deceased rather than the donor of the gift.[3]

Such a variation could include some or all of the assets that H is due to inherit from his late wife’s estate.

The benefits of a deed of variation are that H can direct to whom W’s estate will pass.

The negative impact of a gift by variation however would not only be the financial consequences for H (since his estate would be greatly reduced by the gift) but this could also have several negative consequences for tax purposes both for H and F.

Under the present arrangement, all W’s assets will pass to H free of inheritance tax regardless of the value, assuming that they are both UK domiciled. H’s estate will also be able to benefit from W’s transferable nil rate band (providing it has not been used up in her lifetime) and benefit from W’s unused residence nil rate band, assuming the property on his death passes to direct descendants and their joint estates are not over £2 million, in which case the residence nil rate band element is reduced by £1 for every £2 above the threshold.[4]

Should H wish to direct any portion of his beneficial interest to F, his transferable nil rate band will be eaten into and his estate will have a percentage available allowance depending on the value of the gift that has been passed to him.[5] Depending on the value of the gift, there might also be an immediate charge to inheritance tax.

Any gift through a deed of variation though, as long as H reserves no benefit from it once gifted, will reduce H’s taxable estate accordingly.

2) An absolute gift of assets passing by survivorship to the husband

Should H have inherited any assets through survivorship then he will be able to sever the joint tenancy post death and redirect W’s share of the asset to F should he wish.

If the family home was held as joint tenants and H severs the joint tenancy so that it is held as tenants in common and then gifts a half share (or other portion) to F he should consider this position carefully. If H wanted to sell the property, then he would need to have F’s consent. Problems can also arise between joint owners as far as maintenance of the property is concerned. If H wants to proceed with this option then a Declaration of Trust outlining the duties and responsibilities of the owners of the property in detail would be advisable. Separate legal advice would need to be sought by each party.[6]

If there is a charge on the property, then consent from the lender might be required for any change in ownership and it might be a requirement for F to become party to the mortgage.

In addition, the same impact for inheritance tax purposes will apply here where assets are passing to F as a non-exempt beneficiary.

There might also be capital gains tax implications on a disposal of the family home on F’s share if it is a second home for him.

3) A variation onto discretionary trust

H can opt to settle some or all of W’s estate onto discretionary trust through an instrument of variation.

In this case the Trustees would exercise their discretion over the trust assets, but discretionary payments of income or capital could be paid to a number of potential beneficiaries.

Here, both F and H could be potential beneficiaries as well as any other relevant beneficiaries perhaps as outlined in W’s will.

The flexibility of this arrangement could be beneficial for all parties since it might provide H with some financial security should he need it in the future and F with some benefit if this is in accordance with W’s wishes, subject to Trustees’ agreement to make distributions.

Inheritance tax will be payable on trust assets over the nil rate band and exit charges will apply.

It is unlikely to be desirable for H for the family home to be put into discretionary trust since the Trustees would need to exercise their discretion in relation to H’s occupation of it. If he wishes to continue to reside there then a market rent should be payable in relation to the portion held in the discretionary trust otherwise it risks being treated as a sham.[7]

It may however be favourable for H to consider this option for some of the assets. The same IHT treatment will apply for H’s estate in that it will affect his estate’s available transferable nil rate band, but the trust assets should be outside of his estate for IHT purposes on his death.

On trust income over £1,000 the trust assets will be charged at 38.1% on dividend income and at 45% on all other income which is pertinent for the income that will be received from the rental property[8].

Capital gains tax will also apply to trust assets, but holdover relief should be available.

4) A variation onto a life interest

Another option would be for H to vary his entitlement so that it passes onto a life interest for him with the future capital interest passing to F.

In this scenario H would be entitled to the income from the trust for life and would be able to benefit from any interest or dividends from cash savings as well as the income from the rental property. On H’s death the capital value would pass to F.

For IHT purposes the value of the life interest would be aggregated with H’s free estate but his estate would be entitled to benefit from any available transferable nil rate band (and RNRB if applicable) on death.

This type of trust is more rigid, and the default position is for income only payments to be made to H[9]. It may however mean that the capital value of the trust would not be taken into account as far as his financial assessment is concerned should he have the need for care in the future.[10]

An ability to distribute capital to H during his lifetime (or to F) could be included in the trust instrument to allow more financial flexibility for the beneficiaries but any capital payments would be subject to the Trustees’ agreement.

The income tax position would be more favourable here as dividend income will be taxed at 7.5% and all other income at 20%[11].

If there is a lifetime termination of the interest then it will be treated as a potentially exempt transfer (‘PET’) (see below) and CGT may apply.

Lifetime gift

As mentioned above, any gifts through variation passing to non-exempt beneficiaries will affect the amount of transferable nil-rate band available for H’s estate and might incur an immediate IHT liability. H could consider making a lifetime gift of assets passing to him from W’s estate to F.

This would be treated as a PET for inheritance tax purposes and therefore he would need to have survived seven years from the date of the gift for its value to be outside of his estate for inheritance tax purposes[12]. Reducing rates apply where H has survived the gift for between four and seven years.

Any gift over the nil rate band through variation would create an immediate liability to inheritance tax which a lifetime gift by H could avoid.

It should be ensured that no benefit of the gift is reserved by H to ensure that his estate is reduced for IHT.[13]

Disclaim

H could disclaim a gift due to him under W’s will.[14] But it is not possible to disclaim in favour of someone i.e. to re-direct the gift so if H disclaims any part of his inheritance then it will pass in accordance with the next entitled under the will or the intestacy rules.[15] If F was the next entitled under the provisions of W’s will then this might satisfy H’s wishes to surrender the entire estate. If this is not the case, then this course of action will not meet H’s objectives.

It should be noted that H cannot disclaim W’s share of property passing to him by survivorship and any joint tenancy cannot be severed by H post-death so that he can disclaim.

Should H choose to disclaim his share of the estate passing to him from W then there would be an immediate inheritance tax charge payable, subject to any applicable reliefs.

Will

It may be that H’s objectives could be achieved by a gift in his will to F. An understanding of his circumstances would be required to take into account any competing claims under the Inheritance (Provision for Family and Dependents) Act 1975.

Such a gift would not have the same negative impact on his transferable nil rate band, nor would it incur an immediate IHT charge on W’s death. Furthermore, it would allow H financial security for his lifetime, but it would mean that F’s beneficial entitlement would be postponed until H’s death.

 

Notes:

[1] A Larke v Nugus ([2000] WTLR 1033) letter may be required

[2] See Care Act 2014 and deliberate deprivation rules

[3] S142 Inheritance Tax Act 1984 and s62 Taxation of Chargeable Gains Act 1992

[4] Sections 8D-M and s18 of the Inheritance Tax Act 1984

[5] Finance Act 2008 Schedule 4

[6] Solicitors Regulation Authority Code of Conduct Version 21 Chapter 3 and 4

[7] Rahman v Chase Bank Trust Co (CI) Ltd. (1991) JLR 103

[8] See Finance Act 2019 and Income Tax Act 2007

[9] Statutory powers of advancement will apply, subject to contrary provision in the trust instrument

[10] This might also be applicable to some of the other options listed

[11] See Finance Act 2019 and Income Tax Act 2007

[12] s3A Inheritance Tax Act 1984

[13] See HMRC Manual IHTM14333

[14] See RE Stratton’s Disclaimer [1958] Ch 42, [1957] 2 All ER 594

[15] re Scott, Widdows v Friends of the Clergy Corporation [1975] 1 WLR 1260 [1975] 2 ALL ER 103

Government Guidance on the safe reopening of businesses on 4th July

Government Guidance on the safe reopening of businesses on 4th July

Government Guidance on the safe reopening of businesses on 4th July
Posted on 25th June, 2020

The Government has updated its guidance for businesses to reopen safely on 4th July, 2020. See the links below for more information.

 

Environmental Health 01395 517456 environmentalhealth@eastdevon.gov.uk
Licensing for Premises licences and temporary event notices licensing@eastdevon.gov.uk
Temporary structures to extend your outside seating see EDDC Planning planning@eastdevon.gov.uk

Can an estate be diverted to someone else?

Be in control of your estate … make a will!

Be in control of your estate … make a will!
Posted on 12th June, 2020

These are unprecedented times, and with difficult times comes difficult conversations. That includes thinking about what we want to happen to our estate when we die.

Making a will may not resolve all your fears or issues, but it goes a long way to giving you peace of mind to know how your estate will be dealt with upon your death. 

People often think that if they die without a will all their estate will go to their spouse or civil partner. This is not the case and it depends on the size of your estate. Another misconception is that unmarried partners will be entitled to a share of their partner’s estate if they die without making a will. This, also, is not the case and partners can be placed in a position of having to make a claim against an estate at a very difficult time for them.

There are important questions we may need to ask ourselves such as who will look after my children? Does my family know my funeral wishes? How will my digital assets be accessed? Do I need to do some tax planning or care fee planning?

Making a will puts you in control. You can choose the person, or persons, whom you want to sort out your estate. You might have a vulnerable child and want to protect their assets or a care package by placing monies into a trust.

My best advice is to discuss those important questions with a qualified adviser who can guide you through your choices that help you to achieve your objectives.

At this time, we are responding to the challenges of preparing wills and we have found flexible ways of working whilst maintaining professional standards. Our offices are not yet open to the public. Most instructions are taken via the telephone or by FaceTime, Zoom or Teams.  The signing of wills can be done remotely if clients can source their own witnesses. If not, we are now able to offer will signing outside some of our offices. Some home visits are available where it can be done safely, and all parties involved feel comfortable.

If you would like to discuss making a will, please call 01404 43431 or email Jane Flaherty at jane.flaherty@everys.co.uk.

 

Changes to the Witnessing of Wills

Why you should make or review your will

Why you should make or review your will
Posted on 15th May, 2020

Many people do not have a will, and others may have one which was made some time ago and has now, more or less, been forgotten or ignored.  Those without a will may think that the law will step in and deal with their estate in a fair manner; whilst those with an old will may assume that it has been dealt with and no further action is required by them.

Neither case is necessarily correct, and there will be winners and losers depending on the situation when you die.

Unmarried couples without wills often assume that their estate will pass to their ‘common law’ husband or wife. Unfortunately, this is not the case: if they were to die without a will, their partner would receive nothing and would need to bring a claim against the estate to try to stay in the house, if owned by the deceased, for example.  Such couples definitely need to make a will to protect each other for the future.

Another case where making or updating a will is important is where a married couple’s relationship is breaking down.  If there is a will leaving assets to the spouse, until there is a decree absolute (or final court order in the event of a civil partnership), that gift will be valid on death even if the relationship had broken down.  If there is no will, then the spouse would automatically receive a large proportion of the estate under the intestacy rules if death occurred before the marriage or partnership had been finally dissolved by the court.

These are difficult times for any family at the moment, but it is important to make a will and to keep that will under review as circumstances change.

Everys remains open with a full team of private client lawyers ready to help with any queries you may have.

Moving with the times … the wills drive-through

Moving with the times … the wills drive-through

Moving with the times … the wills drive-through
Posted on 15th May, 2020

As solicitors, we find ourselves in the somewhat tricky situation of having to manage the restrictions of social distancing whilst complying with the law, which has not changed despite the current pandemic.  We are all aware of the need to keep our distance and avoid contact with those outside our household, but the Wills Act of 1837 was not drafted with such restrictions in mind!

Many clients wish to make wills and appoint attorneys, and both processes require independent witnesses to the paperwork.  Most have been able to find witnesses who can help, such as neighbours who remain in their own gardens and witness papers over the back fence, but there are some who need us to assist.  This has proved challenging, but now that it is permitted to meet one person outside your household, our Taunton team have come up with the idea of a wills drive-through!

The clients drive into the car park, and we have witnesses at the office windows in full view.  The clients sign the papers which are then passed through the open window for the witnesses to sign, obviously with care, hand sanitiser and handwashing.

We will continue to move with the times and adjust our services depending on the restrictions currently in place.  A similar arrangement is also available at our Honiton office, both strictly by appointment only.

Forfeiture of Commercial Leases and Covid-19

Forfeiture of Commercial Leases and Covid-19

Forfeiture of Commercial Leases and Covid-19
Posted on 5th May, 2020

In response to the recent Covid-19 outbreak, a brief respite has been provided to commercial tenants by virtue of section 82 of the Coronavirus Act 2020 (CVA 2020) which prevents landlords of commercial leases from forfeiting the lease as a result of unpaid rent during the UK lockdown. However, it seems that commercial tenants may not be as protected as they would hope. This article looks at the limitations behind this new legislation and the long term problems which may still arise.

Tenant Protection

The protection provided to commercial tenants under s82 of the CVA 2020 is limited to tenancies to which Part 2 of the Landlord and Tenant Act 1954 applies (s82(12)(a) CVA2020). This will generally apply to most commercial leases and agreements for lease.

Under most commercial leases, if rent is unpaid for a specified period of time (usually 21 days), then the landlord would be able to exercise their right of forfeiture and bring the lease to an end. However, to ensure that commercial tenants are provided some protection during the UK lockdown, section 82(1)-(12) of the CVA 2020 restricts commercial landlords from being able to forfeit a lease during the ‘relevant period’. The ‘relevant period’ is defined under the CVA 2020 as beginning with the day after the day on which the CVA 2020 is passed (26 March 2020) and ending on 30 June 2020. However, extension of this period is built in to the legislation. What this means in practice is that if any rent (including other lease payments, such as service charge or insurance payments) is unpaid during the ‘relevant period’, then the landlord will not be able to forfeit the lease during that time.

Limitations

Tenants must be aware that this measure is not a ‘rent free period’ as the landlord’s right to forfeit the lease due to the non-payment of rent will still be enforceable once the ‘relevant period’ has expired.

This may cause concern for tenants, and they should make preparations to ensure that they are able to pay rent when it falls due after the expiration of the ‘relevant period’. Furthermore, tenants not making rent payments during the ‘relevant period’ should consider that unpaid rent is likely to attract interest at the rate specified in the lease; which will still be incurred and accumulate throughout the ‘relevant period’.

A further limitation of the CVA 2020 is that the landlord is not prevented from enforcing a right of re-entry for a breach of other covenants under the lease. The landlord could therefore feasibly still forfeit, by way of peaceable re-entry, for breaches other than the non-payment of rent. However, the landlord should consider the tenant’s ability to remedy a breach during the COVID-19 outbreak when calculating what a reasonable period of time is for the tenant to remedy a breach.

Practical Considerations

An important point for the tenant to consider during the ‘relevant period’ is that they should express to the landlord their intention to use the premises again, once the restrictions relating to Covid-19 are lifted. This is to ensure that tenants are still deemed to be in business occupation even when they have vacated the premises and are unable to use the premises as a result of COVID-19 (Morrisons Holdings Ltd v Manders Property (Wolverhampton) Ltd [1976] 2 All E.R. 205).

Similarly, the landlord should ensure that they do not inadvertently provide an express waiver to rent payments. This is despite the legislation which provides that no conduct by or on behalf of the landlord during the ‘relevant period’ will be taken to waive the right to forfeit for non-payment of rent (section 82(2), CVA 2020). In providing an express waiver of rent payments, the landlord may find it difficult to request further payments for arrears after the UK lockdown and may have difficulties forfeiting the lease for non-payment.

In these uncertain times, it seems that commercial tenants may not have the relief that they might have hoped for under the CVA 2020. In practice, landlords may request settlement of arrears after the ‘relevant period’ which could severely damage many businesses. Failure to pay these arrears and any interest may lead to the landlord exercising their right to forfeit the lease. Of course, landlords will have to consider the novel commercial circumstances in deciding how to request and enforce rent payments. After all, the landlord may be having to choose between a tenanted property at a lower rent or a vacant property with little prospect of finding a new tenant.

If you are a landlord or tenant of commercial property, and have any questions, please get in touch with James Cleveland or Cameron Evans-Grainger.

Related Services

Commercial Property

Crystal ball gazing when making a will

Crystal ball gazing when making a will

Crystal ball gazing when making a will
Posted on 11th December, 2019

It is always difficult to decide how best to divide one’s estate between loved ones when making a will. There is no concrete way of knowing what your assets will be when you die, or what the position will be of those in the family whom you may wish to benefit. Parents in particular are often concerned about the possibility of divorce cropping up in the future and losing family assets as a result.

We do not have a crystal ball to consult when advising clients, which would be very useful both when considering their personal futures and when wondering what the likely tax regime will be when they die!

One option is to use what is known as a ‘flexible’ will, incorporating a discretionary trust to hold some or all of your assets on death. Although complicated legally, in practical terms for those making a will it simply means that your trustees (who must be chosen carefully) will divide your estate as they see fit after you have died. 

A separate letter of wishes is then prepared to tell those trustees exactly what you want them to do. Such letters could include instructions to look after your spouse for the rest of their life, or to divide the estate equally between your children, or to make whatever arrangements work best in terms of tax-saving at that time.

Those wishes are not legally binding, and so it is most important that you choose trustees in whom you have complete faith to follow your letter. The incorporation of a professional trustee can give some comfort here.

This type of will is useful because it means that no beneficiary has any right to your estate, and so if they are in difficult circumstances such as addiction or other personal problems, the trustees can choose how to look after them without jeopardising the family wealth. The trustees could, for example, purchase a property for that beneficiary to live in rent-free, or provide them with a regular income rather than a capital sum outright.

Another benefit is that once the will has been made, any update to the testator’s wishes can simply be made by a new letter. There is no need to prepare a new will each time. This can be useful when family circumstances are fluid.

Such wills tend to be popular with clients due to their flexibility, but careful analysis and explanation is required before they are made as there are various tax consequences to bear in mind. 

If you are considering this type of will, specialist advice is available from all our offices.

 

Why wills are not just for the elderly … .

Why wills are not just for the elderly … .

Why wills are not just for the elderly … .
Posted on 12th November, 2019

There is often a misconception that wills are made by the older generations to set their affairs in order as they enter later life. In reality, a will is something that every person should have. You never know when your estate will need to be dealt with, and it will need to be dealt with, no matter how large or small. As Game of Thrones star, Ian Glen, recently pointed out, “cheating death is only an option in fiction”.

The purpose of a will is to primarily set out how you wish your property to be distributed upon your death. A will gives your beneficiaries a legal right to their gifts under your will and, if prepared properly, will avoid any doubt or confusion as to how property is to be distributed. Your will also allows you to appoint Executors, who will be the person or people with the legal right to deal with your estate.

Wills are particularly important for parents of minor children. A will enables a parent to appoint Guardians for their children in the event of the death of both parents.

If you should die without having made a will, your estate will pass under the intestacy rules. While the intestacy rules may follow your intentions, the law provides that only specific family members will be entitled to deal with your estate. Such people may not be the most suitable people to deal with such an important task. It is also possible that the intestacy rules could change in the future and will no longer reflect your wishes.

A will gives you the control to decide who deals with your estate. Even if there is little or no value to your estate, accounts will still need to be closed, debts will need to be paid, and your funeral arrangements will need to be dealt with. It is often a lot easier to deal with an estate where there is a will to produce to asset holders, and this can make the task much simpler for your loved ones.

It is possible to make a will at any time, so long as you have the mental capacity to make one. As lawyers, we occasionally find ourselves at the side of a person’s death bed when they either wish to make their first will, or alter their current will. These difficult situations highlight the importance of preparing your will at a time when you are well and healthy, and in a frame of mind to make the important decisions for your family and loved ones. 

If you are considering making or altering your will, please do not hesitate to contact our wills and Probate Department who will be happy to help.

Gifts

Gifts

Gifts
Posted on 7th November, 2019

Christmas will quickly be upon us and whilst many of us will be thinking of buying and wrapping gifts, many people will also be thinking of giving cash, too.

Giving away cash is the easiest way to avoid paying inheritance tax (IHT) when you die. However, the time at which you make a gift, the size of the gift and the size of your estate are all factors  in determining how much IHT will be payable on your death. 

Possible cash gifts that are unlikely to affect your inheritance position could be: 

  1. £250 to as many individuals as you want: family, friends or the cat sitter!
  2. £3,000 to someone who has not already benefitted from the £250 gift above.

If you didn’t make a gift of £3,000 in the last tax year, you could carry it forward – use it this year and give up to £6,000.

In addition, if your income is such that you have leftover funds to spare whilst maintaining your usual standard of living, gifts made from your excess income may also be exempt from IHT.

The start of the New Year is often a time to create new habits and you may wish to create a pattern of giving away the excess income. You don’t need to survive for any minimum period for these gifts to fall out of your estate for IHT purposes.

If you are contemplating making a higher value gift in the spirit of the festive season, outright gifts of cash in excess of the annual exemptions above will be potentially exempt transfers (also known as PETs) and you will need to survive a full seven years from making the gift for its value to completely fall out of your estate.

The Six Stages of Probate

DIY probate: is it worth the risks?

DIY probate: is it worth the risks?
Posted on 6th November, 2019

More and more people are looking to carry out their own probate without wanting to instruct a solicitor – generally to keep costs down but also as a result of the digital age we live in and the availability of tips and advice on the internet.

However, before deciding to take on this task, it is important that you fully understand the risks involved.

What is the role?

I think the best way to explain the role of an Executor/Administrator is to say that they close the doors on all the affairs of the deceased, and distribute the estate in accordance with their wishes or in accordance with statute where the deceased has not left a will.

What are the risks?

The following list is not exhaustive or in any particular order:-

  • The first difficulty is knowing what the actual estate of the deceased is. If an asset is missed on a taxable estate it will mean that not enough Inheritance tax has been paid, and when the asset comes to light at a later date there will also be interest to be paid on top of that.
  • Understanding the will and what it is actually saying. Legal jargon can be confusing and you will need to know how the estate needs to distributed. Is there a trust or is the gift being left directly? If you interpret the will wrongly then you may be sued by the beneficiaries who should have inherited under the terms of the will.
  • If there is no will then you will need to understand the rules of intestacy and ensure that you have a complete family tree. This is essential to ensure that the estate is distributed correctly or, again, you could find yourself being sued by the people who were legally entitled to the estate under the rules of intestacy.
  • There will be a lot of paper work. Paper work that you will need to sort through, paper work that you will need to complete and paper work that you will need to save in case there are any issues after the estate has been finalised that may crop up later for dealing with.
  • You will need to understand the taxes that might be applicable in the estate. Those being:
    • 1.Income tax for the year in which they have died and also income tax for any income received during the administration period.
    • 2. Capital gains tax for the year in which they have died and during the administration period.
    • 3. Inheritance tax for the deceased’s estate – this will include understanding the rules on the residence nil rate band and lifetime gifts.
  • Probate takes time: weigh up how much time you have to devote to finalising the probate. If you take over a year, you may find that there is interest to be paid on legacies or intestacies, and that may result in unhappy beneficiaries because this will impact on what is available from the estate for other beneficiaries.

It is very important to remember that you will be responsible for administering the estate correctly. You could become liable for mistakes and for acts you omit to undertake. You could also be held personally accountable by the beneficiaries if you cause a loss to the estate through poor administration.

My best advice is to seek professional advice from a private client practitioner, preferably someone who has a STEP membership as this is a quality mark to look for – it means that they are a Trustee and Estate Practitioner (TEP) and are specialists in this area of law.

 

How should I deal with my digital assets on death?

How should I deal with my digital assets on death?

How should I deal with my digital assets on death?
Posted on 23rd October, 2019

Digital assets: What are they?

Digital assets are increasingly part of everyday life. Most simplistically, they can be defined as anything that you may own or have rights to that exist online or on a hard storage device. In general, this means any accounts that you open online, including email, social networking, and photo sharing, as well as websites and domain names which you own. It also includes the items stored on your computer or online accounts, for example, photographs, word documents, family videos, emails, instant messages, spread sheets and any balances on your PayPal or gaming accounts.

Why do they matter?

Digital assets can have financial or sentimental value.  Your personal representatives may not be aware of them to deal with them on your behalf. This could result in a lot of information about you in various forms being available after your death which may not be appropriate.

Each provider of the digital asset will have its own terms and conditions that will determine what happens to the asset on the death of the account holder. They will also set out what access your personal representatives will have in order to administer that asset. Most of these terms and conditions forbid the sharing of any online content, such as by way of a bequest in a will.

What should I do?

There are a number of things that you can do to start to address this issue.

It is important that you have an understanding of your digital assets so that you know which ones need to be managed on death and which ones can be gifted in your will. An example to illustrate the importance can be seen with Bitcoin.  A virtual asset that can have substantial financial value is saved in a password protected digital ‘wallet’. If the wallet, the password or the device on which the wallet is stored are lost, the asset, and its value, is lost permanently.

I would advise checking the terms and conditions of all your digital assets and keeping a log in a safe place that your personal representatives are aware of.  Do not put any passwords in your will as this may become a public document if probate is required and, in any event, will be shared by some of your beneficiaries who may not be the recipients of your digital assets.

How, or whether, you can gift your digital assets depends on the terms and conditions of the particular Internet Service Provider (ISP) with whom your account is held.  There is no uniform set of rules. For example, in the case of iTunes, you are effectively leasing the content so you do not own it.  Whilst you can gift your iPod in your will, you cannot leave them the contents of your accounts.

There are providers that offer a chargeable service of an online “safety deposit box” in which you can store your usernames and passwords. Those details will then be made available to a nominated person following your death.

Have a routine of downloading photographs of sentimental value on to a hard drive ensuring that these will not be lost post death.

Ensure that the people you are asking to deal with your digital assets have the technical skills to deal with them.  You could appoint a digital executor that only deals with your digital property.

When making your will, ensure that you have a conversation with your solicitor about your digital assets.

 

 

 

We’ve been re-accredited!

We’ve been re-accredited!

We’ve been re-accredited!
Posted on 20th September, 2019

Everys Solicitors is thrilled to announce that we have been re-accredited by Lexcel. As the Law Society’s legal practice quality mark, Lexcel assesses seven areas of legal practice:

  • Structure and strategy
  • Financial management
  • Information management
  • People management
  • Risk management
  • Client care
  • File and case management

Following interviews with staff, detailed file reviews and an in-depth examination of our practice and procedures, the Lexcel Assessor commented on our “exceptional” standards.

James Griffin, Managing Partner of Everys, said, “The Lexcel accreditation recognises excellence and best practice in a law firm and is a reflection of the dedication of our staff to providing superb client care, amongst other things. Many thanks to all our staff, for the hard work they’ve put in to ensuring that we maintained our accreditation.”

Becoming Dementia Friendly

Becoming Dementia Friendly

Becoming Dementia Friendly
Posted on 19th September, 2019

Emma Gray and Joan Pullin, both Associate Solicitors in our Private Client department based at Honiton, have been working towards making Everys Solicitors a Dementia Friendly firm. After consultation with Gina Awad and Heather Penwarden of the Exeter Dementia Action Alliance (EDAA) and Honiton Dementia Action Alliance (HDAA) respectively, Everys is delighted to announce that this project is now underway.

Emma Gray said, “This is a really exciting time for us. We are very aware of the need to adapt our practices so that we are a fully inclusive firm. We have clients who are living with dementia and we want to ensure that they feel safe and confident in our offices, and when dealing with staff members.”

“With over one million people in the UK predicted to have dementia by 2021, it is important that we adjust our services and the way we deliver them now,” said Joan Pullin. “We are in the process of arranging training for all our staff and this will be provided by Gina Awad and Heather Penwarden, whose advice has been invaluable in helping us drive this forward.”

The training will help us improve our customer service by making all our offices welcoming and friendly, with clear signage and reduced noise to help alleviate any confusion our clients may encounter. The training will also enable our staff to be well informed of the issues surrounding dementia and to have the confidence to deal with clients who may be living with dementia to make them feel at ease and cared for.

Frailty Masterclass

Frailty Masterclass

Frailty Masterclass

It dawned on me, as I sat looking pretty on the display desk at Exeter Racecourse, that perhaps this was really the reason I had been allowed out of the office… to provide good luck to Emma Gray from the Private Client team. Emma is always busy, and this time she was presenting a couple of workshops to a variety of care providers, care staff, GPs, GP trainees and others who care for the Elderly.

On Monday, 9th September 2019, Emma represented Solicitors for the Elderly (SFE) at the Frailty Masterclass, which is part of various training provided by the Devon Training Hub CEPN.  The day was advertised to all Healthcare Professionals and allied Healthcare Workers as a great opportunity to build knowledge in various areas of frailty.

The day started with an outline of the learning objectives, and two talks from doctors on best practice when caring for patients who are frail, and how to recognise frailty and manage it.  There were then two sets of morning workshops in which Emma presented to a variety of NHS staff and care providers on the benefits of Lasting Powers of Attorneys (LPAs), capacity and assessments.

Emma was disappointed that so few delegates had heard of SFE and was shocked by how few patients prepare Welfare LPAs, despite the care staff saying how beneficial it is to have them. It was interesting to have an interactive session so that people could ask questions and she could tailor the talk depending on the interest in each workshop.

After lunch, there were afternoon workshops where Emma heard about information sharing between health and social care, and optimising communication between care providers and the Community Health Care Teams.  Emma passionately believes in different professionals communicating and ensuring that together they get the best outcome for the patients/clients.

A MacMillan GP drew the day to a close with a talk about the long term consequences of cancer treatment and how everyone can help manage these.  All in all, there was a great buzz to the day and it was a privilege to be able to help raise awareness amongst the medical professionals who attended about some of the legal matters that Private Client lawyers do for the clients, as well as hearing practically how the documents are used at the critical time.

It was a great day, and at least, this time, I got to watch!

Michelmores’ 5k run – Thursday, 5th September, 2019

Michelmores’ 5k run – Thursday, 5th September, 2019

Michelmores’ 5k run – Thursday, 5th September 2019

She left me in the car park!

My first trip out of the office with a fee earner. And I was left … in a bag … in the car! No cheering, no supporting. On my own, with banners and flyers. Just waiting.

She did seem in a hurry, though; dashing out one more email before leaving the office, so I’m not surprised she was rushing off to meet yet another deadline. I just didn’t know that the deadline was a starter’s gun for a race.

So this is how my first mascot journey started… being bundled into a vehicle, an impatient drive into the glorious city of Exeter and then waiting until Emma returned to the car. Finally, yes finally, she told me all about it: she was taking part in the Michelmores 5k run. Well, that’s ok then.

Emma, and over a thousand other runners, gathered on Cathedral Green in the golden light of the evening sun. It would have been nice to see it, and feel the excitement and nerves in the air, and to cheer Emma on, of course, but … she forgot me! Did I mention that? It’s ok. Really, it is. I’m over it now, besides, it sounded rather hot and sweaty.

Emma told me she had run under a nine minute mile – considering Exeter’s hilly route up to the Castle and down to St David’s station, it’s no wonder she was buzzing with endorphins and pride. She said Exeter looked beautiful; I’ll just have to take her word on that.

People of all ages and abilities took part. Emma said it was extremely rewarding and she was happy that she had some ‘Team Everys’ support, albeit in the car park!  Perhaps next year I’ll be allowed to watch, with more Everys runners and more supporters?!

 

Wild Beef

Wild Beef

Wild Beef
Posted on 2nd September, 2019

In our latest podcast , Richard Vines of Wild Beef, Hillhead Farm (near Chagford) talks about how he built his business selling his beef into Borough Market, in London. He has found that his customers want to know how he rears his animals, the kind of a life they have on Dartmoor and where they are slaughtered. In short, they want to know that his animals have had a good life and a good death. Richard firmly believes that only pasture-fed beef produce flavour – and health benefits that are important for us all.

Podcasts

Richard Vines – part one

Richard Vines – part two

Michelmores’ 5k run – Thursday, 5th September, 2019

Ration Challenge Week

Ration Challenge Week
Posted on 4th July, 2019

On 16th June, Julie Chapman, a solicitor in our Sidmouth office, took up the challenge of eating the same food rations as a Syrian refugee in support of Ration Challenge Week.

The aim of the challenge is to raise money for food, medicine and education for Syrian refugees; and for people to gain a basic understanding of some of the hardships refugees face in regards to food.

Julie kept a diary highlighting the challenges of eating basic food, and the effect it had on her physically and mentally.

By day five, Julie said: “I feel heavy, bloated and sluggish.  There is so much starch and so little fibre and nutrients.  It is very sobering to think that these people, who came from living normal lives, are reduced to living on these rations.”

The ration packs contained: rice, lentils, flour, chickpeas, kidney beans, sardines and oil.  In addition to this, depending on the amount of sponsorship money raised, Julie could earn rewards such as salt, milk or a vegetable.

Although the challenge began on 16th June, it can be started at any time.  If you are interested in reading more about the challenge, check out the Ration Challenge website at https://www.rationchallenge.org.uk/.

Well done Julie!

Julie Chapman with her ration pack contents

Sustainable Livestock Farming

Sustainable Livestock Farming

Sustainable Livestock Farming
Posted on 13th June, 2019

One of the most interesting shifts in our attitude to food over the past 20 years or so has been the demand by consumers to know the provenance of the meat they buy. They want to know where it comes from and how the animals are reared. Animal welfare is high on their agenda. This, coupled with increasing numbers of the public becoming vegan, is leading to a sharp decline in eating meat. 

To many nutritionists, this is no bad thing. Eating too much meat, they say, is bad for our health. We can all see the size of beef steaks served up in American diners – and the size of the people eating them!  We wonder how they can afford it. The answer lies in the way the animals are reared: vast cattle sheds, housing thousands of animals fed solely on grain and concentrates.

That this method of rearing livestock is efficient on narrow economic grounds is beyond doubt, but at what true cost? The grain used to feed these cattle could be used for human consumption. The environmental costs are huge, but are not reflected in the farmer’s costs. And where is the animal welfare? These animals live out their lives in these sheds, herded together in confined spaces. What kind of life is this?

It is no wonder that veganism is on the increase. It is also no wonder that those of us who continue to eat meat want to know where the animals come from and how those animals have been reared.  We want to know that these animals have the quality of life that they, as ruminants, should have.

The Pasture Fed Livestock Association (PFLA) addresses both the environmental cost and animal welfare concerns. Its standards are strict. Feeding livestock (inter alia) grains, dry harvested grain legumes, maize and maize silage, soya and oilseed products are prohibited. Their diet must consist solely of fresh or dried fodder, roughage or silage.

There also appear to be health benefits.  Their research shows that the ratio of Omega 6 and Omega 3 polyunsaturated fatty acids is 4:1 in pasture-fed beef. That ratio rises to 6:1 for grain-finished beef, an imbalance that medics consider leads to poor health outcomes.

However, the big debate is about livestock producing inordinate green house gas emissions. The Food Climate Research Network (FCRN) report[1]  concluded that “grazing animals should not be a central part of sustainable food production in future”. This was hotly contested by the Sustainable Food trust (SFT) in its response[2], who queried the metrics used by FCRN in reaching that conclusion.

For example, FCRN’s focus was “the role of grazing animals in the net greenhouse gas balance” yet it asks SFT “why should hedgerows, trees and so forth be credited to the animals?”  Hedgerows and trees do usually surround the fields the livestock graze.

Nevertheless, FCRN and SFT did agree on more than they disagreed. In particular:

  • Increasing global demand (for meat) will result in serious and potentially irreversible consequences for the environment;
  • We must maintain (and where possible) increase carbon in soils;
  • Grass and grazing animals should be reintroduced into arable crop rotation; and
  • Intensively managed ruminants should be reduced.

Professor Michael Lee, the director in charge of Rothamsted at North Wyke in Oakhampton, addresses all of these issues in his podcasts [part one and part 2]. You can access both episodes on Everys’ website under Farming and Rural Businesses.  The science is fascinating: by adding in all those natural capital costs that are currently omitted from the profit and loss accounts of intensively produced livestock, the case for the PFLA approach does become compelling.

[1] Grazed or Confused Report; FCRN; 2017

[2] Grazed and Confused – An initial response from the Sustainable Food Trust; 3 October, 2017; SFT

The Elephant in the Room

The Elephant in the Room

The Elephant in the Room
Posted on 13th June, 2019

On 4th September last year, Anna Hill, on Farming Today (Radio 4), began with this question:

“If British shoppers are spending £204 billion a year on food, why are farmers only seeing 4.5% of that?”[1]

She put the question to Tim Lang, Professor of Food Policy at City University, and his reply was damning. In his view, farmers get very little of the money that consumers spend. It all goes either to food manufacturers that make a 15% return on capital employed, or to food retailers that are vast combines controlling and driving down food prices.

Anna asked Tim how farmers can ever try to get some of that money for themselves. This, he said, is “the big political question, that is the elephant in the room”.[2]  Catherine Broomfield, a local stock farmer from East Devon, echoed exactly that sentiment in an article in the Guardian on 12th September. In her view “The big elephant in the room, between farmers producing nutritious food and the food people put on their plates, is the powerful corporate interests of the food manufacturing and retail sector.[3]

Will this change with Brexit? Of course not – unless we all make sure the Government does much, much more to introduce a food policy that is fit for purpose in the 21st century.  As Tim Lang put it: “We have been drifting down the same path for the last 70 years… but that model (CAP) is already being exposed as the biggest driver of climate change, the biggest user of water, the biggest destroyer of ecosystems and the biggest preventable factor in diet related ill health, the source for the bankruptcy of the National Health Service.”

We all now know that the Common Agricultural Policy is a busted flush that has directly contributed to the impoverishment of our countryside through unsustainable agriculture.  The main argument in favour of Brexit is that it gives us the opportunity to take back control of our countryside and our agriculture. The operative words here are “the opportunity to take back control.” If we do nothing, the same old powerful corporate interests will continue to dominate and dictate our food policy. We shall pay a heavy price.

In Tim Lang’s view “the big question ought to be about re-writing who gets the money in the food chain. Everyone makes money off the land – why don’t we put more money into the land?”   Dairy farmers are still giving up at the rate of one a week, despite the introduction by the Government of the Grocery Code and Adjudicator system. We have to promote “a sea-change in the whole of the farming and food retailing and catering system”[4]

In Tim Lang’s view, the Grocery Code does provide a model for future action. The National Farmers Union (NFU) lobbied successfully for its introduction, but it has to be radically revamped and given the full force of the law to be effective. At the same time, Catherine Broomfield argues in her article that “diversity has to be the cornerstone of any agricultural policy capable of producing sufficient food in a way that delivers good outcomes for both humans and the plant.”  She argues that mixed farming was rejected in favour of large-scale specialised, intensified and industrialised farms. The National Trust encourages production methods with low environmental impact, including minimising energy use in production, packaging and transportation – and pays a fair price to its suppliers.

The big question posed by Professor Lang is “does the British public want a farming industry – yes or no?”  It is interesting that Professor Lang put that question to the British public, not farmers. Fairer prices and shorter supply chain issues are likely to dominate the debate about food for years to come. If the prices farmers receive continue to be driven down by the food manufacturers, processors and retailers – Brexit or no Brexit – there is little hope for a viable farming industry and the UK will become one vast theme park.

[1] Anna Hill, Farming Today, BBC4, 4 September, 2018

[2] Professor Tim Lang, Farming today, BBC4, 4 September, 2018

[3] Catherine Broomfield, The Guardian, 12 September, 2018

[4] Anna Hill, Farming Today, BBC4, 4 September, 2018

Podcasts and The Future of Farming…

Podcasts and The Future of Farming…

Podcasts and The Future of Farming…
Posted on 13th June, 2019

We all know that farming is going to change. The question is not when but how it will change. The Agriculture Bill and the Environment Bill both set out a direction of travel towards a more sustainable form of farming. As always, the big question is who is going to pay for it.  

Anna Hill of Farming Today asked her interviewees on Saturday 18 May 2019 why the public should care about these changes. Emily Norton, Head of Rural Research at Savills, answered in this way: “There’s a classic saying, we need a doctor once a year, a lawyer once in a lifetime, but we need a farmer three times a day.”

As a start along this particular road, we hope you will listen to a series of podcasts we have made with local farmers and rural business owners in conjunction with Greenslade Taylor Hunt, the land agents, and Folk2Folk, the peer-to-peer lender.  

Sally and Roger Maynard farm 260 acres in East Devon and describe why and how they  have diversified their farming operations over the years. The “why” is the simple part – the continual pressure to reduce farm prices, particularly dairy products. The “how” is more difficult and, in their podcasts [part one and part two], Sally and Roger discuss the important business principles that they consider have been key to their success.

John Coles describes how he diversified his farming operations into the meat trade, qualifying as a slaughterman and establishing a low throughput abattoir on his farm. There were 20 such abattoirs when he started, now only four remain. In his podcast [click here], John describes how he rears, slaughters, butchers, retails and cooks his own meat at East Hill Pride Farm Shop, near Sidmouth. If we really are concerned about traceability and shorter supply chains, then we need to support John Coles’ business to ensure small abattoirs survive, despite the overly prescriptive approach of the Food Standards Agency.

Steve Williams and Pete Woodham-Kay started a charcuterie business just over four years ago in Steve’s garage. They now have an industrial unit with the equipment required to cure their sustainably produced meat, using “only salt and natural Exe and Clyst Valley air”. They are not farmers, but you will hear in their podcasts [part one and part two] how they translate their concerns about animal welfare into a very high quality product. It’s all about treating animals with respect. They sell their products not only through their restaurant in Topsham and their pub, the Globe in Lympstone, but also through delis throughout the South West, including Darts Farm.

Professor Michael Lee, director in charge of Rothamsted at North Wyke, Oakhampton, talks about ruminants and the work he is carrying out at North Wyke to improve pastures. In his podcasts [part one and part two], he talks about the importance of animal fats in our diet. We should be eating red meat of higher quality, but less of it and drinking milk of higher quality and more of it if we are to avoid a public health crisis. Michael’s comments on the current fads for nut and oat juices are particularly interesting.

Catherine Broomfield is a farmer in East Devon and writes on farming and rural matters for the farming and national press. She and Professor Tim Lang take a particularly damning view of current food supply chains and the economic control exerted by the big manufacturers, processors and supermarkets, forcing farmers to produce more for less money. Like Professor Michael Lee, they consider the current system is broken and has to be replaced for both environmental and public health reasons. In her podcasts [part one and part two], Catherine sets out the thinking behind the Agriculture Bill and why we will lose our soil if we do not reform farming practices as a matter of urgency.

Andrew Parr is the chairman of, and the fifth generation involved, in the family business of oak bark tanning in East Devon. Indeed, it is the only oak bark tannery left in the UK, let alone Devon where a century and a half ago there were 200 such tanneries.  In his podcast [click here], he describes the tanning process, which is a long one, sourcing hides locally and using only lime and water to cure them. The finished product is of the highest quality, which he sells into the bespoke shoe and saddlery markets in this country and to the top fashion houses in Italy, France and world-wide.  His is a fascinating story, showing how the steep decline in traditional rural skills has affected rural communities.

All six interviewees are committed to the highest standards of animal welfare and quality products. More importantly, all six consider that, provided farming and food production systems are integrated within, and form part of, the overall environmental management, there will be opportunities to enhance and grow farming operations and related rural businesses.  In addition, the Government will need to commit to fairer farm prices in order to plan, on a long term basis, to improve soil fertility by sequestering carbon.  These policies have to be “joined up” to work for the benefit of us all.

Grieving for a Pet

Grieving for a Pet

Our pets give us unconditional love and are often one of our best friends.  They never judge or answer back, and they are normally pleased to see us.  However, our pets are never just pets.  They are friends, companions, working dogs, service animals or therapy animals, and for many people losing a pet is just as devastating and painful as losing someone they love; in some cases, even more so.

Although there will always be those who fail to understand the depth of grief felt for the loss of a much-loved pet, there is no doubt that those feelings are real and valid and, therefore, warrant a proper grieving process.

Everybody grieves in different ways: what may be right for one person may not be right for another.  For some people, the grief may confine them to their beds but others may want to throw themselves into their work to stop the feelings of sadness from surfacing.  However you manage your grief, it is important to try not to delay the grieving process.  At some stage, owners need to acknowledge the fact that their beloved animal has died.

It is fundamental to the healing process to accept that whatever feelings you are experiencing are perfectly natural.  Give yourself time: remember, this was a pet you loved and it could take weeks, months, or even longer before the sadness starts to lift.  Importantly, do not hesitate to seek support from understanding friends, relatives or professionals; what you are feeling is normal.  Plus, do not forget that grieving is an expression of the love that you had for your pet.

Memorialisation

Memorialisation

Memorials and mementos are important links from the past to the present: they enable the living to remember those who have died.  This is usually at the deceased’s resting place, but with cremation on the increase many people no longer have a conventional grave to visit.  In 1960, only 34.7% of deaths involved cremation.  By 2017, that figure rose to 77.05% with it set to continue rising further due, mainly, to the increasing cost of burials.

Memorialisation was traditionally a ceremony to remember a loved one, but the definition has expanded and is now the process of preserving memories of people which can be done in a variety of ways, particularly with the ashes of the deceased.

Many people choose to scatter the ashes (keeping in mind some places require a permit to do so), or to keep the urn containing their loved one’s ashes with them at home.  Others, however, wish to have a place of remembrance where they can reflect, remember and find moments of peace such as a park bench, a rockery or a rose garden.  Increasingly, though, novel ways of memorialising are emerging by creating mementos out of the deceased’s ashes or turning them into a tattoo.  Other ideas of things which have been done with ashes include:

  • Bury, inter or plant them (for example, with a tree);
  • Creating a vinyl record with their favourite song, or a recording of their voice;
  • Producing hand-blown glassware or stained glass;
  • Having a huggable stuffed animal which contains a compartment for the ashes;
  • Fireworks; and
  • Jewellery.

The way in which you choose to remember your loved one is incredibly personal, but memorialisation is a human need – for those being memorialised and those who are grieving.  Previously, it was reserved for the upper classes, but now it is almost considered a fundamental human right for all people.

However you choose to remember your loved one, the most important thing is that it helps bring solace in your moments of grief and, later on, peace and acceptance.

Funeral Costs

Funeral Costs

Dying is expensive; there’s no getting around it, and the expense can come as quite a shock to those responsible for arranging your funeral.  In recent years, the cost of a simple funeral has risen sharply due to a number of factors such as grave shortages and local authorities increasing cremation fees.

According to the Competition and Markets Authority (CMA), who have been reviewing funeral costs, the average cost of a simple funeral in 2017 was just under £3,800.  This excluded the optional extras such as embalming, the funeral service, funeral venue and limousines.  In 2018, Sun Life produced a report “2018 Cost of Dying Report” in which they found a standard funeral had risen to £4,271 before extras.  These optional extras can increase the cost by an additional £2,061; this means a total of over £6,000 for the average funeral.

So what can be done to help lessen the burden?

Provided there is enough money in your estate to cover the costs, some funeral directors are happy to liaise with the solicitor assisting you to get the bill paid directly from the deceased’s bank account or, in some cases, even delay payment until probate has been settled.  Failing that, a funeral plan, whereby you pre-pay the funeral costs, may be an option.  It is vital, however, that you fully understand exactly what is covered by the plan so that there are no further unexpected surprises to add to the burden of grief your loved ones will already be experiencing.  In addition, you must ensure that the funeral company is a reputable one and is regulated by the Funeral Planning Authority.

Generally, a funeral plan will cover the following:

  • Funeral director fees
  • Coffin
  • Transport
  • In some instances, cremation or burial fees
  • What you want to happen at your funeral

Additional fees are payable for the cost of the doctors’ fees for the death certification; the funeral celebrant; the death notice; the order sheets; the venue hire for the wake; plus, in some cases, the burial or cremation fees are not covered by the plan.  As well as these, you need to be aware of solicitors’ fees for administering your estate, especially if using your estate to cover these costs.

With standard funeral costs expected to rise further to £7,000 by 2020, making plans now to lock in the cost of a funeral at today’s prices is good preparation.  A bit of research and planning now will go a long way to helping relieve the future anxiety of your loved ones.

For advice on funeral plan companies and further frequently asked questions, see https://funeralplanningauthority.co.uk/faqs/.

Are We Ready?  Let’s Talk About It…

Are We Ready? Let’s Talk About It…

Death and taxes are the two certainties in life.  Whilst we can’t prevent either from happening, we can be prepared.

The benefits of ensuring that your paperwork is in order, and that it reflects your current wishes, are frequently underestimated: peace of mind comes from knowing that your loved ones will not have to tackle complicated legal matters in addition to coping with grief.

As a young widow, Emma Gray, an Associate Solicitor in our Private Client office, believes that being prepared ensures you can have the “best death possible”.

“My late husband was only 38 when he died of oesophageal cancer,” said Emma.  “He left me and our two young children emotionally at sea.  However, the energy he put into organising the paperwork around his death was inspiring.  As well as having an up to date Will, power of attorney and Advance Directive / Living Will, he also left behind letters, gifts and memory boxes for all three of us.  This meant that he died peacefully surrounded by those he loved.”

Although, as solicitors, we do not assist with personal notes or emotional things such as memory boxes, we can ensure that clients are not afraid to talk about death and dying and have all their legal paperwork in place.  As Emma says, “Ensuring that your legal papers reflect your wishes means that you can put aside legal concerns and get on with living the rest of your life and spending quality time with your nearest and dearest.  My late husband managed to do this and it gave him the freedom to spend precious time doing a great ‘bucket list’ of activities with our young children, happy in the knowledge that the paperwork had been taken care of.”

Previously, Dying Matters week has addressed the question ‘What Can You Do?’; this year the theme is ‘Are We Ready?’.  The key things we recommend clients deal with as soon as possible are:

  • Ensure you have a Will and it is up to date;
  • Ensure you have Powers of Attorney for your finances and welfare;
  • Record your funeral wishes;
  • Tell your attorneys your wishes and how to manage your affairs, if needed; and
  • Plan your future care and support, and document it in an Advance Decision / Living Will.

Solicitors in the Everys Private Client department are based in all our offices in the South West: Exeter, Exmouth, Honiton, Seaton, Sidmouth and Taunton.  For more information on how we can assist, please click here.

Care Home Fees, Assets and Tax – Explained!

Care Home Fees, Assets and Tax – Explained!

Many people nowadays are concerned that their assets will be diminished if they move in to a Care Home or Nursing Home in the future. According to Paying for Care* the average cost of a Care Home is £29,250 per year and if Nursing Care is required the average cost is £39,300 per year. In recent years there has been much media coverage advising people to give away assets in order to protect against these fees. The claim is that if you do not own sufficient assets in your own name then you will be assessed as not being able to pay your own fees and as such the Local Authority will pay these for you.

But what are the implications of giving away your assets? And what are the tax consequences of doing so? Here are a few frequently asked questions that we at Everys get asked and some information about the types of things you can do to protect your assets.

What assets are taken in to account when the Local Authority assess your ability to pay your own fees?

If you have capital over £23,250 you will be assessed as being able to meet the full cost of your care whilst in a home. Your capital includes things like the value of your home and the money that you have in your bank accounts.

 What assets are disregarded for the assessment?

Your personal belongings which can include your car is generally disregarded, along with most types of income, for example your pension.

Can I give away my home to my children in order to avoid paying nursing home/care fees?

You can give away your home to whoever you like but there are some potential pitfalls of doing this. If you gift your property away then you no longer have control over it. This means that the new owners can sell the house whenever they wish and release equity from it without your consent. There can also be capital gains consequences when the new owner comes to sell the house if it is not their main home. If you give your home away and continue to live in it, the value of the house will also be included in your Estate for inheritance tax purposes – even though you no longer own it. You may also fall foul of the ‘deliberate deprivation’ of asset rules.

What is deliberate deprivation of assets?

If you give away your assets either outright or at an undervalue (i.e below the market value) and then subsequently go in to a home the local authority may make a finding that you have deliberately deprived yourself of your assets and as such use those assets in your assessment when deciding whether you can pay your own fees. When making a decision on this basis they will consider what your age and general health was at the time of making the gift.

So what can I do to protect my assets?

At Everys our advisors can help you plan for the future and provide you with advice in order to protect your assets from Care fees, Inheritance Tax and Capital Gains Tax through your Wills and  through Trusts.   Call us today for an appointment to see how we can assist you.

*A not for profit company. Research from Laing & Buisson Care of Older People UK Market Report 2014/15.

Author – Margaret Broom, Associate, Private Client

 

Congratulations to Emma Gray

Congratulations to Emma Gray

On Thursday, 4th April, 2019, Emma Gray, Associate Solicitor in our Private Client team, was recognised by the Devon and Somerset Law Society (DASLS) for the contribution she has made to her profession. Emma was ‘Highly Commended’ in the ‘Solicitor of the Year’ category of the DASLS 2019 Awards ceremony held at Exeter Cathedral.

“I feel honoured to have received this commendation and I would like to say a huge thank you to my colleagues at Everys for the support they have given me over the years,” said Emma. “I’m fortunate to work with such a great team and this award goes in part to them.”

James Griffin, Managing Partner, said: “We are very proud of Emma’s achievement at the DASLS Awards. She is a solicitor who always goes above and beyond what is expected and she truly deserved to receive this commendation.”

Emma is a Society for Trusts and Estates Practitioners (STEP) solicitor and a Dementia Friend. She is also the Chair of the Devon and Cornwall branch of Solicitors for the Elderly (SFE). Emma is based at our Honiton office.

 

Honiton Dementia Matters Conference

Honiton Dementia Matters Conference

Many people, these days, will have some experience of dementia, whether that is via a family member or friend, or even themselves.  It is a devastating disease which, unfortunately, is on the increase.  There are a number of reasons for this, but longer life spans certainly increase the risk of it happening at some stage.

Charities such as BRACE and the Dementia Action Alliance (DAA) work tirelessly to make people aware of the disease and its consequences.  In Honiton, BRACE and the Honiton DAA (HDAA) have joined forces in a joint venture to hold a one-day conference called “Dementia Matters”.  BRACE and HDAA have brought together experts from Everys Solicitors, Admiral Nursing, Dementia Research at Exeter University, and from BRACE and HDAA themselves.  Everys will be represented by Emma Gray, Associate Solicitor, who will be discussing Lasting Powers of Attorney, and Joan Pullin, Solicitor, who will discuss how to protect assets through the use of wills and trusts.

“Almost on a daily basis we read something new about dementia; whether that is trying to ward it off through brain training, healthy eating and quality sleep, or exciting developments from new research,” said Emma Gray.  “These are all positive things but, sadly, there’s no guarantee we won’t be affected by it, and many people are touched by dementia.  Sharing knowledge about what to do if you or a loved one has been diagnosed with the condition is what this conference is about because, for all of us, dementia really does matter.”

Joan Pullin said: “Everys is very excited about sponsoring this conference.  Receiving a dementia diagnosis can cause all sorts of anguish and anxiety for an individual and their family, and that’s why it’s vitally important they receive the help and information they need to ensure that they are protected financially.  I’m looking forward to meeting people at the conference and answering any questions they may have.”

The conference will be held on Friday, 3rd May from 10am until 3pm at The Beehive Community Centre in Honiton.  Tickets cost £10, although those with a dementia diagnosis and carers will have free entry to the event.  Any profit from the sale of tickets will be split equally between BRACE and HDAA.  A buffet lunch will be provided and there will be the chance to ask questions and meet others interested in, or affected by, dementia.

To book your place visit – www.alzheimers-brace.org/Event/hontion-dementia-conference

Two Newly Qualified Solicitors

Two Newly Qualified Solicitors

Everys Solicitors is pleased to offer its congratulations to Rosie Ridgers and Cameron Evans-Grainger, who have both completed their Period of Recognised Training and qualify as solicitors today, 1st April, 2019.

Rosie joined Everys in 2014 as a secretary in the Family team, moving into a paralegal position in Private Client before commencing her Period of Recognised Training in 2017. She now qualifies into the Private Client team based at Honiton.

“I am incredibly excited to be qualifying as a solicitor,” said Rosie. “It takes a lot of work to get to this stage but I have been so lucky to have the support of Everys behind me and to have the opportunity to learn from such experienced and well respected lawyers. I am really looking forward to my future career as a solicitor.”

Cameron joined Everys in 2016 as a paralegal in the Commercial Property department and has since undertaken his Period of Recognised Training alongside studying for the Legal Practice Course. Cameron qualifies into the Commercial Property team based at Exeter.

Cameron said: “It has been a tough couple of years working and studying, and I have had to make sacrifices but it’s been worth it.  I have enjoyed working at Everys and am grateful for the opportunity I have been given here. I am excited for what the future holds post qualification, and I’m looking forward to building my career with Everys.”

Cameron is based at the Exeter office.

James Griffin, Managing Partner said: “Rosie and Cameron have worked incredibly hard and we are very proud of their achievements. They are excellent lawyers and are an asset not just to their respective teams, but to Everys as a whole. We are pleased they chose Everys for their Period of Recognised Training and we wish them every success in their careers.”

Well done Rosie and Cameron; congratulations from us all.

Podcasts and The Future of Farming…

The Future of Farming & Rural Business

Rural economies throughout Europe, not just the UK, have been neglected politically for years, and the people living and working in them are angry and upset for having been ignored. From Brexit in the UK, the “Gilets Jaunes” movement in France and the Five Star government in Italy, to the growing tensions in Spain, Austria, Germany and Eastern Europe, the status quo has been rejected.

From the UK perspective, whether or not we stay in or leave the EU, there will be change. That much is clear from the Agriculture Bill, Environment Bill and the Stacey Report, which sets out the direction of travel the government has in mind over the years to come.

Yet politicians cannot be blamed for all of the mess: globalisation has destroyed the cohesion of rural economies, benefiting the multinational companies and the metropolitan elites who share the spoils.  We have to rebuild that cohesion using all the tools of modern technology at our disposal. Now, more than ever, we need to ensure that governments take notice of what we say and want and then act.  It’s no good, for example, government demanding the highest standards of animal welfare unless they make the large manufacturing companies and supermarkets pay farmers fair and proper prices for their livestock. Equally, it’s no good government demanding the highest standards of animal welfare if it is directly responsible for draining the life-blood out of the small abattoirs, many of which have gone out of business recently, only to support the largest abattoirs with grants out of the taxes we pay.

It’s up to us, collectively, to fight these inequities (and many more besides) and force the government to listen and act. Everys is starting down this road with a series of podcasts with farmers, rural businesses, scientists and others, so that we can all learn more about each other’s businesses, share ideas and support what we all demand.

Making these podcasts has been both fun and informative. Everys is also supporting the Sustainable Food Trust where it can, particularly in its campaign to halt the decline of small, low throughput abattoirs. Its reports make the case for changes to farming that, by and large, we all support. The link to their website is set out below.

There are six podcasts for you to listen to:

  • Sally and Roger Maynard farm near Exeter. They describe how they diversified their farming operations over the years into, amongst other things, the outdoor toy business, and discuss the important business principles that they consider key to success.
  • John Coles describes how he diversified into the meat trade, establishing a low throughput abattoir on his farm. There were 200 when he started 40 years ago; only four remain. The rapid decline in the number of small abattoirs is putting the niche, high-quality livestock producer out of business.
  • Steve Williams and Pete Woodham-Kay started a charcuterie business just over four years ago in Steve’s garage. They now have an industrial unit full of equipment required to cure, using “only salt and natural Exe and Clyst Valley air”.
  • Andrew Parr is the fifth generation to run the family’s oak bark tannery business in East Devon – the last oak bark tannery in the whole country. At the beginning of the last century, Devon had 160 such tanneries. Andrew supplies top quality leather to the Northampton shoe industry, saddlers and the French and Italian fashion houses.
  • Professor Michael Lee runs Rothamsted Research at North Wyke near Okehampton and he cogently sets out the scientific case for both keeping red meat as part of our diet – although less of it – and for drinking more milk. Indeed, he believes that the decline in milk consumption is already having profound effects on our health.
  • Catherine Broomfield writes for the farming and national press about countryside matters and argues that the Agriculture Bill will only work if every element of it is implemented.

Sustainable Food Trust – https://sustainablefoodtrust.org/

You’ve made an offer – what now?

You’ve made an offer – what now?

If you research house buying online you will find many websites and blogs give helpful advice on the practical aspects but don’t explain the process after you have found the property you want to call home. Instead, they often simply refer to the ‘complicated legal stuff’ when advising you to instruct a solicitor.

Essentially, you need a solicitor to assist you in making the property officially yours. It can be a confusing process filled with legal jargon and whilst the system can appear archaic and back to front (having to spend money investigating the property title, instructing a survey and obtaining mortgage finance before either you or the Seller commit to the purchase) this article is intended to help simplify what your solicitor is doing for you.

  • The Seller, through their solicitor, provides evidence they own the house, along with a plan showing the area they are selling, together with details of any rights the property enjoys or is subject to, and any obligations you will need to comply with whilst you live there;
  • The Seller also provides forms giving more practical details of the property (known as the Property Information Form) which includes information on such matters as boundary responsibility, alterations, occupiers, utility providers and a list of items they will be leaving at the Property (called the Fittings & Contents Form);
  • Your solicitor will check these forms and documents to ensure any relevant documentation to supplement or evidence the information is provided or obtained, and that the information does not reveal anything to cause concern;
  • Your solicitor will carry out relevant searches with Local Authorities, Water Companies, Environmental consultants and any other third parties to provide further information about the property, its services and locality held on various registers;
  • Your solicitor will make any further enquiries of the Seller arising from the information supplied, or ask for information omitted, or raise any enquiries or concerns that you may have; and
  • If you are buying with a mortgage, your solicitor will check the offer and that the property meets the lender’s criteria as suitable security.

This investigation period can take, on average, about four to six weeks, but varies on the expediency of the various authorities contacted and the seller themselves.  Once your solicitor is happy with the information provided, you will be advised that exchange of contracts is now imminent.  This is the exciting time when both you and the Seller commit to the purchase and a legally binding contract comes into force.  It is also when you pay over your exchange deposit.  Before doing so, your solicitor will provide you with explanations of their investigations and summarise the information for you in plain English.  This is when you can ask questions to make sure you understand what you are about to buy and any financial or other commitments you will become responsible for before you sign any documents.

Once you are happy you want to go ahead, the solicitor is satisfied the title is good and any issues have been resolved or managed, you then pay over the deposit money to your solicitor, sign the Contract, and any other forms, and agree a completion date with the Seller.  Typically, a completion takes place about two weeks after exchange to allow you to make necessary arrangements such as hiring removals, obtaining finance and contacting utility/web suppliers.

Once you and the Seller (and any other parties in the chain) are happy to go ahead, then the solicitors involved will agree an exchange of contracts on your behalf and the completion date (more excitingly known as the ‘move-in date’) will be agreed.  Although it might seem an anxious wait for confirmation the deal has gone through, you will be told the good news as soon as the solicitors have finalised the technicalities on your behalf.  All in all, a typical time line from the first steps above to when you can collect the keys is approximately two months.

Whilst the solicitor will still be busy carrying out the final pre-completion checks, arranging the transfer of funds and then attending to the post-completion formalities for you, your wait is nearly over – you will soon be a proud homeowner and can start planning that house warming party.

 (Based on a freehold purchase)

Author – Rachel Craddy, Associate in our Conveyancing Team, Exeter

International Women’s Day

International Women’s Day

Every year for the past 110 years, there has been a day dedicated to bringing awareness to the rights of women.  It is only since 1975, though, that the United Nations recognised the day and adopted 8th March as International Women’s Day (IWD).  Each year since, the UN has promoted a different theme for IWD and this year’s is #BalanceforBetter which is about creating a more gender balanced world in all aspects of life: education, health, work, pay, politics etc.

It all began in 1908 when a march was organised in New York which saw 15,000 women demand better rights.   The following year, the Socialist Party of America established “Women’s Day” on 28th February, 1909, and on 19th March, 1911, it became known as International Women’s Day with the date later changing to 8th March in Germany in 1914.  On that same day in 1914, there was a march in London in support of women’s suffrage, and in Petrograd, Russia, women textile workers went on strike, demonstrating in the streets.  Thereafter, 8th March became associated with International Women’s Day (IWD).

Probably because of its socialist beginnings, prior to 1975 the day was mostly observed by communist countries and socialist communities but that all changed in 1975 when the UN took up the mantle due to it being International Women’s Year, and now there are many events held throughout the world celebrating the day.

Although women’s rights have come a long way in the last 100+ years, change has been slow and there is still a considerable way to go.  According to the World Economic Forum’s Global Gender Gap Report 2018, it will take the original 106 countries (that have been included in the report since it began in 2006) 108 years to close the gender gap in all areas.  The UK, however, has been steadily closing its gap.  We are currently ranked 15 out of 149 countries and we have reached 77.4% gender parity (Iceland is ranked number one with 85.8% parity).  If Britain were to  close its gap entirely, $250 billion (£190 billion) could be added to our economy.  That’s something for the government and business leaders to think about over their morning cornflakes.  In the meantime, the political empowerment gap across the 149 countries will take 107 years to close whilst the economic opportunity gap will take 202 years; so, just another seven generations until women can enjoy pay equality throughout the world.  Until then, we shall keep bringing awareness to the importance of gender equality, not just for women, but for the economic benefit of the country.

https://www.internationalwomensday.com/ 

British Pie Week

British Pie Week

Monday 4th March – Sunday 10th March

Tough Job, But Someone’s Got to Do It …

Ah, what could be more comforting than a great British pie?

Last week, staff in a couple of our offices volunteered to do some baking and, purely in the interests of research, Katie and I set out to discover the secret to a great pie.  It was a very hard job …!!!

Each day this week, we shall publish the recipes for you to try at home, starting with a delicious apple pie recipe, as made by Beverley Cole at our Seaton office. Keep an eye on our social feeds for the recipe details.

We hope you enjoy baking these pies as much as we enjoyed eating them!

A Guide to Wills when Buying a Home

A Guide to Wills when Buying a Home

Buying in your sole name

For many people, a house is the most expensive asset they will ever own and buying one, especially for the first time, can be a daunting and stressful experience. In addition to the long checklist of ‘things to do’, it is important to remember to draw up or update your will at this time.

Once you have purchased your property, you will want to make sure that it passes to the right beneficiaries when you die – that your loved ones benefit from your property and money – so it is important that your will allows for this. If it does not, you run the risk of your property passing under the intestacy provisions which may not be in accordance with your wishes.

Buying in joint names

When buying your property with someone else, you need to be careful that your ownership of the property coincides with what is in your will.

If you are buying your property jointly with one or more people, the property can be held in two ways in law. The first as joint tenants which means that when you die your share of the property will pass automatically to the survivor and falls outside the terms of your will. The other is as tenants in common which means that each of the owners of the property has a fixed share; when they die that share passes in accordance with the person’s will, rather than automatically over to the other owners of the property. This distinction is important when considering who will benefit under your will.

Second homes and tax

You may have to pay capital gains tax when you dispose of a second home. The tax that will be payable will be dependent on the amount of ‘gain’ you have acquired from the date the property was transferred to you to the date you either sell it or transfer it to someone else. This includes business premises, buy to let property, inherited property and land.

The gain may be subject to certain reliefs such as Private Residence Relief if the property was treated as your main home.

There may be a way to avoid or defer the tax payable by gifting your property into trust and you should, therefore, discuss your options with a member of the Private Client department.

 Buying with parents/children

Problems can occur when there is more than one person who owns the property. It might be the case that a parent and child buy a property together and the child lives in it whilst the parent lives elsewhere. In this instance, it is important to draw up an agreement about responsibilities for outgoings on the property and how it will be divided on sale if unequal contributions have been made to the purchase price. Please ask to talk to someone from our team about a Declaration of Trust if this applies to you.

Selling to pay care fees

If you need to go into a Care Home in the future, and have savings of less than £23,250 but you have equity in your home, your Local Authority can set up a Deferred Payment Agreement which can mean that you do not need to sell your home in order to pay for fees. However, they may charge interest on this and other legal and administrative fees can apply.

In some cases, it is necessary to sell a property to pay for care fees; however, there is some planning that can be done in order to avoid this such as gifting your property into trust in your lifetime or through your will.   If you think this might be something you would like to consider, please speak to a member of our team.

If you do wish to sell your home, our Investment Managers can help you make decisions about investing the equity.

Gifts of property

You may wish to enquire about making a gift of your property to someone else. There can be tax implications in doing this as well as a risk to the receiver of the gift. It is important for us to look at your circumstances to advise you if this would be in your best interests. It might be, for example, that you wish to gift your property to your child to avoid complications when you pass away. If so, we would need to assess the implications for your estate, and your child’s, as it can be the case that if you continue to benefit from a gift then it is treated as part of your estate for inheritance tax purposes, even if you are no longer named on the title deeds. Similarly, there might be capital gains tax payable on this if it is owned as a second home by your child.

Our specialists in tax, trusts and wills can advise you to help you protect your assets for the future and guide you regarding this important decision.

Summary

Buying a property can give rise to many situations that you might need help with, and the examples above are just a few of them. Please speak to a member of our team today to see how we can be of help.

For more information, or advice please speak to a member of our Private Client Team.

St Valentine of Rome

St Valentine of Rome

Patron saint of lovers, epileptics, bee keepers and plague

Who was Saint Valentine? That’s a question surrounded in mystery as there were several; however, three Saint Valentines are associated with 14th February:

  • A Roman priest;
  • A bishop of Interamna (Terni, Italy); and
  • A saint who suffered in Africa

Nothing else is known of the last one, but various accounts of the first two suggest that they may, indeed, be one and the same person, and the Catholic Church acknowledges one Saint Valentine: a martyr who died on the Via Flaminia near Rome.  In 496 AD, The Feast of Saint Valentine was established by Pope Gelasius I; however, due to a lack of concrete evidence about him, his name was removed from the General Roman Calendar in 1969.

Born in 226 AD in Terni, Italy, the legends attributed to Saint Valentine are numerous but involve his death by clubbing, followed by beheading on 14th February around 269 / 270 AD:

  • One legend states that he was imprisoned for refusing to deny Christ and sacrifice to pagan gods. Whilst in prison, he restored the sight of his jailer’s daughter, with whom he had become friendly.  Prior to his death, he wrote a letter to the jailer’s daughter and signed it “from your Valentine”;
  • Another legend centres on him performing Christian weddings. The emperor, ‘Claudius the Cruel’, believed that married men made very poor soldiers and so banned the marriages and engagements of younger citizens, but Saint Valentine continued to marry couples in secrecy.  It is claimed that Saint Valentine cut hearts from parchment and gave them to soldiers and persecuted Christians as a reminder of their vows and God’s love.

So, how did Saint Valentine come to be associated with love?  This is generally thought to be the work of Geoffrey Chaucer. Around 1381, Chaucer wrote the Parlement of Foules (aka the Parliament of Foules) in which he wrote: “For this was sent on Seynt Valentyne’s day / when every foul cometh ther to choose his mate.”  By linking courtly love with the celebration of the Feast of Saint Valentine, it is possible that he may have invented the tradition many look forward to each year.

Co-habitation … What Are Your Rights?

Co-habitation … What Are Your Rights?

The biggest misconception most couples have is surrounding the rights that they may have against their partner if they are cohabiting and are not married.

A recent survey carried out by National Centre for Social Research, released in January 2019, confirmed that “almost half of people in England and Wales mistakenly believe that unmarried couples who live together have a common law marriage and enjoy the same rights as couples that are legally married.

“The first findings from this year’s British Social Attitudes Survey reveal that 46% of us are under the wrong impression that cohabiting couples form a common law marriage – a figure that remains largely unchanged over the last fourteen years (47% in 2005) despite a significant increase in the number of cohabiting couples. In contrast, only 41% of respondents rightly say cohabiting couples are not in a common law marriage.

“Responses to the question show that people are significantly more likely to believe in common law marriage when children come into the equation; 55% of households with children think that common law marriage exists; only 41% of households without any children do so.”

This is simply not true: if you are not married, then you are not in a common law marriage and you do not have the same rights as those couples who are married.

So what happens if you are not married?  Currently, in  England and Wales there are no laws in place setting out what rights/claims cohabitees have against their partner if they separate (this is different in Scotland).  It does not matter how long you have been together, or how many children you may have together, the basic point is that you have no automatic rights to make a claim against your partner.  This is often a surprise to people when they come and see us, expecting us to advise them that their partner has a duty to provide them with financial support following the breakdown of their relationship (which may be the case if you are married).

The reality is that there is no one law which sets out a cohabitee’s rights.  There are lots of different laws which deal with different issues.

If you are living with your partner in a house, you need to check how you own it.  Do you own it jointly, does your partner own the property outright, or do you own it?   General property laws apply to the ownership of the property.  If you own it jointly, the position is more straightforward.  But what if you live in your partner’s property, can you make a claim?  It depends on whether you have made a financial contribution to the property, which might be a contribution to the purchase price, a contribution to the mortgage payment, or a contribution to any works carried out on the property.  If you have, then you are likely to have an interest in the property.  If you have made no financial contribution to the property, it is unlikely that you would be able to claim a financial interest in the property.

Does it make a difference if you have children together? In short, the answer is no.  As there are no laws in place protecting cohabitees, and strict property law applies, it usually is not a relevant factor that you have children together.  That does not give you a claim against your partner’s property.  It will give you a claim for child maintenance, and you might have a claim under the Children Act to claim some financial support.  This might be in the form of school fees payments, or a lump sum to cover a specific requirement that the child may have.  It can cover a property for a child, but it is important to note that the property does not belong to the child, it remains the property of your former partner, and they only have to provide a property for you and the child to live in until the child reaches their majority.  Therefore it is not the same as a divorce when, for example, a property is transferred to the wife outright.

Is there anything you can do to avoid these issues?  Yes.  At the beginning of the relationship it is advisable to enter into a cohabitation agreement which sets out the expectations of the parties at that stage should the relationship breakdown in the future.  This can be what might happen to the house, whether one party can stay in the house with the children until a specific date or what each party will receive from the net proceeds of sale.  Whilst it can be depressing to think about the end of the relationship at the beginning, it is better to have the discussion then, and not when you are in the middle of the breakdown of the relationship.

For more information, or preliminary, confidential discussion please contact our Family Team.

Article written by Emma Benyon-Tinker, Associate in our Family Team.

International Surrogacy – What to expect

International Surrogacy – What to expect

Embarking on a surrogacy arrangement abroad can be daunting for any couple wishing to engage in the process.  There are lots of things that the intended parents need to consider to ensure that the process runs smoothly.

As it currently stands, there is no single legal process for parents wishing to engage in an international surrogacy arrangement.  With every case, careful attention and legal planning is required to ensure that parents are able to engage in the process without the pitfalls.  It is vital that all intended parents plan properly and consider using countries that are well-established in the surrogacy field.

There are many countries across the world that welcome the process of surrogacy and it can be seen that North America, particularly California and Canada, is very popular because of its experience and laws in this specific area.  For children born in Canada or the United States, they are recognised as Canadian or American citizens and parents from the UK can obtain a passport within a three month period.  It is normal to expect that the majority of those parents engaged in this process travel back to the UK with the child’s/children(s) foreign passport.  Parents must be aware that there is no guarantee that they will be admitted with their child/children to the United Kingdom because of visa complications, and so careful planning is required.  Intended parents can, of course, apply for a British Passport or an entry clearance visa stamp in the United States prior to travel to eliminate any issues.  However, parents must be aware that this can take time.

A British passport is generally only available immediately if the surrogate is unmarried and the British biological father is registered on the child’s birth certificate in the United States (for particular states).  The alternative is that the child/children will be registered as a British Citizen or will have to apply for an entry clearance visa.

For other countries that are perhaps not as well-established as the United States or Canada, such as Thailand, Russia, Georgia, Ukraine and India, there are multiple options to consider.  It is vitally important that intended parents undertake as much research as possible to eliminate any possible pitfalls.

Intended parents are able to obtain a British passport for their child/children if he or she is born British or successfully registered as a British Citizen.  Parents can apply for an entry clearance visa, which is granted on a discretionary basis where intended parents can undertake to apply for a parental order.

A visa either takes the form of a stamp in a foreign passport or a free-standing travel document if the child has no passport.

Planning is vital and parents must be prepared to stay in the birth country for a period of 4-5 months.

For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer.

South West SFE and SOLLA Hold First National Joint Event

South West SFE and SOLLA Hold First National Joint Event

On Thursday, 24th January 2019, Emma Gray, an Associate Solicitor at Everys, and Ian Evans, Head of Later Life Advice at Five Ways Financial Planning, organised the first ever national joint Solicitors for the Elderly (SFE) and Society of Later Life Advisers (SOLLA) event.  The networking morning was held at Exeter Race Course and was attended by over 50 lawyers and financial advisers from all over the South West.

Emma Gray, who is also the Regional Co-ordinator for the Devon and Cornwall region of SFE, said: “It was very exciting and rewarding organising the event, especially as it was the first one of its kind.  The day was very informative with excellent presentations from our guest speakers.  The partnership between SFE and SOLLA is a perfect fit and Ian and I are already planning the next South West joint event for later this year.”

Both SFE and SOLLA are pleased with the collaboration. Tish Hanifan, Founder and Joint Chair of the Society of Later Life Advisers, commented: “I’m delighted to see that both organisations have come together to consider important aspects of Later life advice.

This kind of collaborative approach can only ever be in the best interests of clients who will benefit from an integrated approach to both the legal and financial aspects of Later life decisions.”

The speakers were:

  • Dr Laura Palmer of South West Brain Bank who discussed their research in helping to find a cure for Dementia and Alzheimer’s;
  • Aly Dickinson, a death doula from Living Well Dying Well, who spoke of her work in helping people at the end of their lives in order to ensure, as far as possible, that they die in the way they want;
  • Emma Gray from SFE who gave a background to SFE, how to become a member and a number of case studies of scenarios where lawyers and financial advisers can work together better in the best interests of their clients; and
  • Ian Evans from SOLLA who covered the intricacies of how to become a SOLLA member and the benefits of financial advisers working with lawyers.

For more information regarding the Devon & Cornwall Branch of SFE please contact Emma Gray on 01404 540941 or emma.gray@everys.co.uk, and for more information on SOLLA Bristol & Somerset Regional Group please contact Ian Evans on I.Evans@fivewaysfp.co.uk or 01934 511511. For all other SOLLA enquiries please contact admin@societyoflaterlifeadvisers.co.uk

Looking to Dazzle at DASLS

Looking to Dazzle at DASLS

Emma Gray and Elle West shortlisted for DASLS Awards 

We are delighted to announce that Emma Gray and Elle West have been shortlisted for the Solicitor of the Year and Rising Star categories of the 2019 Devon and Somerset Law Society Awards.

Emma Gray, Associate Solicitor in the Private Client department, is shortlisted for the Solicitor of the Year Award. Emma was nominated due to her tireless efforts in bringing people’s attention to the issues of the elderly and vulnerable. Emma was recently promoted to Associate Solicitor and in June 2018 she was appointed Regional Co-ordinator for the Devon and Cornwall region of Solicitors for the Elderly (SFE). Emma is organising the first ever national networking event for SFE & SOLLA members (Society of Later Life Advisers), with the aim of encouraging professionals to work together in their clients’ best interests. Emma is also a ‘Dementia Friend’.

Elle West is a trainee solicitor also in our Private Client department and is shortlisted for the Rising Star Award. Elle is completely focused on delivering excellent client care and exhibits a strong determination to succeed in all that she does. In addition to her training contract with us, Elle attends the University of Law in Exeter and is studying for the Legal Practice Course (LPC) part-time.

James Griffin, Everys Solicitors’ Managing Partner, said: “We are very proud of both Emma and Elle. Being shortlisted for the awards is recognition of their dedication to their profession and their clients. We wish them the best of luck for the awards ceremony.”

The formal dinner and awards ceremony will take place on Thursday, 4th April 2019 at Exeter Cathedral.

Honiton and Sidmouth Offices Expand their Service Offering

Honiton and Sidmouth Offices Expand their Service Offering

Everys Solicitors has announced that Emma Benyon-Tinker, Associate Solicitor, has relocated office to Honiton, with one day a week – Wednesdays – spent at the Sidmouth office. Originally based in Exeter, Emma’s services could only be accessed via an appointment system, whereby she would travel from Exeter to either Honiton or Sidmouth specifically for an appointment. Now, people can pop in at any time to get the advice they need.

Emma said: “It had become increasingly obvious that both offices needed to have somebody from the Family team to be based there. The demand for Family services keeps growing and we felt that to deliver the client care that we have become known for meant that we have to be visible and available to the local community. I am delighted to help grow the offices and I’m looking forward to getting to know my new surroundings.”

Emma is a trained collaborative lawyer, a trained mediator and a Resolution Accredited Specialist. She specialises in family disputes, including divorce, civil partnership dissolution, financial issues, cohabitation disputes, pre-nuptial agreements, domestic abuse and all children’s issues.

Emma is available at Honiton from 9am until 5pm, except Wednesdays, and can be reached on 01404 43431; on Wednesdays, she can be reached in Sidmouth on 01395 577983 or emma.benyon-tinker@everys.co.uk.

Surrogacy outside the UK

Surrogacy outside the UK

The main countries that permit altruistic surrogacy include Australia, Canada (save for Quebec, where all surrogacy contracts are unenforceable), Georgia, Greece, New Zealand and the United Kingdom.  In those countries commercial surrogacy is illegal. The popular destination for altruistic and commercial surrogacy is the United States, although it is not accepted in every state.  The states that permit commercial surrogacy include California, Illinois, Arkansas, Maryland and New Hampshire.

The countries that do not permit either commercial or altruistic surrogacy include: Finland, France, Hong Kong, Hungary, Iceland, Italy and Pakistan.  The laws in each country can change very quickly, so keeping abreast of developments is crucial.

The most well-established state in the United States for commercial surrogacy is California.  California is known as the ‘golden state for surrogacy’ due to its popularity for commercial surrogacy arrangements.  The laws in California make it possible for the commissioning parents to a surrogacy arrangement, regardless of marital status and/or sexual orientation, to establish legal parental rights prior to the birth of the child and without the need to go through the legal process for adoption.

However, California has only become well-established as a result of a number of cases which led to the legal reforms.  In the case of Johnson v Calvert [1993], the surrogate opposed the commissioning parents’ application for a declaration they were the natural parents of the child, with the court finding against the surrogate. In the case of US v Erickson [2011], an attorney pleaded guilty to ‘conspiracy to commit fraud’ and she admitted that she and her co-conspirators had used gestational carriers to create an inventory of unborn babies that they would sell for over $100,000.

When interpreting a USA surrogacy arrangement and deciding whether that arrangement should result in the making of a Parental Order, English courts will take into account all the factors set out in s.54 of Human Fertilisation and Embryology Act 2008 and determine if they are satisfied and whether the child’s lifelong welfare requires such an order to be made.  The judge will have the benefit of the Parental Order Reporter and their report when considering whether the making of such an order would be beneficial for the child’s lifelong welfare.

Before embarking on this wonderful journey of surrogacy, the obtaining of legal advice is vital to ensure that steps are in place to achieve the Parental Order. For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer.

What is a parental order?

What is a parental order?

To begin with, it is important to point out that a parental order is not about access to surrogacy.  The granting of a parental order affects the transfer of parental responsibility and legal parenthood to the commissioning/intended parent of a child born out of a surrogacy arrangement.  The granting of the parental order extinguishes the status of the surrogate mother (and her husband or civil partner, where appropriate).  By the making of a parental order, the intended parents are treated as though the child was born to them in first instance.

The parental order is only sought after the child is born and the intended parents are expected to make an application within six months of the birth of the child.  Prior to the case of Re Z (A Child) (No.2) [2016] EWHC 1191 Fam, single adults faced some difficulty in obtaining a parental order under section 54(1) and (2) of the Human Fertilisations and Embryology Act 2008.  The importance of Re Z is significant for single adults wishing to use the surrogacy process to build a family.  The President of the Family Division, Sir James Munby, declared in this case that certain provisions of one of the two principal statutes governing the area were incompatible with a father and child’s rights pursuant to the European Convention of Human Rights.

This ruling has changed the landscape to the granting of parental order, because the courts are now prepared to consider the making of such orders for single adults.  Prior to this case, a single adult wishing to have a family was reliant on the process of adoption under the Adoption Act 1926.

As it stands, practitioners are eagerly awaiting the proposed amendments to statute and following the Law Commission’s consultation.

For single adults considering surrogacy as a way forward for them, it is vitally important to obtain legal advice from a family law specialist. For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer.

Medical Negligence & Surrogacy

Medical Negligence & Surrogacy

Surrogacy law not only comes into play when intended parents wish to engage in a surrogacy arrangement, it can also be considered when determining the damages claim where there has been a missed diagnosis or a late diagnosis.  In the case of XX v Whittington NHS Trust [2017] EWHC, the claimant sought damages in a civil claim to enable her and her partner to enter into a surrogacy arrangement in California, having harvested some of her eggs before undergoing chemotherapy.

The defendant, Whittington Hospital NHS Trust, admitted negligence in failing to detect signs of cancer from smear tests taken in 2008 and 2012 and biopsies in 2012 and 2013.  As a result of this negligence, the claimant developed invasive cancer of the cervix, for which she required chemo-therapy treatment which led to infertility and severe radiation damage to her bladder, bowel and vagina, preventing the claimant from carrying her own children.  The High Court had to consider a number of aspects in this case under the claim for damages and emotional trauma to the claimant, aged only 29 at the time.  The High Court awarded a total payment of £580,612.52, which incorporated a claim for two surrogacy arrangements in the UK.

The High Court rejected the argument that the claimant should be awarded damages to enter into a commercial surrogacy arrangement that would be unlawful in this jurisdiction.  However, the court did award damages to the claimant to undergo two surrogacy arrangements in the UK, totalling £74,000 and £37,000 each plus VAT for each arrangement.  It appears that the High Court placed emphasis on the fact that commercial surrogacy arrangements are still illegal in the UK and contrary to public policy.

Since that judgement was handed down, the trial judge has granted permission to appeal against the decision to refuse California surrogacy expenses and the cost of surrogacy using donor eggs. In granting that permission to appeal, the judge concluded that there was a public interest in the higher appellate courts examining the question of recover-ability of damages for the cost of commercial surrogacy in a jurisdiction where this activity is lawful.

It will be interesting to see what happens next in terms of any awards for overseas surrogacy arrangements which will attract a much higher award of payment.

The use of a family law expert in this case was vital to identifying costs of surrogacy in the UK and abroad, and is an area in which most negligence lawyers need to be familiar. For more information, or some preliminary, confidential advice please contact Anne-Marie Hamer, our Fertility & Surrogacy expert.

Sperm and Egg Donation Facts

Sperm and Egg Donation Facts

Clinics

If you are considering providing your eggs or sperm to someone who is not your partner to help them conceive, then it is important to be clear where you stand legally and to also be aware as to what you can do to protect yourself.

If you are contemplating donation through a UK based licensed clinic, the clinic will have to follow rules set down by the Human Fertilisation and Embryology Authority (HFEA), which provides a licence to all clinics.  Information about you, as a donor, will be kept on the HFEA’s register and you have a right, as a donor, to ask whether any children were conceived with your eggs or sperm, although you do not have any right to contact them.

Home Insemination

If you wish to become a sperm donor and donate via home insemination, there are no rules on the amount of times you may donate.  No register is kept as it is an informal agreement so, before agreeing to be a donor, it is worthwhile thinking about the legal implications and the use of a Donor Agreement.

Known Donation

In the case where you decide to become a donor for a relative or a friend, simply to assist them and with no intentions of having involvement in the child’s life, then the laws on this are more complex.  It is important to decide what you intend to accept from such an agreement and the same for the intended parent(s).  It is sensible to consider the merit of a pre-conception agreement to cement what the parties have agreed.  By undertaking this, you are preventing any further issues concerning child maintenance and contact arrangements for the future.  It sets the boundaries between all the parties involved and prevents any conflict or future court applications for contact and/or child maintenance.

The preparation of an agreement can assist everyone involved. For more information, or some preliminary, confidential advice please contact Anne-Marie Hamer, our Fertility & Surrogacy expert.

What does a Fertility Clinic do?

What does a Fertility Clinic do?

The Human Fertilisation and Embryology Authority regulates all UK donor conception treatments that take place at licensed clinics.  The clinic must comply with the HFEA’s Code of Practice.

How do clinics operate?

The activities conducted by all licensed clinics are recorded in a register by the Human Fertilisation and Embryology Authority, and this has been in place since 1st August 1991.

Any child conceived through a clinic, and over the age of 16, can enquire with the HFEA as to whether they were conceived with donated sperm or eggs via the clinic.  The child can also ask the clinic whether anyone they intend to marry, have a civil partnership with, or have an intimate relationship with, is related to them.

The donor conceived child, at the age of 16, can ask for non-identifying information about their donor, such as the donor’s appearance and occupation.  They can also ask for more information, such as the donor’s name and last known address.  However, this information is only available to the donor-conceived child once they are over the age of 18 years.

In 2005, the law on donor anonymity changed, so whether that information will be available depends on the following dates of conception:

  1. For conceptions after 1st April 2006, clinics are only permitted to use the sperm or eggs from an identifiable donor.
  2. For conceptions between 1st April 2005 and 31st March 2006, some donors are identifiable, some are not. As a result of a change in the rules on identification, the records may not reveal the identity.
  3. For conceptions between 1st August 1991 and 31st March 2005, the majority of donors will be anonymous, unless they specified a wish to be identified.

Since 1991, UK law has allowed up to ten families use the same donor, so the donor conceived children may have a number of genetically related siblings.  A child conceived via a donor arrangement can, from the age of 16, consult the register to ascertain how many donor-conceived siblings there are.  Also, from the age of 18, a donor-conceived child can be put in contact with any related siblings, and can request to be put on the Donor Sibling Register.

A donor can find out whether their donation resulted in a birth and they are permitted to ask the sex of the child.  However, they are not permitted to know any further identifying information.

Fertility clinics play an important role in modern day family life.  It is by raising awareness of their use and importance that we can understand more on their operation.

For more information, or some preliminary, confidential advice please contact Anne-Marie Hamer, our Fertility & Surrogacy expert.

Surrogacy – Case Study

Surrogacy – Case Study

Mike and Marie have been trying to conceive for a number of years with IVF treatments all failing, and now they are looking to have a surrogacy arrangement.

Is this legal in the UK? Maria asks.

Altruistic surrogacy arrangements are the only permitted surrogacy arrangement in the UK; commercial surrogacy is illegal.  Surrogacy agreements, even those drawn up, are not legally binding but may help set out the framework for the future.

Mike wonders where they should start to make enquiries.

A specialist fertility clinic will be able to point them in the right direction; at the same time, consideration must be given to obtaining specialist legal advice.

Will it be costly, asks Mike, as finances are stretched?

In the UK, the surrogate mother is permitted to receive her reasonable expenses and this must be clear from the outset.  The legal costs must also be factored into this, and advice at an early stage is paramount.

Following detailed enquires, Mike and Maria have decided to embark on the surrogacy route using a surrogate in the UK; they obtained specialist legal advice and all the procedures were followed.  On birth, however, the surrogate is refusing to hand over the baby to the intended parents, and Mike and Maria are now distressed with this.

I would expect Mike and Maria to have made urgent contact with their solicitor over the sudden change of plans by their surrogate, and I would expect the Parental Order to be lodged without delay, with a full statement detailing the events.   A Cafcass Officer would then be appointed to explore the issues between the parties and the reasons behind the surrogate’s change of mind.  If the surrogate’s position remains unchanged, then it is likely that the court would list the matter for a Final Hearing to decide on the application made by the intended parents.

Did you know facts:

  1. There are only a small handful of lawyers in the UK practising Fertility and Surrogacy law.
  2. Commercial Surrogacy is illegal in the United Kingdom.
  3. The laws on altruistic surrogacy in the United Kingdom are governed by the Human Fertilisation and Embryology Act 1990.
  4. Data on Surrogacy Arrangements in the United Kingdom is very hard to obtain, with no centralised system or storage of that information.
  5. The number of Parental Orders is increasing in the family courts and Cafcass Officers are now receiving tailored training to deal with these applications.
  6. The precise figures on arrangements abroad are unknown, but past and present cases indicate that intended parents from the UK are travelling overseas for surrogacy.
  7. The surrogate is the only legal parent in the surrogacy arrangement until a Parental Order is made.
  8. Prior to 1985 there was no Act to cover the area of Surrogacy.
  9. Around 1,750 babies in the UK are born each year using donated sperm, eggs or embryos.

For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer. 

Having Children Later in Life vs Fertility Rates

Having Children Later in Life vs Fertility Rates

With the wonderful news of the Duke and Duchess of Sussex are expecting a child in the spring it signifies the every-growing trend that couples are choosing to have children later in life.

The latest figures from the Office for National Statistics (2016) show that the conception rates amongst the 30-34 age group increased by 14.16% between 2006 and 2016, whereas the 20-24 age group saw a decrease of 15.7%.  The conception rate for the under 20s dropped by 45.59% but for the over 40s it increased by 10.32% over the same ten-year period.  The fertility rate of women aged 40 and over has now more than trebled since 1981.  The figures show that even between 2015 and 2016, the conception rates fell amongst every age group except for the 35-39 age range which saw an increase of 1.9%.  These results were published on 27th March 2018.

What does this mean for couples choosing to have children much later in life, and what does it also mean for the fertility sector in the UK?

Couples who choose to have children much later in life may well consider all their options first and plan better for the financial cost of bringing up those children.  Couples would benefit from undertaking their research at the earliest opportunity and may even consider the freezing of the woman’s eggs, if necessary.  It is well known that a woman’s fertility declines after the age of 35 so planning is vital.

The Human Fertilisation and Embryology Authority (HFEA) is the UK’s independent regulator of fertility treatment and regulates all fertility clinics and providers in the UK.  As of March 2017, there were 132 licensed clinics and laboratories in the UK, with the majority providing specialist treatment services covering IVF and embryology.  The largest offerings of clinics in the UK are centred in London and the South East.  If the trends continue as they are, with women choosing to have children much later in life, then we may well see an increase in the number of clinics across the country, together with the number of family lawyers offering fertility and surrogacy advice.

Having spoken to the HFEA, it is clear that there is an ongoing demand for family lawyers to offer the services of fertility and surrogacy.

For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer. 

New Year Brings New Promotions

New Year Brings New Promotions

Everys Solicitors is pleased to announce three new associate promotions effective as of 1st January, 2019. Emma Gray, Emma Benyon-Tinker and Kris Seed have all received their promotions as recognition of their dedication to the firm and their hard work.

Emma Gray, a solicitor in the Private Client team based in Honiton, has been with Everys since 2017.  She is Regional Co-ordinator of the Devon & Cornwall Group of Solicitors for the Elderly and invests substantial time in ensuring that individuals are encouraged to seek professional advice from qualified solicitors who are happy to work with other experts, such as accountants and financial advisers for the better good of their clients. Emma is a member of the Society of Trust & Estate Practitioners, Solicitors for the Elderly and the Private Client section of the Law Society. Emma’s work encompasses the full spectrum of Private Client services with a particular emphasis on elderly and vulnerable adults, such as individuals with terminal illnesses and young adults with disabilities.

Emma Benyon-Tinker is an experienced Family Law solicitor who has practised family law exclusively for 20 years.  Emma, who has recently moved to the Honiton office, has been with Everys since 2016 and specialises in resolving all family disputes, including divorce, civil partnership dissolution, financial issues, cohabitation disputes, pre-nuptial agreements, domestic abuse and all children’s issues.  Emma is a trained collaborative lawyer, mediator and Resolution Accredited Specialist whose focus is always on minimising the damage caused by relationship breakdowns and on the protection of children.

Kris Seed has been with the firm since 2016 and is a member of our Family Law team working out of the Exeter office. She has over 25 years’ experience advising on all matters relating to divorce and the consequential financial separation (including advising family businesses and farm owners on the protection of assets from the impact of relationship breakdown), co-habitee disputes including pre and post nuptial agreements, and claims under the Trusts of land and Appointment of Trustees Act.

She also specialises in all matters relating to children. Kris is a founder member of the Exeter family Court Clinic which assists litigants who attend court without representation – an organisation approved and supported by members of the judiciary.

Commenting on the promotions, James Griffin, Managing Partner, said: “We have a culture of recognising and promoting talent within the ranks, and both Emmas and Kris have shown a level of professionalism and commitment, coupled with their commitment to go above and beyond what is expected of them, which makes their promotions fully deserved. We are delighted to have such dedicated lawyers as members of the Everys family and we congratulate them on their promotions.”

Reasons for Divorce

Reasons for Divorce

It is very painful when a marriage break up occurs, and your first thoughts are not often about whether you need to obtain legal advice, so why might legal advice be required?  There are still many misconceptions about divorce, the process and when there should be a financial settlement.

There is only one ground for a divorce which is the irretrievable breakdown of a marriage.

To prove the irretrievable breakdown  your divorce must be based on one of the following five facts:

  • Adultery
  • Unreasonable behaviour
  • Separation of 2 years, which both parties consent to
  • Separation of 5 years
  • Desertion

You cannot simply say that you have grown apart, or no longer love each other.  Although the government have recently consulted on changing the laws to enable there to be a “no fault” divorce until these laws are changed, to divorce immediately you do need to allege fault.

You must have been married more than one year to even commence divorce proceedings.  If you have not been married for over a year, you might need to consider alternatives such as judicial separation or a separation agreement?

A common misconception is that it is easier to divorce after you have been separated for 2 years.  The reality is that the process (currently) is exactly the same as if you had divorced using either the grounds of adultery or unreasonable behaviour.  The same court fee (currently £550) also needs to be paid.

Currently the court is taking approximately 12 months to process a divorce from start to finish.

A divorce only dissolves the marriage; it does not end the financial claims that have arisen as a result of the marriage.  These need to be separately dismissed by the court.  If they are not and perhaps a few weeks after your Decree Absolute is granted you win the lottery, your former spouse could come and make a claim against you.

This is a common mistake, particularly with DIY divorces.  Even if you have no assets now, you may do in the future, and you therefore need to enter into financial agreement resolving the issues now so that no claim can be made against you in the future!

It is particularly important if you do have assets that a financial agreement is entered into at the time of the divorce.  It can be difficult many years later to say exactly which assets were from the marriage and which have been accrued post divorce.

For more information, or preliminary, confidential discussion please contact our Family Team.

Appointment of Anne-Marie Hamer increases range of services offered by Family Law team

Appointment of Anne-Marie Hamer increases range of services offered by Family Law team

Family Law team to offer Surrogacy and Fertility Law services

Everys Solicitors is pleased to welcome Solicitor Anne-Marie Hamer to its Family Law team. A highly experienced lawyer, Anne-Marie is skilled in all aspects of matrimonial law, disputes, financial resolution and Private Children Act. In addition, Anne-Marie has particular expertise in Surrogacy and Fertility law.

Based in the Taunton office, Anne-Marie will provide her services throughout East Devon, Dorset and the local areas in and around Taunton.

With over 10 years’ post-qualified experience, Anne-Marie is an Advanced Family Law Panel member and is also an accredited Collaborative lawyer. Prior to joining Everys, Anne-Marie was head-hunted by Michelmores to help grow their team.

Commenting on the appointment, Gail Salway, Head of the Family Law team, said: “Anne-Marie is one of only a handful of lawyers, nationwide, specialising in this frequently complex but interesting area of law. Increasingly, we are seeing heartbreaking issues surrounding surrogacy and fertility which necessitated the need to offer a specialist service. Anne-Marie is a dedicated lawyer who is passionate about her practice. She brings with her enthusiasm as well as compassion, and the ability to empathise with her clients. We are fortunate to have Anne-Marie as a member of our team and we wish her a successful career at Everys.”

In recent years, the popularity of surrogacy has risen as couples and single people have become more aware of this option as an alternative to IVF and adoption. The legalisation of same-sex marriages has opened the market for surrogacy further, with same-sex couples wanting biological children of their own. The legalities involved in this area of law make it imperative that expert legal advice is sought.

Contact Anne-Marie

Photo: Bottom left to right – Anne-Marie Hamer and Emma Benyon-Tinker. Top left to right – Gail Salway and Kris Seed

Everys Taunton Office Continues Strategic Growth

Everys Taunton Office Continues Strategic Growth

Everys Solicitors has seen demand for services at its Taunton office rise substantially in recent months, resulting in the hiring of four new staff members.

Anne-Marie Hamer has joined as a Solicitor in the Family Law department.  She is one of the few lawyers in the UK with expert knowledge of Surrogacy and Fertility Law, and is recognised in the Legal 500 as “one to watch”.  In addition to Surrogacy and Fertility Law, Anne-Marie offers services relating to all aspects of Family Law.  Anne-Marie joined Everys in October, having previously worked at Michelmores.

Julie Hemming has 18 years’ experience as a Residential Conveyancer and has been a fee earner since 2014.  She has extensive knowledge of the local and surrounding areas, having worked in Wellington for over 20 years.  Julie also joined in October from Broomhead & Saul, and works in our Property department.

Duncan McKenzie is an experienced Corporate Commercial Paralegal, having worked both in private practice and in-house.  Duncan has advised a wide range of multi-jurisdictional public and private corporations on post-merger requirements, drafting and negotiating joint venture agreements and acting in a lead due-diligence role in high value acquisitions.  Duncan is also experienced in drafting and negotiating an extensive range of commercial agreements, as well as managing and updating legal precedents.  Duncan joined Everys in November.

Anastasia Allistone is a Paralegal in the Commercial department.  She studied and qualified as a lawyer in Russia and worked for a Commercial and Intellectual Property law firm prior to coming to the UK. She previously dealt with cases concerning legal protection of trade marks, patents, designs and copyright in Russia and abroad.  Anastasia’s work at Everys includes all matters relating to Commercial and Business law transactions, specialising in Intellectual Property law.  Anastasia joined in October.

Will Vine, Partner and Head of the Taunton office said: “Since opening our office in 2014, we have seen a year-on-year increase in the need for our services and this continues to gather pace.  The appointments of Anne-Marie, Julie, Duncan and Anastasia reflect our strategy for organic growth, and our ongoing investment in the recruitment of quality lawyers ensures that we have the necessary capacity to manage this increase whilst providing an excellent service which is both professional and personal.”

Everys’ Taunton office is located at Hankridge Way and offers services in Private Client matters, Residential and Commercial property, Company Law, Family Law, Litigation, Business Enterprise, and farming and agriculture.

For further details, contact:

Will Vine, Partner  |  Tel: 01823 337636  |  Email: will.vine@everys.co.uk

Photo (from left to right): Julie Hemming, Anastasia Allistone, Will Vine, Anne-Marie Hamer and Duncan McKenzie.

New Appointment strengthens Everys Litigation Team

New Appointment strengthens Everys Litigation Team

Everys Solicitors has appointed Kathy Trist to its Litigation Team. Based primarily in their busy Exeter office, Kathy will undertake general litigation matters with particular interest in property litigation, professional negligence and commercial contract disputes.

Kathy qualified as a solicitor in 2004 and given her years of experience has come across most types of property dispute. Property litigation covers a wide area from disputes over who owns what and on what basis, to boundary disputes, construction complaints and when in dispute what rights both parties have over their respective properties. Kathy also advises on clauses in Deeds or Leases and their implications for both the commercial entity and the private individual. Commercial entities can have issues in relation to their business premises whether as owner or when considering their occupation of leasehold premises.

As an Accredited Civil Mediator Kathy uses this additional skill set when fighting her client’s corner, giving robust and realistic advice whilst continuing to keep her eye on the goal they seek to achieve.

Kathy is a member of the Property Litigator’s Association, the Association of Contentious Trust and Probate Specialists and the Civil Mediation Council.

Gay Cherryson, Partner, Head of Litigation at Everys, said: “Litigation is a key practice area for Everys, and Kathy is a solicitor with a vast knowledge and experience of this sector. Our clients expect the very best service from us, and we pride ourselves on delivering that service. Kathy’s appointment has strengthened our ability to give our clients what they want and we are excited to have her join our team”.

Please contact Kathy if you require assistance on law@everys.co.uk or on 01392 477983.

Photo (from left to right): Gay Cherryson, Partner, Head of Litigation  |  Kathy Trist  |  Ellen Stratton

Emma Gray Visits New Oncology Ward at Honiton Hospital

Emma Gray Visits New Oncology Ward at Honiton Hospital

Emma Gray, a solicitor in our Private Client team, was invited by FORCE Cancer Charity to view the oncology facilities at Honiton Hospital on Friday, 23rd November 2018. Emma and other guests, including Cllr Duncan Sheridan-Shaw, were given a tour by FORCE’s CEO, Meriel Fishwick, of the ward where oncology support is provided, the Complementary Therapies room, and the waiting room which is stocked with fruit supplied by Tescos Honiton.

Thanks to funding from FORCE, chemotherapy treatment is now available in Honiton for the first time, alongside support for anyone in the area affected by cancer. The services are available to cancer patients from across the East of the county every Friday between 9:30am and 3:30pm.

As well as chemotherapy, delivered by experienced nurses from the Royal Devon and Exeter Hospital’s Cherrybrook chemotherapy unit, FORCE offers free of charge:

  • A drop-in service for advice and information;
  • Counselling; and
  • Complementary therapies.

Exercise advice from a specialist oncology physiotherapist and family support will also be introduced.

Emma Gray said “Seeing the set-up of the unit was emotive as it brought back memories of my husband’s treatment. However, my over-riding feeling was of the amazing difference this unit will make to oncology patients and their families, having the ability to access treatment and support locally.”

  • The benefits to patients include:
  • Treatment closer to home so less travelling time and expense;
  • Easier parking;
  • Quieter location and treatment area;
  • Reduced waiting time for treatment, both in Honiton and Exeter;
  • Experienced oncology staff from the hospital to deliver treatment; and
  • Access to additional FORCE services to support patients and their families.

Not all cancer patients are eligible to receive chemotherapy treatments outside the RD&E’s main acute hospital site at Wonford. Consultants and chemotherapy nurses will discuss with patients and families whether they are suitable for community-based treatment.

Nonetheless, for those who do use the services, it will make a real difference at an emotional stage of their lives.

Contact Emma Gray

Keeping kids first helps minimise fallout from family breakdown

Keeping kids first helps minimise fallout from family breakdown

Everys is campaigning for a change in the law to reduce the fallout from divorce on children, after figures released today revealed the impact of conflict between separating parents.

In a new poll, 79% of the population agreed conflict from divorce or separation can affect negatively children’s mental health, a figure rising to 87% among those who experienced their parents’ divorce as children. 77% said conflict could affect children’s academic performance and a further two-thirds felt social interactions and the ability to form healthy romantic relationships were also jeopardised.

We made the calls as part of a national Good Divorce Week that is being led by Resolution, who campaign for a fairer family justice system and commissioned the new YouGov poll.

Good Divorce Week aims to provide practical help, highlighting ways for separating parents to put their children’s needs first, as well as calling on government to urgently remove blame from the divorce process.

As 200,000 people divorce each year in England and Wales, an overwhelming 79% of the public support measures that would remove blame from the divorce process, with 71% believing change is urgently needed to reduce the negative impact on children.

While most parents we work with want to keep a child’s best interest at the forefront, the current fault-based divorce system can make this a challenge.

Our Family Team said:

“Each day we work with separating parents to help them resolve their own issues in a way that provides a fair outcome to everyone in the family especially any children. But often, even with the most amicable break up, the requirement to apportion blame for the breakdown of the marriage can create unnecessarily conflict that can threaten the entire process.”

 Resolution has made resources available, both to the public but also local practitioners, to help them campaign to change the system and raise awareness of the long-term impact this conflict can have on children. These are available at www.resolution.org.uk/GoodDivorceWeek

Why business owners can’t forget about Inheritance Tax

Why business owners can’t forget about Inheritance Tax

  • Do you have properties that you own which are used within a business?
  • Have you considered how your business partners will buy out your share and run your business on your death?
  • Do your company documents state what happens on the death of a business owner?
  • Have you got large cash reserves?

Business owners have so many taxes and rates to think about: income tax, capital gains tax, corporation tax, National Insurance contributions, VAT etc. It is not surprising that Inheritance Tax is often the last tax on their minds.  In addition to which, businesses often use land and buildings that are owned by individuals and there can be significant cash reserves on the balance sheet.  All of these factors make it increasingly important for business owners to review the business assets when considering mitigating Inheritance Tax and succession planning.

Business Property Relief (BPR)

BPR is the first relief that comes to mind when contemplating mitigating Inheritance Tax for business owners.  It was originally designed to enable family firms to be left to younger generations when the major shareholder or business owner dies. When you consider the value of businesses, and the fact that Inheritance Tax is levied at 40% over an individual’s nil rate band, maximising BPR becomes a vital consideration for business owners to ensure the survival of the family business.

100% BPR

 People often presume that BPR means that no Inheritance Tax is due on their business when they die, but this is not always the case.  The general rule is that 100% BPR is available for a business, an interest in a business or shares in an unlisted company.  However, it is important to review what your business does and there are important exceptions to this general rule that need to be understood.

50% BPR

 Business owners need to appreciate that some business assets do not qualify for the full BPR relief.  If the deceased owned shares that control more than 50% of the voting rights in a listed company or, more importantly, if land, buildings or machinery were owned by the deceased and used in the deceased’s business, then only 50% BPR is available.  It is therefore essential to check the ownership of property used in a business because if the deceased owned the land or buildings, rather than the company, then only 50% BPR is available and there could be a sizeable Inheritance Tax liability.

No BPR

In addition to the above considerations, BPR may not be available at all in the following circumstances:

  • If the business asset was not owned by the deceased throughout the two years immediately preceding the death;
  • For excepted assets – those assets not used “wholly or mainly” for the purpose of the business;
  • If there are substantial cash balances which are not required for an identifiable future business purpose;
  • If a business mainly deals with securities, stocks or shares, land or buildings or in making or holding investments;
  • If a company is subject to a contract for sale or is being wound up; and
  • Businesses who are not-for-profit organisations.

Professional advice

All business owners should think about succession planning and no-one should take Inheritance Tax reliefs for granted.  We recommend that business owners regularly review their situation with the assistance of professional advisers. If you need legal advice, Everys’ Corporate and Private Client teams can help you.  We work closely together to put the correct paperwork  in place to mitigate Inheritance Tax as far as possible, whilst ensuring that your business can continue to operate after your death.

Should I prepare a Health and Welfare Lasting Power of Attorney?

Should I prepare a Health and Welfare Lasting Power of Attorney?

Most people are aware that a Property and Financial Lasting Power of Attorney allows you to appoint Attorneys to make financial decisions on your behalf. Fewer people realise that it is also possible to make a Health and Welfare Lasting Power of Attorney (LPA) to enable your appointed Attorneys to make decisions about your health and welfare if you lose the mental capacity to decide those things for yourself.

Health and welfare decisions are varied – from where you get your hair cut to life-sustaining medical decisions. None of us knows which decisions may need to be made for us in the future. To ensure that your wishes are continued if you lose your mental capacity, it is key to put a health and welfare LPA in place.

Whilst healthcare professionals and social services would, in most circumstances, consult with a person’s next of kin in respect of these decisions, bear in mind:

  1. the persons they consult may not be the ones you would wish to be consulted; and
  2. although they should act in your best interests, those decision-makers do not know you personally and would not know the type of decisions which you would make.

If there is no health and welfare LPA in place, the risk is that those decision-makers may make choices contrary to your wishes. Your next of kin could object, but there is no obligation to take those objections into account. Your family members may be left feeling unable to provide help at a time when you most need it.

Making a Health and Welfare LPA is almost a form of ‘insurance’, which you hope you will never have to rely on. But if it is ever required, you will have the peace of mind that your Attorneys have been chosen by you, can make decisions about your health and welfare and are able to follow your wishes.

For more information, or some preliminary confidential advice contact a member of our Private Client team from your local office.

Will your executors know about all of your assets?

Will your executors know about all of your assets?

One of the main roles of your executors is to collect in your estate before settling any outstanding debts and distributing your estate in accordance with your Will. But will your executors know where to find all of your assets?

More and more assets/accounts in this modern era are held “online”. Historically, your executors may have been through all of your paperwork at your property, discovered bank statements and then contacted your bank to close the accounts. If your account is held online, there is a chance that you may not have paperwork relating to the holding and your executors could miss this. Likewise, it is quite possible that you may have a balance held on an account with a website, perhaps an online bookmaker or lottery site or you may hold a virtual currency such as Bitcoin. If your executors are unaware of it or unable to access it after your death then this can cause additional complications during the administration of your estate.

Of course, the same applies to more sentimental items such as photographs stored electronically. If you have password protected your computer/tablet then those memories could be lost forever.

So what can I do now?

The first step would be to ensure that if you do have such assets, your executors are aware of them and where to find them/how to access them. You can discuss this with them during your lifetime or even leave a sealed envelope with your Will containing such details. It is of course vital to keep such a list up to date.

For more information, or some preliminary confidential advice contact a member of our Private Client team from your local office.

Pets and Divorce – Who keeps the family pet?

Pets and Divorce – Who keeps the family pet?

One of the most often asked questions in a divorce is who is going to keep the family pet, be it the family dog or other much loved family pet.   Sometimes it is obvious that one party wants to keep the pet and the other party does not, in that case it is very straight forward.  What happens however if both parties want to keep the pet themselves?

Ideally both parties should try and reach an agreement, perhaps even a shared care arrangement for the pet. Perhaps if the parties have children, then the pet stays with the children and whoever they are with?

But what happens if the parties simply cannot reach an agreement, what does the court do then? The court can only determine who owns the pet not what the arrangements should be.  The pet is considered a “chattel” of the marriage along with items of furniture etc. The court might simply look at who bought the pet, in whose name the pet is registered with at the vets or whose name is on the ID chip? That is unfortunately the sad reality of how the court views the much loved family pet.

Whilst the court can determine ownership and therefore who gets to keep the pet, the reality is that this is a very expensive way to resolve a dispute. However much you love your pet, and no price can be put on that, your solicitor will encourage you to reach an agreement and not incur costs arguing over chattels, which is unfortunately how your pet is seen by the court.  You would probably not spend money arguing about who keeps the sofa or the cooker and as can be seen the court would treat the pet in the same way.

It is always better to agree on all matters, such as the arrangements for the children, the financial settlement and the arrangements for your pet rather than fighting matters through the courts. The more money that is spent on fighting, the less money there may be at the end of the matter for you.

Once you have agreed the financial settlement and the arrangements for your pet, it is essential that a formal agreement is entered into to ensure that the arrangements are legally binding. It is a common misconception that a Decree Absolute ends everything, but it simply ends the marriage.  To dismiss the financial claims that have arisen as a result of the marriage a financial order is required otherwise those financial claims remain open.

For more information, or some preliminary confidential advice contact a member of our Family Team from your local office.

Separation – Your Questions Answered

Separation – Your Questions Answered

Who should pay for what in the immediate aftermath of a break up?

There are no rules as to who should pay for what in the immediate aftermath of a break up. Initially it is usually best to continue as you were whilst you are sorting out the new arrangements.

If one party has moved into new accommodation, then the joint income which was paying for one household and all bills, now needs to pay for two households and all bills. It will be a financial calculation in each case as to who can afford to pay for what. If one party is the higher earner, and they have moved out of the family home, they may well be expected to continue to make a substantial contribution to the running of the former family home.

Any extras such as gym membership should be made by the party that it will benefit.

In the longer term an agreement will be reached as to whether one party needs to pay spousal or child maintenance to the other.

What is financial disclosure and what information am and I my partner expected to share?

Financial disclosure is information about all capital, liabilities, income, expenditure and pension provision that a spouse may have.

Both spouses are required to provide this information to each other and to provide documentary evidence in support.

The purpose of disclosure is so that both parties are aware of the true financial picture of the marriage and both parties can then negotiate a fair settlement based on what is available for division between them.

The situation is slightly different if you are cohabiting. Then you need to discuss the assets and liabilities which are in your joint names.

How can a solicitor help to decide what is a fair settlement?

Once full financial disclosure has been exchanged it is not as straightforward as working out what there is and dividing it equally between you as you may have different needs and resources and lots of factors need to be weighed in the balance.

The welfare of any children you have will take priority and the following factors are also considered by the court and guide our advice on parameters for settlement:

  • The length of the marriage: the longer the marriage the stronger the likelihood that the assets will be divided equally
  • Your ages: needs will correspond with the stage in life of each of you
  • The reasonable needs of each of you: this is loosely based on the standard of living you enjoyed during the marriage although it is important to remember that when the money is divided between two households it will not go as far
  • The resources of each of you: this includes not only the assets, pension and income you have now but also your earning capacity (which may not be maximised currently) as well as mortgage capacity
  • Contributions made by either of you: A significant contribution to the marital assets made by one of you (for example, property brought into the marriage or an inheritance/gift received at any time during the marriage) – this will be more likely to be ring-fenced if it has been kept completely separate or the marriage was short.
  • Any health issues
  • Any pre/post nuptial agreement you entered into
  • Benefits which either of you could lose as a result of the divorce (such as widow(er)’s pension benefits)

Taking into account all the factors, a solicitor can then advise on what might be a fair settlement in your particular circumstances. It should be a settlement that meets the needs of all parties, particularly the needs of the children.

Again the situation is different if you were cohabiting. In that case, none of the above factors would matter. It would be a case of who owns what and whether each of the parties have an interest in the assets.

Who decides what level of maintenance estranged partners must pay?

There is a calculation which sets out what level of child maintenance should be paid which is based on income of the party paying. There is a helpful calculator on the Gov.uk website which does the calculation for you. This would apply whether you were married or cohabiting.

Spousal maintenance will depend on the needs and resources of the parties. If one party has been a stay at home parent, then it is likely that spousal maintenance will be paid by the other party. Spousal maintenance can be for a limited term, or it can be for an unlimited term. There is no set calculation, unlike for child maintenance.

How are pensions divided on divorce?

Pensions are just part of the matrimonial pot which are to be divided on a divorce. There are various ways in which pensions can be included in a settlement:

  • Pension Offsetting – this is where one party elects to receive more capital rather than a share of the other’s party pension.
  • Pension Sharing Order – this is where the pension pot is divided between the parties in the agreed shares. The party who is receiving the pension sharing order will elect their own pension to have their share paid into, and then each party has their own pension. This therefore results in their being two separate pension schemes which are not related to the other.
  • Pension Attachment Order – this is not a very popular as it means that the party keeps their pension, and on their retirement, the pension company will pay an agreed percentage each month to the former spouse. The problem is that if the person with the pension should die, then the former spouse does not receive anything.

It should also be noted that if the value of the pension pots are “shared” equally it does not mean that each party will receive the same income. Income is calculated by a pension actuary, and generally the same pension pot will lead to a smaller income for a woman than it would for a man. If parties are trying to achieve an equal income in retirement, then an actuary will need to produce a calculation to state what percentage one party might need to receive.

Who keeps the house?

Who keeps the house is just one of the factors to be considered when determining what is a fair settlement in a divorce based on all the other factors that must be considered, as set out above. It cannot be considered in isolation without reference to the other assets, liabilities and pensions that the couple may have.  The key issue to determine whether the house is kept by one party, or sold is usually the needs of the children. However keeping the house must also be financially affordable. It is often common that the sale of the house is postponed until the children have finished school or until the spouse remaining in the home remarries or cohabits. At that point the house would be sold and the equity divided.

If you are cohabiting, then it would depend on who owns the house. If the house is in one of the party’s sole name, then they will retain the house. If the house is in joint names, an agreement would need to be reached as to who will buy the other’s interest in the house or whether the house is sold and the proceeds split.

For more information, or some preliminary confidential advice contact a member of our Family Team from your local office.

Budget 2018 Summary

Budget 2018 Summary

The first Autumn Budget to be delivered on a Monday since 1962. Philip Hammond began his speech with a promise of ‘a Budget for Britain’s future’.

Below is outline of the Budget announcements:

  • Increasing funding to help department prepare for Brexit to over £4 billion
  • £20.5 billion more for the NHS by 2023-24
  • Increasing mental health funding by more than £2 billion a year by 2023-24
  • £650 million for social care funding next year
  • £1 billion extra for defence over the next 2 years
  • An additional £160 million of Counter Terrorism Police funding for 2019-20
  • Up to £19 million to commemorate the Centenary of the WWI Armistice
  • £10 million for air ambulance services in England
  • £400 million extra for schools this year
  • £30 billion to improve roads, including £420 million to Local Highway Authorities (tackle potholes, bridge repairs and other minor works).
  • £1.6 billion to fund advanced technologies like nuclear fusion and quantum computing
  • Increasing the Annual Investment Allowance to £1 million (from 1 Jan 2019 – 31 Dec 2020)
  • Increasing UK Export Finance’s direct lending facility by up to £2 billion
  • Digital tech giants will be taxed 2% on the money they make from UK users
  • £1.5 billion to support local high streets (including 1/3 off business rates for small retailers)
  • £5.5 billion for the Housing Infrastructure Fund (to support the building of 650,000 new homes)
  • £950 million more for the Scottish Government (£150 million for a Tay Cities Deal)
  • £550 million more for the Welsh Government
  • £320 million more for a Northern Ireland Executive
  • £12 million over the next 3 years for cutting edge fisheries technology and safety
  • Consulting on a plastic packaging tax for April 2022
  • Freezing fuel duty for the ninth year in a row (saving the average driver £1,000 since 2010)
  • Freezing duty on beer, cider and spirits
  • Air Passenger Duty on short-haul flights will not rise
  • A new Railcard for all young people aged 26-30 by the end of this year
  • Increasing all existing Universal Credit work allowances by £1,000 a year, and supporting claimants moving onto Universal Credit
  • The National Living Wage rises to £8.21 per hour from April 2019
  • Increasing the tax-free personal allowance to £12,500 in April 2019
  • Increasing the higher rate threshold for income tax to £50,000 in April 2019 (1 million fewer people will pay the higher rate than in 2015/16
  • New commemorative 50p Brexit coin from Spring 2019

For more information visit – https://www.gov.uk/government/news/budget-2018-24-things-you-need-to-know

Why Use a Solicitors for the Elderly accredited lawyer?

Why Use a Solicitors for the Elderly accredited lawyer?

Later life presents a set of challenges that, if not dealt with correctly, can have serious consequences not just for the individual concerned but for their family, too.  That’s why it’s essential that the lawyer you instruct to manage your affairs has the highest level of experience, knowledge and skill in dealing with issues affecting the elderly and vulnerable.  Cue Solicitors for the Elderly (SFE).

SFE is a nationwide association consisting of more than 1,600 highly skilled lawyers who have the expertise in handling elderly care issues with sensitivity, professionalism and efficiency.  With more than 50% of their time dedicated to older clients, SFE lawyers have developed a substantial knowledge base which is continually updated through regular training and events.  They are independently accredited by Skills for Justice, a government body, and follow a strict code of practice to ensure integrity and respect at all times.

SFE lawyers are dedicated to safeguarding their client’s interests and are committed to providing exceptional legal advice at an affordable cost.  They follow an Older Client Care Procedure which sets out what the client can expect of them, so that they are well informed from the outset; and plain English is used at all times ensuring that communication is clear and fully understood.

If you or a relative would benefit from the advice of an SFE accredited lawyer, please look out for the SFE Accreditation badge which will be displayed on the law firm’s website.

Why Use a Solicitors for the Elderly accredited lawyer?

EVERYS SOLICITORS’ EMMA GRAY APPOINTED DEVON & CORNWALL REGIONAL CO-ORDINATOR OF SOLICITORS FOR THE ELDERLY

Solicitor Emma Gray, of Everys Solicitors in Honiton, was appointed as Regional Co-ordinator for the Devon & Cornwall region of “Solicitors for the Elderly” (SFE) in June 2018.

Established in 1996, SFE is a national network of highly skilled lawyers providing legal services and expert advice on Powers of Attorney, Living Wills, tax planning, funding for social care and many other related issues, specifically for the elderly and vulnerable.  Prior to joining SFE, as well as being fully qualified solicitors who spend 50% of their time on older client law, potential members must obtain both the ‘SFE Older Client Care in Practice Award’ and the ‘Older Client Law in Practice Award’.  These develop the soft skills necessary for dealing with elderly and vulnerable clients which includes understanding the issues affecting health and wellbeing in later life, as well as being able to detect elder abuse such as when a client is being coerced.  As a benefit of the membership, SFE ensures its members are kept fully abreast of the latest developments through newsletters, updates, on-going training and events.

As a Regional Co-ordinator, Emma Gray is the main point of contact for Devon and Cornwall and links in with the national group.  Together with the support of the Devon and Cornwall committee, she ensures that information is communicated to the local members through meetings and training sessions provided by experts in the field of elderly client legal services.  As well as being responsible for running the local branch, and being a key contact for legal advice in this area, Emma is a local ambassador for SFE; raising awareness of elderly client issues with local organisations.

Emma said: “I have been a Dementia Friend for a number of years and have, unfortunately, both been a carer for a family member and suffered the heartache of bereavement.  My new role as Devon and Cornwall Regional Co-ordinator gives me the opportunity to continue furthering the legal knowledge and understanding of all the issues surrounding the elderly and vulnerable within our community.”

Everys Solicitors is an independent law firm with recognised expertise in legal issues affecting the elderly and vulnerable.  With Emma’s new appointment, clients can have the confidence that Everys has the specialist knowledge and skills required to handle their case with sensitivity and professionalism.

Contact:
Emma Gray
Tel: 01404 540941
Email: emma.gray@everys.co.uk

Why do I need a Power of Attorney?

Why do I need a Power of Attorney?

Everys solicitors act for a wide range of individuals both in relation to ordinary, enduring and lasting powers of attorney.  The ideal position is to assist individuals in preparing legal documents prior to any diagnosis of dementia.  However, we are often contacted when the family reach a critical point and a dementia diagnosis has been confirmed.

A diagnosis of dementia does not mean that an individual lacks capacity.  Capacity can fluctuate and varies according to the nature of the task being performed or the decision in question.  Capacity is therefore both time and fact specific.  At Everys solicitors, we would usually meet with the individual in question, called “P” by the Courts, and their next of kin.  At that initial meeting we would establish what paperwork is in place and if there are no existing powers of attorney we would discuss whether there is sufficient capacity to prepare lasting powers of attorney in order to ensure that  P can nominate the individual(s) they want to assist them in managing their affairs in the future.

If an individual is found to have the requisite capacity then we would arrange a capacity report, usually from an elderly client psychiatrist, who would then act as witness and certificate provider. If an individual does not have the requisite capacity then it is necessary for the family to apply to the Court of Protection for a Deputyship.  Although this is a more costly procedure both in time and money terms, it means that regardless of whether P has capacity, Everys’ Private Client team can ensure that there is the correct legal document in place to ensure that someone can manage the affairs of an individual living with dementia who is unlikely to be able to continue managing their own affairs.

Article by Emma Gray

Protecting the family farm…Pre-Nuptial Agreement?

Protecting the family farm…Pre-Nuptial Agreement?

It is not the most romantic topic to discuss when you have just become engaged but you may need to consider whether a Pre-Nuptial agreement is something that you might need to discuss with your fiancé.

It might be a second marriage, or it might you have inherited the family farm and in the event of a marriage break-down, you will wish to retain the farm for your children? In these cases, you might want to enter into a pre-nuptial agreement to set out at the outset that those assets would remain yours in event of a breakdown of the relationship.

A pre-nuptial agreement sets out how a couple’s assets will be divided should they separate or divorce.

Although pre-nuptial agreements are not legally binding in the UK, they are increasingly being recognised and upheld in the courts provided certain conditions have been met.

These conditions include entering into the pre-nuptial agreement in plenty of time before the wedding. If you are forced to sign a pre-nuptial the night before your wedding, it is unlikely that a court would uphold the agreement!

There should also be full and frank financial disclosure so that both parties are aware of the assets which would be retained by either party.

It is important that both parties take independent and separate legal advice about the agreement. This is particularly important if you are being asked to sign a pre-nuptial agreement as a pre-nuptial agreement can limit a financial settlement that might otherwise have be ordered by a court on a divorce. You could therefore be agreeing to receive less than you might be entitled to.

The court, on a divorce, will consider all the circumstances surrounding the pre-nuptial agreement and the courts will even reduce an amount one spouse is to receive because of the existence of a pre-nuptial agreement even if the court thinks the pre-nuptial cannot be followed exactly.

It is therefore extremely important that legal advice is sought about a pre-nuptial agreement. However entering into a pre-nuptial agreement makes it clear what your wishes are and the wishes of your fiancé. We would say it is better to have one than not.

For more information, or some preliminary, confidential advice please contact a member of our Family Team, or your local office.

 

Christmas Arrangements for Separated Families

Christmas Arrangements for Separated Families

Whilst it may only be September, now is the time to reach an agreement with your former partner about the arrangements for the children at Christmas.

It may well be that you are simply alternating the arrangements from last Christmas but what if you only separated from your partner this year, and this Christmas will be the first one as separated parents?Christmas is a very difficult time when you are a separated parent. So how do you make an arrangement which leads to Christmas still being a special time for the family and in particular the children?

The advice is to sort out the arrangements early so everyone knows what is happening, and December is not any more stressful than it might otherwise be. There are various options open in terms of the arrangements for the children and you should consider amongst other things the following:- whether Christmas Day itself should be divided, would it be better for one of you to have the children in the morning to wake up and open presents with and the other to have the children in the afternoon for Christmas Dinner?

Or you might agree that one parent has the children on Christmas Day and the other parent has them on Boxing Day?

Or you agree that one parent has the children for Christmas Eve and Christmas Day and the other parent has the children for New Year’s Eve and New Year’s Day?

The point to remember is that generally whatever the arrangements are for this year, the opposite arrangements will take place next year. Therefore if you agree that you should be having Christmas Day this year, and the other parent should have Boxing Day, next year the arrangements would be reversed and you would be having the children on Boxing Day.

If you cannot reach an agreement, the first option is to try and resolve the issue in mediation. If you cannot reach an agreement then a court application would be necessary. This takes time however, and it is not something that can be left until the last week before Christmas.
The advice is therefore to resolve these arrangements sooner rather than later.

For more information or some preliminary, confidential advice please contact our Family Team, or your local office.

The Importance of having a Will – Supermarket Survey

The Importance of having a Will – Supermarket Survey

A large supermarket recently carried out a survey which indicated that 91% of us think about our mortality regularly and a third of us speculate on our own death at least once a week.

But whilst some of us clearly do think about life after death, the majority don’t have a Will. The reluctance to plan for death could leave those you care about most in an exposed position at a time when they are already vulnerable.

Obtaining advice in relation to your Will might not be as expensive as you first think and may even put your mind as ease. Your Will is very likely to be the single most important document to take effect on your death so it is certainly worth giving some thought to it. Your Will can dictate:

  • to whom your estate (i.e. what you own when die after debts and funeral have been paid for) should pass (is it your spouse, partner, your children, a charity or perhaps a mix?);
  • who takes responsibility for any children you may have who are under the age of 18;
  • who should live in your house when you have died or whether it should be sold; and
  • who takes ultimate responsibility for ensuring that what you own when you die passes in accordance with your Will.

If you die without a valid Will in place, the intestacy rules will apply and it is those rules which dictate who inherits your estate, regardless of your wishes. To ensure your assets pass in the way that you wish, the best way to achieve this is to put a valid Will in place. Then all you have to do is to remember to keep it up to date!

For more information, or some preliminary, confidential advice contact Joan Pullin, Solicitor in our Private Client team on 01297 21612 or email joan.pullin@everys.co.uk.

Court of Protection: What does this mean?

Court of Protection: What does this mean?

As a Court of Protection Lawyer, I assist with matters pertaining to individuals who have lost mental capacity to manage their property and financial affairs. As such, I am required to  work closely with the Court of Protection.

The Court of Protection is the specialist court with jurisdiction over the property and financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.

However, the Court can also give powers to someone else if there is a need for decisions to be made on an ongoing basis.  If the Court gives these powers to someone else, they are known as a Deputy. If someone wishes to be appointed as a Deputy, an application must be made to the Court for an order appointing them in this capacity.

There are two types of Deputyship Order as follows:-

  1. Property and Affairs Deputy – this allows a named individual to make decisions about property and financial affairs including the sale and purchase of property;
  2. Personal Welfare Deputyship – this allows a named individual to make health and welfare decisions on the person’s behalf such as what medical treatment they are to receive and how they are looked after.

Anyone over the age of eighteen can be appointed as a Deputy.  Deputies are usually close family or friends of the person who needs the help. To become a property and affairs Deputy, you need to have the skills to make financial decisions on the person’s behalf. If the proposed Deputy has in the past been made bankrupt or has previous criminal convictions, the application to the Court is likely to be rejected.

If the application is successful, the Court will grant the Order setting out the Deputy’s specific powers in relation to the person’s property and financial affairs or personal welfare. Once appointed, the Office of the Public Guardian (OPG) will help the Deputy carry out their responsibilities. The Deputy must always act in the person’s best interests and follow the rules of the Mental Capacity Act.

The Deputyship order will continue until the Court order is changed, expires or is cancelled on the death of the person lacking capacity.

For more information or some preliminary, confidential advice speak to a member of our Private Client Team in your local office.

How can we help you following an accident?

How can we help you following an accident?

Being seriously injured in an accident which is not your fault is likely to cause a lot of stress and anxiety, particularly if you are self-employed or if you find yourself unable to work for a significant period of time as a result of your injuries.  You may suddenly find yourself without an income at a time when your living costs have suddenly increased, and you may find yourself struggling to meet additional financial burdens such as care costs, for yourself or your children, or additional travel to medical appointments.  To make matters worse, you may experience difficulties accessing treatments you need to ensure a full and speedy recovery, such as physiotherapy or counselling.

We will guide you through the process of bringing a claim for compensation for your injuries from start to finish, and should you encounter any of the problems outlined above, we can help you take steps to address them, move forward and return to your pre-accident life as quickly as possible.

Whilst we do not recommend that you rush to settle your claim for compensation before you have fully recovered from your injuries, (any settlement will be in full and final settlement of your claim), but this does not mean that you will have to wait until you have fully recovered to receive anything from the party responsible for your injuries.

Once we have submitted your claim to the responsible party’s insurer, we will arrange for you to see a specialist independent medical expert, who will provide a detailed report on your injuries and your ongoing symptoms.  If you are experiencing financial difficulties because you are unable to work at all, or have had to reduce the number of hours you work as a result of your injuries, then once we have the initial medical report we can help you to obtain an interim payment to ease the financial pressure.  Moreover, if the medical expert is of the view that there are further treatments which would assist with your recovery, we can help you obtain funding to enable you to receive the recommended treatment from a private provider, without the delays which can sometimes arise from lengthy NHS waiting lists.

For more information or some preliminary, confidential advice contact a member of our Litigation Team in your local office.

Do your old style tax planning Wills need updating in line with changes in the law?

Do your old style tax planning Wills need updating in line with changes in the law?

Up until 9th October 2007, it was common for people to have Nil Rate Band Discretionary Trust Wills drawn up as a form of tax planning for the family.

The idea of these wills is that everything up to the inheritance tax threshold on the first to die passes into a Discretionary Trust. The funds in this trust are then held by the Trustees on benefit for the survivor and other beneficiaries such as the deceased’s children and grandchildren. The funds in the Trust usually comprise a half share of the matrimonial home and any sole accounts held by the deceased. Joint accounts will pass automatically over to the survivor.

When the second spouse dies their assets would generally be the remaining half share of the property and their own sole accounts because the other half is still in trust. This should then mean that the second spouse’s estate falls below the inheritance tax threshold thereby saving inheritance tax on their Estate.

From October 2007 the government introduced the transferable nil rate band which meant that where a person leaves their estate to their spouse, then the survivor can benefit from an additional allowance which can be up to double the inheritance tax threshold. Therefore on the first death, the estate should be exempt for inheritance tax purposes because it is passing to a spouse, and then on second death the surviving spouse can have up to £650,000 before any inheritance tax is payable.

In addition there is a Residence Nil Rate band allowance for the family home which from 2020 can allow a married couple (or civil partners) who gift their property to direct descendants (children, step children, adopted children are some that are included) to benefit from an additional allowance of £175,000 each so that a married couple with children could have an Estate up to £1 million before any inheritance tax would be payable.

These changes mean that these type of Wills are not always needed for tax planning purposes. However they can have their own benefits to protect assets for future generations.

Depending on your circumstances it might be that a type of Life interest or a full Discretionary Trust might suit your needs. You may prefer to get rid of the Trust altogether and have simple Wills prepared.

As such the best option would be to speak to one of our specialists who will provide you with the best options for you and your family.

For more information or some preliminary, confidential advice contact a member of our Private Client team in your local office.

FAQ’s Family Breakdown

FAQ’s Family Breakdown

1. How long does it take?

A divorce on average takes about 6 to 9 months.  It is the same process whether you divorce on the grounds of adultery, or on the grounds of 2 years separation to which your spouse consents.  There is no such thing as a quickie divorce often referred to in the newspapers.  There is also no such thing as an automatic divorce after a period of separation.

2. How much will it cost?

Currently the court fee is £550 to issue a divorce petition.  Solicitor’s fees are usually in the region of £500 to £750 plus vat depending on whether you are the petitioner or the respondent.  It is possible to ask that your spouse pays your costs if you are divorcing on the grounds of adultery or unreasonable behaviour.  Or you can agree to share costs.

Usually when someone refers to their divorce being expensive, they mean the costs associated with the financial settlement.

3. I am divorced, so I don’t need a financial agreement?

A divorce simply ends a marriage it does not dismiss the financial claims which have arisen as a result of the marriage.  These need to be separately dealt with by way of a financial order being made.  This could be a clean break order, or a substantial order.  If you do not obtain a financial order, then your former spouse could make a financial claim against you at a later date!

4. Do I have to go to court or speak in court?

A divorce is usually a paper based process and there is no need for you to attend court.  If a financial order is also made by agreement, then no court hearing is usually required.  You would only have to attend court if there was a dispute between you and your spouse about either the financial order or the arrangements for the children.  You would only have to speak in court at a final hearing if you were required to give evidence.

5. Do the children have to go to court?

Children do not attend court. They are not involved in a divorce or associated financial proceedings.  If there are proceedings related to the children, they may be spoken to by a CAFCASS officer, but would not attend court, or speak in court.

6. Will I have to see my spouse in court?

Both you and your spouse are normally present in court.  However if you are both legally represented then you would not need to speak.  If there are any particular safety issues, the court can be arranged so that although you may be in the same room as your spouse you cannot see them.

7. I am a common law spouse, what rights do I have?

Contrary to popular opinion, there is no such thing as a common law spouse.  You are either married or not.  If you are not married then there are currently no laws in place in England and Wales which set out what you might be entitled to.  It would depend on whether you could prove you had a legal interest in the house you lived in with your partner as to whether you could make a claim.  You are not entitled to any of your partner’s assets such as their pensions or savings.

For more information, or some preliminary confidential advice contact a member of our Family Team from your local office.

Divorce in light of the Owens v Owens Case

Divorce in light of the Owens v Owens Case

There is only one ground for a divorce which is the irretrievable breakdown of a marriage.

To prove the irretrievable breakdown your divorce must be based on one of the following five facts:

  • Adultery
  • Unreasonable behaviour
  • Separation of 2 years, which both parties consent to
  • Separation of 5 years
  • Desertion

You cannot simply say that you have grown apart, or no longer love each other.

In Owens v Owens, heard by the Supreme Court, Mrs Owens started divorce proceedings on the basis of her husband’s unreasonable behaviour.  Mr Owens did not accept the marriage had broken down and defended the divorce.

In Owens the court considered the ground of unreasonable behaviour and the correct test that needs to be applied.  The test is:

“the correct inquiry is: (i) by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; (ii) to assess the effect which the behaviour had upon this particular petitioner in light of all the circumstances in which it occurred; and (iii) to make an evaluation as to whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable”

Unfortunately for Mrs Owens, when the current law was applied to her case, the court concluded that she should not be granted a divorce, although it was accepted that the marriage had broken down, Mrs Owens had not proved unreasonable behaviour.  This was despite the court stating that the appeal generated uneasy feelings but that the duty of court was to apply the current law as set out by Parliament.  In this case the Matrimonial Causes Act 1973.

This case will lead to renewed calls for Parliament to reconsider the current divorce law and to introduce a no-fault divorce.

For more information please contact a member of our Family Team, on 01392 848925 / 848916.

Care Workers not entitled to minimum wage while they are asleep

Care Workers not entitled to minimum wage while they are asleep

The Court of Appeal has handed down its decision in the appeals of Royal Mencap Society v Tomlinson-Blake (Mencap), and Shannon v Ramperswad.  It held that workers who are contractually obliged to spend the night at or near their workplace, but whom are expected to sleep for all or most of the period, although may be woken if required to undertake some specific activity, are not entitled to be paid the national minimum wage.

What does this mean?

Essentially, it means that care workers who are to sleep-in overnight at premises where elderly, disabled or otherwise vulnerable people live, on the basis that they can be called on to help if required but otherwise have no duties (i.e. are available for work, as opposed to actually working) will not be entitled to be paid the national minimum wage during those hours.

The facts of the main case of Mencap

East Riding of Yorkshire Council had responsibility for providing support and care for vulnerable adults including those with learning difficulties.  It contracted with the Royal Mencap Society to provide some of that support and care.  The claimant, Ms Tomlinson-Blake, was a highly qualified and extensively trained care support worker employed by Mencap since 2004.  She performed her role at two privately-owned properties, providing care and support to two men, both of whom had autism and substantial learning disabilities making them vulnerable adults within the council’s responsibility.  Their care and support plan, directed at enabling them to lead as independent a life as possible, required 24-hour support.

Ms Tomlinson-Blake’s usual work pattern involved working a day shift at one of the men’s houses either from 10 a.m. to 10 p.m. or 3 p.m. to 10 p.m.  She would then work the following morning shift, either from 7 am to 10 am or from 7 a.m. to 4 p.m.  Those hours were part of her salaried hours and she received appropriate remuneration in relation to them.  In addition, Ms Tomlinson-Blake was required to carry out a sleep-in shift between 10 p.m. and 7 a.m. for which she received a flat rate of £22.35 together with one hour’s pay of £6.70, making a total payment for that nine-hour sleep-in of £29.05.

No specific tasks were allocated to Ms Tomlinson-Blake to perform during that shift, but she was obliged to remain at the house throughout the shift and to keep a listening ear out during the night in case her support was needed.  She was expected to intervene where necessary to deal with incidents that might require her intervention (for example if one of the men was unwell or distressed) or to respond to requests for help; the ET emphasised that deciding whether to intervene required an exercise of her professional judgment, based on her knowledge of the residents.  She was expected to respond to and deal with emergencies that might arise.

The tribunal found that there were only six occasions over the preceding 16 months when Ms Tomlinson-Blake had to get up to intervene during the sleep-in hours.  If nothing needed to be done during her sleep-in shift, Ms Tomlinson-Blake was entitled to sleep throughout.  She was provided with her own bedroom in the house where she slept, together with shared bathing and washing facilities.  The evidence was that it was positively expected that she should get a good night’s sleep, since, depending on the shift pattern, she might have to work the following day.

If her sleep was disturbed and she needed to provide direct support during the night, the first hour was not additionally remunerated.  If Ms Tomlinson-Blake was required to provide care for longer than an hour, she was entitled to additional payments.

Ms Tomlinson-Blake’s claim was that she was entitled to have the totality of her hours spent sleeping in counted as ‘time work’ for NMW purposes.  The ET and the EAT, upheld that claim on the basis that she was actually working for the whole period so that the sleep-in exception did not apply.

The Law

The National Minimum Wage Regulations 1999 (1999 Regs) are the first regulations made under the National Minimum Wage Act 1998.  They have been amended since, and the latest regulations in force are the National Minimum Wage Regulations 2015 (2015 Regs) (with effect from 6th April 2015).

Regulation 15(1) of the 1999 Regs states:-

In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purpose of working.

Regulation 32 of the 2015 Regs states:-

(1)  Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.

(2)  In paragraph (1), hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.

Court of Appeal Judgment

Lord Justice Underhill said in his Court of Appeal judgment: “I believe that sleepers-in…are to be characterised for the purpose of the NMW Regulations as available for work, within the meaning of regulation 15(1) [of the 1999 Regs] or 32 [of the 2015 Regs], rather than actually working, within the meaning of regulation 3 or 30, and so fall within the terms of the sleep-in exception in regulations 15(1) or 32(2).  It follows from my conclusions above that [the ET and the EAT’s decision] was wrong.  Ms Tomlinson-Blake slept by arrangement at her place of work and was provided with suitable facilities for doing so…It follows that she is to be treated as being available for work during those hours and not actually working and that the sleep-in exception applies.  The result is that only those hours during which she was required to be awake for the purpose of working count for NMW purposes”.

LJ Underhill continued to say: “I note that the ET emphasised that Ms Tomlinson-Blake was obliged “to keep a ‘listening ear’” even while asleep and emphasised the need for her to exercise a professional judgment as to whether intervention was required.  But I do not see how either point affects the analysis.  Any sleeping-in worker has to have a “listening ear”, in the sense that they have to be prepared to be roused by the occurrence of something untoward: that is what they are there for.  The phrase is in any event metaphorical: the fact is that she was expected to, and almost always did, get an uninterrupted night’s sleep.  And it cannot make any difference what kind of decisions had to be made if and when she was roused”.

If this decision affects you and you would like to have a chat with us about this, or any other area of employment law, please do give Kim Knox, Associate Solicitor, a call on 01392 477983.

Making a Will as New Parent

Making a Will as New Parent

I made my first Will eight years ago, when times were simpler. My only concern was who would receive my David Campese-signed World Cup Final program and Fender Telecaster. Since then I have married, own a property with my wife and have two young children. There are now three people more important than anything else. More important than a Fender.

I want to ensure that if anything should happen that my wife and children are provided for and protected. However, if an individual dies without leaving a Will the Intestacy Rules apply. These are far from ideal in many cases.

Under the Intestacy Rules, if you die leaving a spouse and children, the surviving spouse will receive the first £250,000 from your estate outright, with an additional sum of half of the remainder. The other half is left upon trust for your children to inherit at the age of 18. Meanwhile, if you are unmarried at the time of death, the intestacy rules do not provide anything at all for the surviving partner, and the entire estate would pass to your children.

In the event that both spouses die, their estates would pass entirely to their children, but again to inherit at the age of 18. I, for one, would not have been in a position to handle a significant inheritance at this age, particularly following a potentially traumatic event. Furthermore, the intestacy rules do not automatically appoint guardians for children where both parents die. This can result in messy inter-family litigation, and the children may ultimately end up in the care of individuals you would not have chosen.

When parents of young children ask for my advice regarding their Wills, there are three things I ask them to consider. First, is the appointment of guardians. Many will wish to appoint siblings or parents, though you can appoint anyone to act in this position. It is also worth ensuring that the Executors and Trustees of your estate have the power to release funds to assist with the financial burden of acting as guardian.

The next will be the appointment of Executors and Trustees. These are the individuals who administer the estate and control the funds until such time as your children ultimately inherit. Though these can be the same people as the guardians, it is worth considering independent individuals, to ensure there is some neutrality in the management of the funds.

Finally, there is the age at which the children are to inherit. You can impose a specific age, such as 21 or 25. However, I often advise parents to consider the flexibility provided by a Discretionary Trust. Under a Discretionary Trust your trustees will have the discretion to decide as and when the beneficiary is to receive part of their inheritance. For example, part may be used at the age of 18 for University fees, part towards the purchase of a house at 23, and the entire amount at a time when they are more financially responsible. The trustees may also make a loan to the beneficiary for the purchase of a property, to help protect the inheritance from divorce or bankruptcy.

I am aware that becoming a parent is a life changing and financially demanding experience. However, a properly drafted Will is something else to add to the list of travel systems, stair gates, sleep suits, moses baskets and baby monitors.

If you are an expectant parent (or grandparent) and wish to discuss this further then please contact myself, Will Vine, or a member of our team from your local Everys office.

Changes to Inheritance Tax for families

Changes to Inheritance Tax for families

From the 6th April 2017 there were changes to the amount a person can own on death before inheritance tax is payable.

Previously an individual could own up to £325,000 before inheritance tax was payable on their assets when they die. Where they gift everything to their spouse and have not made any gifts to others during their lifetime, then on the second spouse’s death their assets can be worth up to £650,000 before inheritance tax is payable. This is called the transferable nil rate band.  Thereafter at present everything above this will be taxed at 40% (except assets that qualify for relief such as business or agricultural property).

From April this year a new residence nil rate band was added to benefit married couples, civil partners and families. In addition to the transferable nil rate band, a person can benefit for more relief from the value of a property that they lived in at some point and is gifted to one or more direct descendants on death. This can be children, step children, grandchildren and great-grandchildren for example.

The maximum amount allowable under this legislation will be phased in as follows:

  • £100,000 for 2017 to 2018
  • £125,000 for 2018 to 2019
  • £150,000 for 2019 to 2020
  • £175,000 for 2020 to 2021

So added to the current £650,000, a couple’s Estate could be worth up to £1 million in 2020 before inheritance tax is payable on their Estate.

For those with assets over £1 million, unmarried couples or people not leaving their estate to direct descendants, other tax planning options may be available to them.

To make sure that a family benefit from the greatest tax free advantage provided under the new laws, careful planning is required both in relation to their Wills and lifetime tax planning. We would therefore advise that you speak to Everys to make sure that your affairs are in order. After all, where we leave our Estate to our families, we want to make sure that they receive as much as possible to help their future.

Disclaimer: This article is not intended to constitute legal advice.  For legal advice in connection with the above, please contact us directly.

Can the Court override your Will?

Can the Court override your Will?

This year, the High Court considered the case of Thompson v Thompson [2018] EWHC 1338 (Ch), a case involving a son who claimed he was promised all his life by his parents that he would inherit the family farm on their death.

The Claimant was one of five siblings but his parent’s only son. He claimed that he had dedicated his life to working and living on the farm on the back of promises from his parents that he would inherit it all when they died. As such, he claimed he had acted to his detriment, giving up the possibility of having any independence – something which his sisters had gained – accepting low wages, not pursuing qualifications or purchasing his own property.

The Claimant’s mother survived her husband, denied making such promises and wished to distribute the farm amongst all of the children. The son claimed he should receive the entire farm.

The Court found in favour of the son. It accepted that (1) the farm had been promised to him, (2) that he had reasonably relied on that promise, (3) that he had acted to his detriment because of it and (4) that it would be unconscionable to deny him the farm – a principle known as ‘Proprietary Estoppel’. To remedy this, the Court ordered that the son would receive the farm on his mother’s death.

The ruling overrides any Will made by his mother and also overrides the default intestacy rules (the rules applied if a person dies without a making a valid Will) that would have seen her estate divided equally between the five children.

This decision emphasises the importance of estate planning and the need to consider how you would like your assets divided on your death.

If you have any queries about estate planning or require advice, contact your local Everys office.

Children FAQ’s

Children FAQ’s

1. What rights do Grandparents have?

Grandparents, currently, do not have any legal rights over their grandchildren. The only people with legal responsibility for a child is their parent, or anyone with the benefit of a court order in their favour, such as a Child Arrangements Order or a Special Guardianship Order.  If the relationship has broken down between the grandparents and the parents of the child the grandparent would need to seek a court order to see their grandchild. The first step is to seek the court’s permission to make the application. The court’s only concern is the welfare of the child and will only make an order if the court believes it is the best interest of the child.

2. I am their parent, surely it’s my right to have my children half of the time?

Although as a parent you have legal responsibility for your child, this does not mean that you have a “right” to have your child with you half of the time. It is for you as parents to agree on what time your child should be spending with each of you. If you cannot agree the arrangements, then a court would make the decision. The court starts from the point that the child has a right to a relationship with both their parents and will then make an order which is in the child’s best interest.

3. I want to take my children abroad on holiday, surely I can do this?

If you have a Child Arrangements Order in your favour confirming your child should live with you, then you can remove your child from the jurisdiction of England and Wales for 28 days each year. If you do not have an order, then you must obtain the consent of the other parent who holds parental responsibility for the child. If they consent (and you should get this in writing) then you can take your children on holiday abroad. If they will not consent to the holiday, then an application to the court is required and the court would decide whether or not you should take your children abroad on holiday. The likelihood is that the court would consent unless you were proposing travelling to a dangerous country or removing the children from school for a lengthy period of time.

4. Can I stop the other parent moving away with my children?

You cannot stop your former spouse/partner moving away. However, if you have what is called parental responsibility for your children, then you have to consent your children moving. If you do not, an application would need to be lodged with the court by the other parent. The court would then have to consider the benefit of the move and consider whether this is in the best interest of the children.  If the move would not impact on the time the children are spending with either parent, the move is likely to be approved.

5. My former partner is not letting me see the children, and is not giving me any information about the children, what can I do?

If you have parental responsibility for the children you are entitled to ask for information about your children from their school or GP direct.  If you and your former partner cannot agree on the arrangements for the children, then you would need to make an application to the court asking for an order for the children to spend time with you. The older the children are, the more impact their views will have on the court-ordered arrangements. A 14-year-old’s views have a greater weight than a 5-year-old’s views. This is because of the child’s level of understanding. The court will then make an order based on the child’s best interests.

6. I have had a letter from social services and there is a meeting, what do I do?

If you have received a letter from social services you must not ignore the letter and you must attend any meeting. It may be a meeting to discuss concerns that have arisen and it may be possible to agree a plan with social services that if followed will mean they will close their file. Or it could be a meeting where social services indicate that they have serious concerns about your children and that they want to take court action to consider removing the children from your care. It is important that whatever letter you receive, you immediately take legal advice so you can understand the consequences of the letter.

7. I work long hours, my partner looks after the children, but social services are involved, why?

Your partner may, unfortunately, not be providing a good enough level of care to the children whilst you are at work. This could be for any reason. Social Services will want to discuss the childcare arrangements with you to see if you are able to share the childcare more; what you can do to help your partner or what other action needs to be taken to look after the children properly. You should engage with the social services.

For more information or some preliminary confidential advice, please contact a member of our Family team on 01392 848925 / 848916.