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.


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.


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.


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.


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.



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.

Code of Practice for Commercial Property Relationships during Covid-19

Code of Practice for Commercial Property Relationships during Covid-19

Code of Practice for Commercial Property Relationships during Covid-19
Posted on 20th November, 2020

The Government published the Code of Practice for commercial property relationships during the COVID-19 pandemic in June 2020.

The Code provides an interesting insight into the issues facing our sector from the Government’s perspective and should be reviewed carefully by landlords and tenants.

Key Points

The default position has to be that If tenants can pay their rent, they should do so. However, the Code looks at what can be done where the tenant cannot. Landlords and Tenants are encouraged to act in good faith and be open and flexible in negotiations.

There is a non-exhaustive list of points for Landlords to consider in negotiations:

  1. Closure period(s) impacting the tenant’s business, and ability to trade via other means;
  2. Duration and extent of restricted trading due to social distancing requirements;
  3. Extra costs and obligations through protecting customers to adhere to social distancing requirements;
  4. Needs of other stakeholders such as banks, employees, suppliers during this period;
  5. Government support received and how this has been used;
  6. The tenant’s previous track record under its lease terms and any concessions to the tenant already agreed;
  7. The impact that providing support may have on the tenant’s competitors and on other support already offered to tenants;
  8. Possible alternative considerations in a regulated sector. For example, pubs that are regulated under the Pubs Code.

The Government also tables a series of alternative arrangements for consideration. The Code is explicit that these are suggestions and not intended to be binding but it may be useful for both parties to consider whether one or more of the following would be appropriate:

  1. a full or partial rent-free period for a set number of payment periods;
  2. a deferral of the whole or part of the rent for one or more payment periods;
  3. the payment of the rents over shorter payment periods for a set time (e.g. monthly rather than quarterly) including provision for their payment in arrears;
  4. rental variations to reduce ongoing payments to a current market rate and/or to provide for all or part of the rent to be paid as a proportion of turnover of the site, incorporating any period during which the site was closed;
  5. landlords drawing from rent deposits on the understanding that the landlord will not then require that the deposits be “topped up” by the tenant before it is realistic and reasonable to do so;
  6. reductions in rent, either in whole or part, across other units occupied by the tenant and owned by the landlord, as part of a negotiated agreement applying to a portfolio of units;
  7. landlords waiving contractual default interest on unpaid rents or rents paid in arrears to make payment plans more affordable;
  8. provisions for ending the solutions on a fixed date, or on reaching the trigger point of particular circumstances;
  9. tenants and landlords agreeing to split the cost of the rent for any unoccupied period(s) between them;
  10. any of the above in return for other arrangements e.g. a reversionary lease on reasonable terms, the removal of a break right in favour of the tenant, or an extension of the lease.

The Code also contains guidance for dealing with service charges and insurance which again recognises that circumstances will vary and recommends flexibility. In many cases, inactivity and health and safety requirements have led to increased service charge costs via additional equipment, security and cleaning being required.

Next Steps 

Even though the points in the code are not expressed to be binding, it may be that any matters expressed within leases as being subject to the Landlord or Tenant acting reasonably are consequentially already influenced by this guidance. This may be particularly relevant to alienation provisions.

It is important at the moment to distinguish between guidance that the Government provides and legislation passed by Parliament. However, the concern for many Landlords (and advisors) will be whether these suggestions crystallise into legislation or more rigid guidelines in the coming months.

For further information, please contact James Cleveland or Jo Knight.

Making a Will with a Dementia Diagnosis

Making a Will with a Dementia Diagnosis

Making a Will with a Dementia Diagnosis
Posted on 1st April, 2020

Being diagnosed with dementia does not necessarily mean that you do not have the capacity to create a new will, create a Lasting Power of Attorney or sign other legal documents. However, where capacity is questioned it is important to speak to a solicitor to get advice for peace of mind and security.

Everyone should keep their will under constant review as their situation changes or if a significant amount of time goes by. A will may need updating due to a change in relationship, a death or an increase or decrease in the size of the estate. If a person has been diagnosed with dementia, it makes it all the more important to ensure that the legal papers are put in place in a timely manner to accurately reflect their current wishes and situation.

The Test for Testamentary Capacity

When you meet with your solicitor to discuss your new will, they will need to establish that you have the required testamentary capacity (the capacity to make a will). Capacity is time and place specific and should be assessed individually and according to your condition on that day and at that time. If you are found to not have capacity on one day this does not stop you from having the required capacity on another day if your condition improves.

The test for testamentary capacity was held in the historic case of Banks v Goodfellow (1870). The case outlined that a person creating a will must demonstrate the following things in order to be found to have testamentary capacity:

  1. They must understand the nature of creating a will and its effects. This means that a person must demonstrate that they know what a will does and must understand that they are giving away their assets and possessions.
  1. They must understand the extent of the assets and property they own and are giving away upon death. A person does not need to be able to recall every single item and asset they own, but they must know generally and have an awareness of what their estate consists of, including anything that they expect to receive in the future or anything which is owed by them.
  1. They must understand the people who would be considered to have an interest in their estate even if the person ultimately decides not to leave anything to those people. These can be people who might have either a moral or legal claim on their estate. The person should also understand their closeness and relationship to the people in order to leave a sufficient and proportionate gift.

If someone with deteriorating mental capacity is leaving someone out of their will it is important to take legal advice on the risks of a successful claim against the estate.

  1. The person must not have a “disorder of the mind or insane delusion” which would result in the distribution of their estate in a way which they would not have done if they had been of sound mind.

This means that the dementia must not be so far advanced that it would affect the wishes of the person making the will.

The level of understanding required with regards to the above test depends on individual factors. For example, the complexity of the will, the complexity and size of the estate and any potential claims on the estate.

The other law relating to the issue of testamentary capacity is the Mental Capacity Act 2005 (MCA). There was uncertainty as to whether the act replaced the capacity test in Banks v Goodfellow above, however the case of Walker v Badmin (2015) confirmed that “the correct and only test” for testamentary capacity is the one outlined in Banks v Goodfellow and therefore the MCA should work alongside but not in substitution of the test.

The main differences between the case law and the MCA 2005 is that the act presumes that a person has capacity unless proven otherwise, and the act also suggests that a person must understand all relevant information rather than merely having an awareness. This means the test under the MCA 2005 is more stringent.

Even if all of the above elements are satisfied this does not stop a will from being disputed later down the line. Your solicitor is likely to request a medical assessment in order to evidence your capacity to make a will at the time you are making it.

Getting a Capacity Assessment

In the case where there are concerns about a person’s capacity, your solicitor may ask for a capacity assessment from either your GP or a capacity expert. Whether this is done by a GP or a Capacity Assessor depends on how much the disease has progressed and the severity of the symptoms presenting.

Time is of the essence with dementia because it is a progressive disease which will eventually deteriorate. If a person is found to not have testamentary capacity, then their assets will either pass under the terms of a previous will or under the rules of intestacy if there is no will in place. A statutory will may be an option: this is when a will is made on behalf of an incapacitated person under the authority of the Court of Protection by someone other than the testator under strict guidance.

If you are making a will or other important legal documents with a dementia diagnosis, it is important that you act swiftly while you still have capacity and that your capacity is evidenced.