Monthly Archives: September 2014

What You Need to know About the New Inheritance Act 2014

On the 1st October 2014, the Inheritance and Trustees’ Powers Act 2014 will come into force.

The Act is a result of a six year project by the Law Commission, based on studies which have suggested that between half and two thirds of the adult population do not have a Will and those who need one most are, in fact, the least likely to have one.

Amongst other things, the Act makes changes to the Inheritance (Provision for Family and Dependants) Act 1975. That act allows certain family members and dependants to apply to court for reasonable financial provision from the estate, under the Inheritance Act. This applies whether or not the deceased made a Will.

Firstly, the law now makes it clear that a claim can be brought under the Inheritance Act before a grant of representation is made, something that was unclear before.

It has always been the case that only certain categories of people can bring a claim under the Inheritance Act, and the Inheritance and Trustees’ Powers Act will widen that category in relation to children. Currently, a child of the deceased is entitled to bring a claim under the Inheritance Act, as is a step child providing that the deceased was married to their parent at the time of death. From the 1st October the requirement for the relationship to be have been acquired by marriage will be removed – the deceased must ‘stand in a role akin to that between a parent and a child’.

Helen Dandridge, solicitor, commented:

“The obvious situation where this would occur would be in relation to a cohabiting couple where there are children of one cohabitant only, from a previous relationship. However, it could also apply to children who are looked after by family members or kinship carers; as long as they have been acting in a parental role at the time of their death.

“In reality, it is not envisaged that this will create a floodgate of new applicants as there has always been the ‘catch all’ provision that “any person… who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased” can apply for financial provision.”

Further changes are made to the ‘balance sheet’ requirement for applicants who apply under the catch all provision referred to above. Currently, an applicant under that category had to show the deceased was “making a substantial contribution in money or money’s worth towards the reasonable needs of that person”. In reality that meant the applicant had to show the deceased contributed more to the relationship than the applicant did. The requirement from October will be simply to show the deceased made a substantial contribution to the applicant’s reasonable needs.

Finally, there will also be changes to the matters to which the court must have regard to when considering an application under this Act. An applicant who was maintained by the deceased immediately prior to their death can apply irrespective of whether the deceased had formally assumed that responsibility. The court is directed to consider that as a factor but it is no longer a threshold criteria for making a claim.

Finally, Helen commented:

“Despite the new Act being designed to bring intestacy and inheritance laws more in line with the needs and dynamics of modern families, the Act does still stop short of all the reforms recommended by the Law Commission, particularly in relation to cohabitants.”

Helen Dandridge is a solicitor at Ridley & Hall and works in the Contentious Probate department. For more information please contact her on 01484 538421 or by e-mail.

Alternatively, if you have any questions in relation to inheritance disputes, please contact our Contentious Probate team free on 0843 289 4640.

Battling Immingham Grandparent’s High Court Win – North East Lincolnshire Ordered to Pay £43,000

Immingham grandparents have won a legal challenge against North East Lincolnshire Council. The fight was over the failure of social services to provide  financial support after they took on the care of their grandchild.

In 2008, Mr and Mrs G were asked to care for their grandson by North East Lincolnshire social services. Social services had been involved with the child for 2 years but repeatedly failed to step in to protect him.

Their grandson was just 4 years old at the time. Social services asked Mr and Mrs G to look after the child for 3 months. They then transported him to their house. Three months passed. Social services again asked them to look after the child for a few more weeks.

Around four months after social services had placed the boy with Mr and Mrs G, the social worker asked them to obtain a residence order. They never told Mr and Mrs G that they would be entitled to apply for residence allowance.

Five years passed before the council were challenged to face up to their responsibilities.

It was not until they went to see specialist kinship care solicitors, Ridley & Hall in Huddersfield, that they discovered that they were entitled to be paid residence allowance.

Commenting, Rebecca Chapman, a specialist solicitor at Ridley & Hall said:

“The council had more than enough grounds to start care proceedings. They saved themselves a fortune placing the child with my clients. Care proceedings are costly and paying foster carers gets very expensive.

“My clients asked the council to conduct a residence order allowance assessment but the local authority did not respond to their request.

“Mr and Mrs G then instructed me and the council stated that Mr and Mrs G were not eligible for an allowance.

“The local authority were asked to review the assessment but never responded. High Court proceedings were issued. The council did not provide a response to the proceedings.

“The High Court in Leeds has today ordered North East Lincolnshire to make a back payment of £43,000 and to pay Mr and Mrs G a weekly allowance.”

Mrs G said, “This is all my birthdays and Christmases on one day! It’s a fantastic result. We couldn’t have done it without Ridley & Hall.

“Like many grandparents we stepped in when the council asked us to help out. When the social services then asked us to get a court order we did as we were told. The council never told us that we should have been paid an allowance.

“My husband is 69. He’s long retired. We are pensioners. We had not planned to take on the care of a child in his retirement and have spent our savings on looking after my grandson. At times we’ve found it difficult to meet the financial demands of raising a child at this time in our lives.

“Add to that, the fact that unfortunately our grandson had some serious behavioural difficulties, and I can truthfully say it’s been a challenging time.

“We were struggling to cope with our grandson’s behaviour. The local authority had failed him and then they just left us to it.  Our lives have been made more difficult with the council’s lack of action.  It’s vital that grandparent carers like us get specialist legal advice.

“The council totally failed to fulfil their duties both to us and our grandson.”

Rebecca Chapman said “It’s disappointing for Mr and Mrs G that they had to go to the High Court to compel the local authority to do what they are already supposed to do. The local authority failed this child.

“There was a bizarre lack of response from the local authority in relation this claim. Nobody from social services even attended the hearing. As a result of the council burying their heads in the sand, the judge has ordered North East Lincolnshire to pay my clients’ costs. It’s the hard pressed council taxpayers who have ended up with a large bill of legal costs.”

If you would like any more information about this or any other kinship care issue, please call Ridley & Hall on 01484 538421 and ask to speak to Rebecca Chapman.

How Do You / Should You Hold Your Jointly Owned Property – As Joint Tenants or Tenants in Common?

When you purchase a property jointly, the co-owners should always be asked how they wish to hold the property as joint owners and generally there are two options;

  1. Joint Tenants – this means that the parties are presumed to hold the property in equal shares.  If, on the death of one owner, the method of ownership has not changed then, despite any terms written in a Will, ownership of the property will automatically pass to the survivor named on the title deeds.
  2. Tenants in Common – joint owners of a property can choose to hold in this way and the shares will usually be specific, either equal shares, or percentage shares as the parties may agree.  On the death of one owner where property is held in this way, the deceased’s share will not automatically pass to the surviving co-owner of the property but will pass under the terms of a Will or under the Intestacy Rules if there is no Will.  For this reason we would always advise that parties choosing to purchase as Tenants in Common make a Will as soon as convenient following a purchase although irrespective of how you hold a property it would always be beneficial and advisable to have a Will.

The reasoning behind joint buyers choosing tenants in common over joint tenants can be dictated by personal circumstance, for example, one party wishing someone other than their co-owner to benefit by their share in the property, or by financial input, for example, one party putting in the deposit and wishing to ‘ring-fence’ that in the event of a fall out or subsequent sale.  In this event, a conveyancer may recommend a deed of trust be prepared specifically stating each owner’s percentage or monetary share in the property but in any case where property is held as tenants in common, those owners should make a Will to determine who will benefit by their share on death.

The option reached by joint buyers will ultimately be reflected on the title registers at registration of the purchase with the Land Registry.

A choice initially to hold property as joint tenants is capable of being reverted to tenants in common should circumstances and wishes change, generally termed a ‘severance of the joint tenancy’.

There are, however, circumstances where the joint tenancy can become severed by third parties, changing a joint tenancy to a tenancy in common.  Where there has been borrowing by one party secured on property owned jointly with another and that borrowing is then secured against the property by a legal charge registered on the title, any joint tenancy is automatically severed and ownership reverts to the position where the proprietors then hold the property as tenants in common in equal shares.

Similarly where one of two property owners declares himself or herself bankrupt, the joint tenancy is converted to a tenancy in common and that bankrupt party’s share in the property is held for the trustee in bankruptcy.

If you wish to review the way in which you hold property owned with another and/or are conscious that you hold a property with your co-owner as tenants in common and never got around to making the Will to support that choice, please telephone us on 01484 538421 and ask to speak to Liz Wallis, Alison Mason or Adam Fletcher for your property enquiries.  For Wills, please ask to speak to a member of the Wills & Probate team.

When is a Cohabitee not a Cohabitee…?

A recent case has highlighted the trauma and expense that will disputes can cause for cohabitees.

Harjinder Kaur met Harcharan Singh Dhaliwal (known as Harry) in May 2005,  a few months after his wife of 25 years had committed suicide.  Harry had been charged with her manslaughter by allegedly triggering the suicide.  He was acquitted in March 2006, by which time he had been engaged to Harjinder for 9 months.

They kept their relationship secret from Harry’s two sons Sandeep and Amitoz for as long as possible as they (correctly) believed that the sons would not approve of the relationship.

The couple often spent the night together at Harjinder’s flat and worked together full time, 7 days a week. In July 2007 they moved in together permanently, having previously had short periods of living together in a number of properties. Harry died on 7th June 2009.

Harjinder brought a claim for a share of Harry’s estate. The dispute between her and Harry’s two sons was in relation to how long the couple had lived together before his death.

The Inheritance (Provision for Family and Dependants) Act 1975 provides that a co-habitee can make a claim against the estate of their deceased partner, provided that they have lived together for a period of two years immediately before the deceased’s death.

Following a hearing at the high court on 1st and 2nd April 2014 the judge found that Harjinder was able to bring a claim under the Inheritance Act despite having lived with Harry for only 1 year and 49 weeks (3 weeks short of the strict 2 year requirement).  An earlier 3 month period of cohabitation, it was argued, should be counted towards the 2 year total.  The judge decided that there had been a “settled relationship … evidenced not simply by their living under the same roof”.  The test to be applied was “whether their relationship had irretrievably broken down or rather was merely suspended”.

With more than two million unmarried couples living together it is likely in the future that there will be more and more inheritance disputes involving unmarried couples. Often, family life can be a complicated affair with many couples having had previous partners or spouses and children from those relationships.   Unfortunately after a death it is often the case that old resentments between siblings and/or step parents can surface which makes this kind of litigation very emotional (and expensive).

Partner Sarah Young comments:

“If you live with someone for more than 2 years then your partner will be entitled to make a claim against your estate if you do not make “reasonable” financial provision for them.  It’s especially important that you are aware that if you own a property and your partner moves in and starts paying towards the mortgage on a regular basis, or for building work, they may acquire an interest in the property.”

She warns, “Most people don’t want to make a will or see a solicitor; they just hope that everything will be alright…but failing to plan can be a disastrous legacy for your loved ones.”

Sarah Young is a Partner with Ridley and Hall solicitors in Huddersfield and specialises in will disputes. Sarah has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538838 or mobile 07860 165850.

Litigation Team at Ridley & Hall Grows to Deal with ‘Ticking Timebomb’

Ridley & Hall are pleased to announce that Helen Dandridge qualified as a solicitor on 1st September 2014.

Helen, who has a first class degree in law from the University of Northumbria, joined the firm in March 2010. At that point she was working as a paralegal in the Family department before she began her training contract.

She has now joined the Litigation department and will specialise in contentious probate and financial abuse claims, alongside Partner Sarah Young.

Sarah said, “Helen has been an exceptional trainee and I am delighted to have persuaded her to join my team. The work that I do is growing significantly  – I think that’s because of a number of reasons, including the fact that we have an ageing population where dementia is unfortunately a factor.”

Provisional figures from the Health and Social Care Information Centre produced on 30th July 2014 show that 344,000 patients had a recorded diagnosis of dementia in 2013/14. This is a rise from 319,000 in 2012/13 and from 213,000 in 2006/07, when the data was first collected.

Sarah Young sees these figures as telling; “Inheritance disputes, especially those involving a issues about a will maker’s mental capacity, are on the rise. I’m also finding that allegations of financial abuse affecting the elderly and vulnerable often surface after a loved one’s death, when family members find that their inheritance has been siphoned off.”

Helen commented, “I  enjoy contentious probate and Inheritance Act claims because each case is different and it really is an area of law which turns on the facts of the individual case. I also  have a genuine interest in helping victims of financial abuse; cases can be complicated and difficult to prove but I’m determined to make a difference.”

For more information on contentious probate and inheritance disputes, please call Ridley & Hall on 01484 538421 and ask to speak with Sarah Young or Helen Dandridge.