My name's ... Anne Tromans Head of Wealth here at Shakespeare Martineau. Welcome to today's webinar on Wheels and Family Matters. These are indeed challenging times for everyone at the moment, and they can bring out the best and the worst of situations.
It has been a time to reflect and put in place arrangements for families having relationship difficulties and those who've sadly suffered a bereavement, but also for those who've had more time to reflect upon making provisions for loved ones after their death.
I'm joined today with three of my colleagues who are here to answer some of the common issues we have recently seen. We have Helen bounds who deals with family matters but junior Harvey, on Wilson private client matters, and Andrew Wilkinson who deals with contentious probate matters an area which we've seen growing increasingly more important over the lockdown.
Son, let me first of all turn to Helen. Hello, Helen.
Perhaps you can tell me please, in relation to divorce, when do no false divorcees come into force?
Right-hand side, this is a really big change for family law. We've been resolution and other family teams have been complaining about this for a long time and what we hope now is it's passed through Parliament that it will come into force in the autumn. And what this means for couples is that it really simplify divorce.
So, gone are the days when we will have to produce facts of divorce, so unreasonable behavior, older adults gray, but we can simply say that the marriage has irretrievably broken down, and they won't be defended divorces anymore. And the real different sounds that the couple can apply to the core jointly for a divorce and we've never seen before. And it really means, rather than concentrating on the, sort of, a historic reasons for the breakdown of the marriage, the couple will be able to look forward. And they'll be able to make arrangements for the children concentrate on that and concentrates on dividing the finances rather than looking at the reason why the marriage has broken down. And we really hope and the court said that this is going to be the case. That it will take less time for couples to get divorced. What the call to hate ping. Is that it will be 26 weeks from start to end the couples to, to go through the system.
Do you think that will mean that, that more people will step forward and decide to get divorced where in the past, they perhaps have decided that, you know, too much trouble Or too much expense?
Know, honestly, I don't think it will affect the divorce rate.
I think what people will do is that, you know, if the marriage is broken down, they'll still apply fit for the divorce was still see the same numbers, but it will just be simpler, and for the couple, OK, thank you. And talked about things like Custody Helen, what, what do the courts look at when they're deciding on a custody situation?
This is really interesting, because so many people use the term custody, and actually it doesn't exist in an English law for children. So the behavior is governed by the Children Act, and this refers to, child arrangements, said the arrangements for the children, and he doesn't use terms like custody anymore and say, what the child arrangements? Or just do research who spends time with the child and he's a child, should live wave.
So which pair with the child should live with the courts when making this decision? And I think it's really important to note that the Court should be last resort. The best people to make these decisions for the children, all the parents, And it's only if the parents aren't able to make the decision that he should go to the court. So when the courts are looking at what should happen with children within divorce that paramount consideration, and most important consideration is the welfare of that child or those children, and they will look at what we called welfare checklist. So, this is a list of relevant points that the Court must consider.
For example, what does it wishes the failings of a child? Now, this, of course, will depend on the child's age. A child that is, say, 12 or over that, What she's feeling? Some more likely to be taken into. Account by The court compared to a child who is 3, 4, or five.
Also, the court. Which parent is able to meet the particular needs of the child, or the children's, say, for example, their educational needs, their physical needs, their emotional needs. The court also looks at whether the child, if the child was placed with one, parent, wouldn't cause significant harm to the child to be with that parent. And another consideration if the court is, do we really need to change the arrangements for this child, and if we do, we remove a child from one parent to the last, What impact is that going to have on the child? And it must be remembered that the court really, you know, they're not concerned about. The parents at the heart of any decision is what's in the best interest of the children.
Thank you, Helen, that's That's. That's very health. And just moving on to another area that seems to be quite common with inquiries these days is in relation to cohabitation. What's, what do we understand by cohabitation agreement? Please.
So a cohabitation agreement is often called a living together agreement that it really is what it says. It said agreements, a written agreement signed by a couple that sets out the arrangements, the financial arrangements for that cup, Pope. Said we've been married. Then locked in a civil partnership than a living together. Agreement can set out the arrangements that they have during the relationships I for example, who pays the watts and how they're going to deal with the income and outgoings and in that relationship?
And perhaps most importantly, it sets out what should happen if that couple were two separate So it sets out who the property belongs to P widens the property, and what happens to that property if the relationship works right down it can also deal with the longings, you know who has the sofa, even down to pets, who has the cat or dog. These things are quite important when the separating the worst time, Helen, when people should do this. You know, because if they haven't done it when they first started to live together. It's not too late. Presumably, Absolutely, no, and it can be done at any time that you lift together, And the most important thing, Gates, I think to, to do it as soon as possible. As soon as you start thinking about these things.
Because the worst time is, to think about these things is when your relationship is breaking down. So, we found a lot of couples have moved in together quite quickly over this locked down period, because they've made the decision. They don't want to be a part, so they've moved into gets up. So the fact that they've lived together for the last however many weeks, we're at now 30, whatever it is. It doesn't mean that they can't then enter into this living together arrangements or agreement now.
I guess what you're saying is it's better to do it sooner rather than later, whilst everybody's good terms and write down. For example, Yes, exactly. And I think it should be viewed. really like an insurance policy. You know, we hope that we never have to use it. Will writes hit, sign it and put it in the drawer and hopefully, never have to take it out. But it's important that, you know, if the worst comes to the west and the relationship breaks down, that you've got ... agreements in place, because it will save you time and money. Should that relationship breakdown?
Thank you, Helen. That's really helpful. Thank you very much. I'm going to move across to Virginia Heartbeat who's a member of our private client team, and she has had a few inquiries in relation to particular aspects in connection with whales at Virginia. And one of the first questions that is often asked is actually why? Why does somebody need to make a whale? Why can they just not manage with that one?
Oh, let us start. We are all going to need a will, one day.
People don't always appreciate the range of things that you could actually covering a well. It's somewhere where you can document your funeral wishes. If your parents sit somewhere where you can document who you would like to be Guardians for your children, if something were to happen to both of you.
It's where you can document where your jewelry goes or your golf clubs, or how you make gifts to charity.
It's where you can do some broader planning that might be planning around care home phase, and what kind of impact that might have on your state Border Tax Planning.
There are structures that we can help put in Wills that where possible, minimize the impact of inheritance tax, so they have been planning reasons for them as well, And it's a way of making sure you've got adequate provision. Especially if you've got a complex dynamic in your family, Perhaps, if there's a second marriage, and there are stepchildren, how is that all going to pan out?
If you don't have a, Well, it's very broadly, is how you make sure that what you want to happen is what happens, and how your family is provided for the way that you want. And you began by saying, what happens if you don't do it Well, if you don't do it, the law can fix most things, and it fixes that particular problem with the intestacy rules. So, if there is no, will you look at the, the intestacy rules, and that tells the world what will happen to your state. And broadly speaking, those rules, protect a spouse who is there, and then blood relatives. So, if you're in, you're not married, when a civil partnership, but as is increasingly common living with somebody, that person without a will, is highly likely to receive nothing under the Intestacy rules. So, really important for people who are in relationships that fall short of that formality well, yeah, we associate with marriages and civil partnerships.
And even if you knew that he could also be important in relation, you touched on earlier about about tax planning that wills efficient wheels can perhaps help to mitigate tax. Presumably, in the absence of a Will, the intestacy rules may not work in your favor from a tax perspective? Well, absolutely, absolutely, So, it, Yeah, I said, there's a way of sorting it out loud. We have got some intestacy rules that they very rarely worked with Families Advantage, whether that's on a personal level or tax planning perspective.
I was talking about a particular example, if you're not married, or in a civil partnership, but the way the rules work, even if you're married. If you're married in their children, the rules say that the children are going to inherit part of the estate. And depending on the value of the property in the house. That could lead the spouse vulnerable to not being able to remain in the matrimonial home.
So, yes, there's a fallback position, but I would say to all of my clients, don't go that.
Don't leave your family, navigating the complexity of the intestacy rules. We are all going to need, will one day. And it really is never too soon.
So the Ginny, I understand that you've been talking about the need for people to make wills. And certainly whilst we've had this current difficulty with people being locked down in the social distancing that people have had to comply with. So how?
How we able to get around that so that people can put the wheels in place that we've just, you've just said how important it is that they do that? Yeah. Yeah, we have got increasingly inventive over the last several weeks of of locked down. The process of executing a will is subject to some pretty rigid formalities that has to be signed by the person who's making the will in the presence of two completely independent witnesses, who can see that signature going on the page. They are both present at the same time. And they both then sign the will afterwards. Which initially sounds like a bit of a mountain to climb when when you're in lockdown or best subject to a two meter distancing rule.
In practice, there are ways of dealing with that. And I can speak to that, and I think most of my colleagues now have practical examples. We've had one instance of a lady driving to our office, and sitting in her car, and signing her, well, well. two of us were outside, watching the process. And the will then got posted out through the window, and everybody was wearing gloves. And nobody was sharing pens.
I have met clients on a driveway, the makeshift, Black and Decker workmate table, and executed that the wheel that way. And, in other cases, we've sent the documents out to our clients entirely. We've not been there talking them through the process, but we can explain it in writing. Well, what signature needs to end up, where they've been been passing things across the garden fence to the neighbors, so, there are ways of achieving this. So, if you haven't got a, well, and you are thinking about doing it, don't let the current difficulties put you off. We can help you find a way around that.
Again, moral Virginia is where there's a will, there's a way. Thank you for the. Virginia was an Ask a question. Can you talked about physically being in the presence of the witnesses, could you witnessed the Zoom all video chats? Awesome.
Tonight, that does that work on ours, I've avoided it, and you might come in on that one, as well. There is discussion that I don't want to do anything that could be subject to challenge, and I've managed somehow or other to get people in the same presence. But on what do you think about that? I think that our view is that, OK, if it was a desperate situation and you have somebody that was terminally ill and you had no other way of doing it and I think we would, we would we would try absolutely everything we could to get a will find an undue properly executed. And then, if we had to be, perhaps, try and put the case together to explain why the circumstances was such that he was, It was signed in such a way, I know that have been other jurisdictions. For example, in New Zealand, they've been a lot more flexible than we have. But, currently, my understanding is that our rules are still quite prescriptive, and, you know, and they're very, very old rules, and they still applies. Virginia is just explained, unfortunately, Andrew.
Yeah, I suspect no one wants to beta test case because the test cases probably going to be very expensive.
Indeed, Indeed, I expect the when we are at the other side of this, and the will be someone I know that's your area, so you'll be able to let us know. But I, Yeah, I'm sure that somebody will be, It's going to be going to cost a lot of money, I would imagine.
So, it's going to need to be a fairly sizable state to justify any, you know, any litigation.
And the other thing, Virginia, whilst people are self isolating, I know that there's been problems with people being able to get things done, their transactions or financial transactions. So, I wonder if you've got any advice for people that perhaps need somebody to, to do things on their behalf, how they go about authorizing somebody to, to, to conduct their affairs for them.
Was something we advise all our clients to do, is to prepare lasting powers of attorney. And some of our clients will have those in place. And some of them, from the property and financial first perspective, will have set them up so that they can be used, even while they still have mental capacity, if they want some help directly. So some people might have those arrangements in place already. If you don't. And it does take quite a few weeks to get that process set up, we can create, for our clients, what's called, a general or an ordinary power of attorney, which is very specific. Usually, you can limit it to the particular thing. You want somebody to sign the particular task that needs doing, that we can, we can put in place a power of attorney that will cover specific tasks that might need doing now. So, again, don't be put off if there's something that you need help doing.
And they're quite easy to do, Virginia at all. Because she said, the lasting powers of attorney, you know, the court require certain requirements for those, and they can take several weeks from start to finish. But they're still very important in the long run. But, as you say, with the the general powers of attorney, they can be done as I understand it, straight away. And so, there is an advantage, and for peace of mind, they can be done, possibly, want the lasting power of attorney or trending on it and getting completed.
That's absolutely right. And, yes. Yes. I think we've all done that on occasion so that yet they are, they can be set up very quickly, and very often, they do have a place being set up while you're waiting for the long registration process, for the Office of the Public Guardian to be completed.
I guess, I should say that the only drawback is with, with the general power of Attorney, is if somebody is losing or has lost capacity, then obviously they can't be used. Which is why, if somebody has capacity, we normally recommend, don't we, Virginia? That they do and lasting power of attorney. Because that will still enjoy beyond bearing capacity. But in the short term, do the general power, so that they can get it up and running, and doing whatever they need. Yes. Yes. That's a good point. and actually dovetails back to what I was saying at the end of talking about whales, Same, for lasting paths, returning. The sooner you get on and get these things in place, the better protected you are, the greater your peace of mind, The less worry and trouble for your family might. And I had, yeah, absolutely.
Thank you, for junior, very wise words, thank you. And now I'm going to turn to Andrew, Andrew Wilkinson, who Andrew one knows that you're involved in a lot of contentious matters in relation to estates. And I just wondered, I know that a couple of the questions that we've had, one in particular, is, what can I do to avoid a will dispute after I die? Now, that's a very big question, as you can find it helpful, and I think, I think, unfortunately, you're never going to be able to avoid That was completely. There is always a risk that that might happen.
But I think there are certainly things that you can do.
The steps you can take now, which reduce that risk significantly.
And I think the main one is to take the advice. You know, you've people have heard my colleagues talking about, you know, the advantages of wells and what you can do with the wheel. I think taking proper advice, I think, is hugely important in getting your affairs organizing the way that works for you.
I think also, from that, from an evidenced point of view, it's important that there's a very clear that codes of, now, suddenly who you've included in your when and why even. But also the people you haven't haven't included. And that might be family for particular reasons, or it could be, you know, all sorts of people who might be the obvious people to benefit from your state.
I think it's always worth having a discussion with your list about who's in and who's out and why that is. And that evidence is hugely important And just thinking through that process and just documenting aes.
And I also think that certainly in the cases that I say supplies, is it is a very dangerous element and often can trigger a lot of DSP. So, I think it doesn't always work. And, you know, some families are different, but I think if there is an opportunity to talk to your family, about your will, and what you're trying to do that, I think, avoids the element of surprise.
Experience tells me that, that combination of surprise and grief can be fairly toxic, and it can result in litigation that, that could otherwise be avoided, and the thing that people need to to bear in mind that often a will is a public document. So perhaps they put in their whale and could You could make things worse, could make a situation, was well made an aside let Rather than perhaps put it on the face of the Well, what do you what? Would you say that? I think? I think, I think it's important to them under the weather is a public document, as you say. And actually, it may well be better to have lots of those reasons to be in a solid lesson on a simpler and attendance. Now, let us List is file, rather than in the Will themselves. Again, I've seen lots of cases where the Pacific specific wording of those gifts, or the, you know, the word in the world, has caused huge, upset, and In a way, that's not been not been helpful.
And I remember one example where someone had died, and he left his daughter and under the terms of as will the price, and with all of sudden, in order to wash her mouth, that with A needless to say, that caused huge upsets. I suspect that was not done on an advice from solicitors. But inevitably, that would, Of course, you know, the dose, I'm sure was incredibly upset, at least in these words, an inevitability, you know, that probably led to a dispute and not being happy and challenging the world.
So I think it's choose your words carefully, particularly in the will itself, and I think you're right. I think by taking advice, sometimes you can, you can take the heat out of that. Because I've met with clients and they're very, very clear. They may have fallen out with family members and they very much think, well, they don't care, this is how they feel and this is what they want to say in the whale. But I think that what we're able to do is perhaps make them reflect upon that. We can give them a solution to put it, as you say, an aside letter. And that perhaps helps to mitigate any, any, any issues down the road, which they may say, well, I don't care, I won't be around. But actually, we find it still can be quite quite impactful, and as a family members as well. As I said, is that the one thing that we're sort of seeing, more and more is where we're working with no, public health colleagues, where people want to include particularly provisions in that will deal with the possibility of a dispute. So those says, well, what are called no challenge gifts. And essentially they say, Well, look. I gave my daughter say a gift of X, but only if she doesn't challenge the will.
Now you've got to draft stage very carefully, but in theory they work and I think the opposing comes out.
I think you need to think about them carefully, but certainly in terms of what's, what you put in the will itself, though, again, some things you can think about that might reduce the risk of a of a dispute advising once you've you passed away.
Yeah, very wise words. And another question and it probably sort of flows on from Helen talking about living together agreements, cohabitation agreements, and where people aren't married. And, and perhaps some of the, some of the notions that people have about what rights they have. And I just wondered from your perspective, if you could perhaps clarify about the actual type of rights. That a common law spam, as we, as we call them, actually has. Because I wonder whether there's a few misnomers there that you could put .... So, I think, as, as Virginia has already touched upon, main tests, to see those. don't come with your spouse, is illegal myth, A common law spouse has no rights under the test symbols.
Now, that's not to say that they don't have any links to tools, So in, in, in English law, you have generally the right to leave your state to whoever you want. But that is subject to one piece of legislation, which is called the 75 that the inheritance provision for family independence apps. And basically what that piece of legislation says is that there are certain categories of people who can bring a claim when you diogenes Joe Estates.
So, that's an aspect of it. What you will say is, if provision has not been made and they can claim against your stays, I think people are often surprised. People assume that well, this is a English law, when you can leave us. take two, if you want, You all will be subject to this this piece of legislation. So, so, whilst if the test signals apply this kind of have the TSA has no rights automatically, they can bring a claim against the estates into this 75 items.
And now, of course, you know, I think it's very dangerous to the law.
And I think the reason is that those claims are unpredictable in terms of actually what you would get will occur.
Because he gets the duties have huge range of discretion and, and also they tend to be fairly nega provision. And so I don't think you can assume that, you know, cohabitees going to bring a claim and then get a huge, significant. he's. unfortunately, they say they might do, depending on their circumstances, but actually the course general approaches to fairly limited provision.
So, so I think the advice is that a common law spouse has no automatic rights.
They have the right simply 75 at claim, but I wouldn't rely on and I think the better approaches to take advice and put something in place now that gives them the proper protection and undo well, that's going to be far better than at the test signals. And then the risks and uncertainties, and cost, of course, of, of litigation against against family members. Which inevitably is going to be difficult and expensive. Particularly, you know, it's a continuous when everyone's kind of lost enough, when recently said.
Yeah, that would be my thoughts on that. And I suppose, as well, under the same time, what would I be thinking of as well Is looking at how that couple have got their assets structured? Because they may again, not necessarily pass through. Well, if they've got joint assets, it might be right for the assets to be joined, but it might not be. So, I think what we're both saying really is that you take advice and, and look at making the right provision, rather than relying on on the law, perhaps. And having to challenge a Will, you know, in order to get what what properties, you know, we've seen quite increased recently in disputes about the ownership of property.
So, wherever, how smart you know, a couple might have lived together, for you know, potentially long-term, 20 this year, is, I'm going to house is in no one seems to be in both names. Always in one person's name. And the other person isn't happy with that. And sometimes these disputes arise when people alive and not alive in the context of the advice that hadn't been her team are giving, But they also relies on on death.
And you get to speak to emulate our house. And I contributes to pay for the Windows are paid to, all sorts of words And puppies are paid for mortgage.
And, again, it's just really thinking about that and making sure that that position, the land, registry position matches up with what everyone's understanding is.
Again, it's going to be much cheaper and easier to sort it now than to try and deal with it later on in the context of someone having to, you know, relationship having end date, or someone having done when inevitably tensions are going to be raised. And things are going to be much harder to resolve.
Yes, yes, very chim Andrea, thank you.
So, that brings us to the end of this webinar. We do hope that you found it useful, and, of course, relevant in the current circumstances, if there is something that you would like further information on, or have a specific query on any matter, that we've touched on. Or indeed, if there are other things we haven't touched on, And please do let us know, because we are happy to help. We'll hear for you, and in the meantime, we have launched a Free Helpline giving, you direct access to a senior team of experts for free legal guidance, over 20 million telephone, or a video call, whichever is a suitable view. Details are on the screen. Now, if you would like to book a session and find me, please do visit our Shakespeare Martino on demand pages to access recordings of all webinars and Shakespeare, martineau talks. Please join me in our conversation on LinkedIn and Twitter.
Thank you for joining us, Goodbye.