hmrc

Solicitor and member of MW's Estate and Trust Dispute Team, Jane Flaherty, discusses the Governments recently announced plans to increase probate fees.

Background

On 18th February 2018 the Government launched the Consultation - Fee Proposals for Grants of Probate canvassing public and professional opinion regarding an increase in fees when making an application for a Grant of Probate.

As a general rule, any estate which includes property requires a Grant of Probate,  and most estates with shares require a grant of probate.  The current fee is £155 where you obtain a grant through a solicitor and £215 where a personal application is made.  Where an estate is below £5000 there is no fee.

The Result of the Consultation

Despite an astounding 97.5% of respondents expressing that they were against the proposed increases, the Government has announced its intention to proceed with its plans to increase the fees at some point in May 2017. 

A date has not yet been set and any changes which come into force will effect applications in accordance with the date the application is lodged with the probate office and not by date of death. 

What are the New Charges?

The fees will be charged in accordance to the size of the estate as follows:

Value of estate (before Inheritance tax)  Proposed fee
 Up to £50,000  £0
 Over £50,000 but under £300,000  £300
 Over £3000,000 and up to £500,000  £1,000
 Over £500,000 and up to £1 million  £4,000
 Over £1 million up to £1.6 million  £8,000
 Over £1.6 million up to £2 million  £12,000
 Over £2 million  £20,000

 

The government claim that the majority of estates, those being valued at less than £50,000, will not be charged at all.  In practice, most estates valued in that threshold do not include property and therefore would not require a Grant of Probate in any event.

The reality of the changes to costs is that most estates requiring a grant will see a huge increase in the probate fees.  Beneficiaries will see costs escalate sharply between £300 and £20,000 despite there being no link between the value of the estate and the amount of work involved.

A really good analogy that has been put forward is to consider the cost of a passport.  We all pay the same price for a passport because the same amount of admin is required for each application.  Could you imagine the uproar if passport costs were based on each applicant's income?

When do The Charges Come into Force?

We have been informed that the changes will be in force in May 2017. The probate registry is set to raise £300 million pounds of revenue to support the costs of the wider Court and Tribunal services.  The increases are being labelled as ‘stealth tax’ or a ‘death tax.’

Whereas the Office of the Public Guardian announced that their fees are going to be reduced from April 2017.

The cost to register a single lasting power of attorney or enduring power of attorney will fall from £110 to £82 pounds.  The reason given for this reduction is that due to the increased amount of applications it is receiving it does not need to charge as much per application to be fully self funding.  

What are the main objections to the proposals?

  1. The fees are disproportionate to the cost to the Court in providing the probate service.

  2. The cost to the Court does not vary depending upon the size of the estate. The same amount of work is required for most matters.

  3. The cost does not take into account any inheritance tax that also has to be paid.  It is based on the gross estate.

  4. There will be no exemptions to this charge, whereas there are exemptions in place for estates passing to the surviving spouse or to charity or where the estate qualifies for business or agricultural relief. When you consider the value of property, particularly in areas such as London, some estates may be asset rich but cash poor and may have difficulty paying the probate fee.  Families that hold their property as tenants in common because they want to provide for children from a previous marriage or want to ring fence the amount of capital going towards care fees may find themselves in financial difficulty.

  5. Solicitors will not be able to fund this payment for clients and that might lead to executors having to take out bridging loans, particularly if there are insufficient funds in cash to cover the cost.

  6. The legal profession feels that this is another form of death tax

  7. People may make unwise decisions about their assets, without seeking advice, to prevent the probate fees.

  8. Unscrupulous companies may miss sell products to vulnerable clients on the basis of probate avoidance. Such companies don’t give advice in the whole to enable you to make an informed decision as to whether their products are in your best interests because they are sales people not professional advisors.

Let the Government Know What You Think

We believe that parliament should reject this unreasonable tax by the back door and start again in its consideration of increasing the probate fees.

To sign the petition please click on the link below https://petition.parliament.uk/petitions/188175

 

dna

Kristi Ashworth, Trainee Legal Executive in the Estate and Trust Dispute Team discusses how paternity tests play a role in Inheritance claims.

DNA Tests are not just for Criminal Cases

Thanks to great crime dramas, it seems that we are all familiar with DNA and have some idea of how it works.  Questions of paternity can often arise after someone dies, and frequently do when there is a child or other relative claiming to be entitled to  a share of the deceased’s Estate.  What you may not know, are the different types of DNA tests that are available to help determine parentage and other familial relationships.

If your paternity, or that of other family relations, is being disputed there are several DNA tests that can be undertaken which could assist with your claim and thus help you succeed in securing your rightful inheritance as follows:

  • Maternity DNA test
  • Grandparent DNA test
  • Sibling (full sibling or half sibling) DNA test
  • Aunt/Uncle DNA test
  • Y-STR Genetic Test (or Y-Chromosome DNA test)  - males only, to show male lineage

Painless Procedure

DNA tests are painless and can be undertaken using saliva swabs or hair samples; blood tests are not necessary.  If other family members who could participate in DNA testing refuse, it may be possible to ask the Court to make an adverse inference (that the DNA test is likely to result in your favour) as a result of that refusal or, in extreme circumstances, it can be arranged for DNA samples to be taken from the remains of the Deceased.

Scientific Advances

A Y-Chromosome test is a much more recent development in the science of DNA testing which can be used as an alternative to the more traditional options listed above if you have male heirs in the family willing to participate in a test to assist your case. It can also be performed in conjunction with one or other of the more traditional tests to support the findings. The Y-Chromosome test doesn’t show direct paternity but it shows with certainty whether two individuals share the same male lineage – which can amount to the same thing if you are sure, for example, that a grandfather or uncle couldn’t be the father.

If family members continue in their refusal to accept the result of the test(s) then an application to the Court can be made for a Declaration of Parentage under section 55A of the Family Law Act 1986 which is binding on all institutions, and thus would bind a Personal Representative of an Estate to distribute inheritance according to the findings of the Court as to your paternity.

The Pringle Baronets of Stichill

In the very interesting case of the Baronetcy of Pringle of Stichill (referral under section 4 of the Judicial Committee Act 1833)[2016] UKPC 16, the Privy Council considered the reliability of a Y-Chromosome DNA test to determine the rightful heir to the Baronetcy of Pringle of Stichill. Although decided in the context of Scottish law the Privy Council made clear throughout the judgment that the outcome would have been no different under English law.

In this case, there were two claimants, Simon Robert Pringle (“Simon”) and Norman Murray Archibald MacGregor Pringle (“Murray).  Each maintained that he was the rightful heir to the Baronetcy.  Following a Y-Chromosome test (which was conducted for unrelated reasons), the results showed that the profile of Simon’s father Steuart (and his brother) did not match that of the profiles for Murray and all of the other male heirs tested in the family.  As such, Murray claimed that Simon was not the rightful heir because Simon’s grandfather Norman (who was enrolled as the ninth baronet) was not the son of the eighth baronet. This meant that the baronetcy had, up to that point, passed down incorrectly to unrelated males since the 8th baronet. Murray claimed that his father was the rightful male heir of the first baronet (the test for enrolment as the current baronet) and, as a result, upon his father’s death it was Murray who was now the male heir of the first baronet.

Confused?

The diagram below illustrates the male lineage of the Pringle family.

 The Baronets of Pringle of Stichill

The Result

The Court accepted expert evidence presented at trial as to the accuracy of Y-Chromosome testing and ruled that the DNA test showed a “high degree of probability” that Norman H Pringle, was not the son of the eighth baronet.  On 27th June 2016 Sir Ronald Steuart Pringle and his son Sir Norman Murray Pringle were admitted onto the Official Roll of the Baronetage, as the rightful 9th and 10th Baronets of Stichill respectively.

The case confirms that the Court will accept the reliability of Y-Chromosome DNA testing (even in the absence of other forms of DNA testing) to make an order relating to an inheritance.

We Can Help

At MW, our mission is “to make quality legal services accessible to everyone” ” including those who seek to prove their entitlement to an inheritance via DNA tests.

Our specialist Estate & Trust Dispute Team are currently assisting several clients in relation to inheritance claims where parentage is being disputed. If you would like more detailed advice on whether a DNA Test and a Declaration of Parentage could help you with your inheritance or would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

confused

In the recent High Court case of Seery v Leathes Prior (A Firm) Judge Sir David Eadya judge has thrown out a professional negligence claim lodged against a law firm by a former client.


Dan Carter
Dan Carter
Partner and Head of Professional Negligence

On the 24th January 2017, the Judge said "he had ‘no alternative’ but to dismiss the claim, brought by the former client against a full-services firm".

The claim

The former client brought the claim against the firm after a settlement agreement that stemmed from a dispute with two colleagues.

Among the claims made by the Claimant was that the Solicitor with conduct of the matter could have encouraged litigation, which might have led to a more favourable outcome.  However, the judgment said that although the option would have been considered by the firm, it would have been ‘a costly, acrimonious, long-drawn-out fight’, which was exactly what the former client wanted to avoid.

Why the claim failed

The Court said there was no evidence that the former client would have received a better outcome had he been encouraged to sue.

Importantly, the former client also suggested that he had suffered from stress and was unable to take on board the legal advice he was given, in particular, that which he had previously received from his former Solicitors (which pre-dated the defendant firm).

However, the Court said the former client did not tell his Solicitor at the time that he did not understand the advice and that much of the advice was in writing and could have been re-read at any time.

He added that a Solicitor will have fulfilled his duty of care to his client if he gives an explanation in terms the client reasonably appears to him to be able to understand, and to have understood, even if the client later alleges that he did not in fact understand what was said.

Concluding, the Court said that there was nothing to be gained by exploring the case on contributory negligence by the former client, or entering further into the arguments about expert evidence, an exercise which would have been in its view too speculative to have been of much practical use anyway.  The Court added that the former client received a ‘very good service from the firm in the difficult circumstances in which he found himself’.

We Can Help

At MW, our mission is  is "To make quality legal services accessible to everyone" and we strive to ensure that clients have complete understanding of what can in some cases be complicated advice.  A client who does not understand the advice given to them will place themselves at risk in litigation in particular.

If you or anyone you know has received advice on a critical matter that they have not understood or has left them confused, call our specialist professional negligence lawyers today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

holiday

MW Employment Law specialist Andrew Norris discusses Workers rights to Holiday Entitlement and the potential implications of a change in European Law.

Your Right to Paid Holiday


Andrew Norris
Andrew Norris
Solicitor

All "workers" have the right to take paid holiday.  The term worker is wider than employees and includes those who work under a contract to personally provide their services to an employer. Those who are genuinely self-employed are not entitled to paid holiday.

A worker’s entitlement to holiday arises from two sources.

Statutory Holiday Entitlement

The first is a worker’s statutory holiday entitlement. This statutory entitlement is governed by the Working Time Directive (WTD) and the Working Time Regulations 1998 (WTR).  The WTD is European Union legislation and is implemented into UK law through the WTR.

Contractual Holiday Entitlement

The second is a worker’s contractual holiday entitlement.  It is not uncommon for a worker’s contractual entitlement to be more than their statutory entitlement.  Holiday in excess of statutory holiday is governed by workers employment contract.  

Under the WTR, those working 5 or more days each week are entitled to 5.6 weeks (or 28 days) holiday each leave year.  The entitlement is pro-rated for those who work part time.  The 5.6 weeks is comprised of four weeks paid holiday, which are provided for under the Directive, and an additional 1.6 weeks paid holiday entitlement, which are provided for by the WTR.

A worker’s statutory holiday entitlement may normally only be taken in the leave year to which it relates. The general position therefore is that a worker will need to use such holiday entitlement during that leave year or they will lose it.  There are certain exceptions to this such as where a worker is on maternity leave or sick leave (and they have been unable to take such holiday in the leave year it accrues). Where these exceptions apply, it has been determined that a worker can carry over such untaken statutory holiday for a period of 18 months after they should have taken it. 

European Court Challenge

This long standing position is currently being challenged in the European Court in the case of King v The Sash Window Workshop Limited. One of the central issues of this case which needs to be determined, is whether the statutory holiday entitlement that Mr King had accrued over many years but not taken (because he was told it would not be paid) should have been paid when his employment ended.

If the case succeeds, it could open the door for claims for unpaid statutory holiday claims going back many years.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" including employers and workers struggling to get to grips with holiday entitlement issues.

Our specialist Employment Lawyers are experts in resolving employment issues.  If you would like more information on the case, the law surrounding holidays or to discuss your employment law issues call us today on on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

Inheritance Law Clarity for Adult Children

Hayley Bundey, Head of MW's Estate & Trust Dispute Team, discusses today’s landmark decision by the Supreme Court which brings to an end the long-running battle of Ilott v Mitson.  This is the first judgment handed down by the highest Court in the land on the important issue of how to deal with adult children bringing claims against their deceased parent’s Estate.

Case History


Hayley Bundey
Hayley Bundey
Partner and Head of Estate & Trust Dispute Team

As discussed in previous articles, the years of developments in the Ilott v Mitson case date back to the original judgment which was made in 2007 following Mrs Jackson’s death in 2004.  It has therefore taken some 13 years to reach a final resolution to this case.

In summary, Heather Illott pursued her claim against her mother’s Estate pursuant to section 1(1)(c) of the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”).  She argued that as a child of the deceased, she did not receive reasonable financial provision from her mother’s Will from which she was specifically excluded (with reasons provided in a side letter of wishes relating to Mrs Ilott’s choice of husband and which had led to an estrangement from her mother for some 26 years). Instead Mrs Jackson left her £486,000 Estate to three charities; The Blue Cross, the RSPB and the RSPCA (with whom she had little or no involvement during her lifetime).

In 2007 the original judge decided that it was unreasonable for Mrs Ilott to be excluded from her mother’s Estate, due in part to her straitened financial circumstances, and she was awarded £50,000 from the Estate. Mrs Ilott argued that £50,000 was not enough and so she made an appeal to increase the value of the award to the High Court.  The charities, also dissatisfied, cross-appealed making a claim that no award should be made. The outcome of the second judgment overturned the first Judge’s ruling thereby cancelling Mrs Ilott's original award, leaving her with nothing.

Mrs Ilott then appealed this second decision to the Court of Appeal who, in 2011, reinstated the first judge’s decision (that it was unreasonable for Mrs Ilott to be excluded from the Will) and sent it back to the High Court for a further assessment of the value of the claim to be made.  In March 2014 the High Court dismissed Mrs Ilott’s second appeal on the value of the claim (so the £50,000 award remained).

In 2015 Mrs Ilott took her appeal back to the Court of Appeal (but this time solely on the issue of the value of her award) and in July 2015 the Court of Appeal overturned the first judge’s order of £50,000 and replaced it with one for circa £164,000 (nearly 1/3 of the Estate), on the basis she could buy her Housing Association property and have an option to draw down £20,000 from the Estate on top for a small nest egg.

The charities then appealed that decision to the Supreme Court and they have given the final judgment on the case today.

Today’s Landmark Decision by the Supreme Court

In today’s judgment - [2017] UKSC 17 - the Supreme Court have allowed the charities’ appeal and reinstated the first Judge’s order for a £50,000 award. They did so because they said the Court of Appeal had made two fundamental errors when coming to their decision in 2015, namely:

  1. They were wrong to say that the first Judge was required to explain the extent to which he had limited his award for Mrs Ilott because of the long estrangement she had from her mother and the lack of expectation she had for any benefit from her Estate.

  2. They were also wrong to say that the first judge had made his award of £50,000 without knowing what the effect of it would be upon Mrs Ilott’s state benefits.

The Court of Appeal was only allowed to replace its award of £164,000 with the first Judge’s award of £50,000 if the first judge had made those two legal errors (or any others, which it was found they didn’t) and as the errors hadn’t been made at the first hearing this meant the Court of Appeal did not have the right to replace the award with one of its own calculation.

Commentary

It is important to note that today’s judgment is not a landmark decision because of the level of the award made for Mrs Ilott nor is it for the fact that she has received any award at all (both decisions which the Court says were correctly made back in 2007). The judgment is a landmark one because it is the first time that we finally have some clarity from the Supreme Court on the key issues which the Courts should take into account when deciding these very difficult and discretionary cases going forward.

It is important to remember that Mrs Ilott hasn’t lost her case.  Indeed the result is quite the opposite as she has succeeded on recovering an award of £50,000 from her mother’s Estate despite the estrangement and lack of expectation of provision.  The purpose of this appeal was simply for the Supreme Court to provide some clarity on the law.  Indeed it seems the parties have come to some form of out of court arrangement between them, regardless of the outcome of this appeal, given that it was so important for it to be used as a vehicle to provide clarity for the Courts and for future similar cases.

The parties are of course to be commended for coming to such an arrangement which now affords other Claimants and Defendants more guidance on how their own claims should be resolved going forward.

The Supreme Court made it clear that these claims are so discretionary that it will rarely be justified for them to be appealed in future (so long as Judges don’t make an error of law) because there is such a broad scope of outcomes which the Court can legitimately order for these cases. The Court expressly stated that if Mrs Ilott’s original case had been heard by a different judge it could have resulted in her getting nothing (as was the case in the first High Court hearing) and equally it could have resulted in her getting provision for her housing (as was the case in the second Court of Appeal hearing).

Neither approach was stated to be wrong when assessing the claim, the difficulty was that neither of those subsequent courts had the power to substitute their orders in the end as the original Judge had not made an error in his own judgment. His judgment was within the range of reasonable judgments which a judge could make based upon the facts of this case.

A New Clarity for Inheritance Claims

So what does this mean for Claimants and Defendants to adult child claims under the 1975 Act in future:

  • The Section 3 factors are to be equally applied to both stages of the two stage test which the Court needs to determine before making an order, namely:- 1) did the Will/intestacy make reasonable financial provision for the Claimant and 2) if not, what reasonable financial provision ought now to be made. It is not necessary to separate out these questions and the Judge can simply set out the facts as he finds them and then address the answer to both questions together if appropriate. There should be no need for two separate (split) hearings on these questions. The reference to this process as a “value judgment” was endorsed by the Supreme Court.

  • The time to assess the relevant factors under section 3 is at the date of the trial (as per section 3(5) of the 1975 Act) and even on the rare occasion when a case is successfully appealed in the future, so that a higher Court needs to re-exercise the value judgment as to the level of award to be made,  this should be done using facts and evidence available as at the original trial. Later evidence (including evidence of changes to financial need) should only be heard if the Court allows that evidence in on specific application. Predominantly the test for this is whether that evidence could not, with all reasonable diligence, have been obtained for use at the first trial.

  • “Maintenance” remains the test to be applied to determining the value of an adult child’s claim under the 1975 Act. Whilst the provision of a property can be considered to be maintenance it is more likely that this will take the form of a life interest in the property (the right to live there – or take the rent from the property – for the remainder of the lifetime of the Claimant) than an outright transfer of property or payment of a lump sum being provided to enable the purchase of the same.

  • The judges confirmed that adult children do not have an additional obligation to overcome to prove a “moral claim” to their parent’s Estate, however this is one of the factors which will be weighed in the balance with other factors when making the value judgment. Equally the Court has clarified that something more than being an eligible applicant and having a relationship with the deceased needs to be proven in order for the claim to succeed. That “something more” can be a moral claim (including financial contribution to Estate assets or care for the deceased). Financial need cannot by itself be sufficient to make an award but again it is one of the factors to be weighed in the balance with the other section 3 factors.

  • The state of the relationship (i.e. an estrangement or being particularly close) with the deceased can impact the level of the award to be made but as part of the wider value judgment to be exercised by the Court and not by way of the Court needing to discount or add sums of money to a notional baseline figure in order to account for those issues.

  • State benefits are of significance when calculating a Claimant’s financial needs but the provision of a capital sum of £50,000 here did not automatically mean Mrs Ilott would lose her state benefits (because the sum was more than the £16,000 means-test threshold). The Court found that Mrs Ilott could have spent a large proportion of this on necessary equipment for the property (i.e. white goods, carpeting, flooring and replacement beds etc) so as to reduce her capital below the threshold and thus not impact her state benefits if she so chose. An award for payment of such items “sensibly fits” the concept of an award providing maintenance for a claimant. The Court also expressed concern that the £20,000 nest egg provided by the Court of Appeal’s judgment would not necessarily have avoided Mrs Ilott losing her benefits in any event, unless it was ordered by way of a discretionary trust (which it wasn’t).

  • Courts should not give little weight to the testator’s expressed wishes to benefit the beneficiaries nor disregard an estrangement of some quarter of a century. Further, Mrs Ilott’s lack of expectation of provision from the Estate is not balanced by the Charities’ lack of expectation of provision also. Charities rely heavily on testamentary gifts for a public benefit purpose and it is wrong to say they wouldn’t be prejudiced by an (increased) award to a Claimant. Equally all beneficiaries of an Estate do not need to put forward a needs-based defence to a 1975 Act claim and can simply rely on the fact that the deceased chose them to benefit as justification for them receiving provision from the Estate. The testator’s wishes and the issues of expectation and estrangement are all issues to be considered in the round with the other section 3 factors when the Court makes the value judgment on whether to make an award or not.

  • The 1975 Act and the value judgment should not be used as a mechanism for rewarding good Claimant conduct or poor Testator conduct. In Mrs Ilott’s case, although the Court found fault on both sides for the estrangement the Judge found that Mrs Jackson was more to blame than Mrs Ilott and that her reasons for excluding her from her Will, as a result, were unreasonable. That judgment was reflected in the fact that Mrs Ilott succeeded on her claim to receive an award from the Estate, however the Supreme Court clarified that the nature of their relationship (and the estrangement) shouldn’t then be irrelevant when weighing up the section 3 factors. As such, they found that the first judge had correctly tempered the award made to Mrs Ilott as a consequence of that estrangement/lack of expectation of provision to the £50,000 award.  The difficulty, of course, is that the Court does not need to explain the extent to which the award has been discounted for such issues so it will be difficult to assess where that particular issue leaves Claimants in terms of valuing their claims in the future.

One thing is certain as a result of this judgment.

It is crucially important for future Claimants and Defendants to seek specialist legal advice when dealing with adult child 1975 Act claims in the future.  As the months and years unfold this judgment will be applied by future judges on numerous occasions to help them make the necessary value judgments and provide further clarity for practitioners in this complex and discretionary area of the law.

In the meantime, it is all the more important that parties instruct lawyers who are specialists in the field if they wish to have the best chance of a successful outcome and of either maximising or minimising, the value of these claims.

We Can Help

At MW,our mission is “to make quality legal services accessible to everyone” including those who find themselves embroiled in a 1975 Act claim.

Our dedicated Estate and Trust Dispute Team are specialists in navigating the tricky waters of such claims to help ensure the best outcome for our clients.  Our specialist lawyers have experience in helping both Claimants and Defendants to adult child 1975 Act claims and we are best placed to guide you through the process as quickly and painlessly as possible.  If you would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8550 or email us at enquiries@mwsolicitors.co.uk.

Ipad apartment search

Gary Leverett
Gary Leverett
Associate Solicitor

Airbnb, the darlings of the so-called Gig Economy, offer many homeowners a tempting opportunity to earn a little extra cash by making use of that spare room or even the use of your home as a short term holiday let.

However, many potential owners are putting themselves into a precarious legal trap following the recent case in the Upper Tribunal, and you may find yourself in breach of the terms of your lease.

Understand the Terms of Your Lease

It is common for many long residential leases to have clauses in the following or similar forms:

  1. “Not to assign, underlet or part with possession of part only of the demise premises.

  2. “Not to use the demise premises for any purpose whatsoever other than as a private residence / single private dwelling / other than a private dwelling in occupation by one family only.”

If you were just letting that spare room, you could be in breach of the first clause and if you were letting the entire property as a holiday let you could be in breach of the second clause.

If your lease contains a clause that you could only use the premises for the occupation of one family only, then this would also be a breach of the second clause. 

The Ruling

According to the recent case of Nemcova v Fairfield Rents Ltd [2016] UKUT303, the Upper Tribunal rejected Miss Nemcova’s submission that a short term let of a flat (through Airbnb) is still being let as a private residence. 

The Upper Tribunal held that in order for a property to be used as the occupier’s private residence, there must be a degree of permanence going beyond being there for a weekend or a few nights in the week. 

People who would be occupying the flat on a short term letting would not be occupying it as their home and therefore, Miss Nemcova was in breach of the terms of the lease because she was using the flat for a purpose other than used as a private residence.

The landlord in these cases can prohibit such lets by making an application to the county court or the First Tier Tribunal.  If such lets continue, you could, ultimately, in a very worse case scenario, have your flat forfeited by your landlord and thus losing a most valuable asset.  

Seek Professional Advice Before You Let

At MW, our expert property dispute solicitors can help you to examine and understand your lease.  We strongly advise that you seek the advice of one of our solicitors who will help you to  avoid the pitfalls of such lettings.  Make an appointment to check that your plans do not amount to a breach of the terms of your lease.  Timely advice at an early stage can avoid expensive litigation further down the line.

If you would like to talk to one of our Property Disputes Team, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

Step Families Mirror Wills

The Pitfalls of Step Families Executing Mirror Wills

MW’s Wendy Rixon, Associate Chartered Legal Executive in our Estate and Trust Dispute Team, discusses the common issue of step-children left out of their step-parent’s Will. 

What is a Mirror Will


Wendy Rixon
Wendy Rixon
Associate – Chartered Legal Executive

Mirror Wills are a common way for married couples to deal with their estates whereby each spouse leaves their estate to their spouse and then to their children.  This can work fine in a standard (nuclear) family situation; but things can go wrong, particularly in step-families.

Problems arise because Mirror Wills leave no obligation on the surviving spouse to leave their estate in any particular way.  Therefore even if the couple agree (or think they have agreed) between them on what should happen to their joint estate once they have died, unless their joint wishes have been properly put into force, anything can happen.  Most commonly, a step-parent has, for whatever reason, decided to change their Will after their spouse’s death effectively disinheriting their step children. 

I often get disappointed step children seeking advice who believe that because their parent and the step parent made Wills at the same time, in the same vein, that these are automatically mutual Wills.  This is more often than not, not the case.  However, if there is clear evidence that there was a binding agreement between the couple when they made their respective Wills the court can determine that the Wills were mutual Wills and therefore the terms are binding. 

Can I Challenge a Mirror Will?

So what can we do for you if you find yourself in a situation where your parent’s estate has passed to your step-parent and your step-parent changes their Will after your parent’s death with the effect that your family inheritance passes outside the family?

Firstly, it has to be remembered that in English law a testator can leave his estate to whomever he chooses to.  There is no obligation in this country to leave your estate to your children or any other dependent person.  Therefore, the courts are loathe to upset people’s testamentary wishes without good reason.  However, if your parent had always been very clear in his/her intentions that eventually his/her estate (or part thereof) would pass to you, it is understandable that there will be disappointment if the eventual position  is otherwise.  Therefore, we can look at the intention of your parent at the time the Will was made and see if there is any evidence that the Will was intended to be mutual or irrevocable. 

We can also consider whether you can challenge the validity of your step-parent’s Will.  For instance, he/she may have lost capacity following your parent’s death and may have not known or understood the implications of changing their Will or they may have been unduly influenced to make the Will the way they did by their own family or by a new partner or a carer.  You would, however, need to be a disappointed beneficiary and be able to show that you would have been a recipient under an earlier Will. 

We can also consider whether you would be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 as someone who was treated as a child of the deceased or had been financially dependant on the deceased. This was originally dependant on a marriage between the testator and the natural parent but the Inheritance and Trustees’ Powers Act 2014 widened the scope in this category, negating the need for the dependency to be part of a marriage for deaths after 1 October 2014.  

We can help

At McMillan Williams, Our Mission is “to make quality legal services accessible to everyone” including those who find themselves disinherited from a step-parent’s estate.

Our specialist Estate and Trust Dispute Team are here to offer a helping hand and to guide you through the process of making a claim as quickly and painlessly as possible.  If you would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8550 or email us at enquiries@mwsolicitors.co.uk.

In his Guardian article today (17th Feb 2017), Chief Superintendent Gavin Thomas, President of the Police Superintendents’ Association of England and Wales writes:

"In 2015, 38 separate serious misconduct cases were opened against superintendents and chief superintendents. Almost half of these cases are still ongoing, up to two years later.

Of those completed, 70% resulted in no further action – not even words of advice were required. All that effort; all that angst – to find nothing had been done wrong. This cannot be a sensible way forward."


Bellamy Forde
Bellamy Forde
Partner and Head of Civil Litigation

While we agree that the prompt conclusion of serious misconduct allegations against police officers is essential for the maintenance of public confidence in the police, it remains essential that concerns raised by the public are not disregarded and considered promptly.

We Need an Accessible, Transparent and Timely Police Complaints Process

We act for a family who have made a complaint against a police officer who inaccurately reported allegations against them on a police database. Our clients were unaware of the report that had been entered nor were they aware that the officer who had raised the report was related to an individual who had been in conflict with our clients. Our clients had no knowledge and therefore no right to reply in terms of the report.

On learning of the report, our clients were advised to complain and the complaint was initially dismissed by the police force concerned. on our advice, the complaint was appealed to the Independent Police Complaints Commission (IPCC) who have determined that the officer concerned has a case to answer and should face a misconduct hearing.

What the above shows is that it is very difficult to force the police to examine their own conduct. We must ensure that the complaints process is accessible, transparent and timely.

We Can Help

At MW, Our Mission is "To make quality legal services accessible to everyone" including those who have been subjected to Police Misconduct or have raised an allegation or complained to the Police.

Our experienced and specialist Actions Against the Police Lawyers can help you at every stage of the complaints process.  If you would like to talk to one of our Team about your complaint or allegation, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.   

MW’s Head of Estate and Trust Dispute Team, Hayley Bundey, announces the arrival of Katie Woodcock to the team.


Katie Woodcock
Katie Woodcock
Solicitor & Estate and Trust Dispute Specialist

MW are very proud to announce the arrival of Katie Woodcock to the Estate & Trust Dispute Team in January 2017. Katie joins the firm from Penningtons, having formerly trained at TWM Solicitors.  She will be based out of our Guildford office.

Katie has many years of experience in all aspects of contentious probate work including challenging the validity of wills, claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”), claims for constructive trusts / proprietary estoppel and specifically she has a keen interest in, and passion for, contentious Court of Protection work.

Her Court of Protection specialism covers all aspects of work assisting clients with disputes that involve a person who lacks capacity – whether because of a mental health issue (such as Alzheimer’s or Dementia) or due to a brain injury. She is specialist in all aspects of lack of capacity work, is a member of the Mencap Shared Lives Panel Review team and volunteers for her local Citizens Advice Bureau in her spare time to ensure she can reach out to the most vulnerable in society to help them through this tricky area of the law.

Katie’s Court of Protection practice covers challenges to the appointment of Attorneys/Deputies and applications to the Court to make a decision as to the residence or treatment of an individual who is unable to make those decisions for themselves. She also makes applications to the Court to approve Statutory Wills for incapacitated individuals.

Katie is a student member of the Association of Contentious Trust and Probate Specialists (ACTAPS), a further recognition of her expertise in this often complex and specialist field. She is also a keen advocate of Alternative Dispute Resolution (ADR) and specifically mediation and joins MW’s existing team who all strongly favour mediation as the preferred method of resolving contentious probate work where possible.

Examples of Katie’s successes in the past have included representing a client successfully at mediation to settle a claim by a partner under the 1975 Act , making an application to the Court of Protection to object to the appointment of an Attorney and the successful appointment of a professional Deputy in their stead and successfully applying to the Court of Protection for approval of a Statutory Will.

Katie’s addition to the Estate & Trust Dispute Team means the team is now represented in four locations across the MW network (MW Devon, MW Guildford, MW Sevenoaks and MW Worthing), joining Hayley Bundey, Sharon Bell, Hayley Prideaux and Wendy Rixon.  The team continues to grow to meet the demands of their rapidly expanding client base and are ready and able to help callers with any queries they may have about their Estate or Trust Dispute.

Katie in particular will be expanding the team’s specialism in contentious Court of Protection work, building on her expertise in this field, to increase the depth of service we can offer to our clients on this key aspect of the team’s work.

On joining MW Katie said:

“I am pleased to have joined such a dynamic and forward thinking firm and specifically the exciting opportunities in MW’s Estate & Trust Dispute Team. I am looking forward to helping expand our work in the field of contentious Court of Protection work and to continue to be the compassionate helping hand that our clients need at often the most difficult times in their lives”. 

We Can Help

At McMillan Williams, our mission is "to make quality legal services accessible to everyone" including those who find themselves in a Trust or Estate dispute.

Our Specialist Estate & Trust Dispute Team can advise you on all aspects of Estate and Trust Disputes (including TOLATA – Trusts of Property - claims) and Contentious Court of Protection work.

If you find yourself in a situation where you don’t know if you would have a claim against an Estate or need help after someone has lost capacity then our Specialist Estate & Trust Dispute Team can guide you through the process step by step and as quickly and painlessly as possible.  If you would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

tug of war

MW’s Head of Estate and Trust Dispute Team, Hayley Bundey, discusses the common scenario of siblings finding themselves at war over the distribution of their parents’ Estates and how our Specialist Team can help you break through deadlocks.

As the Supreme Court’s decision on Illott v Mitson is imminently awaited, following the hearing on 12th December 2016, it is inevitable that the decision (whatever it may be) will shed light once again upon the issue of financial provision made by parents for their children in their Wills. This is in the context of claims brought under the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”) however it is not only these sorts of claims which can pitch sibling against sibling following their parents’ death.

Dealing with Unreasonable Siblings

Apart from other claims (such as challenging the validity of Wills), our Estate & Trust Dispute Team are seeing an increase in the number of clients who simply need our help in dealing with their, often unreasonable, siblings just to ensure they obtain from their parents’ Estate what they are already entitled to under a Will or Intestacy. A difficult economic climate, larger Estates and more complex families (including step-families) can all contribute to this but sometimes it can simply be that clients see a change in their family member that they never saw coming until the worst happened and their parents passed.

Joint Executors

This becomes all the more difficult when siblings are jointly appointed as Executors in a Will as this can often lead to deadlock, with the administration grinding to a standstill if agreement cannot be reached. Sometimes the only way to break that deadlock is to apply to remove a sibling as a co-Executor of the Estate or agreeing to the appointment of an independent firm of solicitors to administer the Estate instead.

Even then our ongoing help is often required to ensure that the due administration of the Estate proceeds without further incident – particularly to ensure that you are kept fully informed of progress with the administration, that the distribution which is received at the end of the administration is the correct one and that an unreasonable sibling has not managed to reduce the value of the Estate or, worse still, hide assets along the way. We can also help to ensure a fair division of sentimental items in the Estate – something which often means as much, if not more, to our clients than their financial distribution from the Estate.

Deferred Funding Arrangement

Often our Estate & Trust Dispute Team can act for clients in these situations on a deferred privately funded arrangement so that you simply pay our costs from your inheritance at the end of the administration of the Estate – i.e. you don’t need to fund them as you go. We find this is reassuring to clients who already come to us in a state of high stress, due to the conduct of their sibling, and who need our immediate help to break through the deadlock but who simply can’t afford to pay for it until they receive their inheritance.

So don’t despair and suffer in silence – pick up the phone or email us today. We are here to help you fight for your inheritance, to stand up to your sibling and remind them of your rights in relation to the Estate and to ensure you receive what is rightfully yours without their conduct holding you to ransom.

We Can Help

At McMillan Williams, our mission is "to make quality legal services accessible to everyone" including those who find themselves in a trust dispute with their siblings.

Our Specialist Estate & Trust Dispute Team are here to offer a helping hand and to guide you through the process of breaking that deadlock as quickly and painlessly as possible.  If you would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

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