A court has had to rule on the validity of a man’s will following conflicting claims from his daughter and his cohabiting partner.

The man made the will while terminally ill in hospital with liver disease. It was drawn up by his brother who was named as executor along with the man’s partner with whom he had lived for two years.

The man died five days after making the will which left all his estate to his partner. His daughter then claimed that he had lacked testamentary capacity when he made the will and so the court should rule it invalid. She was able to produce evidence from a hospital consultant that her father did not have the capacity to understand and authorise legal documents in the days before his death.

For her part, the cohabiting partner argued that she qualified as a claimant under the Inheritance (Provision for Family Dependents) Act 1975 and should be allowed to inherit the estate.

The court ruled that the father did lack the necessary capacity to understand and authorise the will and it should therefore be declared invalid. However, his partner had lived with him for more than two years before his death and so she was entitled to make a claim on the estate. This entitlement had to be balanced against the fact that the man loved his daughter and wanted to provide for her.

After considering all the circumstances, the court awarded the partner a lifetime interest in the house and awarded the rest of the assets to the daughter.

The judge clearly tried to be fair to both parties but much of the trouble may have been avoided if the man had taken legal advice long before he became ill and had drawn up a will while he was still fit and able. The thought of making a will may make some people feel uncomfortable but if it is drawn up properly with the help of a solicitor it can prevent a great deal of heartache for your family in future.

Proposals to provide cohabiting couples with the same kind of protection enjoyed by married couples have been put on hold by the Government.

Last summer the Law Commission put forward several measures that would give cohabitees more legal protection but stop short of the kind of rights provided by marriage. It was widely expected that most of the proposals would be accepted but now the Government says it wants more time to examine the cost implications. Many experts fear the proposals will be now be put aside and forgotten.

It means that the four million people currently cohabiting in England and Wales remain at risk if their relationship breaks up. They can be exposed to a great deal of financial and emotional heartache.

It is not uncommon to see examples where a couple live together for several years yet one partner effectively loses thousands of pounds when the relationship ends because they have no legal right to a share in the home. Or they may find they lose out because their partner dies without making a will and the estate they helped to pay for and expected to inherit is instead divided up between family members they hardly know.

According to the latest British Social Attitudes survey, only one in six cohabiting couples who own a home have a written agreement about their share in the ownership and only one in five have sought advice about their legal position.

A few years ago the government started a campaign urging couples to draw up living together agreements to say how their assets should be divided if their relationship ended. Thousands of people have done so and now have more peace of mind when they look to the future.

Cohabiting couples who haven’t made a will, discussed the ownership of their home or drawn up an agreement for the future should consider seeking legal advice as soon as possible.

Posted on 08 Apr 2008 by rdgadminWidow of businessman killed in road accident awarded £1.7m
The widow of a successful businessman who died after being knocked down by an ambulance in a road accident has been award £1.7m in compensation.

The man had established a successful family business in which his wife and two of his children were partners. The court hearing where damages were assessed was told that the company had grown largely as a result of his efforts. The judge accepted this and described him as a wealth creator.

The court therefore awarded the £1.7m as way of covering the cost of replacing his services.

The Welsh Ambulance Services Trust, which employed the driver involved in the accident, appealed against the award. It argued that neither the wife nor the man’s family were dependent on his efforts and in fact were as well off after his death as they were before because the business continued to provide them with the same level of income.

The Court of Appeal upheld the award, however, because the wife had played no significant role in the wealth creation and so had been dependent on her husband. The fact that she and her children were as well off now as they were before was ruled to be irrelevant to the case.

New research suggests that more and more people are concerned that leaving large sums of money in their wills to their children could do more harm than good.

A joint team from Barclays Wealth and the Economist Intelligence Unit carried out a survey of 790 people with disposable assets of more than £100,000. More than 30% said they were reluctant to leave significant sums to their children because it might reduce their desire to succeed through their own efforts.

The solution for many reluctant benefactors is to attach conditions in their wills specifying certain tasks or achievements their children must attain before they can inherit. Some of the more common stipulations were holding down a well paid job for at least two years or attaining a higher qualification such as a degree.

Thousands of people are building up considerable estates nowadays because of rising property prices so inheritance planning is becoming more and more important. If you want your children to inherit your money in the most efficient way and on your terms then it is important to start planning as early as possible.

It is important to ensure your will is up to date and reflects your current views on how your estate should be divided. If you want to specify any conditions then now is the time to do it. It is also advisable to look at ways of reducing the burden of inheritance tax so that your beneficiaries don’t end up giving a large part of your hard earned wealth to the Treasury.

The Department for Communities and Local Government (DCLG) has issued a statement clarifying when Home Information Packs (HIPs) are needed when selling a house.

The statement follows queries from many sellers and estate agents as to what exactly constitutes the marketing of a house and whether informal or one-off viewings trigger the need to provide a HIP.

The DCLG statement says that the “a property is put on the market when the fact that it is available for sale is made public”. That means when it is advertised to the public or just one section of the public in any way. Even word of mouth will count as marketing.

However, one to one sales that do not involve any other person or marketing to the public are not included in the legislation.

The statement points out that when someone acting as an estate agent introduces a seller to a buyer then a HIP will be needed. “This means that the HIP duties will usually be triggered where an estate agent, as part of his business, arranges ‘informal or one-off viewings’ of a property that is available for sale, or communicates this availability by any means to anyone as part of an attempt to sell it.”

HIPs are still quite new so it is not surprising that there should still be some uncertainty about them. Please contact us if you would like more information about HIPs or any aspect of buying or selling a house.