The Pros and Cons of a Pre and Postnuptial Agreement

The Pros and Cons of a Pre and Postnuptial Agreement

Jul, 2022 | Family Law

The Pros and Cons of a Pre and Postnuptial Agreement

Getting engaged and planning a wedding is a magical, emotional time and something a prospective spouse should enjoy thoroughly.

Talk of contracts and agreements can seem a bit at odds with romance, but it might be the best wedding gift you could give.

We’ll talk about the advantages and drawbacks shortly, but having a formalised agreement removes any element of certainty, ensures every partner knows what they’re bringing to the marital table, and can even avoid conflict arising in the future.

In this guide, The Law Firm Group guides you through the world of pre and postnuptial agreements, explaining some of the caveats that exist along the way.

Prenuptial and Postnuptial Agreements Explained

The crux of either agreement is that it sets out which assets belong to which spouse, such as:

    • Property
    • Savings
    • Valuable possessions
    • Pensions

More and more newlyweds are focusing on their future financial security and appreciate that these legal processes are as much about protection as defending your rights to your assets should the marriage end in divorce.

The Difference Between a Prenuptial and Postnuptial Agreement

    • A prenuptial agreement means that both parties sign the agreement before their marriage.
    • Postnuptials are almost identical, although they are entered into after the wedding.

Once the remit of wealthy individuals and those with considerable net worth, anybody can set up a prenuptial or postnuptial agreement, with the assurance that they know where they stand and have full knowledge of their financial assets.

The most common reasons for a postnuptial agreement are that the couple agrees it would be beneficial but didn’t sign a prenuptial, or separated and reconciled, and acknowledge the need to remove future uncertainty.

Benefits of Having a Prenuptial Agreement

We know that prenuptial agreements may not be for every couple – but they do have several advantages:

    • Transparency – each individual knows what assets they bring and those of their partner, generating trust and clarity about who owns what and what the couple jointly own.
    • Security – many marriages, unfortunately, end in divorce, and finances are one of the leading factors behind a separation. Marriage is much less of a financial risk with a solid agreement and can mitigate the potential for future disagreements around finances.
    • Smooth separations – while no couple will create a prenuptial agreement with the intention of divorcing, it can set the framework for a smooth, amicable split if the partnership doesn’t work out over the long term.

There may also be specific reasons that a person wishes to have a prenuptial agreement.

For example, suppose they own treasured family property and have promised to pass this on to another relative. In that case, it may be important to preserve ownership of that property, reducing the potential risk that they could lose it in a divorce.

Business owners are also often advised to consider a prenuptial since it can safeguard company ownership.

You can also create a postnuptial agreement that contains specific provisions. For example, all shareholders might have to agree that shares can be transferred to a spouse before the transfer occurs.

Pitfalls of Pre and Postnuptial Agreements in the UK

The big downside is that prenuptial and postnuptial agreements aren’t legally binding in England or Wales – although that doesn’t automatically mean they won’t play a big part in divorce proceedings.

Any non-court process, such as mediation or arbitration, or an amicable separation will likely refer to the terms agreed in the pre or postnuptial agreement, provided neither party wishes to dispute this and proceed to court action.

Courts often respect the wishes set out in a prenuptial, so they will rarely disregard them altogether, but they do have the right to distribute assets between the parties any way they deem fair.

In most cases, a court will omit the terms of an agreement where they feel this does not support their overriding responsibility to meet the needs of both parties, especially where there are children involved.

That doesn’t mean a prenuptial or postnuptial won’t be decisive, but it does mean that the terms aren’t necessarily legally binding.

How Does a Prenuptial or Postnuptial Agreement Work?

As we’ve explained, a prenuptial or postnuptial agreement isn’t a binding contract but is increasingly given weight in contentious court proceedings, following a landmark case in 2000.

The court position is generally that a judge will uphold the agreement provided the parties had full awareness of the ramifications, and there aren’t any factors that may have made it unfair or unreasonable.

Therefore, if you are thinking about a prenuptial agreement, you should:

    • Complete the process no later than 28 days before your wedding, so there is plenty of time to avoid undue pressure.
    • Seek independent legal advice (for both parties), so there is no doubt that the individuals understood the context of the agreement.

If you separate and agree to follow the terms of your prenuptial or postnuptial agreement, then this won’t ever be tested in court – in which case the provisions are very likely to be closely followed if there isn’t any dispute.

The same guidance applies to postnuptial agreements, so you need legal advice, full financial disclosure, fair terms, and evidence that there wasn’t any pressure or influence that misrepresented the rights of one individual.

Alternatives to a Prenuptial or Postnuptial Contract

If you decide that a pre or postnuptial contract isn’t for you, it’s still a good idea to work through your finances and consider how you’d like to manage any changes that might happen.

For example, if one spouse dies, you’ll want to know that your assets will contribute to caring for children from previous relationships.

A will is likely the best solution in this situation, which sets out how things like property will be divided if one partner passes away.

Please get in touch with The Law Firm Group if you wish to explore further the pros and cons of a marital or partnership agreement, and our expert family law solicitors will be happy to advise!

Call or email us to talk about it. 0300 303 3805

Probate Explained: The Legal Steps to Distributing an Estate

Probate Explained: The Legal Steps to Distributing an Estate

Apr, 2022 | Family Law

Probate Explained: The Legal Steps to Distributing an Estate

Probate isn’t something most of us will ever have to deal with until a loved one passes away.

The basic definition is that probate refers to:

    • The legal steps necessary to prove the validity of a will, if there is one.
    • Establishing who has the authority to deal with the estate.
    • Administering the estate to distribute assets to the appropriate parties.

Managing the probate process can be emotionally charged and put added stress on families coping with grief and bereavement.

Yet understanding how probate works and the legal mechanisms at play remains crucial to ensure that your loved one’s wishes are respected, debts are repaid, Inheritance Tax bills are settled, and the deceased’s wealth reaches their designated parties.

This guide from The Law Firm Group seeks to clarify some of the commonly asked questions about probate and navigating this most complex of processes.

How to Apply for Probate

No matter your relationship or close connection to a person that has died, you don’t automatically have the legal right to decide what happens to their assets.

The first step is to apply for a Grant of Probate, depending on whether you are eligible.

If there is a will, then the nominated executors can apply, and if not, the applicant should be the closest relative.

One of the contributing factors in that decision is whether there is an Inheritance Tax liability to pay, which the executor will establish.

Probate isn’t required if:

    • The individual’s assets were jointly owned – because, in this scenario, they pass to the remaining joint owner.
    • The only asset to consider is savings.

It is essential to work out the estate’s value and identify whether Inheritance Tax applies before looking to obtain probate. You can then apply online or via a postal application.

There are multiple complications here, and we’d strongly advise seeking support from an accomplished family law specialist with experience in managing probate.

For example, determining the tax liability in itself can be complex, and there is a 20 working day breaker between sending the tax forms to HMRC and being allowed to apply.

You can potentially apply for probate without a solicitor, but we’d never suggest this as a viable strategy.

Legal advice is the least you’ll need, given the potential for things to go wrong or for mistakes to be made that might mitigate your control over the estate of a recently deceased family member.

Every application must be supported with comprehensive documentation, and the process of compiling a legally valid personal history to prove your connection with the deceased can be too much pressure for most.

Applying for Probate Without a Will

Constructing a will is, of course, an action we’d suggest as valuable for anybody of any age.

Still, when a family member or partner passes away without one, it throws an extra proverbial spanner into the works.

You can apply for a Letter of Administration if any of the below applies:

  • The deceased did not have a will.
  • A will left is considered invalid.
  • There is a will but without a corresponding executor.

The complication is that close relatives don’t have free reign to distribute assets as they wish and instead need to refer to the intestacy rules.

Essentially, that means the estate will be shared according to pre-set legal statutes, regardless of the instructions left in a will that isn’t valid.

This area is multi-faceted and depends on the deceased’s marital status, whether they have children or grandchildren, and many other elements.

You have the right to make a claim if you were in a long-term cohabitation situation for over two years but need to prove financial dependency, which is often a long and delicate process without a guarantee of success.

What to Do After a Grant of Probate

If you do achieve a Grant of Probate, usually with guidance from a skilled legal representative, the next stage is to consider the wishes of the deceased, which in itself can be challenging.

The steps include:

    • Collecting assets from banks, estate agents, savings accounts, pension schemes and building societies by distributing a copy of the Grant of Probate.
    • Repaying outstanding debts, including mortgage payments, online accounts, property utilities and tax accounts.
    • Recording how you will share the estate among beneficiaries (or estate accounts), which must, in turn, be formally signed by the executor.
    • Actioning those distributions following the instructions in the will. If you’re bound by intestacy rules, this law will dictate how you share the assets.

As we’ve explained, there is a great deal of grief involved with each of these actions, so we suggest having a solicitor manage correspondence and recoup assets on your behalf.

Deviations from probate law can cause severe issues, so it is vital you work through the process carefully and with ongoing advice.

What Happens if I Need to Contest a Will?

Contesting a will requires you to remain calm, controlled and with a clear justification for the appeal. Hiring a solicitor is usually the optimal strategy to represent your interests.

Estate disputes can be lengthy, costly, emotionally charged, and it is significantly more difficult to progress a challenge after funds or assets have been distributed.

Timescales vary, but some grounds for a contested will dictate that you must act within six months. Unlimited challenges are acceptable in situations such as fraud.

It may be difficult to decide whether to contest a will, which can create rifts between family and friends, so mediation or negotiation may be preferable courses of action to reach an equitable agreement.

The probate lawyers at The Law Firm Group are always on hand to deliver further advice and tailored recommendations based on your specific situation.

If you’re concerned about obtaining a Grant of Probate, aren’t sure how to manage a will, or need diligent oversight to ensure you submit a legal challenge correctly, our expert team can help.

Please get in touch for an informal discussion or to book a consultation to start work on building a bespoke plan to manage the probate process from start to finish effectively

Call or email us to talk about it. 0300 303 3805

Guide to Family Trusts in Inheritance Tax Planning

Guide to Family Trusts in Inheritance Tax Planning

Feb, 2022 | Family Law

Guide to Family Trusts in Inheritance Tax Planning

Writing a will can be complicated, not least because of considerations such as Inheritance Tax.

Families also need to deal with issues like leaving wealth to children who might not yet be of an age where they have the skills to handle their finances independently.

One option is to consider a family trust, which enables you to create terms with an element of in-built protection to safeguard your wealth as you wish.

Here, The Law Firm Group explains a little more about what a family trust is, how it works, and why it could be an ideal solution!

Family Trusts Explained

Trusts aren’t confined to leaving assets to children (although they are often used for this purpose).

In brief, they mean that a settlor manages your assets, according to the terms you stipulate.

The settlor doesn’t hold legal ownership of the assets. Instead, ownership passes over to the trustee or trustees. However, the trustee needs to handle the trust as you have directed.

Details covered within the trust documentation include:

    • The nominated trustees.
    • The beneficiaries (who receive the income generated).
    • How the trustees must operate.

You can set up a trust in many ways and choose how the benefits or income are shared between the beneficiaries.

For example, you can decide that your assets will pass to a child when they reach a specific age. In the meantime, the assets are held in trust.

Alternatively, you might wish for your assets to pass onto children eventually, but ensure they benefit a surviving partner or spouse for the rest of their life.

Setting Up a Family Trust

Trusts can be set up at any time (called a deed of trust), or you can include a provision for a family trust in your will, which comes into force if you pass away.

Another factor is setting out a letter of wishes, which guides the trustee on how you want them to manage the assets held in trust.

This type of guidance isn’t legally binding but can be useful to ensure that a less rigorously controlled trust conforms to your requirements.

If your trustee has a broad amount of flexibility to decide how to share out benefits, for example, they might refer to a letter of wishes to inform how they split that income.

A trustee isn’t normally a direct beneficiary unless named as a recipient.

They can claim expenses involved in managing the trust, and if you appoint a solicitor or accountant as a trustee, they’ll usually charge professional fees for the service.

The position of trustee means that the appointed party is legally obligated to act fairly and avoid making any decisions that aren’t balanced in the interests of all recipients.

Choosing a Trust to Manage Your Wealth

We’re here to talk about family trusts, but it’s worth clarifying that there are several different structures you might wish to consider.

Bare trusts are the simplest, whereby you appoint a beneficiary who has 100% entitlement to the assets once they reach 18.

This trust is most commonly used to protect wealth for a child.

Some of the alternatives are:

    • Interest in possession trusts – the beneficiary receives the net income after expenses. After paying taxes and charges, trustees must pass all revenue to the recipient.
    • Discretionary trusts – trustees are responsible for determining how income and capital are shared. This trust is used for several recipients, and the trustee decides how to allocate payments, such as covering education costs.
    • Accumulation and maintenance trusts are often used for a collective group of recipients, which could be several grandchildren. There are fewer tax advantages available than in the past, but it is another option depending on the scenario.

This list is a snippet of the forms a trust can take, so it is highly advisable to seek legal advice before making any decisions.

The key is to consider what you’re trying to achieve, the nature of your assets, and any caveats in the distribution of your estate, and then select an appropriate family trust with the right structure.

Tax Rules on Family Trusts

It’s fair to say that holding assets in a trust isn’t quite as efficient as it used to be from a tax-efficiency viewpoint.

However, the rules depend on what sort of trust you create, the value of the assets held, and who your beneficiaries are.

If you’re keen to minimise tax exposure, the best action remains to consult a solicitor with an in-depth understanding of how trusts operate and the tax liabilities attached.

Any income or capital gains made in a bare trust are usually considered income or capital gains of the beneficiary.

That can vary if the recipient is a child and a parent receives a secondary income.

Some of the other regulations mean that:

    • Income under £1,000 in an accumulation or discretionary trust is taxed at a standard 20% rate, and dividends at the nominal 7.5%.
    • The rate increases to 45% for general revenue and 38.1% on dividends if the income exceeds £1,000.
    • Earnings generated through property rental, savings interest or trading in an interest in possession trust is taxed at the 20% income and 7.5% dividend rate.
    • Trustees pay tax on all dividends received and do not benefit from the annual dividend allowance (currently £2,000).

Trusts have an annual Capital Gains Tax allowance, 50% of the individual allowance per year.

Beneficiaries still need to pay income tax on the earnings received but can offset that against the taxes already paid by the trust on its income.

Inheritance Tax on Assets Held in Trust

The final taxation to factor in is Inheritance Tax – often one of the core reasons for creating a trust or even writing a will!

Again, the charges depend on the type of trust you set up and the value of the assets or wealth gifted into trust.

Lifetime gifts are taxed at 20% Inheritance Tax straight away, on anything over the £325,000 nil rate band. The trust pays a 6% tax bill against the assets every ten years, apportioned for anything withdrawn in the intervening decade.

Should you create a trust and donate wealth into it, there may be additional Inheritance Tax charges if you pass away within seven years.

There are some advantages, specifically for young adults or minor’s trusts. Tax relief is also available for trusts created through a will for a spouse and to support recipients with a physical or mental condition.

As we can see, trusts are multi-faceted, and there are multiple decisions to make in terms of the type of trust, choosing a trustee, planning for tax charges, and the ongoing management of your wealth.

Please get in touch with The Law Firm Group for further information about the benefits and drawbacks of family trusts or help to compare the various options available.

Call or email us to talk about it. 0300 303 3805

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Arbitration vs Mediation – Reaching an Amicable Separation Agreement

Arbitration vs Mediation – Reaching an Amicable Separation Agreement

Nov, 2021 | Family Law

Arbitration vs Mediation – Reaching an Amicable Separation Agreement

When we talk about divorce, the first thing that often springs to mind is the huge personal and financial burden that can come with it. But with the right preparation, these can be avoided.

There are numerous ways to negotiate through separation or divorce, whatever the circumstances, to reach a fair and equitable solution for both parties.

Alternative dispute resolution refers to a range of approaches, as alternatives to litigation that are considerably less emotionally charged and often conclude much faster than a court case.

Today, we’ll explain how arbitration and mediation work, the differences between the two, and why they may be suitable solutions to proceed through your separation.

Arbitration and Mediation Explained

We’ll start by comparing these two dispute resolution options.

Mediation means that the separating couple negotiates directly. The mediator is a neutral third party to help both parties reach an agreement, drawing on their expertise to offer guidance.

The mediator doesn’t make judgments but will advise on the strengths and weaknesses of any arguments or disagreements.

Arbitration is slightly different. While the arbitrator is still an impartial individual, in this method the arbitrator does make binding, final, decisions with the aim of settling disputes fairly.

Where there is a conflict that the parties cannot reasonably reach an agreement on, arbitration may be the best route to avoid litigation.

The Pros and Cons of Mediation

Mediation tends to be the fastest route to a resolution, often taking as little as a few days, compared to months or possibly years in a court case.

That equally means that the costs are considerably reduced.

While mediation involves a third party, the ex-partners retain control and aren’t reliant on a judge or arbitrator to make decisions.

Another advantage is that mediation is normally confidential, so the negotiations can be open and frank.

Disadvantages include:

    • The possibility that mediation will be unsuccessful. In this case, the costs may end up being higher since the parties will need to progress to arbitration or litigation.
    • You may compromise future litigation strategies during negotiations involving information sharing.
    • Parties that choose to be uncooperative may scupper the mediation results. Given that agreements aren’t always binding, it can be weaponised to build additional legal costs for the other individual.

Note that mediators can only work with the available information and cannot order either party to disclose documents or information they believe are relevant.

Therefore, mediation works well when undertaken in good faith but has some pitfalls if one party decides not to cooperate.

Legal Support With Mediation

Solicitors rarely attend mediation unless they have been asked to participate or manage discussions relating to costs in a low-value separation agreement.

As family law experts, The Law Firm Group supports clients with advising on the alternative dispute resolutions we think are most suitable for your circumstances and helping you understand the options, and likely legal outcomes, before making informed decisions.

The Advantages and Disadvantages of Arbitration

As we’ve seen, arbitration is a similar out of court alternative resolution method but involves a third-party arbitrator who makes decisions about the outcome of the process.

Technical divorce or separations requiring expertise often benefit from arbitration, such as a business dispute or an issue relating to contracts.

Arbitration, like mediation, is much faster than a court case and is usually more flexible and cost-effective.

Once there is a successful agreement the other party has limited opportunities to appeal, so it can be an optimal solution where you want a final outcome without much possibility to be contested.

However, that applies both ways. So you must be prepared to uphold the decision given by your arbitrator.

Arbitration Agreements

The process before arbitration includes an agreement or contract clause where both participating parties confirm that they will refer disputes and conflicts to the arbitration process for an arbitrator (or arbitration panel) to reach a binding decision.

Choosing arbitration doesn’t necessarily preclude court action, but the initial agreement will look at:

    • Appointing an arbitrator or arbitration panel.
    • The selection process for arbitrators.
    • Where and when the arbitration should occur.

One of the benefits here is that the individuals have a say in the structure applied to the arbitration and the procedures followed.

Until the agreement is formalised and the process begins, the separating partners can agree to amend or limit the extent of the arbitration, sometimes solely to resolve particularly complex or financial conflicts.

Choosing Between Arbitration and Mediation

Mediation offers an opportunity for ex-partners to reach agreements in an informal setting, although the outcomes are non-binding from a legal perspective.

A mediator doesn’t judge the case but supports dialogue and assists the parties in reaching a conclusion.

Arbitration is closer to a relaxed court process, where the arbitrator or panel makes a final decision, which both parties agree to comply with before the process starts.

Therefore the best approach for you depends on the situation, the complexity of the conflicts you wish to resolve and the attitude of both individuals towards reaching an outcome they feel happy with.

Mediation and arbitration may both be faster and less costly than court proceedings.

Still, there is a possibility that even after attempting an alternative dispute resolution method, the situation escalates to litigation.

If your separation or divorce has an element of confidentiality, such as discussing income from commercially sensitive projects or disclosing evidence that you wish to preserve away from the public domain, an alternative dispute resolution may be preferable.

Whatever is said in a mediation or arbitration meeting is kept between the parties and the official. Even if negotiations fall apart, the courts won’t consider any information shared before litigation.

Expert Legal Advice on Alternative Dispute Resolutions for Separations

For more advice about dispute resolution approaches in separation or divorce, please contact The Law Firm Group.

Our experienced, qualified family law solicitors can steer you through the options, recommending solutions that we believe are to your benefit and most likely to result in the successful outcome you are seeking.

Call or email us to talk about it. 0300 303 3805

The Typical Divorce Mistakes to Avoid: From the Family Law Experts

The Typical Divorce Mistakes to Avoid: From the Family Law Experts

Oct, 2021 | Family Law

The Typical Divorce Mistakes to Avoid: From the Family Law Experts

Divorce and separation can be overwhelmingly emotional and stressful.

There is no doubt that upheaval, moving home and dealing with finances and child custody are hugely impactful.

Even if you’ve experienced divorce before, it’s easy to fall into common pitfalls, making hasty decisions that may not be in your long-term interests.

Let’s work through some of those typical divorce mistakes and how an experienced family solicitor from The Law Firm Group can help steer you through to a positive outcome, ready to move forward with confidence.

1. Assuming Your Decree Absolute Removes all Financial Ties

While there are several options to self-manage divorce proceedings, this fast-track solution often skates over important issues, such as dealing with the separation of joint finances.

Once your divorce is finalised, there is a misconception that you now have no financial connection to your ex-spouse – but this isn’t correct!

Married couples may have multiple assets or obligations, such as:

    • Education costs and expenditure related to children.
    • Mortgages and rental agreements.
    • Joint bank accounts, loans or savings.
    • Investment assets or rental property.

A financial order is strongly advisable and means you can make a clean break without the threat of claims being made against you in the future.

2. Failing to Plan for Future Financial Security

Often, separated couples want to reach a quick agreement, so they might agree to a nominal proportion of the marital assets without an in-depth assessment of their circumstances and future requirements.

Practically, committing to receiving, say 50% or 60% of assets, may not provide for your needs and might even mean losing your home if you cannot comfortably cover mortgage costs alone.

A careful analysis of the true value of your marital assets, along with financial planning, is necessary and will ensure you make decisions about how best to divide assets without hitting a stumbling block in a few months.

3. Entering Into a New Marriage Before Resolving Disputes

Finding a new partner can be a wonderful experience for somebody who has gone through the rigours of divorce – but if you decide to remarry before you have tied up financial disagreements, it could be costly.

It’s important to understand that a new relationship, or even booking a wedding date before your Decree Absolute has been issued, could complicate matters considerably.

For example:

    • If you remarry before you have a financial order in place, you may sacrifice the right to apply for such an order.
    • Pension claims are still permitted after remarrying, but you cannot depend on the Matrimonial Causes Act 1973 to protect your interests.
    • Instead, claimants must process any financial claims through an application under the Trusts of Land and Appointment of Trustees Act 1996.

In essence, a financial order post-remarriage affords the courts less discretion to make fair, equal judgements and carries much stricter legal terms.

4. Making Child Maintenance Agreements Based on Capital Assets

Many divorce proceedings involve a discussion about contributing to the primary care for shared children.

That could be through a lump-sum payment, ongoing remittances, or a higher proportion of marital assets.

However, our advice is never to offset ownership of assets, such as a home, against any agreements made about child support payments.

It is seldom, if ever, wise to offer a larger asset share instead of financial child support.

Even if you agree to this, it does not mean that you have satisfied your obligations, as determined by the child maintenance agency.

5. Discussing Divorce Particulars With Children or Your Ex-Partner

Particularly where a divorcing couple shares children, an amicable co-parenting relationship is ideal.

A common mistake is to discuss the divorce with family members, often to relieve the burden of stress, but this can cause severe problems.

Children are not emotionally mature enough to absorb the complexity of adult issues and shouldn’t be involved in the specifics of a divorce agreement, especially if this is a contested matter.

If one parent speaks negatively about the other, shares information about poor conduct or attempts to influence proceedings by divulging details, this could backfire.

6. Accepting Unresponsive or Difficult Behaviour

Unfortunately, some individuals will make a divorce as challenging as possible, even where the other party does not believe this is justified.

There is little anybody can do to prevent this, whether the courts, solicitors or a judge – and, in some cases, even a legally valid court order will not be sufficient to correct non-compliance or a refusal to respond.

Our advice in these difficult circumstances is to work with a skilled solicitor to make sound suggestions about the best way to proceed.

Solutions may include enforcing a court order without direct personal involvement or consulting a divorce coach to recommend steps to achieve a more acceptable result.

7. Relying on Casual Divorce Advice

Millions of people have been through a divorce, but it is inadvisable to take legal advice from anybody outside of an accredited solicitor or lawyer.

Family and friends may have your best interests at heart.

Still, it is crucial to recognise that every divorce is unique, agreements made elsewhere may not be suitable for you, and the applicable laws relevant to any past petitions may have changed.

Our family law solicitors don’t offer one-size-fits-all solutions and take the time to understand your circumstances before making recommendations about the best way to move forward with your divorce.

8. Unloading Anger or Frustrations Publically

Social media is a common outlet for the anxiety of divorce but is a public medium that is usually accessible to a far wider number of people than those in your immediate family and social circle.

It is not unheard of for opposing legal teams to present information in court that has been published online.

You should not post anything or share information via email or text message that you wouldn’t be comfortable presenting to a judge in divorce court.

9. Applying for a Court Action Without Exploring Other Methods

Court action can feel vindicating for a party who believes they have been wronged but should be the last resort if there is no other opportunity to reach a reasonable solution.

The Law Firm Group can advise on a range of alternative dispute resolution techniques, such as:

    • Negotiation between solicitors.
    • Mediation, with an impartial mediator to assist.
    • Arbitration, a more flexible solution than taking a case to court.

While court action may be necessary, it can be costly, draining, and a high-risk strategy, with no control over the binding decisions made by a family law judge.

Therefore, if you haven’t assessed the viability of an out of court settlement, it is strongly advisable since you retain better control over the results and will likely save considerable expense and stress.

10. Attempting to Self-Manage Your Divorce

We recognise that individuals may believe it will be faster and cheaper to manage a divorce by themselves, but the outcomes are rarely successful.

Divorce, even if peaceful, can be complex, and the legalities surrounding it are technical.

At the very least, we would advise you to take legal advice to ensure you set clear expectations, understand the available options, and avoid committing to an agreement or signed resolution before you appreciate the various potential outcomes.

For more assistance with managing divorce and avoiding the common mistakes explored here, please contact The Law Firm Group for friendly, professional support.

Call or email us to talk about it. 0300 303 3805

Common Will Writing Mistakes, and How to Get it Right

Common Will Writing Mistakes, and How to Get it Right

Jun, 2021 | Personal Law, Family Law

NO FAULT DIVORCE – IS IT TIME FOR CHANGE?

There is no doubt that having a Will in place is important. It’s something we should all do, at any stage of our life, rather than leaving it until we’re past retirement!

However, all Wills are not created equal.

You’ll find countless discounted packages online offering you the chance to draw up your own Will. Bbut if the Will isn’t correctly witnessed, has grounds to be challenged, or doesn’t cover any crucial details in sufficient depth, it might just be a very expensive piece of paper.

Given how many people in the UK don’t have a Will in place or have a Will that wouldn’t hold water if it were called upon, The Law Firm Group has created this brief guide to run through some of the most common mistakes we come across.

We always stress that, if you’re looking to solidify your wishes and who your beneficiaries are, it is critical to consult an experienced solicitor who can ensure that your Will is up to date and watertight.

What Areas of my Assets and Finances Need to be Covered in a Will?

Before we consider the most important things to include in your Will, it’s worth taking a moment to reflect on conditions outside of your finances.

Often we think of Wills as a list of inheritance recipients, but there are very many clauses that you can include that do not relate primarily to wealth:

Appointing Guardians

This means that you choose who will look after your children, with parental responsibility, if you pass away. This is a vital consideration since your chosen guardian will be responsible for everything from education to medical treatment.

Not appointing a guardian can mean that the courts will appoint somebody, which may not be the same person you would have selected.

Safeguarding Vulnerable Relatives

You may have elderly or vulnerable family members or dependents that you provide for.

A Will can include instructions about Trusts, funds, or living arrangements, such as supporting that person if you are no longer able to.

Property Ownership

If you have a joint mortgage or are named with a partner or spouse on a property deed, you may be able to stipulate in your Will what will happen with your share when you pass away. A lot depends on your specific circumstances.

In addition to these factors, it is best to take some time to think about your estate as a whole, to ensure that everything is covered.

It’s often apparent that cash savings, investments, property and cars might need to be provided for – but you’ll also need to consider overseas assets, joint ownerships and reviewing your Will periodically to keep it up to date.

The Most Common Mistakes That May Render a Will Invalid

Let’s look at some of the frequent issues we encounter with Wills, often which render them invalid.

      1. Making Incorrect Assumptions

This is more common than you might think! If you have created a Will and assumed that your partner would automatically receive your assets, and then your children together, you might be mistaken.

You must include your surviving partner as a beneficiary. If you do not, they could receive nothing.

While your children could agree to transfer ownership of the assets to your partner or agree to amend the Will, this will require time and costly legal expenses to rectify, even if it is an obvious error.

       2. Wills in Bad Condition

Another difficult error is where a Will has been prepared at home and has become worn, damaged or torn over time. Even having staples damage the paperwork can cause an issue, particularly if any wording has been obscured or isn’t legible.

In this situation, a Will might still be considered valid but the Probate Registry might require additional inspections be made before the Will can be executed.

       3. Failure to Name Partners or Stepchildren

The probate laws are somewhat out-dated and do not automatically recognise partners’ rights outside of marriage or a civil partnership. Likewise, they do not have any automatic recognition of stepchildren, even if you have been their primary parent and raised them in your home.

You must keep your Will updated and ensure that your desired beneficiaries are explicitly named to avoid any of your loved ones being left without an inheritance.

       4. A Will That Isn’t Legally Valid

A Will must be executed in accordance with the Wills Act 1837.

There are several conditions under which a Will can be contested, and while this can be a costly process, it is not unheard of to have a Will rejected on the grounds of:

  • The deceased did not have the capacity to understand what their Will said.
  • The deceased did not approve terms included within the Will.
  • One of the beneficiaries put ‘undue influence’ on the deceased for their benefit.
  • The Will not being executed correctly in line with the law.

For example, if a person with dementia amended their Will, during a period of improved health, it would be possible for a non-beneficiary to challenge that Will on the grounds that the deceased did not have the mental capacity to make the relevant changes.

In this scenario, an experienced solicitor would have made recommendations to authenticate the Will writer’s capacity and verify their wellbeing at the time of the amendments.

Likewise, suppose a Will is significantly weighted in favour of one beneficiary. In that case, another could challenge that if they believe there was any coercion – although this is difficult to prove, and such a case would be unusual.

More likely, the Will isn’t valid simply because it hasn’t been appropriately signed.

This error can be extremely frustrating, but if the deceased did not sign their Will with two witnesses physically present, the Will is invalid.

What Can I do if a Family Member’s Will is Incorrect?

If you believe that a family member has created a Will incorrectly, or failed to update it and inadvertently left assets to a beneficiary that they had not intended, it is possible to contest a Will.

There can be steep levels of proof required, and you would need to evidence one of the scenarios mentioned earlier.

Contesting a Will can also be extremely expensive, depending on the scope of the hearings. Costs in this sort of contentious scenario can escalate fast. Given that such disputes are usually between family members and concern significant amounts of money, it is a scenario that nobody would wish for.

Therefore, The Law Firm Group strongly advises everybody to think about their Will.

  • If you don’t have one, it’s time to put one in place.
  • If you have a Will and it was written some time ago, it’s wise to review it.
  • If you created a Will but your circumstances have changed, an update is essential.

Get in touch with our teams at any of our UK offices, and we’ll arrange a good time to talk about creating or updating your Will to ensure that, when the time comes, your wishes will be borne out just as you require.

Call or email us to talk about it. 0300 303 3805

Is your Will up to date?
Our Wills, Trusts & Probate Department offers a thorough, professional and personal service. Our specialised team will help you to plan for the future to ensure peace of mind for your loved ones.
Call us on 0300 303 3805 to discuss your requirements today.

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