Wills will continue to be disputed by disinherited children despite a recent 'landmark ruling' from the Supreme Court, Kerwoods has warned.
Jan Thompson, head of private client at Kerwoods Solicitors, fears there will be no end to the complexities and heartache surrounding such legal battles.
Her comments follow the latest case in which a woman is to receive £30,000 from her father’s estate even though he made it clear his children should get nothing.
Elena Nahajec was awarded the figure from Stanley Nahajec’s £240,000 estate under the Inheritance (Provision for Family and Dependants) Act 1975. It came despite her having almost no contact with her father for several years before his death in 2015.
Mark Nahajec, a half-brother of Elena who was unable to work through ill-health, made a claim which was settled for £22,000. The third sibling, Philip Nahajec, made no claim.
Like the Supreme Court’s ruling in Ilott v The Blue Cross and Ors earlier this year, reasonable financial provision was the point at issue.
In that case, Heather Ilott’s mother Melita Jackson left most of her £486,000 estate to charities with which she had no real connection.
Mother-of-five Mrs Ilott, from Great Munden in Hertfordshire, who was living on state benefits when she challenged the will, was first awarded £50,000, raised on appeal to £160,000. But the Supreme Court sided with the charities and cut the award back to the original figure.
Mrs Thompson said multiple marriages, cohabitation and the number of children and step-children from different partnerships meant rows over wills, often the result of family estrangement, were becoming more commonplace.
Additionally, increased property values made potentially successful outcomes more attractive while badly-worded, self-written or DIY wills encouraged challenges to their validity.
She commented: “The likelihood of someone feeling hard done by is greater than before for all sorts of reasons surrounding the complexity of modern life.
“Indeed, with so many people reliant on borrowing, they increasingly expect and rely upon inheritances to provide for their own later years.
“It is hard to exaggerate the dismay that can be engendered if the inheritance turns out to be headed for the local cat and dogs home.”
Mrs Thompson said people today were generally more aware of the law, more litigious and less tolerant.
She urged people to ensure their will was drafted by a lawyer.
“DIY wills are dangerous and frequently lead to major problems and stress for those who remain to sort the situation out,” she said.
“Saving a few pounds by doing it yourself is a false economy.”
The splitting of assets in divorce cases is now very much in flux following a high-profile Court of Appeal hearing, Kerwoods has warned.
Stephen Priest, Kerwoods partner and family law expert, cautioned that more such challenges could now be expected.
Karen Hart had been in a relationship with John Hart, a wealthy Midlands property developer for 23 years when they first separated in 2006.
The case hit the headlines because on the one hand the former wife received £3.5 million out of total resources of just under £9.4 million despite living with another man, yet on the other hand the Court of Appeal dismissed her bid for an equal share of her and her ex-husband's assets.
Some family lawyers now predict a rise in the number of couples seeking prenuptial agreements.
Mr Priest said: “The decision was based on the pre-marriage wealth built up by Mr Hart, nevertheless it is considered unusual given this was such a long marriage.
“The courts draw a clear distinction between wealth built up during the course of a partnership and that generated prior to the marriage, and this is what has happened in this case. In most circumstances, the party that brings a significant amount of wealth to the marriage will be entitled to retain it.
“In Hart v Hart the former wife clearly felt aggrieved at her failure to receive half the assets yet some pundits have suggested that the award was generous given her new relationship.
“It will be very interesting to see where in subsequent cases the balance is struck. But clearly there are big implications for anyone getting divorced.”
Mr Priest said he agreed that this would likely encourage the further growth of pre-nuptial agreements.
Employers will need to redouble efforts to avoid workplace disputes – or face significant pay-outs.
That is the warning from Ashley Gurr, employment partner at Kerwoods.
It comes in the wake of the Supreme Court’s decision to rule the Employment Tribunal fees regime unlawful.
First introduced in 2013, fees started at around £160 and increased to between £230 and £950 for further hearings. For certain claims, they could go as high as £1,200.
It all resulted in a 70%-plus reduction in cases.
Now, though most in the sector think some sort of fee system is likely to be re-introduced eventually, the number of cases is set to rise once more.
Mr Gurr said: “Many employers will be extremely disappointed by this ruling as many would regard fees as having eliminated most vexatious claims where, it was considered, disgruntled workers were ‘trying it on’.
“There had been widespread complaints from business at the time, cost and unfairness surrounding tribunals. However, now the courts have decided that the fee system itself was unfair, employers will need to get to grips with what some will certainly regard as a return to the bad old days.
“If any had allowed their guard to drop then this is the time to become extra-vigilant once more.”
Mr Gurr said prevention of workplace disputes was vital, and that meant having good systems in place, taking quality advice and keeping up with the constant changes in employment law.
He noted: “The first rule is to ensure all workers have a contract of employment. You might think that a given but in fact a significant percentage of SMEs don’t bother.
“Having an up-to-date written set of terms will become essential should matters boil over.
“Where trouble looms, employers should follow laid down and long-established procedures and immediately take legal advice.
“In particular, redundancy can be something of a minefield while anything in the discrimination arena can prove costly.
“Many disputes that end up at tribunal could and should have been sorted had the right approach been taken at the outset.”
Mr Gurr said management training on the subject was important, while taking out legal protection insurance was another option.
So far it has been a decent summer with plenty of hot weather – just the combination to get staff and bosses alike hot under the collar, warns Kerwoods.
Disputes over holiday bookings, rows over a lack of air conditioning and controversy concerning a more relaxed approach to dress codes can set office temperatures soaring in all sorts of different ways.
Employment partner Ashley Gurr says staff shouldn’t get into heated exchanges while managers need to keep their cool.
He warned: “All sorts of myths have grown up around issues like holidays.
“Don’t go and book a £2,000 holiday, attempt to present it as a fait accompli … and then find others have already been granted those weeks and you are refused the time off.
“If it ends up costing you a packet then tough luck – you should have followed procedures.
“But equally if employers have company policies covering these areas, they must be clearly communicated to employees.”
While all workers have a legal right to a set amount of holiday each year, they can’t necessarily take holiday when they want.
Employers will usually bend over backwards to accommodate holiday requests so long as multiple requests do not risk damaging the business. A rota, ballot, or first come first served system is one option for dealing with these matters.
Workplace temperatures are greatly misunderstood.
There is no maximum workplace temperature. Instead, employers are required to ensure that the temperature in workplaces inside buildings is “reasonable”.
What is reasonable will depend on the work being undertaken and the environmental conditions of the workplace.
Whether staff can peel off clothing in the heat will depend on their employer’s official dress code and workplace culture.
“Employers set great importance by their corporate image and may take a dim view if it all begins to look like a day out on Clacton beach.
“However, at the same time, common sense must prevail when it gets very hot, and policy over practicality is not a good idea, so permit no ties and jackets etc when it is obvious the weather dictates it,” he said.
Then there is the thorny issue of holiday pay.
Mr Gurr noted: “Many businesses often struggle with the calculations for part-time workers where a pro-rata entitlement is applied.
“In short, it is important to get holiday entitlement and holiday pay right. Everyone performs better if it is a happy workplace, always helped when the sun is shining.”
A Midlands property expert has predicted that Redditch is heading towards a residential revival, with thousands of new homes due to be built.
Veronica Du'Quesnay, head of residential conveyancing at Kerwoods Solicitors, was commenting on the latest Local Plan published by Redditch Borough Council.
This shows that 6,400 new dwellings are needed in the town by 2030, with more than 1,000 of this number already built.
Ms Du'Quesnay said: “Despite everything that’s happening in the wider world, Redditch is still doing well, with money moving around and people still getting about and doing what they need to do.
“Kerwoods is becoming busier and busier handling property sales and purchases in Redditch, which shows that there are more and more homes on the market in and around the town.
“This is certainly required as the number of people and families moving to Redditch is increasing. It’s an up and coming town and needs to constantly evolve and expand to accommodate people from all sort of backgrounds.”
Ms Du'Quesnay pointed out how well Redditch was served by frequent trains and nearby motorway links to Birmingham and other larger urban areas.
She said that new building activity meant that Redditch would continue to have more affordable homes that many other commuter towns, while at the same time still being close to more affluent areas.
She said: “We’re really lucky in Redditch to be more affordable than places like Birmingham city centre and many of its sought-after suburbs, which will only be boosted by the thousands of new homes being built.
“This means we’re attractive to first-time buyers wanting to get a foot on the property ladder at that early stage in their careers and family lives.
“But we’re also close to places like Alvechurch and Barnt Green which have high-end properties, which means we can also attract established business leaders and professionals.
“And that’s what we need – a location for everyone, not a ‘them and us’ situation but a town which can provide for people of all backgrounds, helping to lift the town and raise spirits for all its dwellers.”
Ms Du'Quesnay said that expanding businesses in the Redditch area were making new homes even more attractive, as workers sought to move with increasing employment.
And she said that Redditch Borough Council would need to plan the right level of infrastructure to help support such growth, particularly in education.
She said: “Redditch is near to great rural areas, but more nurseries and schools will need to be considered if Redditch wants its new housing to attract first-time buyers.
“And with established professionals moving to places like Alvechurch and Barnt Green, the area also needs to make sure its schools can cover a wide range of children from all backgrounds.”
Ms Du'Quesnay said that residential developments were popping up all over Redditch, including the development of flats on a site opposite Kerwoods offices on Church Road.
“The new site opposite us is obviously aimed at young professionals who feel that living in a town centre is attractive but still quiet, as it’s down a side street.”
She added: “Currently, I live in Birmingham, but such is the quality of new homes that I would seriously consider moving to Redditch myself!”
Anne-Marie Harley, communications manager for Redditch Borough Council, confirmed that the town’s housing requirement is 6,400 dwellings by 2030.
She said that 1,019 of this total were already built, including 183 in the last year and 174 currently under construction.
Kerwoods has recruited a new member of staff from a solicitors’ practice in Birmingham city centre.
Sikay Chan joins Kerwoods as a residential and commercial property conveyancer, moving from T A Khoo Solicitors, where she worked as a paralegal.
Ms Chan, from Solihull, is a graduate in Communication and Media Studies from Loughborough University, and worked at T A Khoo for nearly four years.
She said: “After I graduated I worked as a receptionist and administration assistant at my sister’s workplace – Christine Lee & Co. Solicitors – and this exposure to the legal sector really interested me, particularly the conveyancing aspect as it’s so relevant to everyday life.
“After some good experience at T A Khoo, I wanted to progress professionally in the legal field of conveyancing and hopefully become qualified as a solicitor in the near future.
“Kerwoods is a long-established firm and prides itself on excellent customer care, so I wanted to be part of a team I could learn from and help contribute to their success.”
Sarah Rao, head of commercial property at Kerwoods, said: “We were really impressed with Sikay’s application and are delighted to have her working with us here at Kerwoods.”
Veronica Du'Quesnay, head of residential conveyancing at Kerwoods, said: “It’s great to see new talent from the local area, and I’m sure Sikay will quickly develop her career with us.”
Confusion over the legal meaning of certain words in wills can create disputes, delays and extra costs, Kerwoods has warned.
Kerwoods partner Emma Beddows said there were common misperceptions over words as simple as 'descendants', 'grandchildren' and 'property' when people created wills.
And she encouraged people to seek qualified legal advice rather than rely on homemade wills or wills from so-called experts who might not have the right skills.
Ms Beddows said: “When people are leaving property to ‘descendants’, many think this only includes direct descendants and that it doesn’t include foster or step-children unless specified.
“Actually, ‘descendants’ does include foster and step-children, which is an important distinction, for example when you’re aiming to leave assets to get the full residents’ nil rate band.”
Ms Beddows explained that the residents’ nil rate band is worth £175,000 per person, or up to another £350,000 by the tax year 2020-21. When added to the £325,000 inheritance tax band per person, worth £650,000 for married couples, this could mean tax-free inheritance of £1m.
In contrast to the 'descendants' meaning, Ms Beddows said many people mistakenly thought the term 'grandchildren' in wills included 'step-grandchildren'.
She said: “We had a gentleman who considered his step-grandchildren to be his grandchildren, and termed his homemade will that way, but legally they weren’t his grandchildren.
“This could have created either intestacy issues or the need for the executor to apply for a ‘rectification’ of the will.”
Even the word “property” is commonly misunderstood, Ms Beddows said, people often thinking it means all their worldly possessions such as cash, cars and furniture, when its legal meaning is only bricks and mortar
Miss Beddows said: “You’ve got to be careful with words in wills, as what’s in someone’s mind can have completely different meanings in legal terms, potentially causing complications, disputes and extra costs.
“The person dealing with the administration of the estate can apply to the court to rectify the will if it’s believed there’s a mistake to the will-writer’s true wishes. However, this is costly and time consuming.
“Your will is one of the most important documents in your life, and it’s worth paying for the best advice to make sure it’s right.”
Ms Beddows added: “Will-writing is not a very well-regulated sector as anyone could either do it themselves or offer services to others. Don’t be afraid to ask people what their credentials are and what experience they have.”
Ms Beddows is a full member of the Society of Trust and Estate Practitioners, specialising in all aspects of advising on and preparing wills, estates, inheritance tax planning, trusts, Powers of Attorney, Court of Protection issues and care fee advice.
The case of a woman who recently lost the latest round of a court battle to divorce her husband of nearly 40 years has been described as “extraordinary”.
Stephen Priest, partner and family law expert at Kerwoods Solicitors, said reform was badly needed.
“I find it quite extraordinary in this day and age that someone can be forced to stay married,” he commented.
“It surely has to be wrong that people can still be trapped in loveless marriages.”
Court of Appeal Judges dismissed a bid to overturn a family court Judge's decision not to grant Tini Owens' divorce petition against her husband Hugh Owens.
The Judges were told that Mrs Owens, aged 66 and Mr Owens, aged 78, had married in 1978 and lived in Broadway, Worcestershire.
Mrs Owens' case was that her husband had behaved unreasonably and that the marriage had irretrievably broken down, but Mr Owens, a retired businessman, disagreed and denied allegations made against him.
Judge Robin Tolson concluded that Mrs Owen's allegations were “of the kind to be expected in marriage” and refused to grant a divorce petition.
Three appeal court Judges agreed, ruling that the marriage had not 'in law' irretrievably broken down and it was for Parliament to decide whether the law should be amended.
Mr Priest said: “I think most people in the UK would have thought that no fault divorce was standard practice … but not if one party objects.
“This surely is an anachronism which needs to be addressed and addressed urgently.
“It is very harsh on Mrs Owens who is effectively left in limbo.
“Unfortunately, it leaves Mrs Owens having to wait until she has five years’ separation before she can issue new divorce proceedings which is one of the facts you can use to obtain a divorce.
“Parliament has indeed considered No Fault Divorces before in the Family Law Reform Act 1996 but the Government at the time decided not to implement this. “Although there were serious issues with their plans at that time, perhaps it is now time for Parliament to relook at updating the law to deal with modern society.
“In most cases now the parties agree not to raise serious allegations in any event but to tone them down and agree them in advance,” he said.
Big increases in probate fees are an “outrageous imposition”, effectively a new stealth tax, warns Kerwoods partner Emma Beddows.
She said the Government was in effect introducing “a new form of taxation”.
When someone dies in England and Wales, banks and building societies will typically freeze their accounts until the person in charge of dealing with their will, known as the executor or someone acting on their behalf, applies for an official document known as a grant of probate.
It can be a lengthy process.
Probate fees are currently set at a flat-rate of £215 for individuals with estates worth more than £5,000.
Under the new system, bands are being brought in which relate to the value of the estate.
The bands will come into being in May, subject to parliamentary approval.
It has been estimated that more than half of estates will pay nothing and 92 per cent no more than £1,000. However, some will pay more than 129 times the current level.
While probate was already entirely self-funding, the Ministry of Justice is hoping to raise an extra £250 million a year towards the cost of the courts and tribunal service.
Ms Beddows said: “It is an outrageous imposition.
“The Law Society has stated it is unfair and discriminatory to expect the bereaved to fund or subsidise other parts of the court and tribunals service, and I would wholeheartedly agree.”
Critics fear it may lead to the elderly feeling obliged to give away assets in their lifetime to avoid the charges, and could see more people get into a terrible muddle by attempting to undertake probate themselves rather than instruct a solicitor.
The MoJ maintains the fees “are necessary to maintain an accessible, world-leading justice system which puts the needs of victims and vulnerable people first”.
Ashley Gurr, partner at Kerwoods, analyses the current confusion in the world of employment.
Matthew Taylor, chief executive of the Royal Society of Arts, is currently looking into how employment practices need to change in order to keep pace with modern business models.
The Department for Business, Energy and Industrial Strategy is involved in researching the scale of the 'gig economy' and the motivations of those engaging in it.
Various employment tribunals, employment appeal tribunals and the Court of Appeal ponder cases of who is an employee, who is a worker, and who is self-employed.
Not surprisingly, the wider public appear baffled as to what is going on, trade unions hit out at alleged exploitation and the Government bemoans losing out on millions of pounds in tax.
For business, it is all becoming a minefield which could cost them dear.
The Taylor Review is considering the implications of new forms of work on worker rights and responsibilities – as well as on employer freedoms and obligations.
With 15 per cent of those in the UK labour market now self-employed - aroound one and a half million people - there has been a rise in numbers doing ‘gig’ roles (short-term, casual work such as driving, delivering items and DIY tasks) as the advance of technology changes the way companies operate.
The Office for Budget Responsibility has estimated that in 2020/21 the gig economy will be costing the Treasury £3.5 billion.
Equally, the number of people supplying their services as contractors, either under personal service companies, or via employment agencies, has surged. It affects big sectors such as IT, construction, road haulage, and the media – the BBC was recently forced to bring 85 of its top presenters onto its books as permanent members of staff. The NHS is highly dependent, and so are schools using agency supply teachers.
Meanwhile high profile disputes are becoming almost the norm.
Taxi group Uber is fighting rulings that its drivers should be classed as workers, and are not self-employed.
Two Uber drivers claimed the company was acting unlawfully by not paying holiday or sick pay.
The firm has more than 40,000 licensed drivers in 20 UK towns and cities making more than a million trips per week.
Pimlico Plumbers recently lost a court battle over the status of its workers.
Gary Smith wanted to reduce his working days following a heart attack but was turned down. He was VAT-registered, and paying tax on a self-employed basis, but had worked solely for Pimlico Plumbers for six years.
Pimlico Plumbers argued he was self-employed.
Instead, he has been deemed a worker – sharing some rights with employees, such as holiday pay, minimum wage entitlement, auto enrolment pension and discrimination rights, but with no protection against unfair dismissal or maternity leave rights.
All employees are workers, but not all workers are employees.
IR35 legislation was introduced 10 years ago to combat so-called "false self-employment”.
It requires a hypothetical question to be asked: if the individual was contracted directly to the end user of the services (rather than via their limited company), would that individual be deemed an employee of the end user? PAYE must be applied to the fees paid by the end user by the limited company if the answer to the question is yes.
However, HM Revenue & Customs believes that many people still abuse this status to take advantage of favourable tax arrangements.
HMRC has set up a specialist employment status and intermediaries team to chase the missing tax millions.
In addition, from April, IR35 changes mean that when supplying to a public-sector client, the client – or an intermediary business where applicable – will be liable to account for PAYE as if the individual was its own employee.
This is intended to tackle tax avoiders, but could rebound on the Government given most personal service companies are considered genuine contractors who have chosen to work flexibly and independently, not as employees. Critics claim many will be discouraged from taking on large-scale public sector contracts such as HS2, necessitating the use of expensive consultancies instead.
Assurances have been given that the changes will apply only to the public sector. But many pundits predict the private sector could be hit further down the line.
Taylor has a difficult task to navigate through all this, balancing competing demands – HMRC wants the rightful tax dues of the fake self-employed, but how do you differentiate the fake self-employed from the real self-employed? What should be the correct definitions of employed, self-employed and worker? What to do about personal service companies?
With Brexit around the corner a flexible workforce is crucial for UK plc’s future. Yet surely not at the expense of denuding employment rights and allowing rogue businesses free rein.
Companies who employ the services of contractors or consultants should review their contracts to ensure they are fit for purpose. We can help them.
But it is getting harder and harder for businesses to be sure they are within the law.
Industry and commerce will be fervently hoping Taylor can come up with some sensible suggestions.
Businesses who 'employ' the services of contractors or consultants need to have a clearly defined contractual relationship, according to Kerwoods' employment law specialist.
Ashley Gurr, employment partner at Redditch-based Kerwoods Solicitors, said it was imperative to avoid 'nasty surprises'.
Commenting on the recent Pimlico Plumbers case, which revolved around the differences between employed, self-employed and worker status, he issued a strong caution.
“The moral of the story is less about the contract itself, but more about both parties correctly understanding and identifying the underlying relationship.
“If a business thinks that by having a contract, it has automatically exempted itself from the rules governing workers’ rights, then the directors may well be misguided.
“If there is any doubt as to whether a particular individual is likely to be considered an ‘employee’, a ‘worker’ or ‘self-employed’ then firms should take legal advice and have a bespoke contract drawn up before hiring them.
“By going down this route, everybody knows where they stand, and there are no nasty surprises either way.
“It is also about ensuring that the business client understands that they should actually follow the contract.
“It is no use saying there is no applicable paid holiday if the business then grants it, or, if the individual is contractually supposed to account to HMRC on their own for tax purposes, the tax is then deducted at source via PAYE.
“All of these aspects, and many more, are likely to undermine a business’s contention that somebody is genuinely self-employed.”
The Pimlico Plumbers case was brought by Gary Smith who wanted to reduce his working days following a heart attack but was rebuffed.
The company argued he was self-employed, but Mr Smith maintained he was an employee.
The Employment Tribunal ruled he was a worker, and so qualified for certain employment rights including paid holiday, restrictions on working hours, the national minimum wage and protection from discrimination.
The ruling was upheld by an Employment Appeal Tribunal and the Court of Appeal.
Mr Gurr said: “It makes sense to draw up contracts that are clear for both parties before work begins, and if you have existing contracts that you have used for many years, do not assume that they are up to date and would provide security for either side.
“Employment law is complex and when you add the taxation treatment of individuals in, it becomes more so.
“It is essential you take early advice from a recognised employment law specialist who also understands the workings of commercial contracts."
Redditch law firm Kerwoods has repeated its alarm call to the elderly made earlier this year.
Partner Emma Beddows said that elderly residents should not let cold-calling strangers, offering 'free' financial advice, over their doorstep.
It follows the case of a 79-year-old who was charged £3,590 for a trust fund arrangement she didn’t need.
The cold caller salesman sold her the document supposedly to safeguard the value of her home from potential future healthcare charges
Ms Beddows said: “When the document was brought to our attention by a relative, it was clear that this was something she didn’t require because her savings were more than sufficient to meet her needs.”
Ms Beddows, Kerwoods’ trust and elderly client specialist, and Julie Fisher in the litigation department, fought the matter and eventually persuaded the trust company concerned to refund fully the £3,590 to the client despite her being officially out of time to cancel.
Ms Beddows said: “The package of documents she was sold were simply unnecessary given the terms of her will where her two nephews were set to inherit the entire estate.”
And, she noted, considering the woman’s history of ill-health, the attempt to subvert local authority care rules would almost certainly never have succeeded, with social services likely to deem it 'deprivation of capital'.
Ms Beddows said: “It is vital to seek advice from legal professionals in relation to the creation of probate trust deeds and associated documents, as opposed to dealing with trust companies that sell on the doorstep.
“No medical information was taken from the client to assess the likelihood of her need for care in the future and, financially, no information offered concerning care home fees and continuing healthcare funding when the client had considerable savings in addition to her property.”
The client had not been informed that, by putting the assets into trust, she would no longer be able to take advantage of local authority grants to homeowners to modify their property in order for them to remain at home as long as possible.
Neither were any cost comparisons for probate versus trust deeds provided.
Ms Beddows cautioned: “It is crucial that all aspects of an individual’s circumstances are considered before any decision to go the trust route.
“In this case that was not done.
“Dealing with a reputable lawyer will usually provide greater value for money than the charges demanded by a trust company.
“Clients should not be afraid to ask for the credentials of those drafting trust documents and whether they are regulated,” she said.