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Inheritance Wars (Episode 4)

This week’s episode of “Inheritance Wars – Who Gets the Money?” on Channel 5, featured the case of Brett McLean and his legal dispute with his half-siblings concerning his late mother’s will. Brett’s half-siblings were the children of his late father. The family lived in a house in Hastings.

Brett’s parents had made mirror wills, which provided for the survivor of them and then divided the inheritance between Brett and his half-siblings. Mirror wills are commonly made by husbands and wives because they typically provide for each other and, on the second death, for their children. However, after Brett’s father died, Brett’s mother made a new will, which benefitted him exclusively. She disinherited Brett’s half-siblings. Brett inherited his mother’s £300,000 house, which he claimed had been left to him mainly so that he could continue to care for his mother’s pet parrots in her home. His half-siblings were unhappy about the situation and took the dispute to court, to try to obtain a share of the inheritance. Brett represented himself at court and cross-examined the will draftsman, who had prepared his parents’ wills. The will draftsman confirmed that the wills he had prepared were mirror wills, not mutual wills. This meant that Brett’s mother had been free to change her will at any time, which she did. There had been no binding legal agreement between his parents that they would never change their wills in the future. Brett won the case.

Brett’s case highlights the important fact that, even though there may be a moral obligation on the survivor of a couple who have made mirror wills not to change their will after their partner’s death, there is no legal obligation on them not to do so. Mutual wills, on the other hand, cannot be altered and are legally enforceable.

Explaining Legal Jargon in Court of Protection

At Lanyon Bowdler, we strive to be the best in our respective areas of law and for our staff to be expert in what they do.

However, we understand that legal jargon can be a bit confusing and overwhelming and sometimes you need someone to explain what these terms mean.

In troubling times you may not know where to go first. Personally when I’m dealing with enquiries that come to the Court of Protection Department, I am often asked about the meaning of certain terms or phrases that people may have come across before they have approached us. Therefore, I’ve prepared a guide to break down the jargon and to help you.

Appointee
An appointee is someone appointed by the Department for Work and Pensions (DWP) to help manage your benefits for you, if you are not able to manage them yourself.

Applicant
Person or persons making the application. This may be the person applying to be deputy, an existing deputy or attorney, or someone else.

Attorney
Someone who has been appointed under an enduring power of attorney (EPA) or a lasting power of attorney (LPA) to make decisions on behalf of the person who created the EPA or LPA. Attorneys can be appointed to manage financial decisions and/or for health decisions.

Best interests
An act or decision that is made in the bests interests of a person who is unable to make that decision themselves.

The Mental Capacity Act has a best interests checklist, which outlines what people need to consider before taking an action, or decision, for someone who lacks capacity.

Bond
Commonly referred to as a deputy bond. The Court of Protection requires all property and affairs deputies to get a ‘surety bond’ (also called a ‘security bond’). The bond is similar to insurance in that it protects the assets of an incapacitated person (“P”) who has a property and affairs deputy appointed. The level of security is set by the court and a premium is calculated each year of the deputyship which is payable from P’s funds.

Capacity
The legal definition is set out in the Mental Capacity Act 2005 (MCA 2005). Under the MCA 2005, the starting assumption is always that a person has mental capacity. It is important to understand that capacity is both time and decision specific so for example, someone may have capacity to decide to reside in a care home, but may not have capacity to manage their financial affairs in order to pay for that care.

Capacity assessment
This is a formal assessment of whether a person has capacity to make specific decisions, such as whether they are able to manage their own property and affairs.

CoP
You will often hear this abbreviation from us. This stands for the Court of Protection which oversees applications regarding people who lack capacity to make decisions for themselves.

Damages
The money received following a successful personal injury or clinical negligence claim.

Deputy for Property and Financial Affairs
A person or people appointed by the Court of Protection to manage the property and affairs of the person who lacks capacity to do so themselves.

EPA
An enduring power of attorney or EPA is a document appointing an attorney. EPAs can no longer be created, however, if a person has an EPA made before October 2007 then these can still be used providing the right steps are taken regarding registration.

LPA
A lasting power of attorney or LPA is the new version of an EPA. This is a legal document that lets a person (the ‘donor’) appoint one or more people (known as ‘attorneys’).

Panel Deputy
Panel deputies are often referred to as the ‘deputy of last resort’ and are appointed when there are no suitable alternatives.

Respondent
Is a person who is involved in proceedings but did not make the application. Respondents may be someone who is objecting to an application, or who have been joined as a party due to them having an interest in a matter which the court believes they should be included in.

Official Solicitor
The Official Solicitor acts as a last resort litigation friend and in some cases solicitor, for children (other than those who are the subject of child welfare proceedings) and for adults who lack mental capacity.

Office of the Public Guardian
The Office of the Public Guardian or OPG are a government body who govern deputies.

OPG Report
Each deputyship year, financial deputies are required to provide an account of all spending in that reporting period to the OPG. The OPG have prescribed reporting formats which differ depending on the level of assets the person has.

SCCO
The Senior Courts Cost Office are the designated court who assess the costs and expenses incurred in certain applications or ongoing matters.

The Time Limit in Personal Injury Claims

A personal injury claim is a claim for compensation where a person has suffered injuries as a result of an accident and another party is at fault.

Under the Limitation Act 1980 the usual time limit that applies to personal injury claims, known as the ‘limitation period’, is three years from the date on which the injuries occurred or the date of knowledge if later. The claimant (the person bringing the claim) must have issued proceedings before the limitation date which means their claim form must have been submitted and issued by the court by this date. If a claim form is submitted after the expiry of the three year limitation period, generally the defendant can rely on limitation as a complete defence.

An understanding and awareness of the limitation period by potential claimants is of great importance as a failure to comply with the limitation period can prevent a claim. The purpose of the limitation period lies in public policy and is to prevent the unfairness of claims being brought against a defendant many years after the injuries were sustained.

Date on which the injury is suffered

In many personal injury cases, the date on which the injuries occurred is easy to ascertain. For example, in a road traffic accident it is generally the date of the accident.

Date of knowledge

However, in other types of cases, such as a work related disease claim, it is much more difficult to pinpoint the date on which the injuries occurred. The claimant will often develop symptoms years after their employment has ended and will therefore generally try to rely on a later date of knowledge, rather than the date on which the injuries occurred.

Date of knowledge is defined as the date when the claimant first had knowledge that the injuries were significant and that it was fully or partly the defendant’s fault. A claimant does not have to be specifically told that the defendant was at fault, they can be found to have obtained either actual or constructive knowledge to this effect. Actual knowledge is entirely subjective and means that the claimant believed that the injuries were the defendant’s fault.

Constructive knowledge is an objective test which looks at whether a reasonable person in the claimant’s circumstances would have believed the injuries were the defendant’s fault. A claimant therefore could be held to have had knowledge that the defendant was at fault, even if in reality they were not actually aware of this. For example, in one case a young claimant suffered from hearing loss as the result of working in one noisy work environment with no hearing protection and the claimant was aware of the risk of hearing loss arising from excessive noise. The court held that, following further investigations, the claimant should reasonably have been aware at an earlier date that the defendant was at fault.

The court’s discretion

The court has a wide discretion to allow a claim to be brought even if proceedings were issued after the expiry of the limitation date. The court will have regard to all the circumstances of the case and the factors that the court will consider include the following:

• the length of, and the reasons for, the delay on the part of the claimant;

• the extent to which, the evidence adduced by the claimant or the defendant is or is likely to be less persuasive;

• the conduct of the defendant after the injury arose,

• the extent to which the claimant acted promptly and reasonably once he knew that the injury was the defendant’s fault;

The court’s decision making is highly fact specific and has not always been applied consistently. However, some general principles have been established from the case law. The court’s discretion is not limited to difficult or unusual cases. Overall, the court will consider whether the prejudice suffered by the claimant is likely to outweigh that of the defendant if they cannot bring a claim.

The court found in the claimant’s favour in a case where proceedings were issued only one day late, due to a delay by the legal team and the defendant had received early notification of the claim. On the other hand, the court was unwilling to allow a claim to be brought outside of the limitation period in a case where the claimant issued proceedings five years late and the contemporary records that the claimant sought to rely on had been destroyed.

Exceptions to the three year limitation period

There are a number of exceptions to the three year limitation period in personal injury claims. The key ones are listed below:

  • Person under a disability – there is no limitation period for someone who lacks capacity;
  • Children claimant’s – the limitation period is three years from the child’s 18th birthday;
  • Criminal Injuries Compensation Authority (CICA) claims – the limitation period is two years from the date of the incident;
  • Fatal accidents – the limitation period is three years from the date of death or from the date of the dependant’s knowledge;
  • Accidents abroad – as per the legislation in the country where the accident happened.

Conclusions

Three years may seem like a long time within which to bring a personal injury claim, but it is important to note that it can take a long time to issue proceedings, as there is generally a lot of work to do and procedures to follow prior to this. There is the option of relying on a later date of knowledge or applying for discretion from the court to bring a claim outside of the limitation period. However, date of knowledge arguments can be very technical and complex and there is no guarantee of successfully relying on the court’s discretion as the court’s decision making is so fact specific.

We advise anyone who is considering bringing a personal injury claim, particularly if you believe there will be issues relating to the limitation period, to seek legal advice as soon as possible. If you have any questions, please contact a member of our Personal Injury Team.

Inheritance Wars (Episode 3)

This Sunday’s episode of “Inheritance Wars – Who Gets the Money?” featured the disturbing case of Joan Blass and her daughter, Daphne Franks.

Joan was an 87 year old widow, who had vascular dementia, when she was befriended by a man whilst she was doing some gardening in her front garden. The man was about 62 years old. He soon moved into Joan’s house, unannounced. Daphne was only aware that he had moved in when she noticed his belongings in her mother’s house. Joan did not seem to know his name, or who he was. She kept asking her daughter, “Where does he live?” “Where does he come from?” and “Did you get him for me?” The man was extremely secretive and did not communicate with Daphne for a long period.

A few days after Joan died, aged 92, Daphne and her brother were extremely shocked to be told, by Joan’s GP, that Joan was a married woman when she died. The man had secretly married Joan just a few months before her death. Daphne did not believe that Joan had the necessary mental capacity to get married.

Joan had married at Leeds Registry Office, where the witnesses were two people unknown to Joan. Joan’s relatives received no notification of the impending wedding and the ceremony was not recorded in any way. Although Joan may not have been at the registry office against her will, Daphne believes that she simply would not have understood where she was or what she was doing.

Worse was to come. Joan’s secret wedding meant that her will was automatically revoked by law and the inheritance that she had been expecting to receive when Joan died was now going to Joan’s husband instead. Joan died without a will meaning that, under the intestacy laws, her husband inherited all of her personal property and belongings, the first £270,000 of her estate and half of the remainder. In this case, the £270,000 covered all of Joan’s estate. Daphne was particularly upset that she was not even entitled to Joan’s personal belongings, which included her grandfather’s letters from the First World War. In addition, since Joan’s husband was the personal representative of her estate, he was in sole charge of Joan’s funeral arrangements. Daphne knew that Joan wanted to be cremated but Joan’s husband arranged the funeral in secret, so Daphne and her brother were unable to attend, and he had Joan buried in an unmarked grave.

Daphne was understandably traumatised by what had happened. Joan’s case highlights lots of issues concerning adults who lack capacity (for example, because of dementia) being vulnerable to financial abuse, or “predatory marriage”. She wanted to ensure that this situation could not happen to anyone else. Daphne consulted her local MP, who raised the issue of predatory marriage in the House of Commons and brought a private members’ bill to parliament, relaying Joan’s story. Daphne also began a campaign to try to bring about a change in the law so that a will is not automatically revoked by marriage. Although Daphne has had some successes to date, such as the Forced Marriage Unit introducing some safeguarding training for registrars, the law currently remains that marriage revokes a will.

Inheritance Wars (Episode 2)

This week’s episode of Channel 5’s “Inheritance Wars - Who Gets the Money?” featured two more legal cases relating to inheritance disputes.

The first case related to Diana Coad, a former model and Tory politician who, following the death of her husband, Peter, became embroiled in a bitter legal battle with her step-children.

After his marriage to Diana, Peter made a will in which he divided his estate 50/50 between Diana and his two daughters. The bulk of his estate was said to consist of their matrimonial home, which was worth approximately £900,000.

Before and after his marriage to Diana, Peter suffered various health problems, including prostate cancer and a heart attack, both of which he survived.

Later, Peter instructed a will writer to prepare a new will for him, in which he intended to leave the whole of the matrimonial home to Diana. However, there was an inexplicable delay in the execution of the new will. Sadly, Peter passed away unexpectedly, just seven years after his marriage to Diana, before he had signed his new will. This meant that the will was legally invalid because a will must be signed in the presence of two witnesses in order to be valid.

Although Peter’s will gave Diana 50% of Peter’s estate, Diana decided to issue a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 because she took the view that Peter’s will did not make reasonable financial provision for her; she wanted the court to make her an additional award from Peter’s estate. In particular, she wanted to be awarded the whole of the matrimonial home. One of Diana’s arguments was that she had Multiple Sclerosis, which would increase her financial needs in the future. The Inheritance (Provision for Family and Dependants) Act 1975 enables the court to take into account any physical or mental disabilities of the applicant (and any of the beneficiaries) when determining a claim.

Unfortunately, Diana’s claim for reasonable financial provision was never decided by the court; the claim was struck out because she had failed to file certain documents on time. This led to a costs order being made against her, meaning that she had to pay not only her own costs but also those of her step-children. The costs amounted to about £80,000. Diana eventually had to sell the matrimonial home to enable her to pay the costs, leaving her with less than 50% of Peter’s estate which she had been left in the will. Diana’s lawyer concluded that, in this case, she would have been better off never bringing the claim because she ended up being worse off. However, it must be remembered that Diana’s case was never decided by the court and she might have been successful if her claim had not been struck out.

It was unclear why Peter had not signed his later will. Might Diana have had a negligence claim against the will writer for the financial loss she suffered as a direct consequence of him failing to ensure that Peter’s will was signed promptly? It was also unclear why Diana failed to lodge documents with the court in time, leading to her claim being struck out. If she had lawyers and they were at fault, she may have had a claim in negligence against them.

The second case concerned Antony Lambton, also known as Lord Lambton. He was a British aristocrat who served as a Conservative Member of Parliament, before being forced to resign following a scandal. He was an extremely wealthy man, who owned property in the United Kingdom as well as in Italy. Lord Lambton had five daughters and one son. He wanted to ensure that his son inherited his entire estate, in accordance with the ancient British tradition of primogeniture, so he left his entire estate to him.

When Lord Lambton died, his daughters fought to obtain a share of his multi-million pound estate. Matters were complicated by the fact that, during his lifetime, Lord Lambton had changed his domicile to Italy, so there were issues relating to whether or not the legal proceedings should properly be pursued in England and Wales, or Italy. Lord Lambton’s daughters wanted the case to proceed in Italy because under Italian law they would automatically be entitled to a share of their father’s estate.

Eventually, the case was resolved by mediation between Lord Lambton’s children, helping to avoid the substantial costs that they would certainly have incurred if they continued with the litigation.

Inheritance (Episode 1)

The first episode of a new series called “Inheritance Wars - Who Gets the Money?” aired on Sunday 17 September on Channel 5. It is a fact-based programme which examines inheritance cases that have been decided by the courts, including interviews with the original parties and their lawyers; there are also comments from a clinical psychologist on the psychological impact of these cases on the parties and their effect on family relationships.

This first episode dealt with two inheritance cases. The first one was a case which, uniquely, went all the way to the Supreme Court, the highest court in the land. It related to an application for the rectification of two wills belonging to a married couple (Mr and Mrs Rawling) who had mistakenly signed each other’s wills because their solicitor, at a meeting, had accidentally handed them each other’s will to sign.

Mr and Mrs Rawling had two sons, to whom they were not close. While the sons were growing up, Mr and Mrs Rawlings informally adopted a friend of one of their sons and took him in to live in their home. His name was Mr Marley. While the sons left home in due course, Mr Marley continued to live with Mr and Mrs Rawlings and later became their carer.

The programme went on to explain that Mr and Mrs Rawlings made a life-time gift of their home, worth about £400,000, to Mr Marley. They also made “mirror” wills, leaving the rest of their assets, said to be £70,000, to Mr Marley. The couple did not leave anything at all to their two sons.

When it was discovered that Mr and Mrs Rawlings had mistakenly signed each other’s wills, Mr Marley made an application to the High Court for rectification of the wills. The application was made against Mr and Mrs Rawlings’ sons, to whom the estates would pass on intestacy. Mr Marley, the beneficiary in the wills, argued that the wills should be rectified to give effect to the true intentions of Mr and Mrs Rawlings.

Section 9 of the Wills Act 1837 states that no will is valid unless it is in writing, is signed by the testator, or by some other person in his presence and by his direction, and it appears that the testator intended by his signature to give effect to the will.

The Administration of Justice Act 1982, section 20, enables the court to rectify a will to give effect to the testator’s instructions if a mistake has been made, either by way of a “clerical error” or because of a failure to understand the testator’s instructions.

At the High Court, the view was taken that Mr and Mrs Rawlings could not have intended to sign each other’s wills. Therefore, section 9 of the Wills Act 1837 was not fulfilled in relation to intention. It was also determined that the mistake with regard to Mr and Rawlings’ wills could not be rectified because what had happened could not correctly be described as a clerical error (relating to the wording of the will), or a failure to understand their instructions. The wills were therefore invalid.

The case was then appealed to the Court of Appeal, which upheld the decision of the High Court. The wills were invalid.

Marley then obtained permission to appeal the decision of the Court of Appeal to the Supreme Court. The decision of the Supreme Court, on 18 September 2014, was that the wills could be rectified, using section 20 of the Administration of Justice Act 1982, to allow the wills to be read as though Mr and Mrs Rawlings had each signed the correct will. This decision effectively widened the scope of the meaning of “clerical error”, which is not defined in the Act. The Supreme Court thereby enabled the wishes of Mr and Mrs Rawlings to be fulfilled. The programme commented that this was the result that the man and woman on the street would have expected.

The costs of the legal proceedings, including two appeals, were very substantial. Since the litigation essentially arose out of a mistake made by Mr and Rawlings’ solicitor, in handing them both the wrong wills to sign, the Supreme Court ordered that the solicitors’ insurers should pay most of the legal costs. The general rule is that the loser pays the winner’s costs, but this case was considered by the Supreme Court to be an exception to that rule because of the negligence on the part of Mr and Mrs Rawlings’ solicitor.

The second case featured an inheritance dispute relating to the estate of Bernard Matthews, the well-known former Norfolk turkey farmer. His estate was said to be worth millions of pounds and included an expensive property in France. We were told that Mr Mathews had three adopted children with his wife and a biological child with a different mother. He also had a partner in France who had cared for him during his various illnesses.

Mr Matthews had made wills dealing with his English and French assets. His English will left his English assets to his biological child.

Mr Matthews’ French will provided for his French property to pass to his French partner. However, although he provided for his partner to inherit his property in France, French law dictates that the children of the deceased will inherit a substantial part of the deceased’s French property. French succession law is very different to English succession law. Mr Matthews had apparently been warned by his lawyers that his will may not be honoured by his children because of French succession law. Mr Matthews’ adopted children did not agree to uphold their father’s wishes, as expressed in his French will. The result was that they had to pay a substantial amount of tax on their father’s French property because by choosing to take the property they had to pay the tax burden that went with it.

Unlike in the first case mentioned above, involving rectification of a will, in the second case Mr Matthews’ intentions were not fulfilled.

Tune in next week….

World Patient Safety Day - 17 September

What is World Patient Safety Day?

Each year 17 September is World Patient Safety Day. Initially started in 2019 and coordinated by the World Health Organization (WHO), World Patient Safety Day calls for global solidarity and rigorous action by all to ensure continued improvement and commitment to patient safety across all healthcare industries. This includes patients, health care leaders, policy makers, clinicians and caregivers.

The aim of World Patient Safety Day is to promote and enhance global understanding of patient safety. Essentially, it is a day to acknowledge patient safety as a “global health priority” with the aim to get key stakeholders in the health and social care industries to promote, prevent and protect against avoidable harm.

A theme for World Patient Safety Day is assigned annually and this year the theme is “elevating the voice of patients”. The focus with this year’s theme is promoting the crucial role patients, families and caregivers play in ensuring ongoing safety within health care. The objectives this year, under the umbrella of patient safety, are

1) to raise global awareness of the “need for active engagement of patients and their families in all settings”;

2) to encourage policy makers, clinicians, stakeholders and leaders to engage families in the discussions surrounding policy and practice for safe health care;

3) to empower patients to be actively involved in their own healthcare; and

4) to advocate urgent action on patient and family engagement, in alignment with the Global Patient Safety Action Plan 2021-2030.

Why is it necessary?

Awareness of days like this are vitally important as it keeps the conversation of patient safety alive. It brings the issue to the forefront of everyone’s minds and allows people across the healthcare industry - across the world - to publicly commit to achieving change.

Patient safety is a global priority but strains and complexities within our, and other healthcare systems, such as staffing issues, budgeting strains and lack of resources - can make it difficult to deliver care and treatment devoid of error and harm.

World Patient Safety Day recaptures our focus and breathes life back into the issue. In turn, this is hoped to provide continued review, discussion and opportunities for improvement, learning and development of errors and adverse events recounted since the previous year.

The Role of Clinical Negligence:

As specialist clinical negligence lawyers, we mirror the objectives and reasoning behind World Patient Safety Day as we deal daily with cases where patients have experienced harm due to a lack of patient safety. Our drive is to ensure governance and review goes hand in hand with the WHO’s objectives. Presenting claims on behalf of patients and their families leads to discussions happening internally within NHS Trusts and GP practices about their policies and practice. As a consequence of those discussions, areas of concern can be identified and changes proposed which, when implemented, can help reduce avoidable errors and improve patient safety and care.

Increased patient safety would reduce the amount of claims we see where outdated or poorly implemented policies cause avoidable harm and risk to patients.

Conclusion

The most important tool to help bring about change in terms of patient safety are the voices of our clients and their families.

If you have questions or concerns over ongoing treatment, you should feel able to safely ask questions, empowered to trust your instincts and start discussions and seek second opinions if necessary. It is vital that we are all involved in our own care, or the care of a loved one, to ensure we get the best out of our healthcare systems.

Martha's Rule: A Game-Changer for Patient Rights in the NHS

In a significant development for patient advocacy and safety reform within the NHS, the UK's Health Secretary, Steve Barclay, has announced his support for the introduction of "Martha's Rule."

This proposed rule aims to ensure that hospital patients and their families are aware of their right to seek a second opinion, potentially transforming the way patients engage with their healthcare providers and advocate for their well-being.

The introduction of Martha's Rule comes in response to a heart-breaking case that highlights the critical importance of patient empowerment in the healthcare system. Martha's Rule is named after 13 year old Martha Mills, who tragically passed away after a hospital admission related to a bicycle accident. While Martha's injury - a pancreas injury - was initially deemed survivable, she succumbed to sepsis within days. Martha's mother raised concerns with the medical team regarding her daughter's treatment during her hospital stay, but instead her concerns were dismissed and she was told by doctors that the extensive bleeding was "a normal side effect of the infection" and attributed it to slight clotting issues. Tragically, Martha's condition deteriorated rapidly soon after, and she sadly died. At inquest, a coroner concluded that Martha could have survived with better care.

The King's College Hospital Trust have now admitted that they failed Martha when she needed them the most.

In response to this tragic case, Steve Barclay has expressed his commitment to implementing Martha's Rule swiftly. Mr Barclay has engaged the Patient Safety Commissioner to meet with NHS leaders and gather insights from similar schemes abroad. For example, "Ryan's Rule" was introduced in Queensland, Australia, following the death of a young boy with a poorly managed serious infection, and Ryan's Rule has subsequently improved patient advocacy in healthcare settings.

Mr Barclay acknowledges the need to expedite Martha's Rule's implementation, especially in paediatrics, while emphasising the importance of clear communication to patients.

NHS England medical director, Prof Sir Stephen Powis has stressed the paramount importance of patient and relative voices in healthcare decision-making. While the need for change is evident, he also indicated that different hospitals may require distinct approaches to ensure patient voices are heard effectively.

The introduction of Martha's Rule represents a significant step toward enhancing patient rights and safety within the NHS. It underscores the importance of patient empowerment and the ability to seek a second opinion when medical concerns arise. As this rule progresses, it is expected to play a pivotal role in improving patient care, preventing tragic outcomes like Martha's, and giving patients and their families the confidence to advocate for their health and well-being within the healthcare system.

DIY Divorce and Pensions

Frequently, we are approached by a spouse who has already started a divorce application themselves and/or reached an informal agreement with their spouse in relation to the financial arrangements arising out of their divorce/separation. However, very often important considerations have been overlooked, or just disregarded, such that they have been disadvantaged and/or have not achieved a fair settlement. Pensions are a particularly problematic area and it is not uncommon for the parties’ pensions to have been ignored completely, despite being potentially one of the most valuable assets that they have, or that these have been incorrectly valued and factored into any settlement.

It is a common misunderstanding that pension benefits should be conflated and treated in a similar way to non-pension capital (e.g. the proceeds of sale from any property). This is incorrect and tantamount to comparing apples with pears; generally, pensions should be treated differently to non-pension assets and divided separately.

Whilst it is possible to “offset” the value of pensions against non-pension capital, specialist advice is required to properly value the pension benefits to ensure a fair settlement is achieved. Even where cash equivalent (CE) values have been obtained, expert advice should still be sought to ascertain whether the benefits have been correctly valued. Indeed, where defined benefit schemes are involved, there is a real risk that the benefits may have been undervalued, and the incomes which they will produce will be far greater than defined contribution schemes which seemingly have equivalent CE values.

We would always encourage a party to seek proper legal advice before starting a divorce and prior to any financial settlement. If you would like to discuss such matters, please contact our specialist team.

Work Experience 2023

My Work Experience 17-21 July 2023 by Will Weston

For my work experience, I attended an interview at Lanyon Bowdler and was delighted to be offered a place.

I am always keen to learn something new so being able to do my work experience in five different department was really interesting. I had the opportunity to learn something new every day I have been here. From reading a title register, to being able to read the Mental Capacity Act. I have been able to learn a lot during my time here. Everybody here has been so friendly and welcoming, whenever I didn’t understand something, someone would always give a helping hand.

The days have been very busy, however, they have been very enjoyable. It has been very informative, allowing me to consider different viewpoints on different scenarios. It has also allowed me to put skills I have learnt to the test. From giving my opinion on what to do in different scenarios, to planning charity events, the list on what I have learnt is endless. Doing my work experience here has shown me that you can learn something new every day. You put different skills to use every day, using maths to work out service fees in properties, to using creativity to create an eye catching poster. Using literacy for the different definitions of words.

It also has shown me the process of finding work, how to write a cover letter and having an interview, giving me experience for later on in life when I need these skills to find employment. The ability to try everything I can with Lanyon Bowdler has been amazing. It has definitely opened my eyes to what employment is in the world.

Thank you everyone at Lanyon Bowdler for the friendly, informative week I have experienced.

If you’re interested in work experience with Lanyon Bowdler you can find out more here.

Support and Hope: Suicide Prevention Day 2023

Every year, on 10 September, the world comes together to observe Suicide Prevention Day. This day serves as a reminder of the importance of mental health; the struggles individuals may face; and the actions that can be taken to save lives. As a clinical negligence solicitor and part-time assistant coroner, I understand and witness first-hand the profound impact mental health crises can have on a person's life, and it is important to emphasise the critical role we all play in preventing suicide.

The Stark Reality

Suicide is a global issue that affects people of all ages, backgrounds, and walks of life. In many cases, it's the result of a complex interplay of mental health challenges, personal circumstances, and societal factors. It's crucial to recognise that suicide can be preventable, and every one of us can make a difference in someone's life.

The Power of Connection

One of the most potent tools in suicide prevention is human connection. Reach out to friends, family members, and colleagues who may be struggling. Sometimes, a simple conversation can provide the support someone desperately needs. Encourage open dialogue about mental health and reduce the stigma surrounding it.

Know the Warning Signs

Understanding the warning signs of suicide is vital. While these signs may vary from person to person, some common indicators include:

1. Expressing a desire to die or feeling trapped;

2. Withdrawing from social interactions and hobbies;

3. Talking about feeling hopeless or having no reason to live;

4. Sudden changes in behaviour or mood;

5. Giving away possessions or making final arrangements.

If you notice these signs in someone you know, don't hesitate to reach out and offer your support. You could be a lifeline for them.

Seek Professional Help

It is important to seek professional help when needed. Mental health issues should be treated with the same urgency and care as physical ailments. If you or someone you know is struggling, encourage them to seek help from mental health professionals. Many resources are available, including therapists, counsellors, and crisis hotlines.

Legal Considerations

In some cases, individuals who are struggling with their mental health may need legal assistance. If you believe that clinical negligence or medical malpractice has contributed to someone's mental health challenges, it's crucial to explore legal options. Holding medical professionals accountable for their actions not only seeks justice but can also prevent similar incidents from happening to others.

Community Support

Suicide prevention is not just an individual responsibility – it is a community effort. Get involved in local mental health initiatives and organisations that aim to raise awareness and provide support. By working together, we can create a society that is more compassionate and understanding of mental health challenges.

Take Care of Yourself

Finally, remember that you can't help others effectively if you neglect your own mental health. Self-care is essential. Prioritise activities you enjoy doing. If you find yourself overwhelmed, don't hesitate to seek help from friends or family, or support from a therapist or counsellor.

Conclusion

We can all make a positive impact on the lives of those around us. By fostering open communication, reducing stigma, and providing support, we can help prevent suicide and create a world where everyone has the opportunity to live a fulfilling life.

Remember: you are not alone, and there is hope. It is often darkest just before the dawn.

Joint Bank Accounts

Although joint bank accounts often automatically pass to the survivor on the death of the other account holder, this need not always be the case. It depends upon the facts and the circumstances, including who provided the funds in the account and the intention of the account holders. Careful consideration of the account may be required after death.

For example, a joint account may have been created as a convenient and inexpensive way of paying bills and expenses for an elderly relative who is struggling to manage their financial affairs, with the money in the account belonging solely to the elderly relative. When the elderly relative dies, the funds in the account will be treated as though they belonged to him alone where only the deceased had the power to decide what to do with the funds in the account. The full value of the account will form part of the deceased’s estate. This can affect inheritance tax payable on the estate and HMRC can investigate and potentially challenge the underlying ownership of a joint account. In a case where the deceased held two accounts jointly with his daughter, the court held that although the daughter inherited these accounts by survivorship on his death, since she had been unaware of the accounts prior to his death they formed part of his estate for tax purposes.

Also, where one joint account holder provided all the money in the account, then if the other joint owner withdrew money for their own use, those withdrawals may be gifts and should be notified to HMRC.

The personal representative of the estate has to decide who is to benefit from the jointly held asset and in what proportions. The usual approach is to presume that the money belongs to whoever put it into the account. However, sometimes the courts have to decide whether the funds in the account pass by survivorship to the remaining account holder.

Determining whether or not the money in a joint account passes by survivorship to the remaining account holder may also affect the deceased’s beneficiaries. For example, the deceased may have made a will leaving their estate equally between their two children. However, if the deceased and one of their children held a joint account, deciding whether or not the money in that account passes by survivorship to the surviving account holder could have a significant effect on the inheritance received by the other child. The crucial question is whether the survivor holds the account money for himself or on trust for the deceased’s estate.

Evidence of the intention of the parties providing the funds can also be important. Sometimes the account holders intend that the survivor will receive a gift of whatever monies are held in the account at date of death, even if only one of them provided the funds. The intention is that the other account holder will not use any of the money in the account but will inherit the whole of the account on the death of the one who provided the funds.

Other complications can sometimes arise. For example, if two people open a joint bank account and complete a standard application form dealing specifically with the underlying ownership of the money, the application form prevails, notwithstanding any contrary intention on the part of the account holders. Thus, the parties may intend between themselves that the account holder who provides all of the money in the joint account is solely entitled to it but account application forms will take precedence even if they state something different.

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