Making it fair and square for your family

August 2013

Inheritance claims are on the rise, as family structures get more complicated with the increasing number of remarriages. 

Currently, 40% of marriages are second time round and spouses and children of both first and second marriages are increasingly making claims where they feel they have been unfairly treated in the Will of a former partner or parent. 

Around 1000 new cases have been formally commenced in a three-year period, according to recent figures by the Law Commission, which has highlighted the need for a change in the law to respond to the increasingly complex structure of families and increasing numbers of unmarried couples.

The problem was spelled out following the death of businessman Roy Lilleyman, who bequeathed model cars, worth around £17,000, to his second wife Barbara, as well as some coins and 'limited rights of occupation' in the couple's two properties.

The majority of the estate was left to Mr Lilleyman's two sons from his previous marriage, Nigel and Christopher.

But Mrs Lilleyman, who had put the sale proceeds of her former house into property that was jointly owned with her husband and had given up her job at her husband’s request to care for him, challenged the Will on the basis that 'reasonable provision' entitled her to a 'substantial share' in the matrimonial property.

The claim was brought under the Inheritance (Provision for Family and Dependants) Act 1975, which allows the provisions of a Will or an intestacy, to be challenged if "reasonable provision" has not been made for a spouse or civil partner, a cohabitee, a child of the deceased or anyone else who was being maintained financially by the deceased when they were alive. 

When the court considers whether or not reasonable financial provision has been made, factors include the needs and resources of the claimant and any other beneficiaries, the length and nature of the relationship with the deceased and the size of the estate.  Spouses and civil partners are entitled to more generous provision under the Act than other classes of beneficiaries, which helped Mrs Lilleyman in her claim.  

To make a claim under the Act, a disappointed beneficiary needs to bring any claim within six months from grant of probate, which is when the estate has been finalised and the assets distributed.  For cohabitees, they need to show they were living with their partner throughout the two year period before they died, in the manner of a spouse or civil partner.

Said Wills and Trusts expert Jane Dwyer, Private Client Solicitor at Aylesbury based law firm, Parrott & Coales: “People often put off writing their Will, but when they do, it’s very important they understand the implications of their decision making, particularly when it comes to second marriages, where there are two different families to be satisfied in many cases. 

“The person making the Will won’t be around to see the problems, but it’s very unlikely they will secure the outcome they intended if they don’t take advice about what will and won’t cause problems later.  Making a properly informed decision and sharing it with all the family is the best way.”

She added:  “In the example of the Lilleymans, had Mr Lilleyman realised that his wife was entitled to a certain level of financial provision, it would have made more sense for him to leave her a larger inheritance, which would have avoided the costs to his estate and the damage to family relationships caused by the litigation.” 

Employment Updates - July 2013

 

 

Fees Payable in the Employment Tribunal - Reminder

 

Just a quick reminder that as from Monday 29 July 2013 fees are payable to present a complaint to the Employment Tribunal.  For a complaint of unfair dismissal, the fee to issue the proceedings is £250, with a further fee of £950 payable in advance of the hearing.  These fees are payable by the employee unless they qualify for remission.  If the complaint is upheld, however, it is likely that the employer will be ordered to repay the amount of these fees to the employee.    

 

New employment tribunal rules of procedure also come into force on 29 July 2013. 

 

 

Unfair Dismissal Cap

 

From Monday 29 July 2013 the maximum compensatory award payable for a successful complaint of unfair dismissal changes to £74,200 (the current limit) or one year’s pay, whichever is the lower. 

 

 

Pre-Termination Negotiations

 

Confidential pre-termination negotiations come into force on 29 July 2013.  From this date, employers can make offers of settlement to employees even where there is no current dispute and these offers cannot be used as evidence in cases of ordinary unfair dismissal (unless there was some ‘improper behaviour’ by the employer). 

 

Also from 29 July 2013 Compromise Agreements are re-named “Settlement Agreements”. 

 

ACAS has published a Code of Practice to accompany the above, which can be found at:

 

http://www.acas.org.uk/media/pdf/j/8/Acas-Code-of-Practice-on-Settlement-Agreements.pdf.

 

 

Sickness & Holiday

 

Currently, employers have to provide workers with 5.6 weeks’ paid holiday, which is made up of 4 weeks’ ordinary leave and 1.6 weeks’ additional leave.  Although workers should be allowed to carry over the 4 weeks’ ordinary leave to the next leave year if they are unable to take holiday due to sickness, the Employment Appeal Tribunal has recently ruled that the 1.6 weeks’ additional leave does not carry over automatically in the absence of any agreement between the parties.  The case in question is Sood Enterprises v Healy [2013] UKEAT