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If the law suddenly hits you where it hurts, forewarned is definitely forearmed…

Posted on: 6th March 2018

Most of us merrily go about our lives in the vague belief that we’re generally protected in law when it comes to things like inheriting what our parents always promised us and getting back our fair share in joint transactions.

But, as illustrated by some recent cases, life can spring surprises and sometimes the law simply can’t help.

Private client lawyer, Nicola Waldman says she often has to untangle the problems left behind in wills and other legal agreements, where naivety, unfortunately, is no defence.

Her advice is to be aware of the pitfalls in advance as much as possible. There are some basic precautions you can take, so that you don’t receive an unexpected slap in the face.

Don’t live in France if you want to disinherit your children

French rock star Johnny Hallyday’s recent will is a potential nightmare. Executed and held in California, it affects his children, who are resident in France.

Laura Smet and her half-brother David Hallyday may be protected from their father cutting them out of his will and instead leaving everything to his fourth wife and their daughters because, under French law, you can’t disinherit your children. This case may turn on whether he was settled in France or the US when he died.

In the UK, you don’t have to leave anything to your children. Lady Lucan cut her children out of her will (although they may decide to bring a claim against her estate, which they’re entitled to do). Bear in mind that, if parents remarry, marriage automatically cancels out any pre-existing will.

So, unless parents prepare a new will, the intestacy rules – which govern what happens where there is no will – apply and the new spouse may get much more than was intended, with the children getting much less.

Did he actually promise?

60-year-old Sam James says that he gave up his life to work on the family farm on the promise from his father that he would eventually inherit it. But, on his father’s death, Sam got nothing.

He contested the will in court, saying that his mother persuaded his father, while he was suffering from dementia, to amend his will to exclude Sam despite his earlier promise. The courts, however, were not persuaded by Sam’s arguments and he lost the farm.

A joint account really is joint

X and Y had a bank account put into joint names so that Y could help X run his finances. All the money belonged to X but when the account was opened, they signed a form containing a standard provision that said unless otherwise agreed in writing, all the money in the account would pass to the survivor of them.

Perhaps X hadn’t read the small print? When X died, his family claimed that as the money was all his, it should pass to his estate and not to Y. They lost. Often a joint account is something we set up for convenience without thinking through the ramifications.

Tripped up by politics

Be careful what you donate to. It’s recently come to light that some of the people who contributed to the Leave campaign in the 2016 referendum are now liable for inheritance tax on their donations because these were donations by individuals to a campaign group rather than a political party, meaning they are not exempt from inheritance tax. This means that, if you donated to the Remain campaign via the Labour or Tory party, you would not pay tax.

Managing someone’s finances? Check the fine print

The Office of the Public Guardian, which protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance, has recently updated its guidance for professional deputies and attorneys – those appointed to look after such people – on making gifts of a protected person’s property.

People might assume that once they are appointed attorney or deputy for someone, say a parent, they can do (or spend) anything that the protected person could have done. But, perhaps to protect people from unscrupulous relatives, there are significant restrictions in relation to making gifts from their property to themselves or anyone else for that matter, without court approval, unless the amounts are very small.

For example, even if your mother promised she was going to give you £100,000, if she loses capacity before making the gift, you can’t use her lasting power of attorney (by which you are appointed to act on her behalf) to give yourself the gift without applying to the court. This has always been the case, but it’s worth understanding the rules.

Ends

For further information, please contact:
Kerry Jack or Nicola Pearson at Black Letter Communications on 020 3567 1208 or at
kerry.jack@blacklettercommunications.co.uk or nicola.pearson@blacklettercommunications.co.uk

Notes for Editors

  • Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice. Its senior partner is Patrick Allen, recently awarded a lifetime achievement award by Solicitors Journal and managing partner, Vidisha Joshi (recent winner of an Asian Woman of Achievement Award).
  • For 40 years, the firm has been at the centre of many of the UK’s landmark legal cases that have changed the lives and rights of many people.
  • The firm’s team of specialists have been operating across: Personal Injury, Medical Negligence, Industrial Disease, Civil Liberties, Criminal Defence, Court of Protection, Dispute Resolution, Employment, Family Law, Military Claims, Serious Fraud, Social Housing, Wills & Probate and Property Disputes.
  • In 2016, the firm launched Hearing their voices – a campaign to raise awareness and build conversations around the issues and the injustices we might all face.

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