July 9, 2020
Protecting Your Same-Sex Partner from Unfounded Challenges to your Will
While many people find it liberating to come out, others prefer to keep their sexuality and relationships private. This is a personal choice made for many different reasons and should be respected; but there can be issues if your family is surprised, or upset, to find your partner included in your Will.
In these circumstances it is not uncommon for family members to challenge a Will, which can leave your partner in a vulnerable position. How can you ensure your wishes will be carried out and your partner will be provided for if your family does not know, or does not respect, that you are in a same-sex relationship?
Two of the most common reasons for challenging a Will are for want of mental capacity and/or undue influence, so we will discuss specific steps you can take to protect your estate from challenges of this nature.
Challenges for Undue Influence
Your Will is a record of your wishes as to how you want your estate to be distributed after your death and who you would like to be responsible for making it happen. It is for you to make those choices and no one else. If anyone else makes or influences these decisions, your Will cannot be valid. Family members who are not aware of, do not like or do not understand a person’s relationship, have been known to challenge a Will because they believe there was undue influence from their partner.
The most obvious example of undue influence is when someone forces you to leave assets in a specified manner for fear of repercussions. These may include, threats of abuse, being disowned or neglected, being told you will not be looked after properly and so on.
Undue Influence is not always that obvious, it also includes actions causing you to have untrue beliefs about a person or group of people. Misguided family members may wrongly believe that that they are justified in making such allegations if they believe your partner has turned you against them, your culture or faith.
There are some simple steps you can take minimise the chances of challenges of this nature being successful:
- Instruct an independent practitioner to advise on your Will. A good practitioner will always ask to see you on your own to ensure you can speak openly without reprisal and will be able to confirm that this was the case. They will also have discussions with you to ensure that any changes to your Will are rational and properly considered and that you fully understand the implications.
- Make your wishes known. If it is feasible, a discussion with family members about your wishes is encouraged. Not only will this show there is no undue influence, it may also prevent disputes or animosity if there is someone who can inform others about your relationship and intentions on your death, so there are no unexpected surprises when your Will is read.
- Prepare a Statement of Intent. If you foresee issues, it can be wise to provide a more detailed statement of your wishes to accompany your Will, explaining the reasons you wish to distribute your assets in this way and providing any additional instructions for your executors about how to respond to challenges.
- Write personal letters. Depending on the reasons you foresee issues, you might also choose to write letters to be given to certain people in the event of your death requesting that they respect your wishes, even if they are unable to understand them.
Challenges for Lack of Mental Capacity
When you give instructions and execute your Will, you must know what you are doing and understand the implications of your actions.
In legal terms this broadly means you, will need to:
- Understand that you are making a Will and how a Will works
- Understand what assets and liabilities you have and what you are gifting in your Will
- Appreciate how others will be affected by the contents of your Will and that you will be expected to make provisions for certain people
- Have no disorder that affects your mind thus causing you to dispose of your assets in a manner that you would not otherwise do so
Mental Capacity is a complex consideration as it is possible for you to have capacity for certain matters and not for others, for example if you have periods of lucidity making it difficult to know when it is the right time to take instructions or execute a Will. Sometimes, the issue of capacity may not be obvious and that can make things difficult.
It is these complexities that often lead to questions being raised after a person dies. If a serious question of mental capacity is raised, it will be for your partner and any other beneficiaries who want to rely on the Will to prove that you did not lack capacity when you executed your Will. There are some steps you can take to help them:
- Instruct an independent practitioner who will follow the Golden Rule. If there are concerns, a good practitioner will follow the ‘Golden Rule’ and instruct an appropriate medical practitioner to assess you and determine whether you are able to execute a Will or not. The medical practitioner will be encouraged to act as a witness when the Will is signed, but this is not always possible.
- Ensure everything is recorded. If a dispute is expected it may be a good idea to speak to a medical practitioner anyway and have the discussion recorded in medical logs or reports, which will be useful evidence. Any records detailing your health at the time the Will is executed will always be helpful, even if mental capacity is not considered to be an issue at that time.
- Make your wishes known. If you feel comfortable in doing so, you should have open and frank discussions about your wishes and the contents of your Will with beneficiaries, friends and family.
- Prepare a letter of wishes. You could also write a letter of wishes to explain the rationale behind the contents of a will where mental capacity could be an issue. This helps the court understand the trail of thought and see if it has been influenced by a mental disorder.
- Review Your Will Regularly. If you review your Will with your practitioner, it will demonstrate that you have not changed your mind during the passage of time. If you wish to make significant changes to your Will, there should be a detailed discussion as to why those changes are being made and this discussion should be noted in the practitioner’s records.
LEGAL ADVICE
At Allard Bailey Family Law we regularly assist in drafting Wills where there are complex or sensitive wishes and can help you to protect your intended beneficiaries from unwarranted challenges, as well as defending them should disputes occur.
To book a consultation or telephone appointment, please contact Sangeeta Rabadia.
Filed Under: Insight
INSIGHT|February 26, 2024
There is violence in my relationship; what can I do?
Domestic violence is a serious and devastating issue which can affect individuals across a spectrum of backgrounds and ages. Statistics show that there are around 2.3 million victims of domestic abuse a year aged 16 to 74. Furthermore, more than one in ten of all offences recorded by the police are domestic abuse related. It is important to remember if you experience abuse or violence that it is not your fault and you do not have to deal with the issue alone. The crime of domestic abuse is taken very seriously and there are organisations that can support you in finding safety. This article will set out some of the signs of abuse and the legal safeguards available to you if you are a victim of violence in your relationship.
INSIGHT|January 11, 2024
Marriage is in trouble, but you don’t want to get divorced, can we just separate?
When a couple is in a troubled relationship, they may not be ready or able to make a permanent decision as to what is next for them. Choosing to separate rather than divorce may be a better option for some couples, particularly where there is a chance of reconciliation or where divorce is not an option due to financial, cultural or other reasons. While both divorce and separation signify the dissolution of a relationship, they each have distinctive legal implications and outcomes. Understanding these differences is crucial for individuals who want to make an informed decision about what is the best course of action for them. This article will compare and contrast the divorce process and marriage separation within the legal framework of England and Wales, and provide assistance to individuals determining which path to take.
INSIGHT|November 28, 2023
What is the process for applying for a child arrangements order?
At Allard Bailey, we understand that family conflicts or separations can be challenging and emotional times, especially when children are involved. That is why we have created this guide to provide valuable insights into the process of applying for a Child Arrangements Order in a clear and comprehensible manner.
As a fundamental legal instrument in Family Law, the Child Arrangements Order details visitation schedules and custody arrangements, prioritising the child's welfare in situations where parental or guardian agreement is lacking. By understanding this process, parents and guardians can make informed decisions that facilitate the amicable resolution of familial conflicts.
In the following sections, we will delve into the details of the process, including the role of the court, and provide expert guidance to navigate the procedure smoothly.
As a fundamental legal instrument in Family Law, the Child Arrangements Order details visitation schedules and custody arrangements, prioritising the child's welfare in situations where parental or guardian agreement is lacking. By understanding this process, parents and guardians can make informed decisions that facilitate the amicable resolution of familial conflicts.
In the following sections, we will delve into the details of the process, including the role of the court, and provide expert guidance to navigate the procedure smoothly.
INSIGHT|November 20, 2023
What if my spouse refuses to accept the divorce?
Divorce is a difficult and emotionally draining process but it can be made even more difficult if one of the parties refuses to cooperate or accept the divorce. This article will explore the grounds for divorce and what can be done if a spouse refuses to accept the divorce or ignores proceedings altogether.
Eligibility for divorce
You can get divorced in England or Wales if:
- you have been married for over a year;
- your relationship has permanently broken down; and
- your marriage is legally recognised in the UK.
INSIGHT|November 10, 2023
Is surrogacy legal in the UK?
Surrogacy is an increasingly popular option for single men and women or same-sex partners looking to start a family. It can also be an option for heterosexual couples who are not able to have children by other means. Surrogacy law is relatively underdeveloped so the process can be difficult to navigate. This article will look at the legal status of surrogacy in England and Wales and factors to be considered before taking this life-changing step.
What is surrogacy?
Surrogacy is when a woman carries and births a baby for a person or couple who may be unable to conceive or carry a child themselves. The woman carrying the child is known as the surrogate and the couple or individual who will become the child’s parent are often referred to as the Intended Parent(s) (IP(s)).INSIGHT|November 29, 2022
Is Private Financial Dispute Resolution a Good Idea?
Although it is not a legal requirement to separate your finances when you divorce, it is advisable to do so.
You can reach an agreement about your divorce finances between yourselves and this is usually preferential to going to Court. However, your divorce settlement must be approved by the Court to be legally binding.
The Court will look for evidence that the financial settlement is fair and meets both of your needs without putting one person under undue pressure or hardship.
As the concepts of fairness and hardship are subjective, it can be difficult to reach an agreement that you both consider to meet these criteria. In this situation, you can request that the Court makes the decision about how to separate your marital finances for you.
You can reach an agreement about your divorce finances between yourselves and this is usually preferential to going to Court. However, your divorce settlement must be approved by the Court to be legally binding.
The Court will look for evidence that the financial settlement is fair and meets both of your needs without putting one person under undue pressure or hardship.
As the concepts of fairness and hardship are subjective, it can be difficult to reach an agreement that you both consider to meet these criteria. In this situation, you can request that the Court makes the decision about how to separate your marital finances for you.
INSIGHT|November 29, 2022
Should we go to Court or Arbitration to settle our Divorce?
When your relationship breaks down there is a lot to decide and it can be difficult to agree on everything.
If you have different views on what is fair, disputes about finances, property and children can continue for months or even years.
If you are unable to reach a compromise through other means, you might consider Family Arbitration as an alternative to Divorce Court.
This blog outlines the process of Divorce Arbitration, highlighting some of the key advantages and disadvantages to help you decide whether to consider it as an option.
If you have different views on what is fair, disputes about finances, property and children can continue for months or even years.
If you are unable to reach a compromise through other means, you might consider Family Arbitration as an alternative to Divorce Court.
This blog outlines the process of Divorce Arbitration, highlighting some of the key advantages and disadvantages to help you decide whether to consider it as an option.
INSIGHT|May 4, 2022
Can I Change My Child Maintenance Payments?
As your children grow, both your circumstances and their circumstances will change. It may be necessary to vary the amount of child maintenance paid each month.
The route to change child maintenance payments depends on whether you are making Court-ordered payments or whether your child maintenance is dealt with by the Child Maintenance Service (CMS).
In this blog we focus on the options available to a paying parent who needs to reduce child maintenance payments. However, the same principles of process apply to a receiving parent who wishes to increase payments.
It is important to remember that the repercussions of reducing or stopping payments without agreement are serious and can have a long term effect on your financial situation. It is therefore advisable to take advice from a specialist at the earliest opportunity.
The route to change child maintenance payments depends on whether you are making Court-ordered payments or whether your child maintenance is dealt with by the Child Maintenance Service (CMS).
In this blog we focus on the options available to a paying parent who needs to reduce child maintenance payments. However, the same principles of process apply to a receiving parent who wishes to increase payments.
It is important to remember that the repercussions of reducing or stopping payments without agreement are serious and can have a long term effect on your financial situation. It is therefore advisable to take advice from a specialist at the earliest opportunity.
INSIGHT|April 4, 2022
How are Gender Recognition Laws Changing in UK?
A survey published by BBC Scotland in February shows 57% of respondents think it should be easier for trans people to obtain a Gender Recognition Certificate. This goes up to 70% in the 16 to 34 year-old age group, signalling a brighter future for the local transgender community.
Following five years of consultation, the Gender Recognition Act Reform Bill was heard by the Scottish Parliament at the beginning of March. The proposals include reducing the waiting time from two years to three months; removing the need for a medical diagnosis; and reducing the minimum age to apply for a Gender Recognition Certificate from 16.
The proposals are welcomed by Scottish Trans, but they believe the reforms "would still see Scotland with a gender recognition law that is far from world-leading". Where does this leave the trans community south of the border?
Following five years of consultation, the Gender Recognition Act Reform Bill was heard by the Scottish Parliament at the beginning of March. The proposals include reducing the waiting time from two years to three months; removing the need for a medical diagnosis; and reducing the minimum age to apply for a Gender Recognition Certificate from 16.
The proposals are welcomed by Scottish Trans, but they believe the reforms "would still see Scotland with a gender recognition law that is far from world-leading". Where does this leave the trans community south of the border?
INSIGHT|March 7, 2022
Break the Bias When Parents Separate
There have been huge changes in attitudes towards women, family and relationships; but there is still a clear stereotype in parenting roles.
Women generally take the lead in caring for children and this can leave them in a vulnerable situation if their relationship ends.
We highlight this issue for married and unmarried mothers, discussing how Prenuptial Agreements and Cohabitation Contracts can #BreakTheBias when parents separate.
International Women's Day 2022 #IWD2022
Women generally take the lead in caring for children and this can leave them in a vulnerable situation if their relationship ends.
We highlight this issue for married and unmarried mothers, discussing how Prenuptial Agreements and Cohabitation Contracts can #BreakTheBias when parents separate.
International Women's Day 2022 #IWD2022
INSIGHT|March 2, 2022
How are Divorce Laws Changing? “No Fault Divorce”
As one of the firms campaigning for no-fault divorce, we are pleased that it will soon be here, but what does it really mean for couples who are divorcing? How are divorce laws changing? Should you wait for the new divorce laws?
Designed to reduce conflict in divorce proceedings, No-Fault Divorce will remove the need to appoint blame for the breakdown of a marriage or civil partnership and allow couples to make a joint divorce application.
This is a significant change to family law in England and Wales, which has traditionally required one spouse to divorce the other, usually on the grounds that their actions caused the relationship to fail.
Designed to reduce conflict in divorce proceedings, No-Fault Divorce will remove the need to appoint blame for the breakdown of a marriage or civil partnership and allow couples to make a joint divorce application.
This is a significant change to family law in England and Wales, which has traditionally required one spouse to divorce the other, usually on the grounds that their actions caused the relationship to fail.
INSIGHT|January 18, 2022
Could Mediation Help you Resolve your Family Law Dispute?
Mediation is the most popular form of Alternative Dispute Resolution and has much positive feedback.
It is a practice intended to help people in dispute reach agreement on their own - so that you do not need to involve the Courts.
The idea is that you discuss the situation directly with the other person and try to reach an agreement between you. However, you are able to take independent legal advice at any stage of mediation and it is possible for a solicitor and / or other professionals to attend mediation with you.
All mediation is overseen by a trained and impartial third person, known as the mediator.
It is a practice intended to help people in dispute reach agreement on their own - so that you do not need to involve the Courts.
The idea is that you discuss the situation directly with the other person and try to reach an agreement between you. However, you are able to take independent legal advice at any stage of mediation and it is possible for a solicitor and / or other professionals to attend mediation with you.
All mediation is overseen by a trained and impartial third person, known as the mediator.
INSIGHT|December 15, 2021
Using a Child Contact Centre
It is usually better for children to maintain contact with both of their parents after separation, but this can be difficult for many reasons.
It is common for a parent to leave the family home without a fixed address, meaning they do not have anywhere appropriate to take their child.
There will sometimes be extreme circumstances that led to the separation, or it may simply be that the parents’ emotions are too raw and they cannot face seeing each other.
This can be difficult for children who feel caught in the middle.
It is common for a parent to leave the family home without a fixed address, meaning they do not have anywhere appropriate to take their child.
There will sometimes be extreme circumstances that led to the separation, or it may simply be that the parents’ emotions are too raw and they cannot face seeing each other.
This can be difficult for children who feel caught in the middle.
INSIGHT|December 8, 2021
Could a Co-Parenting App help you Stay Child-Focused?
Navigating arrangements for children and ensuring their lives remain as unaffected as possible after separation can be difficult; particularly in the early stages when you may feel like your life has been turned upside down and you are still negotiating aspects of your settlement.
Apps can provide a focused method of communication which is solely about the children.
Many parents find that apps help them keep on top of their children’s lives and minimise conflict. If communication between parents is breaking down in other settings, such as face to face or by WhatsApp, a co-parenting app can ensure there is always an open channel of communication to make arrangements for your children.
Apps can provide a focused method of communication which is solely about the children.
Many parents find that apps help them keep on top of their children’s lives and minimise conflict. If communication between parents is breaking down in other settings, such as face to face or by WhatsApp, a co-parenting app can ensure there is always an open channel of communication to make arrangements for your children.
INSIGHT|December 3, 2021
Could Child Inclusive Mediation Help You Agree Child Arrangements?
It is common for separating parents who have their child’s best interests at heart to have different views on what that means.
It is a time of great change and emotion for everyone and it can be difficult to set that aside and reach an agreement between you.
Court proceedings are stressful for all concerned and there is significant delay in the system, but there are alternatives.
We highlight Child Inclusive Mediation as an alternative means of resolving children matters, which can help you lay the foundations for a strong co-parenting relationship moving forward.
It is a time of great change and emotion for everyone and it can be difficult to set that aside and reach an agreement between you.
Court proceedings are stressful for all concerned and there is significant delay in the system, but there are alternatives.
We highlight Child Inclusive Mediation as an alternative means of resolving children matters, which can help you lay the foundations for a strong co-parenting relationship moving forward.
INSIGHT|December 2, 2021
Practical Ideas to Continue Contact with your Child
When parents separate, it is common for children to live with one parent more of the time. Whichever parent they are with, it is natural for them to miss the other.
What can parents do to make it easier for children and show that they are still valued by both?
First remember there are many types of contact and if your child misses you, there is rarely a good reason that contact should be limited to the days they see you.
In the age of telephones and video calls, children should be able to speak to both of their parents every day if they want to. You can also write, email and communicate on social media if it is appropriate for your child.
What can parents do to make it easier for children and show that they are still valued by both?
First remember there are many types of contact and if your child misses you, there is rarely a good reason that contact should be limited to the days they see you.
In the age of telephones and video calls, children should be able to speak to both of their parents every day if they want to. You can also write, email and communicate on social media if it is appropriate for your child.
INSIGHT|December 1, 2021
Could a Parenting Plan Help Your Child?
One of the most difficult discussions parents have when they separate is about what happens to the children.
It is natural for this conversation to focus on where they will live and when they will have contact with each parent. It is not easy to know what else to discuss and how to approach it.
Preparing a Parenting Plan will help you consider the entirety of arrangements for your child and how you will work together to parent them moving forward.
By considering situations before they occur, you can provide more certainty and a more positive environment for your child.
It is natural for this conversation to focus on where they will live and when they will have contact with each parent. It is not easy to know what else to discuss and how to approach it.
Preparing a Parenting Plan will help you consider the entirety of arrangements for your child and how you will work together to parent them moving forward.
By considering situations before they occur, you can provide more certainty and a more positive environment for your child.
INSIGHT|November 29, 2021
Five Steps to Keep Your Child’s Needs at the Forefront of Separation
Separations are often referred to as an emotional roller-coaster because of the intense highs and lows and it can be easy to lose sight of children within this myriad of emotions.
How parents behave during a divorce or separation will have an impact on the happiness, health and wellbeing of their children.
To minimise the negative effects, it is important to bear this in mind from the outset and set a tone for the separation that keeps your child’s needs at the forefront.
We have prepared five practical steps that can be taken to ensure your child’s needs come first and that a strong foundation is laid for a positive co-parenting relationship.
How parents behave during a divorce or separation will have an impact on the happiness, health and wellbeing of their children.
To minimise the negative effects, it is important to bear this in mind from the outset and set a tone for the separation that keeps your child’s needs at the forefront.
We have prepared five practical steps that can be taken to ensure your child’s needs come first and that a strong foundation is laid for a positive co-parenting relationship.
INSIGHT|September 29, 2021
How do I know if our Prenuptial Agreement is Fair?
A Prenuptial Agreement (prenup) might not seem romantic, but many couples find the process of preparing one to be a bonding experience, ensuring they enter their union with openness and honesty.
A Prenuptial Agreement allows couples to have a degree of self-regulation over their affairs and set out from the outset what will happen if they separate.
It is not about trying to make sure your new spouse does not get anything, but allows couples the opportunity to decide what would be fair for themselves. Most people find it easier to do this when they are experiencing the best of times.
A Prenuptial Agreement allows couples to have a degree of self-regulation over their affairs and set out from the outset what will happen if they separate.
It is not about trying to make sure your new spouse does not get anything, but allows couples the opportunity to decide what would be fair for themselves. Most people find it easier to do this when they are experiencing the best of times.
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As a specialist firm, we focus on all areas of family law and legal matters that affect private wealth.
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