Challenging a Will – Undue Influence

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When a loved one dies it will understandably be a difficult time. However, things can be even more difficult if it transpires that the deceased has left their estate to someone unexpected, such as their carer rather than family members. In such situations there may be suspicions that the deceased was pressured into leaving their estate in such a way. The legal term for this is ‘undue influence’.

As the name suggests, undue influence is where a testator (the person making the Will) is influenced in a way that is not appropriate and generally there must be a level of coercion. A very old case made this clear by stating:

‘To be undue influence in the eye of the law there must be – to sum it up in a word –       coercion…’

However, under English law individuals have the right to make their Will leaving their estate to whomever they wish. Therefore just because a parent has not left their estate to their children does necessarily not mean that there has been undue influence.

Instead, an individual wishing to challenge a Will on the basis of undue influence must prove that:

  • the defendant was in a position to exercise influence;
  • the defendant did exercise influence over the testator;
  • the influence was undue;
  • the undue influence was exercised in relation to the Will in dispute;
  • it was by means of the exercise of that undue influence that the disputed Will came to be drawn up.

Therefore claims on the basis of undue influence are difficult to prove because the above must be established. Further, the fact that the testator has passed away makes proving undue influence doubly difficult because they are no longer alive to provide their reasons as to why they left their estate as they did.

The process of establishing undue influence can be complicated and lengthy. Here at Waller Needham & Green we have experts in contentious probate matters who have experience of dealing with cases:

  • in the local County Court;
  • in the High Court;
  • through Alternative Dispute Resolution (ADR);
  • through Mediation.

We have dealt with cases in Peterborough, London as well as those with an international element. We can therefore guide you through the process wherever you are based. For more information or advice please contact Nick Robertshaw from our Dispute Resolution department on 01733 262182 or bretton@wngsolicitors.co.uk

Financial Assistance for Cohabitants – Schedule 1 Children Act

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Although the myth of ‘common law marriage’ persists, on separation cohabitants do not have the same entitlement to a fair share of the assets, or financial support, than those who are divorcing. Instead, separating cohabitants will generally only be eligible to a share of the assets that they actually jointly own with their former partner, such as the family home. However, they would not have any claim to the other’s pension, income, savings etc.

This can mean that on separation one of the cohabitants can be left in a very precarious financial situation, particularly if they do not jointly own the family home. Even when the parties do own the family home together, they can still find themselves in a difficult situation because the law presumes there should be sale of the property. This may well not be suitable, particularly when there are young children.

Helpfully, in these situations there is a piece of legislation called Schedule 1 of the Children Act which allows a cohabitant with children to apply for:

  • Maintenance;
  • A lump sum payment or series of lump sums;
  • To be allowed to remain in the property with the children;
  • A transfer of the property into the name of the cohabitant who has the children living with them.

This therefore means that in a situation where one of the cohabitants (usually the woman) does not jointly own the property, but has children, then they can request that they be allowed to remain living in the family home either on a permanent basis (i.e. a transfer into their name) or more usually that they may remain there until the youngest child reaches 18.

Cases regarding Schedule 1 applications have made the headlines in recent years when they have involved famous football players who have fathered children after a one night stand. The footballers have then found the Courts making orders that they must support not only the child, but also the mother, and generally to a very good standard in order that the child does not see a significant disparity in their parent’s standard of living.

However, Schedule 1 cases are not just for the rich and famous. Instead, they are suitable for most separating cohabitants where the party with the children needs financial support.

For more information, or if you have any Family Law questions, please contact Nick Robertshaw from our Family Law department on 01733 262182 or bretton@wngsolicitors.co.uk

Coronavirus & Problem Tenants

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Due to the coronavirus pandemic the government has changed the rules for landlords wanting to obtain possession of their property. In most cases this has made the process longer and more complicated. The steps that need to be followed are detailed below.

Stage 1 – Negotiation

Whilst not essential, there is an expectation that landlords will have tried to resolve any disputes with their tenants before taking any more formal steps. The situation that the government are wanting to avoid is that of tenants being evicted for rent arrears when the reason the tenant cannot pay their rent is due to having lost their job for a coronavirus-related reason. It will be seen in Stage 3 (below) that in the application for possession the landlord must say how the pandemic has affected the tenant and therefore best to have this conversation with the tenant at an early stage.

Stage 2 – Notice

The notice period that must be given to tenants has changed significantly in that if a landlord is giving notice to their tenant between 29.8.20 to at least 31.3.21 (this date may be extended depending how the pandemic progresses) they must give at least 6 months’ notice for most grounds. This includes s.21 notices.

There are exceptions to this where in certain circumstances a shorter notice period can be given and we can advise landlords regarding these.

Stage 3 – Court Application

Assuming the tenant has not vacated the premises after being given notice, then on expiry of the notice period the landlord may apply to the Court for possession. It is at this stage that the landlord has to file evidence setting out what effect, if any, the coronavirus pandemic has had on either the landlord or the tenant. It is for this reason that the negotiation stage above should be the first step.

Should the tenant subsequently file a defence then the landlord will receive a copy. However, with a s. 8 notice just because a tenant does not file a defence does not mean that they will not turn up at the hearing a Stage 5 and put forward a defence then.

Alternatively, if the application is based on a s.21 notice and no defence is filed then possession should be ordered without the following 2 steps being necessary.

Stage 4 – Review Appointment

This is a new step in the procedure.

This is not a Court hearing as such because there will not be a hearing in front of a judge. Instead, both the landlord and tenant will attend (for the time being by telephone rather than physically at the Court) with the expectation that they will try and negotiate a settlement.

The guidance states that there will be a duty legal advisor scheme available for tenants at the Review Appointment to allow them be able to obtain advice with the hope that this will assist settlement.

Stage 5 – Court Hearing

If a settlement cannot be reached at the Review then a date will be set for a formal hearing before a Judge. This will take place a minimum of 28 days after the Review.

At this hearing the Judge will either:

  1. Order possession of the property; or
  2. Set directions if further information/documentation is required because of matters raised in the defence.

Stage 6 – Eviction

Once possession is ordered the tenant must vacate the property by a certain date. However, if the tenant does not leave then the landlord will then need to apply to evict the tenant by either:

  1. The Court bailiff – this is the cheapest option, but generally rather slow; or
  2. A High Court enforcement officer – this is considerably more expensive, but usually quicker than the bailiff.

Reactivation Notice

If a landlord made an application for possession prior to 3.8.20 then they must issue a Reactivation Notice stating that they wish to continue with the claim.

The process can be complicated and lengthy. Here at Waller Needham & Green we have experts who can guide you through the process. For more information or advice please contact Nick Robertshaw from our Dispute Resolution department on 01733 262182 or bretton@wngsolicitors.co.uk