Northampton Solicitors

FAMILY SOLICITORS NORTHAMPTON

What is the purpose a separation agreement and what does it include ?

There are situations where a married couple decide to stop short of divorce, such as if there may be a prospect of resolving differences in the future or where a divorce is not available, such as if none of the divorce grounds are available. In those circumstances a separation agreement generally includes :-

• Agreement to live separately
• Financial support provisions which can include maintenance but note that an agreement not to apply to court in the future for financial support is not binding legally
• Contact arrangements for any children.

What are common and/or legal reasons for contesting a will ?

• The will was signed under undue influence, for example the deceased was pressured into signing the will.
• The will does not reflect the wishes of the deceased because it was drafted negligently or not according to correct instructions.
• The deceased lacked the necessary mental capacity to sign or to give instructions for a will, e.g. the person was suffering from dementia or a similar mental illness when the will was made
• The will is not legally valid, such as not being signed and/or witnessed properly, which is a common problem with homemade wills

The Inheritance (Provision for family and Dependants) Act

This is an important Act which applies either where a valid Will has been made but does not provide for dependents, or where no Will exists and the intestacy rules apply. This Act allows an application to be made to the courts to redistribute the deceased’s estate where the Will or intestacy rules fail to make “reasonable financial provision” for a dependant.

Who is a dependant ?

The definition is fairly wide and can include :-

• surviving husband or wife
• co-habitees
• children
• a person who, as a matter of fact was being financially maintained by the deceased
• civil partners

What is “reasonable financial provision” ?

This is the legal term used in the Act and the definition varies from claim to claim. The big difference is between inheritance claims brought by surviving spouses and inheritance claims brought by other categories of claimant.

If the Inheritance Act claim is being brought by a spouse of the deceased then reasonable financial provision will be such financial provision as would be reasonable for a husband or wife to receive, whether or not that provision is required for their maintenance.

For all other people making an Inheritance Act claim, reasonable financial provision means such financial provision as would be reasonable for their maintenance.

How does a trust work ?

A trust is a means of separating legal and beneficial ownership of property. In a trust a Trustee is appointed to oversee the management of assets for the Beneficiaries and trustees have legal duties to the beneficiaries. There are many reasons for setting up a trust, some of which are :-

• limiting the exposure of assets to taxes and other legal claims

Legal ownership & family trusts

Where a trust is set up the trustee(s) are legal owners of any assets, including property. Consequently, on the face of it, the trustees have legal power to sell assets or to invest.  This means that in the example of a family property, a 4rd party buyer from trustees is not required to ascertain whether the trustee is selling with the consent of beneficiaries. As long as he/she/they establish that the trustees are legal owners, this is sufficient. Trustees are bound to act for the benefit of the beneficiaries as a general principle but very specific wording may be needed to guide or restrict the Trustee in what they can do without being liable for breaching their mandate.

What is beneficial ownership of a trust ?

Beneficial ownership represents the entitlement to the value in any assets in a trust. Disputes do arise between trustees and beneficiaries concerning the management of property contained trusts. To the extent that a Trustee or trustees is/are mismanaging his/her/their duties, beneficiaries can make court applications to force certain decisions on the Trustee, or to have trustees removed, or to have a Trust dissolved entirely.

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