Dementia ‘driving up will disputes’

Legal experts say that people hiding their dementia due to the stigma of mental illness could be helping to fuel an increase in will disputes.

Law firm Irwin Mitchell said on 8 December that in 2014 it had seen a 53 per cent increase in the number of will dispute cases where it was claimed that someone lacked the mental capacity to make or alter their will.

For a will to be valid, the person making it must have had testamentary capacity. which means they:

• must understand what a will is and what it is for 
• must understand what assets they are distributing
• must appreciate the claims of those who might expect to be left something in the will
• are not affected by a mental illness that affects their judgment regarding the way they dispose of their estate.

Irwin Mitchell solicitor Julia Burns said: “People are living longer than previous generations so more and more people are being affected by mental illnesses such as dementia. This is giving rise to a massive increase in the number of people who are disputing wills on the basis that the person making it did not have the capacity to create a valid legal document.

“Some of these claims relate to wills which were made by people who didn’t know they were suffering with dementia at the time, but many also involve people who didn’t tell anyone about their illness, and will writers/solicitors who were not doing their job properly and have not asked the appropriate questions to test their mental state.

“In some cases, it is simply not obvious that someone’s mental capacity is impaired.  There are also cases where a person with dementia has learnt to put up a very plausible social façade to cover up their illness. It can be difficult to penetrate that if questions are not asked in a skilful way when taking instructions for a will.

“Other claims relate to family, friends and acquaintances who have tried to take advantage of someone suffering from dementia.”

In October 2014, a report published by the International Longevity Centre UK think tank found that at least one in four people hide their diagnosis of dementia, citing stigma as the reason.

Cohabitation law reform moves forward

A move to give cohabiting couples greater protection from “economic unfairness” when they separate has taken another step forward.

Liberal Democrat peer Lord Marks’ Cohabitation Rights Bill had its second reading in the House of Lords on 12 December and will now progress to its committee stage, a line by line examination of the contents, which has yet to be scheduled.

He told the Lords: “I make it clear at the outset that the Bill’s proposals do not equate cohabitation with marriage – far from it.

“That does not mean that where a cohabiting relationship breaks down, there should not be a mechanism to adjust the economic impact of the relationship so as to share it more fairly between the parties. The Bill’s proposals aim to address economic unfairness at the end of a relationship that has enriched one party and impoverished the other in a way that demands redress.”

Provisions of the Bill include giving former partners the right to apply for a financial settlement within two years of their cohabiting relationship ending and enabling one partner in a cohabiting couple to inherit an interest in the other’s estate should they die without making a will. Under current intestacy law, cohabiting partners are excluded from any automatic inheritance.

Family law body Resolution, which advocates a non-confrontational, collaborative approach to resolving family disputes, has welcomed the Bill.

Steve Kirwan, who leads Resolution’s work on cohabitation law reform, said: “More couples are living together than ever before, with an estimated 2,859,000 cohabiting households in Britain – that’s a significant portion of the country who are currently served by outdated and unfair laws. “

Resolution has proposed a new cohabitation law that goes further than Lord Marks’ proposals. It has called for cohabitants meeting eligibility criteria indicating a committed relationship, such as having lived together as a couple for a minimum period or having a child together, to have the right to apply for certain financial orders if they separate. This right would be automatic unless the couple chooses to opt out.

Graeme Fraser from Resolution’s cohabitation committee added: “In the continued absence of automatic legal protection, cohabitants should seek legal advice about their position at significant points in their relationship, not just when the relationship breaks down, but when a property is being purchased for their occupation, and to ensure fairness on death.”

Move set to curb holiday pay claim costs

The government has introduced new measures to reduce potential costs to employers and to clarify workers’ rights following a ruling on holiday pay.

In November 2014, an employment appeal tribunal decided that holiday pay should reflect non-guaranteed overtime – overtime that employers are not obliged to offer but a worker must work if it is offered.

The government announced on 18 December that it was taking action to protect UK employers from the potentially damaging impact of large backdated claims.

Changes made to regulations under the Employment Rights Act 1996 will mean that claims to employment tribunals on the issue cannot go back further than two years.

Workers will be able to make claims under the existing arrangements for the next six months, which will act as a transition period before the new rules come into force. The changes will apply to claims made on or after 1 July 2015.

A taskforce set up by the government after the employment appeal tribunal issued the ruling is continuing its work to assess employers’ financial exposure and how to limit the impact on businesses.

91% say drink-driving ‘is unacceptable’

Attitudes to drink-driving have radically changed in the 50 years since the first public information film to raise awareness of the issue, according to a new survey.

In research to mark the anniversary, carried out by road safety information provider THINK!, 91 per cent of those questioned agreed drink-driving was unacceptable and 92 per cent of people said they would feel ashamed if caught drinking and driving.

In contrast, in 1979 more than half of male drivers and nearly two-thirds of young male drivers admitted drink-driving on a weekly basis.

Transport Secretary Patrick McLoughlin said on 7 November: “The change in attitudes to drink-driving over the last 50 years is a huge success story.

“Most of us understand drink-driving wrecks lives but there is further to go. In 2012, 230 people were killed in drink-driving accidents – 230 too many.”

During 2012, 55,300 people in England and Wales were convicted of driving after

consuming alcohol or taking drugs, accounting for around nine per cent of motoring-related convictions. The figure was 40 per cent lower than in 2002, when it stood at 90,500.

Drink-driving is punishable by six months’ imprisonment, a fine of up to £5,000 and a driving ban of at least a year, or three years if convicted twice in ten years.

Causing death by careless driving while under the influence of alcohol could result in up to 14 years’ imprisonment and an unlimited fine. 

Employers ‘not ready for shared parental leave’

Employers are not prepared for new rules on shared parental leave that take effect on 1 December, new research has found.

The results, published on 25 November by HR and other employment services provider ADP, also suggests that HR directors have underestimated the likely level of interest amongst employees.

More than one in five (21 per cent) of HR directors quizzed said they were not ready for the requirements of the shared parental leave legislation, while 70 per cent predicted little or no interest from employees in the first 12 months.

Yet when employees were asked their views, a third (33 per cent) of 16 to 34-year-olds said they anticipated taking advantage of shared parental leave within the next five years.

Shared parental leave enables eligible mothers, fathers, partners and adopters to choose how to share time off work after their child is born or placed. It will be an option for parents with a child due to be born on or after 5 April 2015.

Annabel Jones, HR director at ADP UK, said: “The introduction of shared parental leave represents a step change for working parents, allowing them to take more control over child care responsibilities in the challenging few months after birth.

“Our findings show that many employees are keenly anticipating the changes and the potential benefits they will bring but some HR directors may have underestimated the impact.”

Violent offences legislation set for reform

Creating a specific offence of domestic violence is one option included in a consultation on reforming legislation dating back more than 150 years.

The Law Commission, which reviews aspects of the law and makes recommendations for changes to ensure legislation is as fair, simple, modern and cost-effective as possible, has launched a consultation on whether – and how – the Offences Against the Person Act 1861 should be reformed.

There are almost 200,000 prosecutions each year under the Act, which is drafted in obscure language, refers to concepts no longer recognised in law such as “felony” and “misdemeanour” and includes obsolete offences such as impeding escape from a shipwreck. There have been previous unsuccessful attempts to reform the Act, with draft Bills produced in 1993 and 1998.

The Act covers numerous offences, including actual bodily harm and grievous bodily harm, but these are not all clearly classified in order of seriousness or clearly defined, which the commission says can be confusing for the courts, defendants and victims.

In the consultation, launched on 12 November, the commission will examine whether the draft 1998 Bill could provide the basis for new, modern legislation and seeks views on whether any future reform should include:

• a dedicated offence to tackle domestic violence and
• a way of dealing with serious harm caused by transmitting infectious diseases.

It also asks whether a new offence of minor injury, to be heard only in the magistrates’ courts, would help to ensure that less serious cases are dealt with appropriately.

Professor David Ormerod QC, law commissioner for criminal law, said: “Violent behaviour results in almost 200,000 prosecutions each year. The harms caused can be grave and have a significant impact on victims and society. But the law under which violent offences are prosecuted is confusing and out of date.

“Our scoping paper lays a substantial foundation for a clear, modern statute providing a coherent scheme of structured, clearly defined offences that can be readily understood and efficiently prosecuted. We are asking consultees to tell us how the law can best be reformed to achieve this goal.”

The consultation closes on 11 February 2015.

Planning law reform makes home improvements easier

New figures show that changes to planning law are enabling thousands of homeowners to make improvements.

Since last year, new permitted development rights have given people more power to extend their homes without having to apply for planning permission.

Data published on 2 October has revealed that in the three months to June, councils across the country received 7,700 applications for home extensions, 6,500 of which received the go-ahead without needing to go through the planning process.

The figures also show how permitted development measures to enable redundant office buildings to be turned into new homes were also being taken up, with 1,100 applications received by councils in the last quarter and 900 approved during the same period.

Planning approvals were at a ten-year high, with authorities granting 350,200 permissions in the year to June, two per cent higher than in the previous year.

Meanwhile, Housing and Planning Minister Brandon Lewis has announced further proposed changes to planning law to support people who want to build their own homes.

Mr Lewis launched a consultation on proposals for a new Right to Build across England, which would enable anyone who wants to build their own home to turn to their council for help in finding a suitable plot of land. The consultation closes on 18 December.

In September, 11 local authorities began operating the Right to Build model on a voluntary basis to test how it will work in practice.

New law reinforces focus on children’s needs

The importance of children maintaining relationships with both their parents following a family breakdown has been reinforced with new legislation.

The change, which came into force on 22 October, encourages parents to be more focused on their children’s needs following separation and the role they each play in the child’s life.

The new law will require family courts to presume that each parent’s involvement in the child’s life will further their welfare, but with the needs of the child always remaining the paramount priority.

Justice Minister Simon Hughes said: “Following [the] break-up of relationships we are encouraging all parents to focus on the needs of the child rather than what they want for themselves.

“No parent should be excluded from their child’s life for no good reason. This change in the law is not about giving parents new ‘rights’ but makes clear to parents and everybody else that the family courts will presume that each parent will play a role in the future life of their child.”

Parental involvement is the last part of the Children and Families Act 2014 to be implemented. Its reforms include:

• introducing the new Family Court in England and Wales with a simpler single system and a network of single application points
• new child arrangements orders that encourage parents to focus on the child’s needs rather than what they see as their own ‘rights’
• compulsory family mediation information meetings to help separating couples consider alternatives to court when resolving financial matters and arrangements for children.

Solicitors urge Brits to make a will

Most British adults have not made a will, according to new research from the body representing solicitors in England and Wales.

The Law Society findings, published on 27 October, revealed that 73 per cent of 16 to 54-year-olds do not have a will. Among over-55s, 64 per cent of people have made a will.

Law Society president Andrew Caplen said the figures were worrying, adding: “Thousands of people die every year without making a will or without a properly drafted will.

“Dying intestate not only means your final wishes will probably go unheeded, but the financial and emotional mess is left for your loved ones to sort out.

“Making a will is usually a very simple process but we urge people to use a qualified, insured solicitor because he or she will be able to spot the nuances that could lead to trouble later on if not properly addressed.”

It is estimated that by 2018 the government will receive nearly £6 billion annually in inheritance tax, levied at a rate of 40 per cent on estates worth more than £325,000. The Law Society said that with careful planning measures, such as leaving money to charity, people who would be subject to inheritance tax and make a will could substantially reduce the amount of tax due or even alleviate it all together.

A recent separate survey conducted by YouGov found that the biggest motivators for people writing a will were seeing the negative implications of not having one, and “feeling old enough”. Nearly half (47.2 per cent) of people drew up a will for one of these two reasons.

The biggest reason for people for not having a will was that they did not believe they had anything worth leaving (34 per cent).

New help planned for families of missing people

The families of missing people would be given extra help to manage a loved one’s affairs under government proposals.

The measures, now subject to consultation, would create a new power allowing relatives of missing people to take care of their legal and financial affairs following a disappearance – for example, being able to suspend direct debits for mobile phone and utility bills or to make mortgage payments.

The move follows the introduction of certificates of presumed death, which can be applied for by relatives from 1 October 2014. The equivalent of a death certificate, these will enable families to resolve a loved one’s affairs when they have gone missing and are presumed dead, seven years after they disappeared.

The proposed measures would allow relatives to look after a missing person’s estate during the time before they can apply for a certificate of presumed death.

Official figures suggest that around 280,000 people in England and Wales and around 33,000 in Scotland go missing each year, although the vast majority return or are found very quickly.

Launching the consultation, Justice Minister Lord Faulks QC said: “The sudden disappearance of a loved one, perhaps without any obvious explanation, is a traumatic event for even the most resilient.

“The emotional and personal problems caused by absences of several months or even years are all too obvious, but they can be compounded by the practical consequences of the disappearance.”

The Ministry of Justice consultation, which will run until 18 November, is seeking views on whether a system should be created under which a person can be appointed as a guardian to deal with the property and affairs of a missing person and, if so, how and on what terms.

Proposals set out in the consultation include:

• that the appointment will be made by the court on application by an interested person after an absence of at least 90 days
• the appointment will give the guardian the authority to act for the missing person in relation to his or her property and affairs, subject to any limits imposed by the court
• the guardian will have to act in the best interests of the missing person
• the appointment will be for a period of up to four years with the possibility of extension for a further four
• the guardian will be required to account for his or her actions to a supervisory body.