Family law Scenario analysis - Essay Example

?Family law Task Using relevant sta y provisions and case law, analyse scenario Assess the legal validity of any possible claim against Gail’s estate and applying legal provisions, illustrate how her estate would be disposed of. Task 2 - Using relevant statutory provisions and case law, analyse scenario 2: Identify any possible claimants on Peggy’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 and assess the likelihood of success each claimant would have in receiving a payment from the estate. Task 3 - In relation to the two scenarios, critically comment upon the ability of the law to interfere with a testator/testatrix’s last wishes. Task 1 In order to check the legal validity of any claim against the estate of Gail, it would be necessary to refer primarily to the will that Gail prepared. In terms of the will’s validity, no doubts can exist. In accordance with the s9 of the Wills Act 1837 ‘no will shall be valid unless it is in writing and signed by the testator or by some other person in his presence and by his direction’. The will of Gail is signed by her; the text of the will contains the phrase ‘Signed by the said Testator,…, in the presence of us’, a phrase that verifies the fact that the will was signed before the witnesses, so no doubt in regard to the will’s validity exists. In other words, the will of Gail is valid being aligned with the relevant provisions of the law, as described above. At the next level, the text of the will should be reviewed for judging whether Gail assets would be distributed in accordance with the will, or whether her estate will fall under intestacy. In other words, it should be made clear whether the will has been revoked or not. Gail prepared the will in December 2010. At that time, Gail had already taken a divorce from Brian, as assumed by the fact that when Martin proposed to her, the processes of the divorce were over. It should be mentioned that after the divorce, Gail bought a house the value of which has been estimated to ?225,000. Also, in July 2010, Gail had inherited a sum of ?150,000 from her father. In other words, the value of Gail’s estate, i.e. the inherited assets, can be estimated to ?375,000. In terms of the will’s validity, the following issues should be mentioned: in accordance with the UK law, a will is automatically revoked if a marriage takes place (s 18(1) of Wills Act 1837). This means that the will of Gail could be possibly considered as revoked. The section 18(3) of the 1837 Act notes that the will may not be revoked after the marriage in case that the testator has made clear within the will that he is going to marry to a particular person and that he wishes that the will remains effective after the marriage. Gail added such term within her will, without, however, specifying the person that she was going to be married. In this context, her will should be considered as revoked. As a result, those who were entitled under the will would receive nothing, with reference particularly to Gail’s best friend, Claire Peacock, but also Blanche Tilsley. The gifts which were, in accordance with the will, would be given to the above persons, will be incorporated in Gail’s estate and will be distributed using the intestacy rules and the right of the surviving spouse. As for David and Sharah, who were also mentioned in the will, they will not inherit the rest of Gail’s estate, but they will share, along with Nicholas, the remaining part of the estate of ?62,500, after deducting the right of the surviving spouse, as described below. At this point it should be mentioned that Sharah would not inherit since she dies in the car accident, along with Gail; however, Sharah has a daughter, Bethany, who would inherit as the grand daughter of Gail. Under these terms, the estate of Gail would be distributed among the beneficiaries, using the Administration of Estates Act 1925, as containing the rules related to the surviving spouse rights, and the Law Reform (Succession Act) 1995, which includes the intestacy rules. The husband of Gail, i.e. Steve McDonald can apply for a share of Gail’s assets as the surviving spouse. In fact, Steve is the primary right of succession as a surviving spouse, as stated in the Administration of Estates Act 1925, s.46(1)(i)(2). In accordance with these rules, Steve would have right on half of Gail’s estate, since the entire estate is above ?250,000 (Spillane 2010). As already noted, the entire estate of Gail has been valued at about ?375,000; in accordance with the intestacy rules, Steve will inherit the ?250,000, along with the personal possessions of Gail, the personal chattels, as explained below; in addition, Steve is entitled to the half of the remaining, i.e. the ?62500, in life interest, meaning he would have right to receive ‘a fixed net sum free of death duties and costs, with interest thereon from the date of the death’ (Administration of Estates Act 1925, s.46(1)(i)(2)); the rest, of ?62,500 would by inherited by Gail’s children in equal shares. In addition, Steve would have right on all Gail’s personal items, known as ‘personal chattels’, i.e. the personal estate of Gail (s.46(1)(i)(2) of the 1925 Act). It should be noted that Steve would have right as a surviving spouse only if he survives 28 days after the death of Gail (Law Reform (Succession) Act 1995, c.41, section 1(1)(2A)). The former husband of Gail, Brian, would have absolutely no right on the estate of Gail, since at the time of her death, Gail had formally divorced from Brian and she got married with Steve who can ask for a share from Gail’s property, in the context described above. The two children of Gail, David, Nicholas and her grand-daughter, Bethany, would inherit specific part of Gail’s estate; in accordance with the rules of intestacy, if there is a surviving partner children inherit only if the value of the estate is above ?250,000. As noted above, the estate of Gail is valued, at least, at ?375,000; in this context, the three children of Gail will inherit one third of the amount left after the deduction of ?250,000 (plus the 62,500 as half of the remaining, which should be given to Steve as life interest), i.e. one third each of the remaining ?62,500 (Spillane 2010). The two children of Gail, David and Nicholas, and her grand-daughter, Bethany, would use the section 46(1)(i)(2) of the Administration of Estates Act 1925, which defines the share of Steve in Gail’s property, leaving the rest of the estate to her other blood, closest, relatives. Task 2 In accordance with the events presented in the particular scenario, the possible claimants on Peggy’s estate are many. At a first level, reference should be made to Tommy, Peggy’s former husband. Despite the fact that Peggy had divorced Tommy, still the latter has claims on the estate of the former. More specifically: from 2004 up to her death, in 2010, Peggy used to pay Tommy with ?150 on a monthly basis; Tommy, who suffers from severe health problems, have being used the money for covering the monthly costs of his treatment. The agreement between Peggy and Tommy has been oral; a fact that may causes problems to Tommy for verifying the agreement’s existence. On the other hand, Tommy had not been re-married, but he had taken a divorce from Peggy. Since the divorce about 2 years have passed; moreover, the financial support provided from Peggy to Tommy has been voluntary, not enforced in the context of a court decision, fact that can affect the claims of Tommy on the estate of Peggy. Also, the marriage between Peggy and Tommy lasted for 40 years, a fact that can possibly lead Tommy to ask for half of Peggy’s estate using the rules for the surviving husband, of s.46 (1)(i)(2) of the Administration of Estates Act 1925; the above claim would be difficult to be accepted by the court since Tommy is a former spouse and not a surviving spouse. However, Tommy would try to use this legal provision emphasizing on the facts of the particular case, meaning the years that his married with Peggy lasted, the short duration of the divorce and his contribution in the increase of Peggy’s estate. From another point of view, the section 15(1) of the 1975 Act notes that in case that a decree of divorced has been granted, the court may not accept, in the case of the death of the applicant, the claim of the other spouse for a financial provision by the applicant’s estate. As noted in the particular case, Peggy has applied for the divorce being based on the affair between Tommy and Lucy, an affair that has been used as an excuse in order for Peggy’s sexual life to be kept secret. Since Peggy applied for the divorce, the court could use the provision of section 15(1) of the 1975 Act and reject the claim of Tommy for financial provision from Peggy’s estate. Still, Tommy would support that the provision of the maintenance to him was based on their agreement, and for this reason his claim for maintenance from Peggy’s estate would be valid. At the next level, the section 1(1)(e) of the Inheritance (Provision for Family and Dependants) Act 1975, refers to persons who have been maintained, partially or wholly by the deceased. Tommy could use this provision and justify his claim for financial provision from the estate of Peggy; his claim would have many chances to be accepted by the court since it is aligned with the law, as explained above, and since the entire state of Peggy is sufficient for such claim to be satisfied – as noted in the scenario, the entire state of Peggy has been estimated to ?275,000. At this point, the following issue should be noted: the Court would decide on the claim of Tommy taking into consideration the provisions of section 3 of the 1975 Act, meaning especially the duration of the marriage, the age of the applicant but also the level at which the applicant contributed in the increase of the wealth of the deceased. As noted in the scenario, Tommy had avoided asking for a divorce earlier, aiming to protect the business of Peggy but also the family’s image in the community. As a result, Tommy can be considered as having contributed in the increase of Peggy’s wealth, under the terms that a divorce and, especially, the publicity on Peggy’s sexual preferences, would negatively influence the family life but also the performance of Peggy’s business. The above facts would be taken into consideration by the court in order to decide on the level of financial provision that should be payable to Tommy from Peggy’s estate. A second potential claimant on Peggy’s estate is Dot. The right of Dot to ask for financial provision from Peggy’s estate is primarily established in the section 1(1)(B) of the 1975 Act. Indeed, Dot can use the provision of the 1(B) of the Inheritance (Provision for Family and Dependants) Act 1975 in order to verify a claim for financial provision, especially since Dot and Peggy were living together as partners and Peggy provided significant financial assistance in paying the expenses of their common house. In any case, Dot should take into consideration the fact that she had just 6 months to apply for a financial provision from Peggy’s estate; the above deadline is defined in section 4 of the Inheritance (Provision for Family and Dependants) Act 1975. However, in order for the claim of Dot to be established, it would be necessary that evidence is available that a co-habiting homosexual relationship existed between Dot and Peggy. The fact that Tommy knew about the above relationship could be possibly used as a justification for establishing the claim of Dot under the provision of 1(1)(B) of the 1975 Act. In case that there is no sufficient evidence for the above claim to be established, then Dot could alternatively use the provisions of 1(1)(e) based her claim on the fact that she was maintained by Dot. Again evidence should be gathered for this claim to be established. The fact that Dot has been working in Peggy’s business would be possibly used by Dot for justifying her claims on Peggy’s estate; The receipts of bills and other similar documents related to the their common house’s expenses would be also used for justifying the Dot’s claim on Peggy’s estate in the context of 1(1)(e) of the 1975 Act. As for the two children of Peggy, Phil and Stacey, their rights on their mother’s property could be described as follows: Phil and Stacey have the right to apply for a financial revision from their mother’s estate on the basis of section 1(1c) of the Inheritance (Provision for Family and Dependants) Act 1975. Despite the fact that their mother left, through her will, to each one of them the amount of ?5,000 cannot affect the right of Phil and Stacey to ask for a fair share from their mother’s estate. The Court would consider the relevant claims of Phil and Stacey using the provisions of sections 2 & 3 of the Inheritance (Provision for Family and Dependants) Act 1975. Stacey mentioned that she is satisfied with the ?5,000 that Peggy left to her through her will; Stacey has 6 months to change her mind, i.e. to apply for additional financial provision from Peggy’s estate. On the other hand, Phil faces significant financial pressures, having to develop his own recording studio, a fact that would justify his claims for additional financial provision from Peggy’s estate. However, in the case law, controversial views seem to exist in regard to the claims of children on their parents’ estate; for example, the use of financial pressures have not been considered as adequate for a child to oppose his parents’ will (Re Coventry Deceased case, Robinson -v- Bird [2003], Espinosav -v- Bourke [1999]); in fact, it has been proved that the criteria for the moral obligation of a parent to secure his/ her child through his/ her estate is not always decisive for deciding on a child’s claims on his/ her parents’ estate. An exception has been made in the case Gold -v- Carter [2005] where the court ‘took a decision favouring the 58-years old son on the basis that his financial needs were excessive’ (Gold -v- Carter [2005]). In accordance with the above, in the case of Phil the court would decide on the financial provision awarded to Phil from his mother’s estate based on Phil’s financial status, his current financial needs but also his perspectives for improving his financial status if being awarded the specific financial provision, meaning that the specific sum would help Phil to establish his own business. The court has the power to order the increase of the share of Phil and Stacey from their mother’s estate taking into consideration the financial status and the needs of Phil and Stacey. In any case, there is no automatically claim of Tommy, Phil and Stacey on Peggy’s estate. This means that Tommy, Phil and Stacey would have to apply for a financial provision from Peggy’s estate despite their relationship with Peggy. Task 3 In accordance with the issues discussed above, the following fact should be highlighted: the court can interfere with a testator/testatrix’s last wishes only if the persons who have rights on the estate of the deceased make a relevant application; such application is based on section 1 of the Inheritance (Provision for Family and Dependants) Act 1975. The use of other laws, such as the Civil Partnership Act of 2004 for regulating the last wish of a testator/ testatrix is also possible, when the terms of these laws are met. In any case, when handling such cases, the Court needs to ensure that the result will be fair, an issue, which has been, highlighted in the White v White case [2001]. It should be also noted that when handling disputes over a deceased’s estate, courts need to apply certain principles; the most common principle of this type is the principle of fairness which denotes that the court will ensure that its decision will be fair for all parties. Even if exceptions are included in the legislation used for resolving these disputes, this fact does not eliminate the power of courts to decide independently, an issue highlighted in the White v White case, also in McNulty v McNulty [2002] case. One of the most critical challenges that a court has to face when trying to promote fairness is the following one: the right of women to claim a fair share from the deceased’s estate is often negatively affected by the fact that women have been at home. However, courts in these cases, tend to make no distinction between women who have been working and those who have remained home, supporting their children and their spouses; this trend has been made clear in the case SRJ v DWJ [1999] 2 FLR 176. From another aspect, the principle of fairness can be based on the idea that both spouses ‘are equal partners to the marriage’ (R v R [1992]). The above view is not affected by the duration of marriage; equality between spouses exists in both short – term and long-term marriages (Foster v Foster 2003). In practice, the specific view may lead to unfair results; for example, a spouse who has contributed in the matrimonial estate for more than 30 years cannot be awarded a financial revision of the same level as a spouse who had contributed in the matrimonial estate for just 2 years. In the above case, the interference of the courts in the resolution of disputed related to the last will of a testator/ testatrix need to be carefully developed, ensuring that no discrimination is promoted. However, often the court has critical problems to resolve: for example, under certain terms it is may difficult for the court to decide whether a business is a family asset or an investment asset, a problem appeared in the case of P v P [2005], even if the Matrimonial Causes Act of 1973 does not introduce a differentiation between the family and the investment assets, considering all assets developed in the context of a family, as family assets. References Great Britain: Law Commission (2009) Intestacy and family provision claims on death: a consultation paper. London: The Stationery Office. Spillane, K. (2010) Guide to intestacy. Online. Available from A. Legislation Civil Partnership Act 2004 Law Reform (Succession) Act 1995 Matrimonial Causes Act 1973 Wills Act 1837 B. Case law Espinosav -v- Bourke [1999] 1 FLR 747 Gold -v- Carter [2005] WTLR 673 Robinson -v- Bird [2003] WLR 529 Re Coventry (deceased) [1984] Ch 461 Read More