Chris Milne – Severn Valley Business Group
 

Author: Chris Milne

Chris Milne

Qualified as a Solicitor in 1996. Spent 3 years with Rees Page in Wolverhampton, 8 years with Parkinson Wright in Worcester and almost 5 years with Harrison Clark in Worcester. Was with Young & Lee in Birmingham briefly from May to October 2010 but on 1st November 2010, became the proud owner of Onions & Davies in Market Drayton. Private Client work - Wills, Powers of Attorney, Tax and Estate Planning, Trusts, Administration of Estates, Care Fees Funding, Advice to Care Home Managers and Owners. Member of STEP, Solicitors for the Elderly and the Law Society's Private Client Section. Regular seminars for charities (Mencap, Worcestershire Association of Carers, etc.) and talks for community and professional groups. Networking primarily through Severn Valley Business Group but also other groups throughout Birmingham, the Black Country, Shropshire, Worcestershire and online. Specialties: Providing expert advice in a friendly and effective way to business owners, individuals and families.

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Must You Have A Solicitor To Help You Administer An Estate?

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The short answer is no, but you might want to.

There is no legal requirement for a Solicitor to be involved in the administration of an estate, unless they have been appointed as an Executor under the terms of the Will because that is the choice of the person who made the Will. However, there is more to administering an estate than most people think – here are some of the things people do not normally think of:

• There are different procedures depending on whether or not there is a Will.
• Do you know for certain that you have the latest Will?
• Do you know who and where all the beneficiaries are, particularly if there is no Will?
• Have you met all the requirements of HM Revenue & Customs in relation to Inheritance Tax, Income Tax and Capital Gains Tax?
• You have to keep estate accounts and provide a copy to all the main beneficiaries, and the Court if it asks for them.
• You have to pay all liabilities and all legacies before you distribute the estate to the main beneficiaries.
• In certain circumstances, you may have to pay interest to some of the beneficiaries.
• The estate may need to be registered on HM Revenue & Customs’ trusts and complex estates register.
• You can be sued by the beneficiaries if you interpret the provisions of the Will wrongly.
• Have any trusts been set up by the Will?
• Do you know the difference between assets that pass by survivorship (such as a property held as joint tenants) and assets that pass purely under the terms of the Will?
• Are there any nominated assets or assets written in trust that you need to take into account?
• Has the deceased been in care, because if they have, there may be retrospective care fees funding claims to be made.
• Was the deceased in receipt of means-tested state benefits? If so, the Recovery from Estates Department of the Department for Work and Pensions will investigate the estate to see if there were any underpaid or overpaid benefits.
• Do you know what expenses you can claim?
• Would you know what to do if there were minor or disabled beneficiaries?
• Would you know how to deal with “appropriation”, “transfers in specie” or “hotch-pot”?
• Are you certain that the estate is safe from a claim against it?
• Do you know what Probate means?

A lot of administering an estate is just the sheer volume of paperwork involved rather than any particularly technical legal issues and, of course, not all of the things listed above crop up in every estate, but there are a good many that do and it can be easy to miss something. There was a recent case where an Executor, who paid out the estate to a beneficiary, assuming that they would pay the inheritance tax due, was sued by HM Revenue & Customs because the beneficiary did not pay the tax and an Executor is personally liable for any unpaid liability of an estate.

But what about the cost?

It is understandable that you would want to save the estate the expense of legal fees but, actually, for the work that is involved and the peace of mind that you have that the burden of responsibility has been taken off your shoulders (we can be sued and have to carry professional indemnity insurance to cover any loss if we get something wrong) makes the cost worthwhile. We have heard a number of stories recently of organisations (quite often estate administration companies recommended by banks or Will-writing companies) who have told prospective clients that solicitors charge tens of thousands of pounds to administer estates, but here, at Onions & Davies, the vast majority of the estates that we deal with cost no more than the amount of the funeral bill to administer and sometimes a lot less.

We will always provide an initial, free of charge, no obligation meeting with Executors, to let them know what is involved and the likely cost and we will always try to find ways in which the workload can be shared between you and us, to save costs.

For further information about the estate administration services that we can offer, please contact Chris Milne on 01630 652405 or by email

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Does Your Solicitor Come To You?

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It used to be the case that solicitors would sit back in their offices and wait for their clients to come to see them. Here at Onions & Davies, especially in our Private Client Department, we are pleased to say that this is not what we do. Members of our Private Client team regularly see people in their homes, places of work, hospitals and care homes.

Chris Milne, the head of our Private Client team says, “There is absolutely no reason why legal advice has to be delivered within the office and many of my clients find themselves in situations where it is difficult for them to come to see us. We go to see clients who live in care and we sometimes have to make emergency hospital visits. Others we see at home or at work because, although we have plenty of client parking and disabled access to all our interview rooms, it can be helpful for the client to go to see them where they are, so that it is more convenient for them. Clients are quite often more relaxed in their own home and this is advantageous when discussing topics of significant personal importance”.

There are times when we have to make a small charge to cover the cost for seeing somebody out of the office but most of the time we are able to arrange appointments so that we do not have to charge.

Chris went on to say, “I think, if you do not see clients anywhere apart from the office, then you are denying a lot of people access to important legal advice that they really need to hear and make use of”.

Would you like one of our solicitors to visit you? Contact our Private Client team on 01630 652405 or sols@onionsanddavies.co.uk

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Divorce – It’s No ‘Quick’ Fix

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At Onions & Davies Solicitors we have been advising and assisting clients with divorce for decades, and we are experienced in achieving for our clients good financial remedy outcomes enabling our clients and their children to move on in their lives post-separation.

We have until relatively recently been able to advise our clients that they should be able to achieve a divorce, assuming matters are straightforward and undefended, within 5-6 months. Appreciating, however, that financial matters may take a little longer, and that Decree Absolute in divorce proceedings may be delayed until a financial order has been made.

These days, however, the time it takes to achieve a divorce makes for rather depressing reading. The Ministry of Justice publishes quarterly Family Court statistics, and those published in June 2018, confirm that the average time it takes to achieve Decree Nisi is now 27 weeks, and 51 weeks to reach Decree Absolute.

So why the delay?

Well all divorce applicants must wait at least 6 weeks from Decree Nisi before applying for Decree Absolute anyway, and so some delay is naturally expected here.

The 24 weeks reported between Decree Nisi and Decree Absolute, will in fact be due to some extent to the fact that
applications for financial remedy cannot be processed by the court until Decree Nisi, and so it is at this stage of the process where we expect to see either financial remedy hearings before the Family Court or negotiations between
solicitors, or via family mediation perhaps, in full swing. The finances, usually the family home amongst others, can often be the most important issues to resolve.

The way that the system operates, however, has changed since the implementation of the Single Family Court in April 2014 and the new regional divorce centres – the most local to our offices being West Midlands Divorce Unit in Stoke on Trent.

This sees practitioners no longer choosing where to issue proceedings and dealing with trained court staff for processing and updates, but instead lodging applications centrally with the local divorce centre, and seeing cases being ensnared in administrative delay, with only call centre handlers to speak to.

These changes followed fairly soon after the LASPO Act reforms in 2012 which essentially made legal aid inaccessible for private family law matters such as divorce, financial remedy and private children matters – I.e. cases involving children which have been brought by private individuals such as parents or grandparents (as opposed to the local authority – public children matters). These reforms have meant that legal representation must be privately funded and, for those who are not able or willing to pay, the court will deal with them directly as Litigants in Person (LIPs).

Naturally, LIPs invariably do not have the legal expertise or knowledge of a family lawyer, which means the magistrates or Judge are tasked with ensuring that the issues and procedures are fully explained. The provision of this extra assistance, has created a huge burden on the court system, and added to the delays.

At Onions & Davies Solicitors we are sensitive to the fact that our clients can find legal bills difficult to manage. Do not rule out speaking to us if you wish to access expert legal advice but wish to manage your bills. We can talk you through your options at a no-obligation fixed fee initial appointment. Call Sharon on 01630 652405 for details.

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Blowing the full-time whistle on marriage.

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A modern marriage has a number of strains to endure. Some survive, and some do not, and this is increasingly accepted as a sad fact of life.

As family lawyers we expect to see more new appointments at certain times of year: after the school summer holidays and in the new year for example, when the pressure cooker of family life can be too much for one or both parties to see a way forward together.

The World Cup is upon us and it can be at times like these when differences of opinion can be highlighted, and tensions fraught. Perhaps a perfect storm for demonstrating the weaknesses in what once may have been a more united front.

No spouse makes the decision to end their marriage lightly. If you would like to discuss your legal rights with a specialist family lawyer, we can help. We offer a no-obligation, confidential fixed fee initial appointment of up to one hour at which time we can provide tailored legal advice to your circumstances.

A recent study has revealed a trend that reports of domestic violence rose over the last three World Cups. It is worrying news that something that should bring our nation together, can divide and cause families to suffer. It is predicted that there will be an increase in domestic incidents during this tournament and police forces around the country have been preparing.

Domestic abuse is never acceptable. We can provide advice both in the context of formally ending your marriage, but also if you need the protection of the Family court from abuse, or perhaps need the intervention of the Family court to protect the children in your family.

Call Sharon for an appointment with experienced expert family solicitor, David Lago, on 01630 652405.

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Divorce – End The Blame Game

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Is It Time For No Fault Divorce In England and Wales?

Of course, we are talking about the appeal of Mrs Owens before the Supreme Court in May this year against the decision that she be denied a divorce further to her divorce petition in 2015 citing the fact of her husband’s unreasonable behaviour.

In order to obtain a divorce in England and Wales an applicant (until recently known as the ‘petitioner’) must demonstrate to the Family court that the marriage has irretrievably broken down, and she/he does that by relying on 1 of 5 facts.

In a nutshell, these are adultery, desertion, 2 years’ separation with consent, 5 years’ separation or, in the case of Mrs Owens and countless other applicants, so-called unreasonable behaviour.

The situation as it stands is prescribed by the Matrimonial Causes Act 1973, and guides the Family court that it can only determine that the marriage has irretrievably broken down, on an unreasonable behaviour application for divorce, if the applicant satisfies the court that the respondent spouse has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent (MCA 1973, s. 1(2)).

In Mrs Owens case back in 2017, the court was not so satisfied, and her divorce was refused by Judge Robin Toulson QC. Mrs Owens took her case to the Court of Appeal, to save herself from being trapped in what she described as a loveless marriage until 2020. The decision was upheld by the Court of Appeal, with the President of the Family Division, Sir James Munby, stating that the appeal judges were not prepared to interfere with the earlier decision.

We of course know that to establish unreasonable behaviour draws on both subjective and objective elements. The applicant must believe that the behaviour constitutes unreasonable behaviour to this standard but, with the word ‘reasonably’, comes a requirement for objectivity.

In Mrs Owens case, it was clear that the court expected a certain standard of ‘bad behaviour’ to have been reached to enable a successful petition and, even though Mrs Owens believed her husband’s behaviour was sufficiently bad to justify a divorce, the court decided that it was not.

So what’s left for Mrs Owens to do in this situation? She took her case to the Supreme Court and this was heard in May this year. If she is unsuccessful, she will have to wait until 2020 to rely on 5 years’ separation to obtain her divorce. All the while she continues to live separate and apart from her husband, whilst being denied the financial remedy she would have access to within divorce proceedings.

Resolution: First for Family Law, intervened in the proceedings, and are using the Owens decision to advocate ‘No Fault Divorce’. Nigel Shepherd, Resolution’s immediate past Chair, has said, “Owens v Owens must be the spark that ignites a fundamental change in our divorce law”.

Onions & Davies Solicitors is championing the cause and our family lawyers believe that it’s time for change.

Currently, if parties wish to divorce within 2 years, Resolution lawyers repeatedly find themselves in the paradox of helping their clients find a constructive, child-focused resolution to the end of the marriage, whilst having to justify the reason for the divorce to the court. It doesn’t take much to see the merit in a system which takes the blame away.

However, even if Mrs Owens is successful, this will not ‘end the blame game’. We need Parliament for that. It’s just a step closer in the effort towards a system of no-fault divorce – what Resolution is calling ‘a better way’.

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