New Words For Intestacy & Probate – And New Meaning

Increasingly, people are not making wills, or taking steps to ensure that their possessions and assets are settled and passed on after their death. The result is pain and heartache for those left behind.

If that happens, the person is declared to be intestate. That is defined as someone dying without a will, or having an invalid will. The person’s possessions and property will be disposed of in accordance with law, and administered by a court appointed executor or administrator. Some experts and commentators predict that intestacy numbers will rise over time. Whether that proves to be accurate or not, those future cases of intestacy will be handled under new updated rules, after intestacy was altered under recent legislation.

The Inheritance & Trustees Powers Act (2014) (ITPA) came into force in October 2014, bringing with it reform to the laws surrounding intestacy, amongst other provisions. Admittedly, though, the Act did not reform intestacy rules too greatly. Previously, if the deceased left both a spouse and children, they received split between them the deceased personal property, and a Statutory Legacy of £250,000. The remainder of the deceased’s estate was divided in half, with 50% going to the surviving spouse under a trust, and 50% to the children.

Under ITPA, though, the surviving spouse still received the same Statutory Legacy, and the personal chattels – and 50% of the estate outright. The 50% remainder is now divided amongst the surviving children or descendants under a life trust.

Where ITPA fails, however, is in addressing the issue of the deceased having remarried, perhaps several times. Further, what of children from those prior marriages? As divorce becomes less of a stigma, society has seen an increasing number of divorces. It is exactly the same with people marrying again – in some cases repeatedly. Indeed, the new rules dismally fail to address the matter of cohabitation.

According to Office of National Statistics, the numbers of cohabiting couples are only on the rise. Culturally and socially, it is becoming increasingly common and accepted for people to live together in long term, stable relationships- – but remaining unmarried. Much such couples often raise children together, or have property or similar assets in their joint names – but are still unmarried.

Whatever society might think, the law still resolutely fails to recognise such couples and relationships. Currently, the legal provisions set out in  Kernott v Jones [2011] and Stack v Dowden [2007] are the only legal protections that such  unmarried couples have. Even senior judges (notably Lady Hale) admit that those protections are not sufficient. In this instance, ITPA definitely missed an opportunity to address this, and to give unmarried, long term couples some degree of legal protection and afford them legal rights.

Aside from the slight alterations in dividing up the deceased’s estate, the term popular in equity and probate of “personal chattels” also was given a new meaning. Under Section 3, personal chattels are now defined as:

 “Tangible movable property other than any such property which consists of money or securities for money, or property used at the death of the intestate solely or mainly for business purposes, or was held at the death of the intestate solely as an investment.”

Section 3 updates the archaic thinking of the Administration of Estates Act (1925), which defined personal chattels previously. Now, Section 3 encompasses more types of property, and more modern types of property. Further, the nature of ‘property’ is (deliberately?) not specified in ITPA – which admittedly s both a hindrance and a great help when determining matters of probate. Quite clearly, this gives court appointed executors greater scope when disposed of the assets of the intestate, as the definition of a ‘personal chattel’ is now wider, and covers more.

An interesting definition was made in ITPA regarding such personal chattels. Previously, gifts and possessions such as wine collections, stamp collections, and similar were considered chattels. As such, they could be gifted, Under ITPA, the slight but subtle changed is that those and similar items can only be considered chattels (and therefore be gifted) if they were not held as an investment, but rather as personal property. Now, before such property is gifted, or handed on to relatives, it has to be determined that it was no an investment. For some things, that could take some proving either way – and more probate litigation. During that time, the value of the “investment” could rise or fall, potentially unfairly for those involved in the litigation.

Such reforms were cautiously welcomed by private client lawyers. Many felt that the new provisions did not go far enough regarding reforming intestacy. The reforms are very subtle, and quite technical, and seemingly cause more issues without addressing existing concerns.

Of such is the power or words and writing. Having received Royal Assent, the Inheritance & Trustees Powers Act (2014) is now law, and binding upon probate and intestacy proceedings. Whatever reservations probate and equity might have, intestacy proceedings (and some related private matters) now have to disposed of in line with the wording of the Act. Whatever interpretation lawyers choose to give to the provisions of the Act – the wording itself is now law, and has to be followed, however questionable that might be.

Legal Writing, Aberdeen Wind Farms and an Annoyed Billionaire

It often happens that cases depend on one thing: writing.

Cases, and fortunes, are made and lost by the stroke of a pen. How a law is interpreted, and of what meaning is given to words. What legal and moral concepts are under debate, and how to apply those concepts set out and defined in writing.

The meaning of words, be they in an Act of Parliament, an EU Directive, a UN Resolution, or a leading case authority, can be bitter or helpful to those seeking justice. Be they pauper or millionaire, business leader or brick layer, the words of a statute can have the same impact.

One such case came before the Supreme Court in 2015. It involved a very well known foreign businessman and the Scottish Government.

The case commented property that the businessman (referred to here as D) had bought in Aberdeenshire, and was then developing as a luxury golf resort and hotel complex. In 2011, Aberdeen Offshore Wind Farm Ltd (AOWF) sought assent from the Scottish Government to build and operate the European Offshore Wind Deployment Centre for Aberdeen Bay. Under the plans, up to 11 wind turbines would eventually supply up to 100MW of electricity – a mere 3.5 km away from D’s golf course, and in full view of any guests.

D’s Scottish business representatives and lawyers inevitably opposed the wind farm. However,after consideration, the wind farm was approved in 2013. D’s lawyers sought a legal remedy, and went through the Scottish courts seeking to stop the wind farm. In this they were unsuccessful. Undeterred, D’s lawyers appealed to the Supreme Court. They argued that, due to the wording of the Electricity Act (1989),  the Scottish Ministers had no right to grant the wind farm application in the first place.

In previous litigation, all the grounds and arguments advanced were dismissed. Before the Supreme Court in London, only two legal grounds remained.

Under Section 36 of the Electricity Act, D alleged that the wind farm owners and planners could not be granted an application to create a wind farm. Under Section 36, only those with a licence to “a licence to generate, transmit, or supply electricity granted under” Section 6 of the 1989 Act,  or those who have a statutory exemption under Section 5, can be eligible to be granted such a licence. Amongst other legal interpretations and reasoning, Inter alia, D’s lawyers cited a part of Schedule 9 of the Electricity Act:

 

(3) Without prejudice to sub-paragraphs (1) and (2) above, in

exercising any relevant functions each of the following, namely, a

licence holder, a person authorised by an exemption to generate or

supply electricity and the Secretary of State shall avoid, so far as

possible, causing injury to fisheries or to the stock of fish in any

waters.

D’s lawyers took that to imp!y that any proposed operator of a wind farm must have a licence to do so.

Lord Hodge, in a well argued 14 or so paragraphs systematically demolished the arguments advanced by the international businessman’s lawyers. As if one line of argument was not enough- Lord Hodge has several. Unequivocally, he dismisses the Section 36 challenge. In his interpretation of the relevant sections of the 1989 Act there are absolutely no grounds here: the wording of the Act is against the businessman.

Next, under Condition 14 of a Section 36 consent from the Scottish Government, the operators must submit a detailed and comprehensive design plan. That plan will be assessed by the Scottish Government rigourously to see that the design concept meets very very stringent standards regarding design,environmental impact, etc.

According to D’s luckless lawyer,  in this case Condition 14

(23) “is both unenforceable and also so uncertain that it is irrational… First, he submits that the

condition is invalid because there is no mechanism by which the Scottish Ministers can force the developer to construct the windfarm in accordance with the design statement. He argues that… there is no express statement that the developer must construct and operate the development in accordance with its terms. Secondly, he submits that the condition is void for uncertainty because there is no indication of what compliance with it entails.”

Lord Hodge takes a very simple approach here, with his decision beginning “The short answer to this challenge is.” After delivering this verdict in the remainder of that sentence, he then takes 15 paragraphs to find many additional reasons to support his verdict. He repeatedly finds the Condition 14 challenge also to  begroundless. Once again, using the words and the drafting of the 1989 Act (with a bit of help from other legislation and cases), he finds a different interpretation of the law than D.

Words. Very simple things – but written in an Act of Parliament they take on a life of their own, a meaning of their own, a significance of their own – and a certain power. It is those words that decide the law, that are interpreted by lawyers and judges and which essentially win and lose cases.

In this case, the Supreme Court used the wording of the statute under causation, and utterly destroyed the attempt of the foreign businessman to stop a wind farm being built next to his Scottish golf resort.