Personal Injury – The Importance of Estate Planning

ianrowe Jan 27th, 2017

Specialists of all walks of life predominantly dedicate their attentions to a sole discipline in which, over years of acquiring experience and knowledge, they become experts.

For those who have chosen the world of Personal Injury litigation as their vocation, in addition to the knowledge and experience required there is a need to increase efficiency as fees are squeezed. Success requires an ability to forge immensely strong client relationships at a traumatic time for the Claimant, their family and loved ones.

With litigation often taking many years to reach resolution the duty of care is possibly felt more strongly by PI Lawyers than many other disciplines.

As set out in Hurlingham -v- Wilde it is required of professionals to ensure that advice encompasses not only the transaction in hand but also consequential implications.

What then for solicitors who successfully secure substantial damages for claimants? The on-going implications seem potentially endless. Damages are often required to meet lifetime needs, the exact nature of which being far from certain. The need for on-going advice is clear.

However, despite advances in medical science, for many claimants the nature of their injury will have dire implications in respect of life expectancy, some known and some not.

Consequently, the need for considered estate planning is often of greater importance if claimants’ families are to be protected and catered for in the event of untimely death. This area is often undervalued by claimants, particularly for those who have not previously had any need for such planning or at least have not perceived it. After all, in the event of the claimant’s early death the dependent’s loved ones will benefit from the damages directly as, what is often considered, a windfall. Without the need to pay for the aids, equipment, care and case management that the award of damages aimed to provide, surely the award capital is surplus to requirements and can be applied for the betterment of the family?

This will, of course, depend on the nature of the award and the head of loss under which it is claimed. Such a view ignores any element awarded for future loss of earnings which may have been used to sustain the family, including the spouse or partner, whether earned as income or, due to the injury, recovered via the claim.

Without suitable planning the windfall perception, if at all accurate, is only of relevance if the funds ultimately end up in the correct hands and at the right time.

CR received substantial damages in 2012 and sadly died just three years later. CR left behind his partner, to whom he was not married, and their two children then aged three and five respectively. In addition CR has a further child from a former relationship who, at the time of his death, was aged 13.

Since the injury, CR’s partner had ceased employment to provide much needed care for CR and raise their children. Benefit entitlements had been protected by way of establishing a personal injury trust.

A suitable property had been purchased with the award of damages to house the family and provide additional space to accommodate the need for CR’s aids and equipment and exercise room.

In order to provide enjoyment and safety to CR’s children, the outdoor play area was fitted with a suitable climbing frame, the area beneath fitted with rubber matting in case the children should fall as CR had limited ability to assist should the children get in to difficulties. The property met the family’s needs.

Dying intestate, CR’s estate fell to his three children who, being minors, would have the estate split equally between them held on trust. A number of issues arise.

CR’s partner has no entitlement under the intestacy rules. No longer being registered as CR’s carer she is required to seek gainful employment with the children now being aged five and seven. Whilst benefit support is available, the ‘premiums’ added to entitlement as a result of CR’s disability have been lost and therefore there is a considerable reduction in the level of household income available.

The property is now considered to have a spare room and falls subject to the ‘Bedroom Tax’. This has placed an increased financial burden upon a reduced household income, this shortfall being met by increasing debt and family loans.

What of CR’s first child? She is now fast approaching 15 years of age, doing well at school and has career aspirations that are on track due to her educational efforts and attainment. The trustees are concerned that knowledge of the funds at too early an age will demotivate further educational attainment, this concern being coupled with the all too common concerns surrounding the receipt of substantial funds immediately upon reaching majority.

The lack of estate planning has left CR’s partner only able to access funds required for the direct needs and maintenance of her children and by application to the trustees of the Bereaved Minor’s Trust. Whilst the estate is now being amended to give the respective mothers control of their child’s share of the estate along with the paternal grandmother, to get to this stage the respective mothers have needed to work collaboratively. The estate has taken 18 months to settle.

For multi-disciplinary law firms the opportunity to provide solution support across the disciplines of the firm is vast, this being just one area not to be overlooked. The key, as always, is the need to illustrate to clients how such solutions fit within their holistic plan and interact with their Benefit regulations, personal injury trusts and financial objectives. This potential can be unlocked with specialist and holistic financial planning that recognise both the issues and the opportunities that present themselves, specifically to those who have received an award of damages for personal injury.