Archives: November 14, 2011
Unmarried Couples Jointly Owned Property
No comment
It had been thought that if a property had been purchased in joint names by unmarried couples and therefore outside of divorce or civil procedure ancillary relief proceedings then the assumption was that the interest in the property would remain in joint names on an equal basis. In the recent judgement of Jones v Kernott the Supreme Court have introduced a concept of a change of common intention. In this case the male partner had not in fact lived in or contributed to the home for 14 years. The court has effectively said that a change in common intention can be inferred by conduct. Thos case may in facr follow Stack v Dowden where a party can gain an interest in a singly owned property by the inferred conduct of the parties.
Beware the Court also made it clear that each case must be decided on its own facts.
Online Estate Fraud
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A recent survey of 2,000 adults conducted by Goldsmiths University Creative & Social Technology Centre suggested that the UK population owns around £2.3bn of internet-hosted assets. The same survey highlighted the problem of online fraud upon deceased’s estates as it found that approximately 11% of those surveyed have included online passwords in their Wills!
The way we hold our assets has changed dramatically over the last decade. People try to help the executors of their estates by detailing their passwords, pin numbers and other digital access codes in their Wills. After death, when probate is extracted the Will becomes a public document. It is then that fraudsters are able to ascertain the information that enables them to access those Internet-hosted assets, especially bank accounts.
If you, as a client, are adamant you wish to leave this information to your executors we would advise you to do so in a secure way, such as in a sealed envelope, which can be kept with your Will but will not be published with it and thus it will not become public knowledge. However, executors are usually able to deal with such assets without knowing the secret codes/ passwords, and financial institutions usually advise individuals to remember these but avoid writing them down or informing anyone else.
We can assure you that we will be able to guide and advise you regarding any such tricky issues when helping you prepare your will.
Negligence of Surveyor
No comment
A recent case held that a potential buyer of property should not rely on the valuation provided by the lender but instead should get their own valuation carried out. In this case it was a Buy to let mortgage and the surveyor who had been instructed by the lender had been overly optimistic about the possible rental income which could be generated from the letting of the property. In actual fact the buyer could not even raise enough of rental income to service the monthly mortgage costs. The Buyer had relied solely on the valuation which the surveyor had carried out on behalf of the lender.
The buyer took the lender to court for professional negligence and won in the first instance. However the Court of Appeal overturned the decision. It held that the buyer was making a commercial decision and should therefore have made his own inquiries including a survey for his purposes.
Sunday Working
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An Employee of the NHS who did not want to work on Sundays has had his wishes respected. The employee who has worked with the NHS trust for 10 years, was initially told that he would be able to opt –out of the rota on Sundays. Yes despite submitting an opt-out application, the employee’s request was disregarded.
Following intervention by the Christian Legal Centre, the employee sent a letter to the NHS Trust, outlining the legal position and explaining that he should not be compelled to work on a Sunday. The NHS Trust has now relented, and the Employee will not have to work on Sundays.
Andrea Williams of Christian Concern said “ Employers should respect Christian employees who do not wish to work on a Sunday, as in most situations arrangements can be made to accommodate this. This situation is an encouraging example of how Christians can ensure that their faith is respected in the workplace”.
Negligence of Surveyor.
No comment
A recent case held that a potential buyer of property should not rely on the valuation provided by the lender but instead should get their own valuation carried out. In this case it was a Buy to let mortgage and the surveyor who had been instructed by the lender had been overly optimistic about the possible rental income which could be generated from the letting of the property. In actual fact the buyer could not even raise enough of rental income to service the monthly mortgage costs. The Buyer had relied solely on the valuation which the surveyor had carried out on behalf of the lender.
The buyer took the lender to court for professional negligence and won in the first instance. However the Court of Appeal overturned the decision. It held that the buyer was making a commercial decision and should therefore have made his own inquiries including a survey for his purposes.
Mistake in Wills
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In Wills, there are three possible ways in which a mistake may occur:
1. The wrong document might be executed (ie. Signed) by the person making a will, who is called the testator;
2. The testator may be mistaken in believing that certain facts exist and this mistaken belief may affect his motives for making certain provisions in his will;
3. The testator may be mistaken as to the effect of certain provisions in his will or about his will as whole.
The Court has some power to alter words in a will but only in three very limited situations:
1. It may omit any words from a will which the testator did not know of and approve;
2. In certain, limited circumstances legislation permits the court to order a will to be changed so as to carry out the intention of the testator;
3. Where it is clear from a will that a mistake has been made in its wording and it is also evident what the intended wording was, the Court may interpret the will as if certain words were inserted, removed or changed.
We would recommend, if you have made a will, that you review it carefully to make sure you are still happy with the contents and no mistakes have been made. If you have not made a will, then we would advise you to make one as soon as possible. Please contact us if you would like advice and assistance from one of our solicitors in our Wills department.
Mistake
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In trusts (as in this case) but also in contracts, it is established law that in order to correct a mistake by construction, two conditions must be satisfied. First, there has to be a clear mistake on the face of the trust instrument. Secondly, it has to be clear what correction ought to be made in order to cure the mistake.
The court held in the recent case of Deutsche Trustee Company Ltd v Fleet Street Finance Three plc and another: Chancery Division 9 September 2011. that in deciding whether there was a clear mistake, the court could have regard to its background and context and was not confined to reading the document alone. It is usually a matter of construction and legal interpretation which you will need detailed legal advice upon. Consideration will have to be given to previous cases and unfortunately it is not always clearcut. We can advise you and help you decide whether, upon the specific facts of your case, including the instrument in question and its background, there is valid challenge to the trust instrument as a result of a mistake.
(Shortly we will discuss the three possible mistakes which may occur in Wills.)
Estate disputes on the increase
No comment
There has been a dramatic increase in cases where beneficiaries and/or dependants are challenging their entitlements to estates either under the Intestacy Rules or on the grounds that they have not been provided for under the terms of a Will.
The significant increase in the last three years has been mostly by spouses, children and cohabitees bringing claims under the Inheritance (Provision for Family and Dependants) Act 1975, where they feel that they have not been adequately provided for financially in the deceased’s estate.
This increase in claims is likely to be as a result of changes in domestic living arrangements and more complex family structures with the implementation of new family settings such as the Civil Partnership Act.
The Law commission has published a consultation paper looking into these issues and its report is likely to be produced later this year.
At Ziadies Solicitors we are able to help you if you feel you need advice relating to an inheritance issue – whether you consider you have not been adequately provided for in someone’s estate, or whether you as an Executor/Administrator are facing such a claim.
Divorce and Business Assets
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Following the breakdown of a marriage, a business owner needs to take early advice in order to protect the business which in the normal course of financial relief proceedings would count as part of the matrimonial assets.
If you own a business, either as a sole trader, partner or a company, the principle that all your assets will form part of the matrimonial pot when it comes to division will apply . Protecting the business and safeguarding its assets and working capital is necessary. Our solicitors work with accountants and other professionals to try to ensure that your business is preserved and any payout is structured taking into account other property, capital and assets. These are complex financial issues and the services of experienced professionals must be sought at an early stage.
We normally advise Businesspeople to enter into Pre-nuptial agreements in order to safeguard assets at the time of marriage. Even though such arrangements are not binding on the courts, they are never the less of persuasive value.
New Minimum Wage Rates
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As from the 1st of October the minimum wage rates have been increased as follows:-
£ 6.80 Per hour for any employee aged 21 and over/
£ 4.98 Per hour for any employee aged between 18 -20
£ 3.68 Per hour for any employee aged 16 to 17
Employers should urgently review their wage structure in line with this increase and avoid a fine from the Department of Trade and Industry.
