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Mistake in Wills

Posted by: admin    Tags:      Posted date:  October 13, 2011
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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

Posted by: admin    Tags:      Posted date:  October 3, 2011
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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

Posted by: admin    Tags:      Posted date:  September 28, 2011
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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

Posted by: admin    Tags:      Posted date:  September 27, 2011
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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

Posted by: admin    Tags:      Posted date:  September 26, 2011
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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.

From Russia With Love

Posted by: admin    Tags:      Posted date:  September 23, 2011
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The Russian wife returned to Russia and made financial claims against the husband.
She never completed divorce proceedings.

The husband died after changing his will so she was no longer main beneficiary.

She claimed as interim relief to live in the husbands house and to seek £25000.

The court said that in order for the claim to succeed she must show a need for immediate financial assistance . The fact that she came to England now and again on a visit did not give her the right to move into the deceased husbands house. It has to be said that the Court also was very sceptical of her financial disclosure.

Eviction Following Riots

Posted by: admin    Tags:      Posted date:  September 20, 2011
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Wandsworth Council was the first in London to issue a notice seeking possession against one of their tenants whose son was arrested and charged following the riots. It is worthwhile to check the legal framework for eviction in such cases.

This is dealt with in Ground 2 of the Housing Act 1985 which allows tenants to be evicted when the alleged antisocial behaviour occurs in the neighbourhood that they live in. It specifically deals with criminal activity and that that a court may grant a possession order where the tenant ( or person residing with him) has been convicted of using the property, or allowing it to be used, for immoral or illegal purposes or an indictable offence committed in or in the locality of the property.

The question to be considered therefore is whether the criminal activity took place in the locality of the property. It would need to be proven that the son of the tenant committed this alleged criminal activity in the neighbourhood. If he was convicted of activities in another borough the eviction would have little chance of success.

Love and Marriage

Posted by: admin    Tags:      Posted date:  September 15, 2011
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According to a recent survey on divorce growing apart /falling out of love is the most frequently cited reason for marriage breakdown.

Extramarital affairs has now fallen to second place . It has been suggested that this is because celebrities …..poor old Cheryl Cole… are now seen to put up with such affairs and so more marriages are surviving infidelity.

The same survey found that 40% of family lawyers believed that parties to a divorce were concealing financial assets. Something difficult to prove by the weaker financial party.

Careful with the Managers Job

Posted by: admin    Tags:      Posted date:  September 14, 2011
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The employment Tribunal has held that a football coach who was given a specific role as manager of the Under 19 team was constructively dismissed when he resigned after a subsequently appointed Academy Director was given the job of picking the Under 19 team. This had significant effects on the employees role. Lack of consultation was a breach of trust and the the employee had a complaint as to the manner the changes were carried out.

This was Falkirk but could be any team.

You Cannot Sack Yourself by Silence

Posted by: admin    Tags:      Posted date:  September 13, 2011
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Failure to respond to an employers letter was not a self-dismissal.

A recent Employment Tribunal hearing has held that an employee was not se lf-dismissd when he failed to reply to a letter stating that he would be held to have resigned unless he contacted his employer.. The EAT specifically disapproved of the idea of implied termination and self –dismissal . Repudiatory conduct by an employee cannot terminate an employment contract in itself without more: the employer must accept the repudiatory breach and notify the employee that he had done so-it is then the employer who actually ends the contract.