Wills & Probate
Wills are always a difficult subject to raise. People don’t like to dwell on morbid subjects and one’s own death is the most morbid of them all!
There seems to be a reluctance to spend money on Wills. Probably because people regard it as “dead money”! Certainly, you will not see the benefit in your lifetime.
Joking apart, making a Will through a solicitor, preferably using us, is vital. Homemade Wills so often do not accomplish what was intended and end in family squabbles which cost a great deal more than the cost of making a Will.
Many people have such complex lives these days. Children from an earlier relationship, couples not being married, the position of step-children, guardianship issues and he like. Such situations call out for a Will to be made. It is almost irresponsible when there are such complex family situations for someone not to make a Will. We hear it so often “if only he’d make a Will.”
Then there is the question of health, mental health in particular, and at the same time as making your Will, entering into a Power of Attorney is important. You do not know what events may make it vital that someone is able to deal with your affairs on your behalf.
The Law is complex, but those complexities become of relevance because people do not put their affairs in order, when they know that one day the inevitable will happen.
Although you will refer to them as “Bailiffs” or “Sheriff’s Officers” they are now called Enforcement Officers.
In 2013 Regulations introduced a requirement for a 7 Day Notice, that an Enforcement Officer intends to attend a debtor’s premises, to be sent warning the debt of that meeting. This came into effect in April 2014 and before then, no such Notice was required. You do not need to be a genius to know what the debtor will do with his valuable belongings once he gets a 7 Day Notice.
A judge can dispense with the 7 Day Notice if it can be shown that there is good cause to believe that goods might be disposed of once this Notice has been given. A recent case involved a passenger aircraft which landed at Manchester Airport and because there was an outstanding bill for fuel Enforcement Officers sized the aircraft, which could not leave until the debt had been satisfied. The Judge in that case dispensed with the need for the 7 Day Notice. The passengers were none too happy!
An Enforcement Officer does not need to take goods away, but can obtain a signed Controlled Goods Agreement from the debtor. This confirms that the debtor no longer has title to the goods and confirms that he may not dispose of them. The Agreement also gives the Enforcement Officer the right to enter the property to inspect the goods and remove them for sale at any point. Of course, if a third party buys those goods from the debtor, he does not get title to them and the third party will have to either return the goods or pay their value to the Enforcement Agent. The difficulty is that he/she does not know if the goods are not the seller’s goods to sell. “Caveat Emptor” – let the buyer beware!
So,, beware if you are buying goods, particularly if they are being sold on-line. How do you know if the seller has title to them? Well you don’t, until there is a knock on the door.
Why do many of us not like being in the EU? Many people feel that we are not allowed to govern our own Country and object to Brussels telling us what to do in our home affairs. Basically, do we still want to be part of a Federalist State? I am not going to try and give you any answers. It is not my place to do so.
But I was lucky to meet and have a discussion with a Judge who has recently retired from the European Court of Justice. The first point I challenged her on was the fact that, unlike in the English Jurisdiction, a verdict is given in the ECJ as if all the Judges agreed with it. In the UK any dissenting judgment is reported as well, not merely the majority’s judgment. My comment to her was that in my view many judgments seem to be “administrative decisions” rather than law inspired. She acknowledged that a judgment of the ECJ sometimes adopts the “lowest common denominator”. This is certainly not the way the UK judicial system operates. The ECJ has adopted the procedures of France, Germany and other Europeans. For me, the quality of justice from the ECJ is not as sound as that in the UK and hence we see some absurd decisions.
What was informative is that if we do leave the EU, the EU will be very much worse off. One reason is that the English contingent in Brussels are very proactive, as are the Germans, in putting through legislation and then implementing it, whereas it can take years before other Member States (eg. Greece or Portugal) do so. So if we leave the EU the impetus that the UK representatives give to the EU Law making machine will be lost. So, in reality, EU Federalists will greatly miss our legal expertise and input if we leave the EU. Their loss and, maybe, it is our gain.
The big question is if we leave the EU what would we lose? I leave you to answer that.
Richard J Bell
From Medieval times a landlord has been able to recover rent by distress, namely entering on a property and removing goods to the value of the arrears. This procedure weighed heavily in favour of the landlord and in its wisdom the Government has reformed this ancient remedy under a 2007 Act and The Taking Control of Goods Regulations 2013.
The Regulations provide some important revisions to the Law. For example an enforcement agent (bailiff) must give 7 days written notice that he/she intends to come to the property for the purpose of taking control of a tenant’s goods. This gives the tenant plenty of time to remove them!
Only rent arrears can be recovered this way, even if the insurance or service charge is reserved “as rent”.
So wiley the tenants may well only pay part of an invoice for rent and service charge, and specify that the payment is for “rent”, and not for the service charge. This would prevent the landlord from pursuing action for the tenant’s goods to be seized for the service charge! Is this not absurd?
Sometimes we feel that the Government in trying to redress one problem, or something that is unfair, can go too far the other way.
The Children and Families Act comes in to force on the 22nd April 2014.
The aim is to produce ‘child focused thinking’ in family courts. However what will the Act mean to you?
Section 11 of the Act inserts four paragraphs into the Children Act 1989, regarding the further involvement of parents in the life of a relevant child.
This change to the Children Act establishes the expectation that both parents of a child should remain involved in that child’s upbringing in some way. Section 11 will mean that the court will have to consider more carefully any application which may lead to a parent not having involvement with his or her child.
Child arrangements orders
As of 22nd April, ‘residence’ and ‘contact’ are no more! They are replaced by ‘child arrangements’. The idea is that parents will feel that they are equally involved, and will work together for the child. This means certain orders must be drafted very carefully to ensure the outcome is what you intended.
Section 10 of the Act introduces a mandatory requirement to engage in mediation before starting court proceedings. So what is mediation? Mediation is a process by which couples negotiate face to face about the arrangements for their future with the help of a neutral third party – a mediator.
Mediation is a great way of keeping matters amicable and can reduce costs long term. However if you do not want to mediate it is important to discuss your concerns with a solicitor.
The new Act will bring in many changes to the way that the Courts deal with family law, and the above is a summary of a couple of the main changes. If you have a family issue, it is important to get legal advice as most ‘DIY guides’ on the internet will not be correct.
The Marriage (Same Sex Couples) Act applies in England and Wales. Separate legislation is being implemented in Scotland, but there are no proposals for equivalent legislation in Northern Ireland.
Most provisions of the Act came into effect on 13 March 2014, but do you know what effect this Act actually has?
The Act provides for references to marriage in existing legislation to be read as including same sex marriage.
Someone who changes their legal gender may do so without ending their existing marriage, where both parties to the marriage consent, something previously which was not possible!
Same sex marriages can take place by civil ceremony, or under religious rites where a religious organisation has opted in to the Act’s provisions.
There is also recognition in England and Wales of same sex marriages entered into under the laws of other countries.
However as of yet, it is not possible for a civil partnership to be converted into a marriage, but this is likely to occur later on in the year. Also their are still provisions which limit the extent of the equivalence of same sex marriage in respect of certain pensions issues, though this is due to be the subject of a government review later this year.
Like all marriages, you should also think with your head not just your heart before entering into one. Prenuptial and postnuptial agreements are not just for the wealthy, they are a sensible way of planning for the future. Get legal advice and know your options before entering into a same sex marriage.
‘Neither a borrower nor a lender be…’ - Hamlet Act 1, scene 3
Many parents give or lend a child money to help them buy a property. With property prices so high and children coming out of education with debt, getting on the property ladder means that a loan or gift is more common that it is not.
But what happens if the child enters into a relationship or marriage that later breaks down?
One person may say that money was a loan while another may say it was a gift. It can be difficult, time consuming and expensive for lawyers to try and unpick this once a marriage or relationship has broken down.
If you are lending money to or borrowing money from someone, enter into a formal written loan agreement or a Declaration of Trust recording that the person giving the money has an interest in the borrower’s property. There is a legal presumption against money being gifted, so if it is a gift this needs recording in writing by the donor. If the relationship does later break down it is much easier to establish that the money was a loan rather than a gift and vice verse.
Be sure to get advice from the experts here at HHB Law.
JP v LP, SP and CP  EWHC 595 is a recent surrogacy case that highlights the problems of entering into informal surrogacy arrangements.
The family involved entered into an informal surrogacy agreement with a friend and difficulties started when the parents separated soon after the child’s birth. The parents were not aware of the legal position of entering into surrogacy arrangements.
Did you know…
- Surrogacy agreements are not enforceable in law in the UK.
- It is a criminal offence in the UK for a third party to negotiate surrogacy arrangements on a commercial basis.
- The surrogate mother, and no other woman, will be the child’s legal mother.
The legal position in the UK is complicated. Parents should ensure they have all of the relevant advice before embarking on surrogacy, either in the UK or by way of an overseas arrangement. Get specialist advice from our Family Solicitor at HHB Law.
Wills & Probate
Disputes relating to wills and estates continue to cause a lot of grief and expense to those left behind when some people die. The situation is almost always much worse when wills have been prepared by the deceased, and sometimes even when prepared by a lawyer who does not have the necessary training and experience.
Probate costs can start in the region of £2,500. However, the average cost of obtaining probate is probably in the region of £5,000 to £7,000, but disputes, usually between family members, can cost several times more than that.
An experienced lawyer will, in many cases, also be able to help your family save considerable monies in relation to inheritance tax and asset protection matters.
So – if you are thinking of making a will, get advice from an experienced Private Client solicitor. Don’t do it yourself!
We all have notions as to what English Law is all about. We go to Law because we are looking for Justice. Do we get Justice and what does Justice mean? These are perennial questions.
Take a simple case, where a car driver has one account as to how the accident happened, and whose fault it was, and the pedestrian says something different. Who does the Judge believe? The pedestrian’s friends, who were with him at the time, all support his version, but the car driver was on his own, and so the Judge has to make a judgment based on the weight of the evidence. So one of them is going to leave the Court saying that the Judge was wrong and that he did not get Justice.
This is the nature of the beast. However, the Court procedure with which litigants are obliged to comply, has become more draconian because of a recent decision in the case of Mitchell. Before a civil claim gets to a Judge for trial, there are various procedural matters that need to be dealt with. The Court Rules require that the parties do comply with these procedural matters. However, for a variety of reasons one party may delay because, for instance, a witness cannot be found, someone has been ill or information which is required cannot be obtained in time. In such cases, the Court would normally given an extension of time and the parties themselves often agree to an extension, because such things do happen.
However, in the Mitchell case, the Judge was not prepared to give further time to comply with a relatively trivial part of an Order and struck out the defaulting party’s claim. This was the first occasion that there was a delay and was this really Justice? On the face of it, it has become easy now, because of this case, for one party to seek that a Claim be dismissed for a minor infringement of the Rules by his opponent. There may well be issues under the Human Rights Act because everyone should have access to Justice. It seems to me that the Courts are denying that access to Justice by imposing unjust administrative rules before a Claim even gets to trial.
“O just, but severe Law” as Shakespeare wrote it. After 330 years this should now read “O unjust, and severe Law”. Hardly progress!