Contesting a will

Contesting a Will

The loss of a loved one can be an emotionally and financially devastating time, one of the most sensitive issues around this time can be the distribution up of the deceased’s assets. Individuals’ emotions can run high, especially, if they don’t believe that they have been appropriately looked after under the terms of the will.

Once the apportionments under the will have been made, unfortunately, it is not common for families to end up in unexpected disputes, which ultimately sometimes end up in Court.

There are two ways in which an individual can challenge a will. The first is if they don’t believe that the deceased was of sound mind or any other reason which may make the will invalid at the time of its creation.  The second way that a will can be challenged is if an individual claims that they are not appropriately looked after under the terms of the will.

If an individual is to claim that they are not being sufficiently looked after under the terms of a will, they will need to be within a restricted class of people for their claim to be successful. The following are included within the class of restricted people:

  • Current or previous spouse;
  • Any child or person treated as a child;
  • Any person that was being maintained by the deceased immediately prior to their death;
  • An individual who lived in the home of the deceased for 2 years prior to their death.

Unlike a challenge under the scope of not being sufficiently looked after under the terms of a will, it is open for any party to challenge the actual validity of a will. Reasons for challenging the validity of a will, generally centre around the mental capacity at the time of the individual who made the will and whether their knowledge and approval was given for the will to be made on their behalf. The most common reason for the challenge of a will is when the deceased was seriously ill at the time of making the will and the drugs they were under had a unnatural influence on their ability to make coherent decisions.

Further reasons as to why a will can be declared void include cases where undue influence was placed upon the deceased in an attempt to manipulate the terms contained in the will and also if the witnesses fail to execute a will properly. Any individual except for a creditor of the deceased can make a claim to challenge the will due to its validity.

There is no statutory time limit in place for the challenging of a will, under either grounds, however, if the Court believes that there has been an unreasonable delay, they may refuse to hear the case.

It is stressed however, that Court action should be considered as a last option and a much better way forward may be open communication and dialogue with other members of the deceased’s family.

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Boundary disputes

Boundary Disputes

Boundary Origins

A legal boundary may be a visibly marked or invisible line which separates one piece of land from another. Most boundaries were created a long time ago, when the original owner of a larger portion of the land divided it into smaller parcels. It was the responsibility of this person to identify these boundaries, however, over time, these documents have been mislaid or found to have inaccuracies. For example, the architect may have drawn up plans for a boundary to be in a particular place but when construction began the fences may not have been placed in the exact position identified in the architect’s drawings.

The position has not been assisted by the fact that the vast majority of property in England & Wales is now registered land. This means that details of ownership, covenants, mortgages and so forth are all recorded at HM Land Registry. Plans associated with titles indicating who owns which parcel of land are drawn to a small scale and are often not accurate as to exact boundary lines.

This has meant that boundary disputes between neighbours have become common, particularly in residential properties where one party wishes to cut down a hedge, plant a tree, move a fence or wants to determine who has responsibility for repairing a fence. Boundary disputes are also common on commercial and agricultural land. Therefore it has become necessary to establish who exactly owns a disputed piece of land. In order to resolve this problem the parties will need to exam both current and historical legal documents, the most important of which is likely to be the earliest available conveyance, plan or transfer deed.

Determining Boundaries

There are some presumptions that exist with boundary disputes, such as the intention of the person who divided the land and where the walls of a property are built, but these are not certain and presumptions can always be rebutted.

If the land is not registered with the Land Registry, then the first thing anyone involved in a dispute should do is to check the deeds to the property, including any old deeds or plans as they will highlight boundaries and give dimensions. Such deeds and plans will normally be in the possession of the owner of the land or their neighbour. If the neighbouring land is registered then the Land Registry may also have copies of these.

If the land is registered with the Land Registry, then first point of call for determining a boundary is to check the Title Register and The Title Plan which are available from the Land Registry. The Title Plan will highlight the inside boundary of the land with red edging. Reference should also be made to any old deeds or plans which will be in the possession of the owner of the land, their neighbour or the Land Registry as these are likely to contain dimensions. All of these documents need to be checked because the Title Plan on its own does not show the exact location of a boundary, but rather a general boundary, which has been interpreted by the Land Registry.

Resolving Boundary Disputes

It is very difficult to determine the exact location of a piece of land’s boundary, particularly if you are looking for a solution that goes down to the last millimetre. This is because boundaries can change over time, either by agreement, by accident (where a fence has been taken down and not replaced in the exact same location) or in some cases without permission (adverse possession). Determining the location of a boundary with that much accuracy will require professional help in the form of a surveyor and maybe even specialist solicitors.

Settling boundary disputes can be a long, complicated and an expensive procedure, especially if you take into account that the cost of resolving a dispute over a very small piece of land may cost more than the value of the land itself. It is recommended that the parties to a boundary dispute try and resolve the matter informally, jointly appoint a surveyor or enter into mediation.

In any event, according to John Clement, a litigation solicitor at Turbervilles,  it is always wise to begin by contacting the Royal Institute of Chartered Surveyors (RICS), who are the professional body for qualifications and standards in land, property and construction.  John says that “the RICS have a dedicated boundary dispute team and they will be able to put you in touch with a chartered surveyor if required. These disputes are so expensive and out of proportion to the real issues at stake that any way of seeking to resolve quickly and definitively is strongly recommended”.

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Debt Recovery

Debt Recovery

A frequent problem that nearly all business will experience at some time is the recovery of money owed.

If the amount is relatively small, such as £150.00 it is sometimes better to write off the debt, however, this may set a precedent and encourage others to incur small debts against the company in the hope that it will simply be written off. Obviously £150.00 may not have a dramatic effect on the balance sheet of the business but if it happens 10 times it might.

Businesses are to be encouraged to take a diplomatic but firm approach with debtors as it is often not upsetting a valued customer over a debt which may be caused by factors out of their control. Businesses should be encouraged to discuss the situation with the customer and to try and resolve any problems by agreement. It is not advisable to begin legal proceedings without first speaking diplomatically with the debtor.

One of the first things to do when a payment becomes overdue is to have a look at the contract that is in place governing the relationship. The contract may include interest payments which will be due for overdue payment. If not, the business may still be able to charge interest under the Late Payment of Commercial Debts (Interest) Act 1988, which comes into play where there are no written terms of credit.

Before legal proceedings are commenced it is recommended that a business undertakes standard credit control practices. It is always common practice to send reminders to the customer, speak to them on the telephone and write letters informing them of the overdue amount before business begin legal proceedings.

Once a business has taken the decision to begin legal proceedings, the first step would be to send a formal letter demanding immediate payment of the overdue amount and stating that you will commence the aforementioned legal proceedings if you don’t receive payment of the debt by a specific date. It is advised that a business instruct a solicitor to send this letter as it shows the customer how seriously the business is taking the recovery of the debt.

There are certain evidential barriers which a business will have to pass in order to show that they are owed the debt they claim. In an ideal world a business will have a signed contract setting out the relationship with the customer. However, if this is not possible, other documentary evidence may be appropriate. It is advisable that the business keeps a clear record of any correspondence in relation to the debt in question between themselves and the customer.

The way the claim will flow through the courts will depend on the amount of money that is owed. If it is what is described as a small or medium claim it is likely that the proceedings will be in the County Court. Larger claims will be in the High Court, these will be for debts of over £25,000.00.

If the debt is undisputed and for more than £750.00, there is an alternative option available which is to issue a statutory demand (useful guide here). This gives the debtor 21 days to pay up the amount owed after which the issuer of the statutory demand can petition to the court to wind up the Company which owes the money or make the individual bankrupt.

This article courtesy of Jonathan Green, trainee solicitor at Darlingtons, you can visit their site at http://www.darlingtons.com

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Enforcing a judgment

Civil Litigation: Enforcement of Judgments

If, at the end of litigation, the applicant has been successful in obtaining a judgment against the respondent, the respondent will usually pay the amount he has been ordered to pay without any further action being necessary. However, this is not always strictly true.

Where the losing party is unable to pay the judgment sum, or is unwilling to pay, despite the consequences, the successful party will have to take steps to enforce the judgment debt. The judgment will not be enforced automatically, and unless the applicant is pro active and takes enforcement action, they are unlikely to recover the monies owed.

There are various factors to consider before making a claim for money owed. The successful party should ensure that, before action is commenced, the respondent party’s whereabouts is satisfactorily ascertained, that they have the means to pay any monies owed and that there are assets available should enforcement become necessary. An Enquiry Agent may be necessary to trace the respondent and the applicant should provide the Agent with as much detail as possible in order for him to make a realistic attempt to trace the respondent. However, one must bear in mind that this can be expensive and it must be ensured that a disproportionate amount of money is not spent trying to trace the respondent, especially if they do not have the means to pay the monies owed.

If the losing party is not insured and does not have the means to pay up, it is unlikely to be a commercially viable option to go after them for monies owed, as the successful party may end up either chasing these monies far in to the future, incurring substantial legal fees as a result, or may end up spending more on the proceedings than the monetary value of the claim itself.

There are a number of enforcement options available to the successful party, once judgment is obtained.  These are as follows:

  1. Execution: This is where the losing party’s goods are seized and sold to satisfy the judgment debt.
  2. Charging Order: This is where a charge is placed over the losing party’s land or other securities.
  3. Third Party Debt Order: This is an order which requires a third party who owes money to the debtor to pay the monies owed directly to the successful party.
  4. Attachment of Earnings Order: This is an order which requires the losing party’s employer to make deductions from his earnings and pay them to the successful party direct.

The advisor to the successful party will, on the facts of the case, advise as to what method of enforcement is most appropriate.

However, if the judgment sum is in the region of £750 or more, the successful party may choose to petition for the bankruptcy of the losing party. This cannot be done if a charging order has been put in place, as this poses a Catch 22 situation for the successful party in that if he petitions for bankruptcy but has a charging order in place, he faces giving up his position as a secured creditor in preference of petitioning for bankruptcy of the offending party.

In relation to enforcement of judgments outside the jurisdiction, the successful party must have regard to the rules as set out in the EU, Brussels and Lugano Conventions, in relation to obtaining the relevant certificate of enforcement.

This article courtesy of the litigation team at Darlingtons solicitors in London.

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Equality, maternity leave & gender gap

Maternity leave research

Reabur.com has published some very interesting research finding on attitudes of employers relating to maternity leave. Without further ado, here are some of their most interesting findings :-

  • Some 65% of employers do not believe employees will return to work after taking maternity leave
  • Female employers have a markedly different approach to male employers. 82% of female employers believe the employee will return to work.
  • Only just over 40% of employers questioned have a “return to work” policy.
  • 16% of employers would prefer it if staff on maternity leave do not return to work
  • The reasons employer gave for not wanting the employee to return to work included a perceived reduction in concentration and enthusiasm.

Notwithstanding the Equality Act and all the strides forward made in equality, the clear finding of this survey is that there is still a significant gender gap when it comes to maternity leave.

What do you think ?

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Another interesting social media case

More reasons to be careful with facebook and social media

Whilst the English legal system is quite different to the US system, a new ruling in the New York jurisdiction provides a salutary lesson and warning about what could happen under English law when it comes to social media.

These social media issues are becoming increasingly common in legal disputes as regards what is or is not discloseable as part of court proceedings.

In the case in question, the Judge decided that the Claimant’s private Facebook and MySpace postings were discloseable to the defendant in a personal injury action.

The rationale for this decision was based on the fact that public postings on the social media sites cast doubt on the claims and the Judge therefore considered that there may be other relevant material in the private postings showing that the extent of the injuries claimed and effect on loss of amenity was not as severe as claimed.

The whole area of social media and the law is a fascinating and fast developing area with major implications, as regards what is private and what is not. In this country we have the added ingredient of the Human Rights Act. It seems to us that an argument for disclosure of this type of material, which is likely to be tested soon, will inevitably involve arguments about right to privacy and family life under the Human Rights Act.

What do you think ?

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Social media employment law guide

What steps are suggested for practical protection on social media risks

  • Educate employees about the consequences of disclosing or misusing the company’s confidential information or intellectual property in the social media context.
  • An employee’s disclosure or misuse of confidential information or intellectual property could:
    • result in breach of the employment contract;
    • breach the terms of a confidentiality agreement between the company and a third party;
    • compromise intellectual property rights;
    • create embarrassment or confusion among employees or clients;
    • jeopardise legal privilege between the company and its in-house legal counsel

How can we prevent harassment and bullying via social media ?

  • Include references to social media in anti-harassment and anti-bullying policies and in any training offered to prevent workplace harassment.
  • Make sure the corporate response to harassment (sexual or otherwise) and bullying through social media is consistent with the response to harassment and bullying in other contexts.

In summary

Do:

  • Adopt a social media policy to encourage appropriate employee use of social media.
  • Use the policy to prohibit employees using social media in ways that could damage the company.
  • Provide training to employees on the appropriate use of social media, and monitor for compliance.

Do not:

  • Allow employees to disclose or misuse confidential or proprietary information.
  • Permit employees to use social media to harass colleagues.
  • Impose unnecessary restrictions on employee use of social media.
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George Groves & commercial law

Those of you who even know who George Groves is (a boxer) might be asking what on earth this guy has got to do with commercial law …..

No, I’m not posing some kind of MENSA like teaser, it’s quite straightforward. Like some of you may have been, I was listening to radio commentary of a big UK boxing match, billed as a genuine “grudge match”, last night, between the aforementioned George Groves and James de Gayle.

Whilst Groves is a class act and unbeaten, few backed him to beat De Gayle who is reigning olympic boxing champion and also unbeaten. Groves won, on a split decision.

The reason he won, as he himself stated in an interview was significantly due to the quality of his “team”. He is trained by Adam Booth, David Haye’s trainer, known to adopt an ultra professional set of techniques and where planning and tactical nouse are paramount. In short, Groves and his team totally out-thought and out-planned DeGayle and his team.

There are many these days who don’t see the need to use lawyers as any more than paper shufflers at best. There seems to be a growing opinion that conveyancing is simply ticking boxes and that lawyers fees should be haggled down to a point where there is no profit for the lawyers. But in important matters (boxing can be life and death, law is often life changing), it pays to have the right team and the right experience. A good solicitor will have highly honed tactical skills, commercial knowledge as well as legal skills, they often have experience which clients don’t on similar transactions. In short, a good solicitor will often mean the difference between winning or losing a case, getting the right kind of contract for you, and not least in avoiding unecessary risks… in boxing parlance, not “dropping your guard”.

So choose a lawyer carefully, having the best team is smart thinking and shop around, not necessarily on price but on experience and past performance. Boxing and law, not so different after all !

 

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Age discrimination

Quick stats re Age Discrimination

Age discrimination is very topical at the moment, and it looks like there will be a surge in the number of claims made in the Employment Tribunal as employers get to grips with their new obligations under the Equality Act, and society as a whole really needs to change attitudes. On perhaps interesting application of the new law not yet tested, relates to young people. It appears that young people are being hit particularly hard in the current job environment. Whilst employers may argue that young people are not selected for jobs due to lack of experience, it seems to us that there is a trend that someone can simply be considered too young as well as too old, and that now constitutes discrimination.

In terms of data, the figures on age related employment tribunal discrimination claims show that Claims increased by 164% to 2,900 in the 3 months to December 2010, compared with 1,100 in the same period in 2009.

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