Challenges to wills are becoming more common. This increases the danger to will writers of contentious probate actions being brought against them by the estate or disappointed beneficiaries for loss. Some useful tips to help avoid challenges are set out below. [Read more…]
In a recent appeal on a possession order in the case of McDonald v McDonald and others , a Supreme Court decision will grant some much needed relief for landlords throughout the UK.
Generally speaking, there are many reasons why a landlord may wish to reclaim possession of a leased property. At present, however, even when a landlord has the right to reclaim possession of their residential property, they must ask the court to order their tenant to leave. This is known as a possession order and is the only way by which landlords may evict a residential tenant under current law.
In certain circumstances the court has no choice but to simply make the order to evict the tenant, but this does require certain conditions to be met (in the case mentioned above, for example, these conditions were contained in Section 21 of the Housing Act 1988).
At BHW our specialist property litigators and experienced commercial property solicitors can advise you in order to achieve the very best outcome, whether you are a landlord or tenant. This particular article focusses on what commercial and residential landlords might need to do to comply with the Approved Code of Practice on Legionnaires Disease issued in 2013 by the Health and Safety Executive, “Legionnaires’ disease. The control of legionella bacteria in water systems L8” (“ACOP L8”).
Legionnaires’ Disease is the most serious form of disease caused by the bacterium legionella and manifests as a severe type of pneumonia, which although treatable, can be deadly. The related bacteria are quite common in the natural environment such as reservoirs and lakes, but usually in insignificant numbers. Where conditions are more favourable however, such as in purpose-built water systems where the temperature is maintained and the water is perhaps slightly stagnant, they can multiply in greater numbers, posing a risk to health. Hospitable environments for these bacteria include whirlpool spas, swimming pools, showers, recirculating hot and cold water systems, cooling towers, and most frequently, air conditioning systems, particularly where the water temperature is between 32°C to 42°C.
This issue was considered in Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C4I) Limited  EWHC 3148 (TCC). The case looked at whether the Defendant was entitled to terminate a licence agreement for convenience.
Before proceedings had commenced the Claimant requested mediation on numerous occasions but the Defendant declined. The Defendant did however make a settlement offer, which the Claimant also declined. It was later found that the Defendant was entitled to terminate the agreement.
The Claimant then sought a reduction of the Defendant’s recoverable costs because of its unreasonable refusal to mediate. Often, instead of moving straight to litigation, parties choose to engage in forms of Alternative Dispute Resolution (“ADR”) like mediation to avoid the cost of litigation and try to resolve the dispute without resorting to court action.
Undue influence is an equitable doctrine that involves one person taking advantage of a position of influence over another person. It is a method to attack the validity of both lifetime gifts and wills and is becoming more common.
The courts have taken different approaches when dealing with undue influence in the context of wills and lifetime gifts. It is easier to make a successful claim for undue influence in respect of a lifetime transaction because a presumption of undue influence often exists, but this is not the case in relation to gifts by will.
Undue Influence – Lifetime Gifts
There is a presumption of undue influence for lifetime gifts where there is a relationship of trust and confidence and also a transaction which calls for an explanation.
The service of a Statutory Demand is a precursor to commencing insolvency proceedings, whether it is bankruptcy proceedings against an individual debtor or a winding up petition against a corporate debtor.
Typically, Statutory Demands are used by creditors as a persuasive tactic against debtors in order to recover monies owed. The debt threshold is currently £750. This is usually an effective strategy as the threat of being served with a Statutory Demand in itself can be alarming, particularly to an individual debtor.
The government has recently announced proposals to increase the current debt threshold of £750 to £5,000 before a creditor can serve a Statutory Demand against an individual debtor. This change is proposed to take place from 1st October 2015.
When faced with a disputed will, there are a number of important points to bear in mind before you decide whether or not to challenge a will.
- Think carefully about the consequences of challenging a will
If you are considering challenging the validity of a will, it is vital at the outset to consider if any benefit would be derived from an order declaring the will is invalid.
If the court declares that a will is invalid, the last previous valid will takes effect. If there is no previous valid will in existence, the estate would be distributed in accordance with the intestacy rules.Clearly, there is no point spending costs proving a will is invalid if no (significant) gain would be obtained from doing so.
- Understand the importance of a Larke v Nugus statement
If it is alleged that there are suspicious circumstances surrounding the making of a will, it is important at the outset to obtain evidence of those circumstances.
If the will was professionally drafted, you can contact the solicitor and ask for the details. Client confidentiality is not an issue. The request is for a Larke v Nugus statement.
In 1959, the Law Society issued guidance stating that there is an obligation on a solicitor who prepares a will to provide a statement relating to its execution and the circumstances relating to its preparation, regardless of client confidentiality. This was confirmed by the Court of Appeal case of Larke v Nugus (1979).
It’s hard to believe that at a time where complicated family relationships are now more common than ever, only three in ten people have a Will to protect the family they leave behind. The Treasury gains millions of pounds each year from people who die intestate i.e. without a Will. With the added increase in litigation of contested Wills, making a Will has never been so important.
The reason for having a Will is to make things easier for your family if you do suddenly die. Families where the parents are unmarried and have children are at particular risk. In this case, the situation has the potential to become more problematic and not having a Will can have devastating effects.
Clients often ask how long it takes to become a common law wife. Is it six months, two years, five years? The answer is none of the above. It is a commonly perceived myth that there is such a thing as the common law wife. In truth, the myth of the common law wife is serving to leave a significant number of people vulnerable and surprised that the law does not offer them similar protection to their married counterparts.
It is essential that cohabitants make Wills to protect their partner in the event of death; otherwise there is little protection on the death of a partner. A cohabitant’s only recourse is to make an application to the court for reasonable financial provision if they have been living in the same household as their partner for two years preceding death and have been living as husband and wife or civil partners.
If your partner dies and you have children, you could potentially be left with nothing. If the property you live in is owned by the deceased, you would have no claim. All the deceased’s assets would be passed directly to the children. This leaves the surviving partner potentially being forced to sue their own children just so they have enough to live on.
What happens to the children if you both die? The courts decide who should look after them. But if you make a Will, you decide.
Many people just can’t face the prospect of contemplating their own mortality. We have previously had a client who didn’t complete her Will as she was worried she would die immediately after. We can honestly say that in many years of dealing with Wills this has not been our experience!
Others don’t like trying to decide between whom gets what and they don’t want to discuss it with their partner for fear of causing upset. But from our past experience, we can say that there is far more upset caused by not discussing it when a partner who is left behind has little or nothing.
BHW Solicitors are pleased to announce that Paul Davis, a solicitor in the firm’s Dispute Resolution department, has been appointed as an Associate Member of The Association of Contentious Trust and Probate Specialists (ACTAPS) and becomes one of only a handful of ACTAPS Members in the East Midlands.
Only solicitors and barristers who have specialist expertise in disputed wills, Inheritance Act claims, estate administration and contested probates are admitted to ACTAPS. Additionally all ACTAPS Associate Members must undergo 2 years of specialised training. The prestigious association allows solicitors who specialise in contentious trust and probate work to liaise and share their experience and knowledge.
ACTAPS provides a code of conduct which all members must comply with. The code is designed to ensure that contentious probate matters are dealt with in a manner which attempts to avoid protracted litigation.
Speaking of his appointment, Paul said: “I am immensely proud to be appointed as an Associate Member of ACTAPS, which is widely recognised as the blue-ribbon standard for lawyers specialising in contentious trust and probate work. As an Associate Member of ACTAPS, our clients can be assured of my expertise in this complicated area of law”.
BHW Solicitors’ Managing Partner, Nick Bridle, also commented: “Paul’s hard work over the last two years in gaining membership of ACTAPS is an excellent accomplishment for both him and our firm and recognises the specialist service we provide.”
If you would like to discuss a contentious probate matter then Paul can be contacted on 0116 281 6231 or by email at email@example.com
The Civil Procedure Rules, in particular, CPR 3.9 set out the criteria that govern applications for relief from sanctions.
CPR 3.9 states that a Court must consider all the circumstances including the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, practice directions and orders.
Following the Jackson report, the rules were tightened with the intention that parties that default on Court Orders would be more readily punished.
In the wake of Mitchell v NGN  EWCA Civ 1537 which set out further guidance including a two stage test on the harsher rules implemented, there appeared to be disorder within civil litigation generally. This was due to parties refusing to co-operate and therefore taking a harsher stance, which led to Courts being swamped with numerous applications for strike out.