Author: Wellers

Don’t Leave It Too Late to Put Your Affairs in Order

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People often talk about putting their affairs in order but then sit on their hands until it is too late. The serious consequences of delay in seeking legal advice were underlined by a case in which a woman waited until she was resident in a hospice, terminally ill with cancer, before instructing a solicitor to prepare her will.

The woman signed her will 10 days before her death. Her main asset was a house she jointly owned with her mother, who survived her by about four years. An issue of great significance, however, later arose as to whether they owned the property as joint tenants or as tenants in common.

If they held the property as joint tenants, the principle of survivorship applied and, on the woman’s death, her half share passed automatically to her mother. In that event, the property formed part of the mother’s estate when she died and the entirety of the proceeds of its sale – more than £400,000 – fell to be distributed in accordance with her will. If, on the other hand, they held the property as tenants in common, the woman’s share of the property fell into her own estate.

On the same day that the woman made her will, she signed a notice which purported to sever her and her mother’s joint tenancy, thereby converting it into a tenancy in common. A letter containing the notice was sent to her mother by registered post. A few days after the woman died, however, the letter was returned undelivered.

Against the background of those unfortunate events, the executor of the mother’s estate launched proceedings. Half the proceeds of the property’s sale were held in a solicitors’ account pending a judicial resolution of the matter.

The High Court noted that the non-delivery of the letter meant that the mother had not been served with the notice. That deficit had not been cured by a letter sent to the mother by the Land Registry four days before her daughter died. The joint tenancy had therefore not been validly severed and the Court ruled that the entirety of the proceeds of sale formed part of the mother’s estate.

Contact us to find out how we can help you with wills or estate planning.

Estate Planning and Presumption of Advancement (or making sure your intentions are upheld)

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Advancement, as a legal principle, is a gift given during an owner’s lifetime, typically referring to real estate or large assets gifted by the transferor (title holder) to a transferee – “one day, this will all be yours” is the phrase that springs to mind.

Presumption of advancement occurs within specific relationships and the principle originally arose because wives could not hold legal title and fathers were morally predisposed to “advance” the prospects of their children. In English and Welsh law presumption of advancement occurs only between fathers and children, husbands and wives, a man and his fiancée

All other circumstances involving transfer of property are treated as resulting trusts (in the case of property) and resulting loans (for money).

Presumption of advancement was set to be abolished under section 199 of the Equality Act 2010, but has yet to be ratified and further attempts to end the legal principle, such as in 2016 when the private member’s bill entitled Family Law (Property and Maintenance) was entered into parliament, have failed.

But the issue of presumption of advancement and resulting trusts are knotty legal issues which can lead to acrimonious legal disagreements between families, so it’s always best to understand the ramifications and do as much as you can to prevent misunderstandings regarding money and property.

Presumption of advancement and resulting trust in English courts

In English law, it is presumed that when property is passed between individuals it is a gift – there is a presumption of advancement. In the event of a failure of the transfer (in cases of relationship breakdown and intestacy, for example) and where there is no evidence to support that the transfer was intended as a gift, the principle of a presumed resulting trust will be applied. Any litigation which takes place to restore the property to the transferee will need to clearly demonstrate evidence of advancement (it was given as a gift) or a court might rebut the principle if evidence is provided to show that no such gift was intended.

In some jurisdictions, for instance Canada, courts have been reluctant to uphold the presumption of advancement, particularly in cases relating to adult children. In Pecore v Pecore  2007 SCC 17 the court held that the presumption should not apply because the obligations of parental support typically end when the child is no longer a minor. The case created a principle in Canada in respect of gratuitous transfers to children being a presumption of advancement only if the transfer was made by a parent to a minor child.

Conversely, English courts are perhaps more likely to uphold the principle. In Wood v Watkin [2019] EWHC 1311 (Ch) it was found that although the transferee was an adult child, a presumption of advancement could arise. And in Kelly v Kelly [2020] 3 WLUK 94, a lack of documentary evidence to support the father’s claim that the purchase of a property for his son was a loan led to the court being unable to rebut the presumption of advancement. The father’s evidence was found to be inconsistent, with no mention of the purchase being a loan in any documentation that could be provided to the court. Witnesses gave evidence in support of the father’s claim that the purchase had been a loan, but the court found that this was after the fact

Documenting gifts and transfers

What the above cases highlight is that despite some solicitors suggesting that presumption of advancement can easily be disproved in English courts, a court is unlikely to rebut the principle without clear documentary evidence.

Ensuring that the intention behind any transfer of property or money is recorded accurately and adequately may not sound like a difficult thing to do, but it can be an emotionally fraught act. You may feel that your situation is clear, but in many a lawyer’s experience, these things are not always as straightforward as you would believe.

Loans and property transfers between family members can quickly result in differing opinions about the initial intentions and it is a surprisingly familiar story that a parent considered a money transfer a loan, while the child believed wholeheartedly that it was a gift. If evidence cannot be supplied to support the express intention of a transfer, litigation can be drawn out, complex and ultimately extremely costly both emotionally and financially.

Our tip: always document any transfer of money or property, especially if you cannot afford to lose the funds. If you are letting your child live in a property that you own, but that you fully intend to sell in order to fund your retirement, then this needs to be documented. If you are lending your child a sum of money so they can buy a house, but you cannot afford to gift them the money, you should draw up an agreement which sets out the terms of repayment.

How Wellers Can Help

Our website section on the Bank of Mum and Dad contains lots of information on how to go about drawing up a legally binding agreement, such as a declaration of trust and a family loan agreement. We also look at the choices you have in respect of gifts and loans and other ways you can help your children to get on the property ladder.

In circumstances where you wish to ensure that money or property is divided fairly after your death and you have allowed one child to borrow money or live in your home during your lifetime, your Will is the main document that will ensure this happens after your death. Drawing up a Will that is appropriate for your needs and wishes is a crucial estate planning tool in such circumstances. Wellers Will writing service provides a range of Wills suitable for complex family situations and we are able to tailor each type to your specific needs.

If you find yourself in a position where you believe assets or property, promised to you have been left to a third party, our litigation team will be able to help you understand your options. Please call on 0208 464 4242 for our Bromley office, 020 7481 2422 for London and 01372 750100 for our Surrey offices.

Court Urges Peace on Unmarried Couple at War Over Family Business

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Unmarried couples should be under no illusions that they do not have legal rights equivalent to those who have tied the knot. The point could hardly have been more powerfully made than by a case concerning an unmarried former couple whose close-knit life together yielded three children and a family business.

During their relationship, the couple were the sole directors and equal shareholders of a company that ran a vehicle repair and MOT garage. Had they been married, the value of the business would have formed part of the financial pot to be divided between them on divorce. As their relationship was never solemnised, however, the option of divorce proceedings was not open to them.

After the relationship ended, the man took steps to transfer the company’s business to a new corporate vehicle which he wholly owned. He did so without the woman’s agreement. She responded by launching unfair prejudice proceedings under Section 994 of the Companies Act 2006 on the basis that he had, by his unilateral move, unfairly prejudiced her position as a shareholder.

Ruling on the matter, the High Court noted that the man did not dispute that claim and had been ordered to purchase the woman’s 50 per cent shareholding in the company. The value of that shareholding was, however, not agreed and there was a risk that the costs of the proceedings would be disproportionate to the modest value of the business.

After hearing expert valuation evidence, the Court took a broad-brush approach to the issue and found that £45,500 represented a fair price that the man should be required to pay for the woman’s shares. Noting the commercial realities of the dispute, however, the Court urged the couple to settle their differences.

The woman could only receive what the man was able to pay and forcing him into bankruptcy would be futile. A fair division of their joint assets in a manner that secured both of their futures, and most importantly that of their children, would ultimately be in the best interests of all concerned.

If You Believe You’ve Been Sold a Pup, Consult a Solicitor Today

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If you have paid good money for goods or services and feel that you have not got what you bargained for, you should see a solicitor without delay. A case on point concerned a man who paid about £4,000 for what he believed would be a surgical hair transplant but got what he viewed as a toupee.

The man underwent what was described as a step-by-step hair replacement which involved samples being taken from his scalp and matched to a fine mesh of human and synthetic hair that was later attached back onto his head using a bonding solution. He said that the result looked like a hairpiece and that he suffered an asthmatic reaction to the bonding agent.

Taking legal action against the company that provided the treatment, the man alleged that he was specifically reassured at a preliminary consultation that what he received would not be a wig. He claimed he had been misled into believing that he was to undergo a hair transplant. He was distraught to the point of tearfulness when that turned out not to be the case.

The company argued that he was advised at length about the nature of the treatment that he was to undergo and should have been under no illusions. The non-surgical hair grafting procedure was accurately described as hair replacement and there was never any suggestion that he would receive transplant surgery involving hair follicles.

Upholding the man’s claim, however, a judge found that he had given a truthful and compelling account of what he was told during the consultation. He contracted with the company on the basis that what he received would not be a wig. He was entitled to effectively rescind the contract and to claim his money back. Together with damages and interest, his total award came to £5,887.

Disappointed Homebuyers Secure Six-Figure Damages From Negligent Surveyor

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One good reason why sensible homebuyers engage the services of a surveyor prior to purchase is that, if things go wrong, they at least have someone to sue. In a case on point, a couple who paid £1.2 million for a seaside home which turned out to be riddled with defects won six-figure compensation from a negligent surveyor.

The property had been largely rebuilt in the months before the couple bought it. They instructed a surveyor to conduct a non-structural inspection. He reported potential problems with drainage, rainwater pipes and gutters. In the light of his report, the purchase price was reduced from £1.24 million prior to completion.

After the couple moved in, it swiftly became apparent that the property was riddled to a remarkable extent with defects of varying severity, many if not all of which would not have been observable by a surveyor performing a non-structural survey. By far the most serious problem, however, was damp ingress.

After the couple launched professional negligence proceedings against the surveyor, the High Court noted that its task was to decide whether he fell below his normally high standards in reporting on the property’s condition. He had carried out numerous damp readings during the inspection, none of which revealed any problem.

He had, however, breached the duty he owed the couple in failing to report that he could not see visible damp proofing and that further investigations were required. He was also negligent in failing to advise the couple that they should obtain a professional consultant’s certificate in order to establish that the rebuilding works had been carried out to a satisfactory standard.

The Court found that, had the surveyor’s report contained the advice that it should have done, the couple would never have bought the property. Their damages thus stood to be calculated on an assessment of the difference in value between the property with the defects as reported by the surveyor and its value with all the defects which in fact existed.

Calculating the diminution in the property’s value by reference to the cost of demolishing and rebuilding it, the Court found that the couple were entitled to £750,000. Giving credit for sums that they had already received from third parties, the Court awarded them a total of £389,000. That included £15,000 to reflect the distress and inconvenience that they suffered.

Independent Legal Advice Proves Decisive in Family Inheritance Dispute

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Just because someone is old, frail and vulnerable does not mean that they are incapable of understanding the contents of their will. However, as a High Court ruling in the context of a bitter inheritance dispute showed, the benefits of professional advice become all the greater as the inevitable effects of old age begin to bite.

The case concerned a mother who was in her 80s when she made a new will leaving her estate, which had a gross value of about £325,000, to one of her daughters and nothing to the other. In a contemporaneous written statement, she explained that the daughter who did not benefit under the will had broken off contact with her.

The daughter in question denied that that was the case and challenged the validity of the will on the basis that her mother was prey to undue influence brought to bear upon her by the beneficiary. She also asserted that, due to her age and vulnerability, her mother neither knew nor approved the contents of the will.

Ruling on the matter, the Court acknowledged that the mother was very frail when she made her will, suffering from various health problems which affected her sight, hearing and mobility. The will was, however, drafted by a solicitor who interviewed and advised her in the absence of the beneficiary. On the advice of another solicitor from the same firm, she obtained her GP’s confirmation that she had the mental capacity required to make a valid will.

Allegations that the mother was terrified of the beneficiary were rejected. Although she had, by a previous will, left her estate equally between her children, the change in her wishes was readily explained by the breakdown in her relationship with the other daughter. Evidently, the daughter did not like being disinherited but that did not mean that there must have been undue influence.

The care taken by the lawyers who advised the mother in the end proved decisive. The solicitor who interviewed her on her own was not acting for anyone else and satisfied herself by inquiry that the mother wished only one of her daughters to benefit from her estate. The validity of her final will was upheld.

Please do get on contact if you need a solicitor to draft your will, we have a number of highly experienced specialist wills lawyers.

Children arrangements following separation

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Broadly, there are two routes for making arrangements for children after you separate and these are the same whether you intend to divorce or you have no plans to do so in the foreseeable future.

If you can agree the arrangements for contact following separation, this is by far the most preferable route. Going to court is invariably stressful, time-consuming and difficult in many ways; it may also become extremely distressing for your children if the situation becomes acrimonious.

When both parents agree

If you both agree about how much time the non-resident parent (the one who does not live with the children on a day-to-day basis) can spend with the children, then you don’t need to complete any official paperwork.

However, it may be a good idea to write down what you have agreed. You might want to draw up a parenting plan that records some of the main decisions you make about child arrangements; this could include:

  • regular days that the non resident parent will spend time with the children
  • the details of overnight stays – pick up and drop off times etc.
  • arrangements for major holidays and celebrations, such as school holidays, birthdays and Christmas
  • how and when details need to be agreed for taking children away on holidays3when and how other types of contact might occur – phone calls, messenger chats, Skype calls etc.
  • other contact arrangements such as making time for grandparents

A parenting plan can cover all sorts of other child-related issues, such as what might happen in an emergency and how certain decisions will be reached, such as schooling, medical treatment, religious upbringing, etc.

A parenting plan is an informal document and its contents are not enforceable; however, it can be a useful tool to get you thinking about the needs of your children in the longer-term and how you and your ex-partner will handle these issues.

If you want a legally binding plan in place for you and your children, a family law solicitor can help you apply to the court for a consent order. You and your partner will need to apply to the court on a C100 form and there is a fee to pay.

When parents don’t agree

If you and the other parent cannot agree on the arrangements for your children following separation or divorce, a family law solicitor can help you to apply to the court. Your situation will dictate which type of court order or orders you will need in relation to your child or children.

Unless you are a victim of domestic abuse, or there is another compelling reason, you will need to have attended a meeting about mediation before applying for a court order.

A child arrangements order

‘Child arrangements orders’ have replaced contact and residence orders. This type of order specifies:

  • where the children will live (and with which parent)
  • when and how they will spend time with the non-resident parent
  • other types of contact: for instance when (weekends, evenings) and how (phone, Skype, messenger etc.)

A specific issues order

For issues relating to your child’s upbringing you will need a ‘specific issues order’ which can include items such as:

  • the school they attend
  • whether they will have a religious upbringing
  • specific health related issues and treatments, such as immunisation and blood transfusion
  • extra-curricular activities.

A prohibited steps order

A prohibited steps order can stop the other parent from doing certain things and making certain decisions about the child. Such as:

  • removing the child from the jurisdiction
  • removing the child from school
  • contact with certain people, such as friends and other members of the other parent’s family

What the court will consider

If you apply for a court order in relation to your child (or children) the court will consider their wishes and feelings, their physical, emotional and educational needs, the effect any changes may have, their age, gender, character and background, the possible risk of harm to the child and the ability of the parents to meet the child’s needs.

The child’s best interests will be at the heart of any order made by the court. Please note, the above orders do not deal with child maintenance issues which are handled by the Child Maintenance Service. Find out more about child maintenance here.

Applying for a court order

Either parent can apply for a court order or anyone with parental responsibility. Grandparents, other family members or any other person can make an application to the court, but before doing so they must seek permission from the court to do so (leave of the court).

The court provides guidance on making an application, but your solicitor will be able to explain all you need to know.

Before filling in form C100 you must prove to the court that you have attended a Mediation Information and Assessment Meeting (MIAM). You will need to send the court fee and three copies of the form along with the original application form.

Court hearings

You will almost certainly be required to attend at least one court hearing in relation to your court order application. The Children and Family Court Advisory and Support Service (Cafcass) will be in contact prior to the hearing and a Cafcass family court adviser will usually attend.

The process which allows the court to make a decision in relation to arrangements for children can be lengthy. At the first hearing the judge will want to establish what you and the other parent can agree upon, what you can’t agree upon and if there is any particular risk to the child’s wellbeing.

You and the other parent will be encouraged to reach an agreement at the hearing. If you do agree and the judge feels there is no immediate concern in relation your child’s welfare, the process can end there. A consent order will be drawn up that includes everything you have agreed and you will both be legally bound to stick to the terms of the order.

Parents who can’t agree

If you can’t reach an agreement at the first court hearing. The judge may ask you to attend mediation sessions with the other parent or you might be asked to attend a ‘Separated Parents Information Programme’; a SPIP course provides information and guidance on how to reach an agreement and how to manage conflicts in relation to the arrangements for children (you will not have to attend the same session as the other parent). Ultimately, the course aims to help parents put their children first during a separation or divorce.

The judge may also decide that a Cafcass report is needed. The family court adviser will arrange to speak to your child and a report will be sent to the court. You will get a copy of the report.

You can decide to reach an agreement at any time. Once this happens, the court will stop the process and an appropriate order will be written.

Family Law Guidance and Information

Our family law solicitors have written an invaluable, free to download Guide to Children Matters on Separation.

You can email an enquiry to enquiries@wellerslawgroup.com or call 020 8290 7992 for our Bromley team, 01732 457575 for Sevenoaks, 020 7481 6393 for central London or 01483 284567 for our Surrey team.

We offer a fixed fee, no obligation one hour interview so that we may provide you with initial advice and suggest the options for your next course of action.

Ambiguity in Widower’s Poorly Drafted Will Results in Family Stalemate

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The whole point of engaging a professional to draft your will is to make your wishes clear in precise and unambiguous terms. If your will falls below that high standard the result, as a High Court ruling showed, can be family stalemate after you are gone.

The case concerned a widower who died without children, leaving an estate worth over £600,000. By his will, he made some modest charitable gifts and bequeathed the remainder to ‘such all of my nephew’s and niece’s children’. It was agreed that the apostrophes in that phrase were misplaced and that he had not intended to benefit the children of only one niece and one nephew.

As at the date of his death, there were seven children of his nieces and nephews by blood who were clearly entitled to inherit under the will. However, an issue arose as to whether he had also intended to include the eight children of his deceased wife’s nephews and nieces in the class of beneficiaries. With the consent of all concerned, that issue was submitted to the Court for determination.

Ruling on the matter, the Court noted that, as a matter of strict and proper English, the words ‘nephew’ and ‘niece’ describe the son or daughter of a brother or sister. It was, however, permissible to consider the background context in deciding whether the words as used in the will were intended to have a wider meaning.

The Court noted that the man and his wife had been married for 46 years and that she had left him the whole of her substantial estate. In all their previous wills, they had benefited their own and their spouse’s blood relatives equally. The man made his final will only eight months after his wife’s death.

In ruling that the beneficiaries of the man’s will should include the children of his nieces and nephews by marriage, the Court found it unlikely that he would have wished to disinherit his wife’s family so soon after her death and for no apparent reason. His estate thus stood to be divided between 15 beneficiaries.

The Court noted that the crucial clause of the will contained grammatical and punctuation errors and was poorly drafted. The difficulty that had arisen could very easily have been avoided had the beneficiaries been specifically named. The case graphically illustrated the dangers of giving instructions for the drafting of a will over the phone, rather than to a solicitor face to face.

Object to a Planning Decision? A Lawyer Will Ensure Your Voice Is Heard

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If you object to a planning decision, an expert lawyer will ensure that your voice is heard loud and clear. In one case, a woman succeeded in overturning planning permission for the construction of 18 holiday lodges close to her rural home.

The local authority enabled the development by granting consent for the change of use of a greenfield site. It did so on the recommendation of planning officers, who pointed to the project’s economic benefits. They also stated that the lodges would not be visually obtrusive or significantly harm the area’s rural character.

The lodges fell within the statutory definition of static caravans and each of them could measure up to 20 metres long, 6.8 metres wide and 3.05 metres high. The applicants for permission said that the lodges would be clad in weatherboarding and a wood-stained finish to help assimilate them into the countryside.

Members of the council’s planning committee were advised by an officer that, as consent was only sought for a change of use, a request for further details in respect of the lodges’ design would not be justified. However, in upholding the woman’s judicial review challenge, the High Court reached the firm conclusion that that advice involved an error of law.

The nature of the application did not prevent the council from exercising planning control over the design of the proposed holiday lodges. At least some members of the committee were troubled by the design issue and it was some measure of their concern that councillors deferred making a decision on the application when it first came before them.

In quashing the permission, the Court found that, had the committee been correctly advised, it was highly likely that it would have exercised planning control by, for example, imposing a condition regarding the external materials to be used in the lodges’ construction. Given the limited design information submitted with the application, there was a very real likelihood that councillors would at least have requested further information in that respect before reaching a decision.

Don’t Even Consider a Foreign Adoption Without Specialist Legal Advice

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Adopting children from abroad can complete families and be of great benefit to all concerned. However, as a High Court case showed, it is fraught with legal pitfalls and should not be attempted without first taking specialist legal advice.

The case concerned a British citizen who adopted a child in Iran under Iranian law. The child had thrived in the adoptive placement. The parent launched proceedings in London, seeking recognition of the adoption in this country. The Home Office opposed the application on the basis that the criteria for recognition specified in the Adoption and Children Act 2002 had not been met.

Ruling on the matter, the Court noted that Iran has not ratified the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoptions. It is also not one of the countries where adoption is recognised by operation of the Adoption (Recognition of Overseas Adoptions) Order 2013.

The parent was domiciled in Iran at the time of the adoption and it was not disputed that the child had been legally adopted in accordance with the requirements of Iranian law. However, the Home Office argued that adoption in Iran does not have the same essential characteristics as adoption in England and that recognition should, for that reason alone, be refused.

The effect of an English adoption is to sever the legal relationship between the child and his or her biological parents. Section 67 of the Act provides that, if an adoption order is made, the child will be treated as if born to the adopter(s). Adoption orders made in this country can only be revoked in highly exceptional and very particular circumstances and such revocations are extremely rare.

The Court noted that those principles differ starkly from the position under Iranian law, where an adoption order does not extinguish the legal relationship between a child and his or her biological father. The threshold for revocation of Iranian adoption orders is also set at a much less demanding level.

The Iranian adoption had provided the child with much-needed security and stability. However, in refusing to grant recognition, the Court observed that the case turned not on the child’s welfare but on the interpretation of the legal principles through which English law recognises foreign adoptions.

The Court observed that an application for an English adoption order in respect of the child could be made under Section 49(3) of the Act if it could be shown that the child had been habitually resident in this country for 12 months. Any interference with the human rights of the child and the parent arising from the refusal to recognise the Iranian adoption was, in the circumstances, justified.

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