Author: Wellers

Making a will without the benefit of professional legal advice is an excellent recipe for strife between your loved ones after you are gone. That was sadly so in the case of a cancer sufferer who had no understanding that, when she signed her will, she was disinheriting her two beloved children.

About two and a half years before she succumbed to the disease, the middle-aged woman signed a will which had been drafted for her by her younger brother using a template downloaded from the internet. Save for her collection of books, she bequeathed him the entirety of her estate, which was worth almost £400,000. The will represented a radical departure from a previous will by which she had divided her estate equally between her children.

After the children challenged the will’s validity, the brother contended that it was a perfectly straightforward case in which she had simply changed her mind for good reasons, as she was fully entitled to do. He had faithfully carried out his sister’s instructions in drafting a very clear and straightforward will, the terms of which she could not have failed to understand.

There was no dispute that the will was lawfully executed and that she had the mental capacity required to make it. However, in upholding her children’s challenge, the High Court found that, having taken no legal advice, the woman fundamentally misunderstood what the effect of the document would be.

Her intention was that her brother, acting as her executor, would receive her estate and then apportion it between the children so as to reflect a disparity in lifetime gifts they had received from her. She failed to grasp that the effect of the document was to disinherit the children and give the entirety of her estate, bar her books, to her brother to keep for his own purposes.

The Court had no doubt that she deeply loved her children, who, despite their faults and foibles, were her pride and joy. She was grateful for her brother’s support as she fought tooth and nail against her illness, but he had not replaced her children in her affections. Even after she signed the will, she continued to make reference to the children’s upcoming inheritance.

The Court observed that there were aspects of the document, and the background history leading up to its execution, that excited suspicion. It found on the evidence that she lacked knowledge and approval of the will’s contents and particularly its effect. In restoring the children’s equal inheritance, the Court directed that the previous will should be admitted to probate.

A fine imposed on a householder for parking her Land Rover on her own land put the conflict between private ownership and public access to the road network in high relief and provided the subject matter for an important High Court test case.

For many years the householder had regularly parked her car on a strip of pavement outside her home. The strip, which she and her husband owned, lay between their front hedge and the road. She was incensed when a local authority parking warden put a ticket on her windscreen, but her appeal was rejected by a parking adjudicator. The penalty was also confirmed by another adjudicator on review.

In upholding her challenge to that outcome, the Court rejected the local authority’s argument that the strip was deemed to have been dedicated as a public highway because members of the public had enjoyed access to it, as of right and without interruption, for 20 years or more. The reviewing adjudicator had made an error of law in concluding that such public access was not interrupted by the frequent presence of the couple’s parked cars on the strip.

The Court found that the strip could also not be viewed as a road to which the public has access, within the meaning of the Road Traffic Regulation Act 1967. During each of the 13 years in which the couple had owned their home, they had parked cars on the strip about 200 times, thus regularly impeding public access.

Had it been necessary to do so, the Court noted that it would have found that any implied licence that members of the public had to access the strip had been inoperable on the day the ticket was issued, due to the presence of the Land Rover. The local authority was directed to cancel the parking ticket.

Landowners intent on developing their properties can find it intensely annoying when neighbours resist their plans. However, as a High Court ruling made plain, the right to object to planning applications is one of the benefits of living in a democratic country where freedom of expression is taken seriously.

The case concerned a property set in an area of outstanding natural beauty, which had become the focus of acrimonious and intractable dispute. Over the years, its owner had made over 50 separate planning applications, many of which drew objections from other property owners in the area.

The owner, together with her husband, launched proceedings against four members of the local residents’ association, accusing them of harassment and claiming more than £1.3 million in damages. She contended, amongst other things, that their conduct was oppressive and unreasonable and that they were using the planning system as a device to upset her. Many of their planning objections were, she asserted, spurious, unmeritorious and improperly motivated.

For their part, the members vehemently denied those allegations and argued that the owner’s case represented an unwarranted intrusion into their human right to express themselves freely and an attempt to impede their entitlement lawfully to object to planning applications through the proper legal channels.

In refusing the owner’s application for a pre-trial injunction, the Court observed that, where spurious planning objections are spitefully and maliciously made with intent to cause distress, there may be a potential basis for judicial intervention. It emphasised, however, that the law should be slow indeed to impinge on precious freedom of expression rights and the entitlement to make genuine and meritorious objections to planning applications.

The owner was perfectly entitled to seek to develop her property and might be upset, frustrated or even angry at the opposition she had encountered. However, the Court could see no sensible or credible basis on which it could be maintained that the members’ objections were vindictive or devised to cause distress or otherwise inflict harm on the owner and her husband. There was no realistic prospect of establishing at trial that the members’ actions, whether individually or cumulatively, represented a course of conduct amounting to harassment.

The Court noted that, in a democratic society, the members were entitled to differ from the owner on the merits of her planning applications. If anything, the evidence clearly pointed to them having deeply held, sincere and genuine reservations about the nature and extent of her development proposals. It was the very purpose of the planning system to adjudicate such disputes in a regulated manner.

Those who attempt to lie their way to a favourable result in divorce proceedings are more than likely to be found out and hit hard in the pocket. That was certainly so in the case of an elderly entrepreneur who treated his ex-wife’s financial claims as if they were nothing more than an impertinence.

The English man and his American ex-wife, both in their 70s, were married for almost 30 years before they entered into a separation agreement in New York. The wife subsequently petitioned for divorce in England. Their divorce had yet to be finalised, but they had to date incurred about £1.8 million in legal costs.

Ruling on the matter, the High Court noted that the wheelchair-dependent husband was in poor mental and physical health. There was medical evidence that, although he was able to give oral evidence, his mental capacity to conduct his own case was compromised. That, however, did not deter the Court from describing his litigation conduct as abysmal.

He had treated the entire litigation as if it were an impertinence and a joke. His initial disclosure of his assets was deliberately false and he persisted in misrepresentation and lies to the very end. Given his persistent delinquency, the wife had not acted unreasonably in conducting a detailed forensic investigation of his finances.

The wife’s case that he had squirrelled away at least £27.4 million in hidden assets was not, the Court found, established on the evidence. The wealth to be distributed between them was thus confined to visible assets worth about £11.4 million. The Court noted, however, that it would be a travesty of justice were the husband not penalised financially for his delinquent litigation conduct. To mark the Court’s very strong condemnation of such conduct, he was ordered to contribute £200,000 towards the wife’s legal costs.

Taking into account the capital provisions of the New York separation agreement, the Court found it fair, just and reasonable that the wife should receive 65 per cent of the available assets and the husband 35 per cent. In order to achieve that division and a clean break between them, he was ordered to pay her a lump sum in excess of £1.6 million. The Court noted that the overall result of the titanic litigation was to reduce the husband’s net worth by more than £2 million.

Many families whose loved ones are in hospital on life support understandably cling to the hope that they will in time recover. As a High Court ruling showed, however, where such hopes run contrary to the weight of expert medical evidence, judges have the unenviable task of deciding where a patient’s best interests lie.

The case concerned a young father-of-two who sustained catastrophic brain and spinal injuries when a car in which he was travelling hit a tree. He had since been tended to round-the-clock in a hospital intensive care unit where he was entirely dependent on artificial ventilation, nutrition and hydration.

Speaking with one voice, medical professionals involved in his care were convinced that he was in a persistent vegetative state and that prolonging his treatment would merely result in the continuation of a life of which he had no awareness. Their views prompted the relevant NHS trust to seek the Court’s authorisation to cease his life-sustaining treatment.

Members of his family, however, took a different view. They had observed what they believed to be signs of awareness in the form of him opening his eyes and moving his head in response to requests. They felt strongly that he would have wanted his life to be sustained and that he should be given more time to recover. The Official Solicitor, who represented his interests in court, described it as a finely balanced case.

Ruling on the matter, the Court praised members of the family, who had conducted themselves with enormous dignity in a desperately sad case. There was a strong legal presumption in favour of life being sustained; his condition was in some respects relatively stable and his survival to date had defied medical predictions. There was no direct evidence that he was experiencing any pain.

His apparent responses to stimuli had understandably given his family hope. In the light of the unanimous medical evidence, however, the Court found that they were spontaneous and reflexive movements which were consistent with a persistent vegetative state and did not indicate any level of consciousness.

In granting the trust’s application with profound regret, the Court found that, in the light of his lack of awareness and bleak medical prognosis, prolonging life-sustaining treatment would bring him no benefit. Withdrawal of such treatment was, therefore, in his best interests.

Many householders are familiar with the often traumatic experience of falling out with builders. However, as a High Court case showed, if their work is not up to scratch or left unfinished, litigation lawyers will bend every sinew to ensure that fair compensation is paid.

A homeowner engaged builders to perform major construction works on her property, including the erection of a kitchen extension and bathroom refurbishment. She also commissioned the manufacture and installation of triple-glazed windows, bi-fold doors and other glazing works.

After she launched proceedings, it was common ground that the works carried out were defective and left incomplete. Following a trial, the builder who bore responsibility for the construction works was ordered to pay her £34,711 in damages. She was also awarded £9,778 against his company in respect of the glazing works.

The judge rejected defence arguments that the homeowner was responsible for all that went wrong with the project because she permitted a friend to act as de facto project manager, a task for which she was said to lack the necessary experience, and failed to consult an architect or engineer when required. He found that the defective construction works arose from the builder’s own shortcomings.

The builder’s contention that she had contracted solely with his company, which had since ceased to trade, also fell on fallow ground. The judge found that, in dealing directly with the homeowner, he was not acting on his company’s behalf. He thus bore personal contractual responsibility for the construction works.

The homeowner further succeeded in arguments that, as the builder was not registered for VAT, the construction works were not subject to the 20 per cent levy. Save in respect of the bathroom refurbishment, the judge also found that the quoted contract price included both labour and materials.

In refusing to grant the builder and his company permission to appeal against that outcome, the Court found that any such appeal would stand no real prospect of success. The judge’s factual conclusions on the various issues in the case were amply justified. An award to the homeowner of £70,000 in interim legal costs was also confirmed.