One might have thought that a successful businessman worth millions would think it wise to spend a little money on getting his will professionally drafted. However, his decision to do the job himself had catastrophic consequences for his family, who ended up battling it out over his estate in the High Court.

The man’s estate, not including his £4.25 million family home, had been valued at about £6.8 million. His widow inherited the property and about £1.6 million in other assets under his home-made will. However, after debts and other liabilities, she argued that she had been left with liquid capital of less than £700,000.

That, she argued, was insufficient to enable her to maintain the luxurious lifestyle that she had enjoyed with her husband when he was alive. She argued that he had not made reasonable provision for her in his will on the basis that she required sufficient capital to provide her with an annual income of £372,000. She asked the Court to award her an additional £3.75 million from the estate.

In dismissing her claim, however, the Court noted that she had been awarded almost £2 million in compensation following her husband’s death in a helicopter crash. She had been a successful businesswoman in her own right and would have significant earning potential if she returned to work. Her needs were not as extensive as she claimed and she needed an income of, at most, £240,000 a year. Noting that her total assets, including her home, were worth about £10 million, the Court found that reasonable provision had been made for her.

For more information on this or contesting a will or probate matter; please contact Kam Majevadia or Ravi Sandhu on 0121 698 2200 or fill in our online enquiry form.

Absentee fathers have a legal duty to financially support their children – but only within reason. That point was strikingly made in one case in which a mother sought £780,000 a year in maintenance for her seven-year-old son from an extremely wealthy father who had shown no interest in the boy and had never even seen him.

The mother was adamant that her son should enjoy the same glittering lifestyle as his father, who was a member of a Middle Eastern royal family. Despite his youth, she argued that his father should buy him membership of prestigious golf clubs and private boxes at sporting events. It was submitted that his essential needs included a nanny, governess and housekeeper and regular first class holiday flights.

Family lawyer Amanda Holland comments:

Maintenance should be set at a reasonable level: this does not normally mean an obligation to pay for a luxury lifestyle.

The father, whose Islamic marriage to the mother was not recognised under English law, had been paying £204,000 a year in maintenance for his son for almost three years. He had provided the mother and son with a £3.45 million home and had paid off her £770,000 debts, although she was again in financial difficulties. She had pursued her son's financial claims through the courts over a number of years, running up several million pounds in legal costs, almost all of which the father had paid.

The mother bore sole responsibility for bringing up the boy, who suffers from serious health problems. However, in striking out her application to more than triple the father's maintenance payments, the High Court found that she was prone to chaotic, unwise and impulsive decision-making and that her demands were unreasonable. The maintenance which the boy currently received from his father was suitable and appropriate for his upkeep and welfare.

For further information on advice on negotiating fair financial terms on a family break-up or other family related matters, please contact Amanda Holland on 0121 698 2200, email a.holland@sydneymitchell.co.uk or fill in our online enquiry form.

 

Living next to or in the vicinity of derelict or dilapidated properties can affect the value of your own home and your ability to sell it.

You may be able to find a purchaser but that purchaser may not be able to borrow the amount that they require to purchase because the lender's valuer’s opinion of the value is not as high as the price that the purchaser is willing to pay or the price that the seller is willing to sell at.

If the Bank, Building Society or Lender will only lend a percentage of the value shown by the lender's valuation, then the purchaser will not be able to purchase the property if it can’t make up the shortfall. A potential purchaser will also worry about whether they are in fact paying too much for the property and may seek a price reduction from the seller (which won’t always be acceptable to the seller).

There are properties in every area, whether affluent or not, that can fall into disrepair and out of use.

Shilpa Unarkat, Property Solicitor, commented:

There may be investors and other purchasers who are happy to pay cash for property that is next to a derelict property.  As there will be no Bank / lender valuation in such circumstances, the sale will depend on what price can be agreed with the seller.  The cash purchaser will still need to consider whether they will be able to easily resell their investment and may not be willing to pay the full asking price.

What to do if you own property that is near a derelict/dilapidated property:

  • Approach the owner of the property to urge them to take action to improve their property
  • If you do not know who owns the property, you can carry out a search via the Land Registry to ascertain if the title to the property is registered and then obtain the title information from the Land Registry. The title information will give you details of the ownership of the property
  • If the owner cannot be found or is not willing to co-operate, speak with the Council and request that it sends one of its officers to assess the situation. The Council can carry out work to the property to make it secure and improve its appearance. The costs incurred by the Council will be “charged” against the house
  • Once such property has been vacant for a number of months, the Council has the power to obtain an Empty Dwellings Management Order. There is a procedure for obtaining an order but the main point is that the Council and the owner would need to work together to then allow the property to be rented. The Council would not take legal ownership of the property but it would mean that steps can be taken to bring the property back into use

Shilpa added  

Failing all of the above the Council could apply for a compulsory purchase order.

For more information on the above, or to discuss your property related matter, please speak to Shilpa Unarkat on 0121 746 3300 or complete our online enquiry form and give more information about your property query.

Whatever kind of advice and assistance you need, whether as an owner, landlord or tenant, for residential property or commercial property, negotiating or enforcing property matters, our Sydney Mitchell property team is here to help.

BBC News Link covering this topic - Shilpa talks to the BBC Midlands Today programme (3m 22s into programme)

http://www.bbc.co.uk/iplayer/episode/b076q38z/midlands-today-12042016

 

 

Victims of asbestos-related cancer sadly often do not have time to wait for their damages claims to reach court. However, as one High Court case revealed, special rules apply which make it much easier for them to prove their cases and to win compensation on account at an early stage.

An 85-year-old former plumber and heating engineer had been diagnosed with malignant mesothelioma, an incurable cancer of the lining of the lungs, and doctors had told him that he had only about a year to live. Given the obvious need for expedition, his lawyers swiftly launched proceedings against a company which had employed him for the last 14 years of his working life.

The company denied liability; however, it only took a telephone call to a judge to win the pensioner an interim damages pay-out. The judge noted that, by virtue of the Compensation Act 2006, it was only necessary for the pensioner to show that he had been exposed to asbestos whilst in the company’s employ and that the exposure arose through its breach of duty. If those points could be established, he was entitled to be fully compensated by the company irrespective of whether he had been wrongfully exposed to asbestos by previous employers.

In dismissing the company’s appeal against the judge’s ruling, the High Court found that the pensioner had a real prospect of proving that it was responsible for his exposure to asbestos. It would also be fanciful to think that the company could show that any such exposure was other than in breach of duty. Pending a final settlement or a full hearing of his case, the company was ordered to pay the pensioner £50,000 on account, plus £5,000 towards his legal costs.

For further information on this article and related matters, please contact Mike Sutton on 0121 698 2200 email m.sutton@sydneymitchell.co.uk or fill in our online enquiry form.

An asthmatic warehouse worker who had difficulty climbing stairs, but was required to work on the building’s top floor, has won the right to compensation on the basis that reasonable adjustments had not been made to cater for her disability.

Following a restructuring exercise, the woman had been transferred from the ground floor of the warehouse to the top floor. Although vacancies existed on the ground floor, priority in respect of them had been given to longer-serving employees. The woman was ultimately dismissed on grounds of incapacity to do her job.

An Employment Tribunal (ET) subsequently ruled that there had been a failure to make reasonable adjustments but appeared to limit its findings to the woman’s financial losses alone. It further rejected her claim that her dismissal itself amounted to an act of discrimination in breach of the Equality Act 2010.

In allowing her appeal, however, the Employment Appeal Tribunal (EAT) ruled that the ET’s findings had been unnecessarily limited to economic losses and should also have embraced physical discomfort, exacerbation of her asthma and any other detriments that she had endured as a result of working on the top floor.

The ET had also erred in law in failing to address the woman’s claim that there was a specific vacancy which would have been suitable for her. Additionally, there had been a failure to consider whether her dismissal amounted to unfavourable treatment arising in consequence of her disability. Those elements of her case were sent back for reconsideration by the same ET, which would also rule upon the amount of compensation due to her.

For futher information on this article and related matters, please contact Tina Chander on 0121 698 2200. email t.chander@sydneymitchell.co.uk or fill in our online enquiry form.

Victims of asbestos-related cancer sadly often do not have time to wait for their damages claims to reach court. However, as one High Court case revealed, special rules apply which make it much easier for them to prove their cases and to win compensation on account at an early stage.

An 85-year-old former plumber and heating engineer had been diagnosed with malignant mesothelioma, an incurable cancer of the lining of the lungs, and doctors had told him that he had only about a year to live. Given the obvious need for expedition, his lawyers swiftly launched proceedings against a company which had employed him for the last 14 years of his working life.

The company denied liability; however, it only took a telephone call to a judge to win the pensioner an interim damages pay-out. The judge noted that, by virtue of the Compensation Act 2006, it was only necessary for the pensioner to show that he had been exposed to asbestos whilst in the company’s employ and that the exposure arose through its breach of duty. If those points could be established, he was entitled to be fully compensated by the company irrespective of whether he had been wrongfully exposed to asbestos by previous employers.

In dismissing the company’s appeal against the judge’s ruling, the High Court found that the pensioner had a real prospect of proving that it was responsible for his exposure to asbestos. It would also be fanciful to think that the company could show that any such exposure was other than in breach of duty. Pending a final settlement or a full hearing of his case, the company was ordered to pay the pensioner £50,000 on account, plus £5,000 towards his legal costs.

If you would like ot discuss the possibility of a claim against your employer relating to asbestos-related illnesses, please contact Mike Sutton on 0121 698 2200 or email m.sutton@sydneymitchell.co.uk  or complete our online enquiry form.

A recent Court of Appeal case shows how important it is to carry out procedures properly in order for a person who clearly has impaired mental capacity to create a will that can withstand legal challenge.

It involved a will created in 2005 by an 84-year-old woman. It divided her estate between her two sons and superseded an earlier will, executed in 2003, which gave the majority of her estate to one of them.

The woman died in 2010 and the son who had stood to inherit under the earlier will challenged the legitimacy of the new will on the basis that his mother lacked 'testamentary capacity' when she executed it and did not 'know and approve' its contents.

In an earlier transaction, in 1982, the son who was not included in the earlier will had paid his parents the sum of £10,000. In return, he had been given a half share in his parents' house under a trust arrangement. When his father died, this left him owning a half share in the property and the mother owning the other half share.

Under the new will, he would inherit half of the remaining half share, so would then own a three-quarter share in the property. In essence, therefore, the dispute was over a quarter share in the property, worth only in the region of £26,000.

There were further complexities, including the death of one of the sons during the course of the dispute, with his case then being taken up by his children, who are his executors.

The nub of the issue was whether the deceased woman was in a fit mental state to draft a will in 2005. At that time she could no longer write a sentence, say what the year, season, date, day or month was and showed deficient short-term memory. Her lack of full capacity was further evidenced by the scores on a number of tests of cognitive function which she had been given.

Crucial in the decision was evidence given by the deputy manager of the day care centre the woman attended for several years before her death and that given by the solicitors who prepared the 2005 will, to whom she had apparently written letters of instruction.

In the High Court, the judge concluded that 'whatever her problems...she knew that she had two sons and she knew what she had by way of assets' and that 'she knew that the document she was signing...was the will that she requested in the latter part of 2004. I am satisfied that the document was read to her and I am satisfied that she was seen alone.'

On the basis of all the evidence, the judge concluded that she 'had the requisite testamentary capacity and also knew and approved the contents of this simple yet important document to her. She achieved what she had set out to do, which was an equal split of what was owned to be shared between her two sons.'

Although the woman was regarded as 'suggestible', the solicitor saw her alone in his office with only another member of the firm present, not her son. The solicitor was of the view that she understood and approved the contents of the will which he read out to her.

This evidence was sufficient to allow the Court of Appeal to deliver a unanimous verdict that the 2005 will was valid.

Following the right procedures and obtaining the appropriate evidence is crucial in the creation of a valid will in such cases. Challenges to wills by disgruntled family members are surprisingly common. We can assist you to ensure that the likelihood of a challenge is minimised and your wishes for the distribution of your estate are followed.

Please contact Kamal Majevadia k.majevadia@sydneymitchell.co.uk or Tracy Creed t.creed@sydneymitchell.co.uk if you would like more information about contesting a will or complete our online enquiry form.

 

 

The pressure to build more homes is immense and growing – but the High Court’s decision to scotch plans for an 85-unit housing development has shown that it can be outweighed by the importance of preserving heritage assets.

Planning permission for the project had been refused by the local authority but was granted by a government inspector following an appeal by the developer. In his decision, the inspector noted that the local authority could not demonstrate that it had a five-year supply of deliverable housing sites in its area.

The inspector acknowledged that the development would detract from the rural character and appearance of a nearby listed farm but found that the less than substantial harm to the heritage asset was outweighed by the need for more new homes and the desirability of making optimal use of the site.

In overturning the inspector’s decision, however, the Court found that he had applied the wrong test when performing the required balancing exercise. In focusing on the area’s shortfall in housing land supply, he had at best diluted the weight to be given to preserving the heritage asset and its setting. The planning consent was quashed.

For more information on this or any other Commercial Property matter, contact Sundeep Bilkhu s.bilkhu@sydneymitchell.co.uk or a member of the Commercial Property team at Sydney Mitchell.

The arrangements for custody of children and for meeting their financial needs when a marriage breaks down are often problematic. When there is an international element, things can get very complicated indeed, as a recent case involving the children of an Anglo-German marriage which ended demonstrates.

When the couple divorced in Germany, an order was made for maintenance to be paid by the father to the mother, with whom the children remained in Germany.

The father, a UK resident, stopped complying with the payment order, alleging that his ex-wife was obstructing his efforts to have contact with their children.

The first issue to be dealt with was essentially whether the English Family Court was the right place to hear the case in the first instance. Because of an uncertainty in the domestic legislation implementing the European legislation by which such international issues are to be resolved, the judge decided that 'the volume of pending cases and the need for certainty in the law make this [referral to the Court of Justice of the European Union (CJEU)] not only the appropriate course but the preferable course'.

Adding that 'the potential ramifications are wide-ranging' and that the arrears in maintenance by this time were likely to be 'considerably in excess' of the €6,000 outstanding up to the beginning of 2015, a request for an expedited hearing was also made.

The case was only reported recently, but the CJEU's ruling is expected soon as the original hearing was held in private in July 2015.

Says Mauro Vinti, Partner at Sydney Mitchell: "Many cases are awaiting the outcome of this decision. We can advise you on what to do if you face similar circumstances."

For further information on custody of children, divorce or any other family related issues, please contact mauro.vinto@sydneymitchell.co.uk or contact us via our online enquiry form or call us on 0121 746 3360.

Administrators were left in a quandary after two insurance broking companies went into Liquidation with £1,275,000 in their client accounts but with no record of exactly who was entitled to the funds. However, in coming to their assistance, the High Court gave detailed directions for the distribution of the money.

The companies' client accounts contained premiums which had not yet been passed on to insurers or other insurance intermediaries. Neither company had kept proper records of entitlement to the funds, which had simply been pooled. In those circumstances, the cost of ascertaining with certainty the correct apportionment of the money would probably consume most, if not all, of the available assets.

In broadly approving a scheme suggested by the administrators, the Court found that the contents of the accounts were held on statutory trust. The administrators would stipulate a cut-off date by which all claims to entitlement would have to be submitted. On proof of such entitlement, and prior payment of the administrators' remuneration and expenses, priority would be given to non-insurer clients over insurer clients. Only after all such claims were satisfied would any remaining funds become available to the companies' general creditors.

It is not unusual for a 'broad brush' approach to have to be taken when a company fails, and the courts will always try to achieve a fair and cost-effective approach for the creditors. We can advise on any aspect of insolvency law or assist you to ensure your interests are properly represented.

Leanne Schneider-Rose of Sydney Mitchell’s Insolvency and Restructuring Department says , "It isn't at all uncommon for the accounting records of insolvent businesses to be in a mess. In such cases, the back stop is to obtain a ruling of the court."

For further information on this article and insolvency matters please contact Leanne Schneider-Rose on 0121 698 2200, email l.schneider-rose@sydneymitchell.co.uk or fill in our online enquiry form.

 

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