Signing a contract before you are sure you are willing to complete it can be a huge mistake: judges do not flinch from enforcing valid contracts, as a recent case shows.

It involved a man who reneged on a deal to buy a family home for £5 million. He had not viewed the property before contracts were exchanged and had dealt with the vendors through an intermediary whom he had never previously met. However, he had signed the contract in person and a judge rejected claims that the intermediary had acted without his authority or that the contract was rendered void when the intermediary agreed to accept a secret commission. The result was that the man was ordered to pay a seven-figure sum in compensation to the disappointed vendors.

After the buyer pulled out and the deal was aborted, the vendors eventually sold their home for the lower price of £4.2 million. They launched proceedings for the difference between the first putative buyer's agreed purchase price and the sum they eventually received. They were awarded £800,000 to reflect the difference between the two figures and further substantial sums to cover their additional expenses, including the cost of bridging finance occasioned by the breach of contract. Although the precise amount of compensation has yet to be calculated, this is estimated to be in the region of £1.5 million.

Says Adam Oleskow, Conveyancing Partner at Sydney Mitchell:

Although the circumstances in this case were very unusual, the principle that you should only sign a contract if you are willing to be bound by it is clear. If there are any potential issues, legal advice should be taken to ensure your interests are fully protected.

Speak to Adam or a member of his team if you are considering signing a contract with a view to purchasing a property.

Adam Oleskow a.oleskow@sydneymitchell.co.uk

The validity of wills is sometimes subject to legal challenge, but the default position is that everyone is allowed to leave their worldly goods to whoever they wish.

A judge made that point in giving effect to the wishes of a strong-minded pensioner who bequeathed everything she had to one son, cutting out the other two.

Five years before her death, aged 88, the woman executed a will by which she made her middle son her sole heir. She had previously put the family home, worth about £350,000, into their joint names, with the result that he automatically inherited the entire property on her death. In a letter written five years before she died, she explained her wish to reward her middle son for the assistance he had given her during her final years. She wrote that her youngest son was in no need of her bounty, being economically independent, and that she rarely saw her eldest son, who she could not rely on to help her.

In dismissing the eldest son’s challenge to her will and the lifetime gift of her home to his brother, the judge found that there was no evidence that his brother had brought undue influence to bear upon their mother.

The pensioner knew her own mind when she reached the rational decision to benefit her middle son alone. He was very close to her and had sacrificed his hairdressing business in order to move in with her and care for her when she experienced ill health in later life.

For help or advice on this or other related Wills Trust or Probate matters contact Ravi Sandhu on 0121 698 2200 or email r.sandhu@sydneymitchell.co.uk

Winning compensation is one thing, but enforcing its payment is another. That point could hardly have been more powerfully made than by a case in which a domestic servant who was awarded almost £270,000 by an Employment Tribunal (ET) ended up without a penny.

In what was believed to be the first successful ‘caste discrimination’ case brought before an ET, the Indian woman successfully complained that the couple for whom she worked had paid her far below the National Minimum Wage. The ET also found that she had been unfairly dismissed and discriminated against on grounds of her religion and race. She was awarded total compensation of £266,536.

A firm of solicitors commendably agreed to act free of charge in pursuing the couple for payment of the award. However, they ultimately only succeeded in recovering £35,702, roughly 13 per cent of the amount due. The Legal Aid Agency (LAA) had funded the woman’s case and elected to exercise its statutory charge over the sum recovered. The end result was that the woman received nothing.

In ruling on the woman’s judicial review challenge to the LAA’s decision, the High Court acknowledged that her position was extremely unfortunate. The findings of the ET were wholly consistent with her claim that she was a victim of trafficking and had been held in servitude by the couple. In dismissing her case, however, the Court rejected arguments that the application of the statutory charge breached her human rights or European rules designed to combat human trafficking.

For help and advice on employment law matters, contact Samantha Glynn on 0121 698 2200 s.glynn@sydneymitchell.co.uk

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On the 1st February 2018 the Government launched a scheme to enable people in England and Wales to claim back excess fees they paid to the Office of the Public Guardian for applications to register lasting powers of attorney and enduring powers of attorney. The refund scheme is for fee payments made to the Office of the Public Guardian between 1 April 2013 and 31 March 2017, and includes repeat applications and remissions, whether the power of attorney was registered or not.

You can read the full Ministry of Justice press release here

https://www.gov.uk/government/news/power-of-attorney-fee-refund-scheme-launched

All those eligible for a partial refund on their power of attorney fees can apply from 1st February 2018.

Further details on the scheme are available on the Governments own website here

https://www.gov.uk/power-of-attorney-refund

All those eligible for a partial refund on their power of attorney fees can apply from today.

The Governments website includes further details on the scheme including:

• Who can claim a refund
• How much the refund will be (typically £45 to £54)
• How to claim

The refund scheme is by way of online application and will take approximately 10 minutes. Claims can be submitted by the person who made the power of attorney or an appointed attorney.

You can also claim by phone if you don’t have a computer or can’t use one easily (Telephone: 0300 456 0300 - choose option 6)

https://claim-power-of-attorney-refund.service.gov.uk/when-were-fees-paid

Again, more information is available here

https://www.gov.uk/power-of-attorney-refund

Alternatively you can contact the Refunds Helpline:
Email: poarefunds@justice.gsi.gov.uk
Telephone: 0300 456 0300 (choose option 6)

Judges do not flinch from enforcing contracts for the sale of land and that is a good reason why you should never sign on the dotted line before taking legal advice. In a cautionary tale that underlined the point, a man who reneged on a deal to buy a family home for £5 million was ordered to pay seven-figure compensation to the disappointed vendors.

The buyer had not viewed the property before contracts were exchanged and had dealt with the vendors through an intermediary whom he had never previously met. However, he had signed the contract in person and a judge rejected claims that the intermediary had acted without his authority or that the contract was rendered void when the latter agreed to accept a secret commission.

After the buyer pulled out and the deal was aborted, the vendors eventually sold their home for the lower price of £4.2 million. After lawyers launched proceedings on their behalf, they were awarded £800,000 to reflect the difference between the two figures and further substantial sums to cover their additional expenses, including the costs of bridging finance occasioned by the breach of contract. Although the precise amount of compensation had yet to be calculated, the vendors’ lawyers estimated their total award at £1.5 million.

For advice on residential property matters, contact Adam Oleskow, Partner 0121 746 3300 a.oleskow@sydneymitchell.co.uk or a member of staff in our conveyancing department.

 

It may be tempting to save a little money by appointing a loved one to act as the executor under the terms of your Will, rather than an expert solicitor.  However, as one case concerning a dispute between three brothers showed, that is rarely a wise choice to make.

A woman’s will was simplicity itself, in that it left her £1.8 million estate equally to her three sons and appointed all of them as executors. However, in common with most people, her main asset was her home and complications arose because one of the sons continued to live in the house after her death. The man was less financially successful than his brothers and was adamant that he deserved a larger proportion of their mother’s estate, having cared for her during the last eight years of her life.

His brothers wished to realise their inheritance by selling the property and, with that objective in mind, applied to the High Court for his removal as executor. They argued that he was using his appointment, as an executor, as a bargaining chip with a view to making them agree to an uneven distribution of the estate.

In granting the application, the Court found that, although the man had not behaved improperly, there was an irreconcilable conflict between his potential claim on the estate and his duties as executor. The Court directed his replacement by an independent lawyer, but warned his brothers that they might also have to step aside as executors if the dispute continued and further conflicts of interest arose.

For help and advice on contentious probate matters, contact Kamal Majevadia, k.majevadia@sydneymitchell.co.uk – on general will enquiries and drafting up your will, contact Ravi Sandhu, r.sandhu@sydneymitchell.co.uk

An equal division of assets in divorce is a norm that can occasionally be departed from, for example if one party to a marriage has made a ‘stellar contribution’ to the marital wealth or the marriage is a brief and childless one. However, the Court has made it strikingly clear that such exceptions to the rule are wholly exceptional and in one judge’s words “are as rare as white leopards”.

In one such case, the Court of Appeal decided in a ‘big money’ case that the brevity of a childless marriage, during which the husband and wife largely kept their finances separate, justified a departure from an equal division of the assets.

The primary source of the couple’s wealth was £10.5 million in bonuses that the commodities trader wife had earned in just five years. Her rewards had enabled them to lead a lavish lifestyle and, towards the end of the marriage, the husband had taken redundancy and devoted himself to refurbishing their two homes.

The marriage lasted only four years, foundering after the wife discovered that the husband was having an affair. The assets that stood to be divided in their divorce were worth £5.45 million and a judge decided that the husband should have half of that.

In allowing the wife’s appeal, the Court found that a departure from the equal sharing principle was justified. Effectively all of the marital assets had been generated by the wife. The couple had no children during a short marriage and there had been little inter-mingling of their wealth. The Court found that the husband was entitled to £2 million, made up of a £1.1 million house and a £900,000 capital sum.

The principles applied in this case will not always fit and therefore the question remains, how does one protect one’s assets in the event of divorce? Effective protection can come from preparing well thought out and well drafted trust documents before marrying.  Alongside trusts,  another effective form of asset protection is a pre-nuptial agreement. These have, over recent years, become increasingly popular with couples who have assets owned prior to marriage that they wish to protect in the event of divorce.

For advice on protecting your financial interests in the event of relationship breakdown, contact Mauro Vinti on 0121 746 3300 m.vinti@sydneymitchell.co.uk

The legal requirement that, when making a will, you must make reasonable provision for those who are dependent upon you generally benefits hard-up family members or loved ones. However, in a case that broke new legal ground, the Court of Appeal ruled that the principle applied to a 93-year-old man who was substantially richer than his deceased partner.

The man had no expectation that the widow with whom he had lived for almost 20 years would leave him anything in her will and she did not do so. He accepted that he had no moral claim against her estate and, given that he had greater financial resources than she did, he had left her a substantial sum in his own will.

Following her death, her daughter and sole heir asked him to leave the house where they had lived together. He refused to do so, however, and the daughter launched possession proceedings on the basis that he was a trespasser. He responded by making a claim for reasonable financial provision from the widow’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.

His claim succeeded before a judge, who granted him an option to buy the property from the widow’s estate at a price of £385,000, the sum at which the daughter had had it valued. That decision was subsequently upheld by the High Court but, due to her emotional attachment to the property, the daughter mounted a second appeal. It was submitted that, although the man might wish to carry on living in the house, he had no need to do so and was well able to buy an alternative home.

In rejecting the daughter’s appeal, however, the Court of Appeal found that, although she was poorer than him, the widow had maintained the man by giving him a roof over his head until her death. She was thus obliged to make reasonable provision for him in her will and her daughter’s proper interests as heir were outweighed by the man’s objectively assessed need to remain living in the property. He was old and infirm and had no desire to leave the house, which was in the village where he was born and close to supportive neighbours and the village shop.

Contact Kam Majevadia for help and advice on contentious probate matters. k.majevadia@sydneymitchell.co.uk. For general wills trust and probate matters contact Tracy Creed or complete our enquiry form.

Personal relationships are generally considered private matters, but it is sometimes necessary for judges to delve deeply into them in order to discern whether binding promises have been made. One such case concerned a handyman who formed an intimate relationship with his very wealthy employer.

The woman, who was worth about £10 million, had taken on the handyman to do odd jobs around her country estate. However, after their relationship developed, he claimed that they had lived together as man and wife for several years before they parted acrimoniously. He alleged that she had promised him a stake in two residential properties and shares in a company that owned a third. Alternatively, he sought compensation for work he had done on the properties.

She accepted that she had had a dalliance with him, but argued that their relationship never moved beyond that of an employer and employee who became good friends and companions and occasionally enjoyed sexual intimacy. She denied that she had ever promised him any part of her wealth, which was in part derived from her divorce but also from her success as a property developer.

In dismissing the handyman’s claim, a judge found him to be a thoroughly dishonest witness. The woman had never had any interest in forming a committed relationship with him and he had never been any more to her than a kept man, in addition to being an employee or jobbing worker.

She had made him no enforceable promises and he had never genuinely believed that she was his business partner or that he would be entitled to a share of any of her assets. There was also no credible evidence that he had done any work for which he had not been paid. The facts of the case emerged as the Court of Appeal dismissed his challenge to the judge’s decision. Neither the judge’s assessment of the witnesses nor his findings of fact could be faulted.

If you are concerned about family legal issues or have been affected by similar issues to that above, please contact Amanda Holland or a member of the Family Team on 0121 698 2200, email a.holland@sydneymitchell.co.uk or fill in our online enquiry form.

A woman has won a record £9 million in compensation from a negligent GP who would have terminated her pregnancy had she been aware that her son would be born gravely disabled.

The unnamed woman’s family had a history of the blood condition haemophilia – a genetic disorder of the blood that impairs the blood’s ability to clot and which can lead to life-threatening bleeds. She had attended her local GP surgery and asked to be tested to see if she was a carrier of the gene. She was not given the correct blood test to identify if she was a carrier, but only if she herself suffered from the condition. After her test results had come back negative, she was led to the mistaken belief that any children she had in the future would not be afflicted by haemophilia.

She gave birth to her son born five years later, and it was soon discovered that he suffered from an aggressive form of haemophilia. She subsequently underwent genetic testing that confirmed that she was a carrier.

Through her lawyers, the woman argued that had she known that she was a carrier of the condition at the time she fell pregnant, foetal testing would have revealed her son’s condition and she would have chosen to terminate her pregnancy at an early stage.

Lawyers for the GP admitted liability and conceded that the mother would be entitled to be compensated for the additional costs involved in bringing up a child with haemophilia. However, by terrible coincidence, her son was also born with autism which meant that he required specialist care. It was argued on behalf of the GP that the mother was not entitled to compensation in respect of the additional costs associated with that condition.

However, the High Court upheld her claim in full and noted that the boy would not have been born had it not been for the GP’s admitted negligence. In those circumstances, the court determined that the costs flowing from the boy’s autism also fell within the GP’s assumption of responsibility.

If you have concerns about the medical treatment which you have received from a hospital or GP and wish to speak with one of our specialist clinical negligence solicitors, please contact Adam Hodson, Medical Negligence Specialist at Sydney Mitchell on 0121 698 2200 or email Adam at a.hodson@sydneymitchell.co.uk

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