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LEGAL NEWS March 2010
Wealthy divorcee must pay £5m to husband hit by the recession Time to ‘shake up’ the buying and selling of houses? Women win equal pay claim against local authority Wills reveal people’s good intentions Boy burned his passport so he could stay with his father Lasting powers of attorney can help protect your future Parents will be able to share time off with new baby Security guard awarded £289,000 for hand injury
Unqualified will writers putting families at risk Home loans at highest level for nearly two years Court of Protection rules to be made clearer and simpler Huge rise in number of employees claiming unfair dismissal Chancellor scraps plan to increase inheritance tax threshold Unmarried couples ‘need more legal protection’ Father can continue to seek contact with his children How victims of uninsured drivers can still claim compensation
Parents should be careful when helping their children buy a home Date set for introducing new regulations relating to trusts Green paper offers new hope to ‘heroic’ grandparents Dismissed police officer reinstated after a gap of five years ‘Insane delusions’ caused man to disinherit his relatives Neighbour dispute costs restaurant owner £160,000 Woman not entitled to a share of her former partner’s home Man injured by friend’s careless ‘horseplay’ awarded £1.8m
Wealthy divorcee must pay £5m to husband hit by the recession
A woman has been ordered to pay £5m to her former husband because his property and other assets have plummeted in value during the recession.
The couple are both American citizens but have lived in the UK since they were married nearly 20 years ago. Following the separation, she remained in the family home with the couple’s three children. The husband lived in a nearby house and was paying a substantial mortgage.
The wife was from a wealthy background and still had shares in her family’s business. The husband was a property developer and although he once had assets worth tens of millions of pounds, these had shrunk during the recession so there was now a net deficit.
If he were to liquidate the company he would face a large tax liability in the United States.
During the divorce proceedings, the judge valued the husband’s assets at zero, taking into account the latent tax liability. She divided the matrimonial assets equally and ordered the wife to make a lump sum payment of £5m. This was on the basis that the wife could continue living in the family home and the husband would retain the nearby mortgaged property.
The wife appealed against the lump sum order saying the judge had been wrong to make a snapshot valuation of the husband’s company at a time when property values were subject to dramatic fluctuations. She also submitted that the husband was determined to continue trading so the tax liability was not likely to become an issue in the foreseeable future.
However, she lost her case in the Court of Appeal which held that the original judge had exercised her discretion correctly to achieve fairness. The judge had considered the risks associated with the husband’s determination to continue trading and the outstanding mortgage on his home. She had taken all the important factors into account and reached an impressive judgment.
The wife’s appeal was therefore dismissed.
Please contact us if you would like more information about divorce proceedings or any aspect of matrimonial law.
Time to ‘shake up’ the buying and selling of houses?
It’s time for a “shake-up” in the system of buying and selling houses in the UK, according to report by the Office of Fair Trading (OFT).
It has just completed a study which found that the housing market is dominated by traditional estate agents with “weak competition between them on prices”.
The OFT report says that as “property prices rise during housing booms, so too do estate agents’ fees”. It calls for legislation to allow new entrants into the market with more competitive business models to provide better value for money for the consumer.
It also calls on the Government to consider additional regulation relating to the fees estate agents receive for referring consumers to providers of ancillary services such as mortgage advice and surveys.
Similar concerns were raised recently by the Law Society about the way some estate agents were inflating the cost of Home Information Packs (HIPs) by adding hidden charges or commission fees.
This is because many agents hire outside providers to supply the HIP and then add on a commission fee for themselves when billing the client.
A Law Society spokesman said: “If the agent is paying £300 to the HIP provider and then charging their client £400 the client is paying an extra £100 unnecessarily.
“If sellers do find their agent is charging extra for their HIP they should ask their solicitor if they can provide a HIP instead, as solicitors are required to be fully open with their clients about fees. The added benefit of using a solicitor is that they are all strictly regulated and required to follow stringent rules, unlike estate agents.”
Please contact us if you would like more information about Home Information Packs or any aspect of buying and selling a home.
Women win equal pay claim against local authority
A group of local authority care workers have won an equal pay claim after discovering that men in comparable jobs were receiving bonuses.
The women were all employed by Sheffield City Council which introduced a productivity scheme for a section of workers who were predominantly male. It argued that this did not contravene the Equal Pay Act 1970 because the bonuses could not be applied to the care staff due to the nature of their work.
Both the Employment Tribunal and the Employment Appeal Tribunal rejected the women’s claims on the basis that the bonus scheme was a genuine initiative to increase productivity among a group of local authority workers who just happened to be male. It was not therefore tainted by any issues relating to sex.
The women refused to accept the decision, however, and took the case to the Court of Appeal. It has now ruled in their favour.
It held that the tribunal decisions were perverse because the productivity bonus created a disparity of pay between the men and the women – even though that had not been the intention when it was introduced. The authority had failed to show that the scheme was objectively justified.
Please contact us if you would like more information about employment law.
Wills reveal people’s good intentions
Nearly one in four people who are planning to make a will want to leave money to charity, according to research by Standard Life.
Young people seem to be the most public spirited with 40% of 18 to 24-year-olds intending to make a charitable donation. Single people are more likely to make donations than those who are married, cohabiting or divorced – possibly because they are less likely to have children or other dependants.
It may be heart warming to see such generosity but, of course, for the good intentions to be realised, people actually have to make a will in the first place.
Unfortunately, many people never get round to doing this which means they die intestate. If that is the case then their wishes will not be known and their estate will be divided in a way laid down by law. It means their money may not go to the people – or the charities – they would have chosen themselves.
Many people may not like the thought of making a will and the associations that go with it but it is the only way of ensuring that your estate is passed on according to your wishes. A solicitor can make the process quick and easy while ensuring that all the paperwork is carried properly in accordance with the law.
Please contact us if you would like more information.
Boy burned his passport so he could stay with his father
The Family Court has had to rule on the finely balanced case of a 13-year-old boy who burned his passport so he could stay with his father in England rather than return to his mother in Portugal.
The boy’s parents had separated after a brief marriage. After long legal proceedings, the mother was granted custody and the boy went to live with her in her native Portugal. The father was granted extensive contact arrangements.
The boy enjoyed a long holiday with his father in the summer of 2008. Shortly before he was due to return in September, he told his father that he had burned both his British and his Portuguese passports so that he would not be able to return to Portugal.
The father told the mother that, as she had their son’s birth certificate, she would have to apply for a new passport for him. She appeared to make no effort to do this and so the father enrolled the boy in a local school.
In April 2009, the father found the boy’s British passport. The mother then began legal proceedings claiming that the father had wrongfully retained the boy in England.
The court held that the father had not wrongfully retained the boy to begin with because he was prepared to let him return to Portugal. He was only prevented from doing so by the fact that the boy said he had burned his passport.
However, the father’s attitude then changed because the boy made it clear that he did not want to return to Portugal. The father became uncooperative and opposed the mother’s attempts to get her son back.
This amounted to wrongful retention. However, the court held that the boy should still be allowed to stay in England with his father. This was because the Hague Convention on the Civil Aspects of International Child Abduction 1980 allowed for a “child’s objections” to be taken into account in cases like this.
It stated that if a child objected to being “returned” to one of his parents, the court should take account of his views as long as he was mature enough to speak for himself. Other conditions also had to be met. For example, it had to be clear that child’s views were realistic and had not been influenced by parental pressure.
The court was satisfied that the conditions were met in this case and so the boy was allowed to remain in England with his father.
Please contact us if you would like more information about any aspect of family law.
Lasting powers of attorney can help protect your future
Higher living standards and better health care mean that on average people are living longer than ever before.
While many will enjoy extra years of active life, others unfortunately may begin to suffer from age related dementia which affects their mental capacity and prevents them from making decisions about their financial affairs and personal welfare.
Uncertainty about the future prompts thousands of people each year to consider the use of Lasting Powers of Attorney (LPA).
These enable you to nominate someone such as a family member or trusted associate to make decisions on your behalf if you ever lose the ability to do so yourself in the future through illnesses such as dementia.
The property and finance LPA allows you to appoint someone to look after your financial affairs and the personal welfare LPA lets you grant an attorney authority over such matters as health care and the kind of treatment you receive.
LPAs should be drawn up with the help of a solicitor to ensure that they accurately express your wishes and protect your interests.
The growing problem of dementia makes it important for everyone to look to their future now while they are still in good health.
In 2007, the Department of Health recognised the scale of the problem and stated that dementia would be treated as a national priority. However, the National Audit Office has now published a report saying that the rhetoric has so far not been matched by urgent action.
The head of the National Audit Office, Amyas Morse, said: “At the moment this strategy lacks the mechanisms needed to bring about large scale improvements and without these mechanisms it is unlikely that the intended and much needed transformation of services will be delivered within the strategy’s five year timeframe.”
No one can be sure what the future will bring us in terms of our health but LPAs can at least ensure that our interests are protected should the worst happen.
Please contact us if you would like more information about Lasting Powers of Attorney.
Parents will be able to share time off with new baby
Parents will be able to share time off with their newborn baby under plans being introduced by the Government.
Fathers will be able to take additional paternity leave during the second six months of the baby’s life if the mother decides to return to work. The idea is to give families the flexibility to share the mother’s 12 months maternity entitlement if they so wish.
The father could take up to six months paternity leave in this way and for three of those months he would be paid the same rate as Statutory Maternity Pay which is currently £123.06 a week.
Ministers intend the legislation to be in place by April this year and to take effect for parents of children born after 3rd April 2011.
Security guard awarded £289 000 for hand injury
A security guard whose hand was crushed in a cash machine has been awarded £289,000 compensation.
The accident happened when the guard placed his hand in a rotating dispenser to remove some cash. The operator then rotated the drum crushing the guard’s hand.
The guard suffered chronic pain and depression for at least two years after the accident. He was unable to take on jobs that required repeated physical use of his injured hand and although he was capable of working, he would need an employer who was understanding and prepared to accept his limitations. It meant he faced an uncertain future in the jobs market.
He took action against the company that employed the cash machine operator on the basis that it was responsible for its employee’s negligence.
The company responded by saying the guard was malingering and lying about the severity of his symptoms.
The judge ruled that the guard was not malingering although he did find that he was 20% responsible for the accident through his own contributory negligence. His compensation was therefore reduced accordingly to a total of £289,377.
Please contact us if you would like more information about making a personal injury claim.
Unqualified will writers putting families at risk
Badly drafted wills by unqualified and unregulated providers are putting families at risk of severe hardship, according to a report by the Law Society.
Research by the Society highlights cases where wills turn out to be invalid because they are not properly drawn up. This means the deceased person’s estate is treated as if he died intestate – that is, without having made a will at all.
The estate is then divided in a way laid down by the law, which could mean it goes to people the deceased person had not chosen.
The President of the Law Society, Robert Heslett, said: "Solicitors know of so many cases of people who have turned to them for help after being left with what can only be described as nightmare wills by will writers.
“In many cases, the victims are not aware their will writer is not regulated nor insured, so there is no means of redress if things go wrong.”
Sometimes, people are persuaded to use these unregulated will companies because they offer a cut-price service. In reality, however, that can turn out to be a false economy.
Mr Heslett said: "While the initial cost of using these will writers can appear cheap, rectifying the damage if things go wrong can add up to much more. We advise people in this situation to consult a solicitor to check the accuracy of their will before it is too late."
Home loans at highest level for nearly two years
The number of home loans being granted is at its highest level for nearly two years, according to the Council of Mortgage Lenders (CML).
The CML says there were 55,000 loans granted for house purchase in October – that’s an increase of 43% on October 2008 and the highest level since December 2007.
Separate figures issued by the Halifax show that house prices rose by 4.2% between January and November last year.
The figures show growing confidence in the housing market although there is a still some way to go before we see the levels of a few years ago.
One negative development could be the ending of the Stamp Duty holiday. In 2008, the Government increased the threshold at which the duty becomes payable from £125,000 to £175,000. That threshold reverted back to £125,000 on 1st January.
A survey by the Royal Institution of Chartered Surveyors suggests that most of its members believe the lower threshold will have little impact, although, of course, that remains to be seen.
Whatever happens, the market is likely to remain highly competitive and sellers will need to ensure they have all the correct procedures in place to market their property.
For example, they must provide a Home Information Pack (HIP) for potential buyers as soon as a property is put on the market. The HIP must have an index and include various documents such as an Energy Performance Certificate - which grades the property’s energy efficiency - the terms of sale, proof of title and boundaries from the Land Registry, and the results of local searches.
Sellers must also include a Property Information Questionnaire covering areas such as the property’s service charges, flood risk information, structural damage, gas and electricity safety and parking arrangements.
Please contact us if you would like more information about HIPs or any aspect of buying and selling a property.
Court of Protection rules to be made clearer and simpler
The rules and procedures for the Court of Protection are to be made simpler following complaints that the system is sometimes too formal.
The Court of Protection was created under the Mental Capacity Act 2005. Its role is to make decisions on behalf of people who lack the capacity to decide for themselves. It also appoints other people, known as deputies, to make decisions on behalf of others.
The issues involved relate to such things as property, financial affairs, health and personal welfare.
The President of the Court of Protection, Sir Mark Potter, has set up a committee to review the court’s rules together with its forms and practice directions.
Sir Mark said: "The Court of Protection has faced a number of difficulties in its first two years and court users have complained that court procedure is too formal particularly in relation to straightforward financial matters which are not contentious.
“My aim is to create a set of rules, practice directions and forms that are clear and simple for lay and professional users to understand. Where possible, the committee should simplify the handling of routine property and affairs cases which constitute the majority of applications to court, for example by slimming down some of the procedures."
The court may have experienced difficulties in its first few years but it still provides a way for families to get decisions made on behalf of loved ones who have lost the capacity to decide for themselves. This can be very helpful when such a person had not already granted someone authority to manage their affairs by registering a Lasting Power of Attorney.
Please contact us if you would like more information about the Court of Protection.
Huge rise in number of employees claiming unfair dismissal
The number of claims for unfair dismissal has risen by 29%, according to the latest figures released by the Tribunals Service.
There were also steep rises in the number of employees taking action over levels of redundancy pay and the failure by employers to consult properly when making redundancies.
The increases are largely down to the recession which has put enormous pressure on firms. The sudden nature of the downturn has meant some have rushed to lay people off without following the correct procedures. This lays them open to claims from staff who feel they haven’t been treated properly or given the appropriate redundancy package.
The latest figures from the Tribunals Service cover the 12-month period up to last March. In that time the number of claims for unfair dismissal rose from just under 41,000 to just under 53,000. Claims over failure to inform and consult on redundancies more than doubled from 4,480 to 11,371. The number of claims over redundancy pay rose from 7,313 to 10,839.
The figures show the increasing willingness of employees to take action to protect their interests. Economic pressure is also a factor. In the past, many employees who lost their jobs would find new work quite quickly and so would not feel the need to pursue a tribunal claim. The recession has made it much harder to find work so people have fewer options. They may choose to take legal action to make up for their lack of income.
Anyone who feels they have been treated unfairly in redundancy proceedings or discriminated against at work should seek legal advice as soon as possible. Please contact us if you would like more information redundancy or any matters relating to employment law.
Chancellor scraps plan to increase inheritance tax threshold
The individual inheritance tax threshold is to remain unchanged at £325,000.
The Government had originally intended to increase the allowance to £350,000 from next year but that plan has now been scrapped because of the recession.
Making the announcement in his pre-budget statement, the Chancellor, Alistair Darling, said: "I do not believe that raising this allowance can be a priority, given the impact of the downturn on the country's finances. So I have decided to freeze the individual allowance at £325,000 for the next year."
The announcement will be a disappointment to many people and highlights the need to plan ahead in order to ensure that as much of your estate as possible is passed on in a tax efficient way to your beneficiaries.
Government announcements on inheritance matters often prompt people to review their wills, trusts and overall financial arrangements. A little careful planning now can prevent thousands of pounds being wasted in the future.
Please contact us if you would like more information about wills, trusts and any matter relating to inheritance planning. Unmarried couples ‘need more legal protection’
Unmarried couples need more legal rights to protect them if their relationship breaks down, according to the new chairman of the Law Commission, Sir James Munby.
Sir James said: “An astonishing number of people believe that there is something called common law marriage which will entitle them to a share of finances and property.”
In fact, cohabitants have few legal rights and face numerous pitfalls.
For example, if your home is in your ex-partner’s name then you will have no automatic right to stay there if you are asked to leave. Nor will you automatically be entitled to a financial share in the house, even if you helped to pay for it over several years. Your former partner won’t have to pay maintenance for you, even if you gave up your job to look after the children while he or she went out to build a lucrative career.
Unmarried fathers don’t automatically have parental responsibility for their children but they can acquire it with the agreement of the mother or by applying to a court. It is clearly better to deal with the matter while your relationship is strong rather than wait until after it has broken down.
Sir James said cohabiting couples needed to know about the reality of their situation but efforts to educate them over the last 35 years had largely failed. He believes it is necessary to change the law to reflect changes in society and give cohabiting couples greater protection.
However, the Government has been reluctant to change the law and shelved proposals put forward by the Law Commission a few years ago.
Given the Government’s reluctance to legislate, cohabiting couples who don’t wish to get married have little choice but to provide their own legal protection.
Ownership of the family home is one of the most important issues. If it is in just one person’s name then the other partner could lose out. You may want to consider owning it as joint tenants or tenants in common which will make a huge difference to your rights.
If you don’t already have a will then you should draw one up as soon as possible. Otherwise your estate could pass to your relatives rather than to your partner.
Many couples protect themselves by drawing up living together agreements which state in advance how their assets should be divided if their relationship fails. A few years ago the government started a campaign urging couples to draw up such agreements to cover things like finances, property and pensions.
Some people may feel embarrassed at first to be making such legal arrangements as it seems that they don’t fully trust each other. However, such concerns soon disappear and most couples end up feeling their relationship is stronger because both partners feel more secure.
Please contact us if you would like more information.
Father can continue to seek contact with his children
The Court of Appeal has ruled that a judge was wrong when he dismissed legal proceedings in which a father was trying to establish his right to have contact with his two children.
The father suffered from bi-polar disorder and needed medication to stabilise his condition. In the past he had sometimes failed to take his medication and this had led to violent episodes involving both the children and their mother.
The couple eventually separated and the children continued living with the mother. He applied for a contact order so he could see his children and during the ensuing proceedings he admitted that he had been violent to the mother and the children.
He was then due to attend a fact-finding hearing but applied for an adjournment because his psychologist had advised him that he was not fit to give evidence.
The judge noted that this was a particularly important hearing because the father was due to be cross-examined about his past violent episodes. He refused to grant the adjournment because he decided that the father’s case had no chance of succeeding as the children did not want to have contact with him and it would not be in their interests to delay the proceedings any further.
However, the Court of Appeal has now overturned that decision. It held that the judge should have focussed only on the issues in front of him and not on matters that would be examined later. By totally dismissing the case he had denied the father’s right to a fair trial.
It was also true that the father’s case was not entirely hopeless because the eldest child had said that he might be prepared to see him under strict supervision and would probably want to bring his younger brother along as well.
Please contact us if you would like more information about any aspect of family law.
How victims of uninsured drivers can still claim compensation
The Government has announced plans to clamp down on motorists with no insurance. New measures will make it an offence to keep a vehicle without insurance as opposed to the present system where no offence is committed until the vehicle is actually driven on public roads.
Ministers believe this will make it easier to catch uninsured drivers and prevent them posing a threat to other road users. The latest figures show that uninsured and untraced drivers are responsible for 160 deaths and 23,000 injuries every year. Uninsured drivers also cost law abiding motorists £400m a year in extra premiums.
The measures are a welcome step forward as uninsured drivers bring tragedy and heartache to thousands of families each year. Many victims don’t even receive any compensation because they don’t realise they can make a claim even though the driver who injured them has no insurance or can’t be traced. In many cases, however, they can take action under a scheme run by the Motor Insurers Bureau.
The criteria for making a successful claim are quite strict so victims should take action as quickly as possible. For example, victims have to notify the police of the accident within a specified time. They can be left without compensation if they don’t. They should keep a note of the name of the officer who takes their details.
They should also seek expert help from a specialist solicitor who has access to the Motor Insurance Database which can sometimes be used to trace the guilty driver.
Please contact us if you would like more information.
Parents should be careful when helping their children buy a home
Parents are being urged to consider all the legal implications before handing over large sums of money to help their children buy a home.
The Law Society says families could be torn apart if things go wrong.
The current economic climate means 100% mortgages are no longer readily available. Most banks and building societies won’t lend unless the buyer can provide a large deposit – sometimes as high as 40%.
Such figures are beyond the reach of most first time buyers.
The Law Society says the strict mortgage regime means that an increasing number of young people are calling on the ‘bank of mum and dad’ to help them get on to the housing ladder.
However, problems can quickly emerge if there is no clear understanding of how and when a loan should be paid back.
The President of the Law Society, Robert Heslett, said: “If parents are helping their children, they should see a solicitor beforehand in order to draw up a loan agreement.
“It is very important that all parties involved are comfortable with the arrangement and that everyone knows where they stand with regards to paying back the money. While it’s unlikely your children will run off with your savings, handing over a large amount with no legal structure in place is a minefield. It could tear families apart if things went wrong.”
The Society stresses that parents should seek legal advice to protect their interests before handing over their life savings.
“A solicitor will also talk through all the options available, and provide alternatives, such as parents acting as loan guarantors or entering into a joint ownership agreement.
“Solicitors are trained experts and are highly experienced in navigating the maze of paper work and dealing with house purchases. Not only will a solicitor offer the best advice and service, they will help to avoid some unforeseen hazards that may occur down the line.”
Please contact us if you would like more information about helping your children on to the property ladder, or any aspect of buying and selling a home.
Date set for introducing new regulations relating to trusts
New regulations which could make it more attractive for some people to set up trusts will come into force on 6th April this year.
The Perpetuities and Accumulations Act 2009 will abolish the current 21-year limit during which private trusts can accumulate interest without having to distribute it to beneficiaries. It also simplifies the rules relating to perpetuities by introducing a single 125-year period for all new trusts.
The Act is based on recommendations put forward by the Law Commission which argued that there was no good reason for restricting a settler’s ability to direct or allow for the accumulation of income. In fact, such restrictions could create problems by obliging trustees to distribute income once the 21-year limit had been reached.
This meant money could be given to beneficiaries who were too young to receive it or incapable of dealing with it properly because of health or other issues.
Charitable trusts will be still be subject to the 21-year limit, however, to ensure that income is spent for the public benefit rather than be allowed to accumulate indefinitely.
Many experts believe the changes will make it more attractive to set up trusts because people can have more confidence that money will not be settled on beneficiaries when they are too young or if they are incapable of dealing with it for any other reason.
Please contact us if you would like more information about the changes or any aspect of setting up trusts.
Green paper offers new hope to ‘heroic’ grandparents
Family breakdowns mean that grandparents sometimes have to suffer the heartache of being denied contact with their grandchildren.
The have no automatic contact rights which means they can face a difficult battle if they are denied access by a son or daughter-in-law - or even in some cases by their own children.
Now, proposed new legislation outlined by the Government in ‘Support for All – the Families and Relationships Green Paper’ could help to improve the situation.
Ministers want to make it easier for grandparents – described as “unsung heroes” by Children’s minister Ed Balls - to seek contact with their grandchildren. As the law stands now, they have to get permission from a court before they can even start to make an application for contact.
The proposed new measures would remove that hurdle making the process easier.
Court action ought to be a last resort, of course. The first step should be to approach the parent who’s being obstructive and try to reach an agreement. This can difficult if they are feeling bitter after the break-up of a relationship but in time, most people will realise the value of their child having contact with the grandparents.
If that doesn’t work then mediation with the guidance of an independent mediator might help. However, both sides have to agree so it may not always be suitable.
Legal action may then become necessary, although there’s a good chance the problem could still be resolved before you get to court. Once the application is made, family advisory officers from the court agency CAFCASS may be appointed to examine welfare issues and prepare a report.
These reports are often strong enough to persuade the obstructive parent that contact would be good for their child. If not, the matter is likely to be decided by the court.
If the court decides in favour of contact with the grandparents then the parents will have to comply.
Legislation based on the Green Paper may still be a long way off but it should at least give grandparents confidence that the tide is turning in their favour and that their role in their grandchildren’s lives is highly valued. In the meantime, they can still ask for court permission to make an application for contact.
Please contact us if you would like more information about this or any matter relating to family law.
Dismissed police officer reinstated after a gap of five years
A probationary police officer who was wrongfully dismissed has been reinstated even though she had been away from her job for five years.
The case arose after the officer had been charged with obtaining property by deception. She was found not guilty but she then faced proceedings under reg.13 of the Police Regulations 2003. After a brief hearing she was told she would have to resign.
The officer sought a mandatory order that she should be reinstated because the chief constable should not have applied the regulations in the way he did and his decision to dismiss her was clearly unreasonable.
The High Court has now ruled in her favour. The judge held that the chief constable was not entitled to use regulation 13 for dismissal purposes in this case. The officer should only have been dismissed as a result of formal misconduct proceedings but these had not taken place.
The chief constable had no power to dismiss her on the basis of a hearing that only lasted five minutes and which contained procedural flaws. It was therefore necessary to reinstate her in order to correct a serious wrong – even though she had been away from the job for five years.
Please contact us if you would like more information about this or any aspect of employment law.
‘Insane delusions’ caused man to disinherit his relatives
A court has heard how a man was suffering from “insane delusions” when he revoked his will, disinheriting an old friend and some close family members.
When the man had been in good health he had made a will leaving most of his estate to a close relative and her daughter. He appointed an old friend to be the executor.
He often complained to friends and family that he did not like his adopted children and was leaving them nothing.
He then contracted a terminal illness and went to live in a nursing home. His beneficiaries were refused access to see him at this time except for on one occasion when his old friend paid a visit. However, the man developed the belief that his friend just wanted his property.
On another occasion, some of his close family members rushed into his room after being denied access to see him. The man then contacted his solicitor saying his friend and relatives were terrible people and he wanted them removed from his will. His wish was carried out and he later died.
This meant most of the estate would now pass to the man’s adopted children.
The disinherited family members applied for a declaration that the revocation of the will was invalid. They produced evidence from a medical expert that the man had lacked testamentary capacity in the two months before he died.
The adopted children accepted that the man’s sudden beliefs about his former beneficiaries were brought on by insane delusions but said that those delusions did not influence his decision to revoke the will.
However, the court held that the delusions had been influential. In the space of a few months, he had changed his views about those who had been closest to him for many years and he did so for reasons that were non-existent or based on delusions.
He clearly lacked testamentary capacity and the revocation of the will was of no legal effect. Probate was granted to the friend as the executor of the will.
Please contact us if you would like more information about wills and probate.
Neighbour dispute costs restaurant owner £160,000
The danger of letting neighbour disputes get out of hand was illustrated recently in the case of a restaurant owner who was left with legal bills of £160,000 for the sake of a small area of lawn.
The issue was where to draw the boundary line between the restaurateur’s home and that of his next door neighbour, a doctor. The restaurateur submitted that previous owners of the two properties had agreed the boundary 18 years earlier. They had both planted shrubs in line with that boundary agreement.
However, when the doctor moved into the property, he argued that the boundary should follow the line drawn in the Land Registry plans. That would give him an extra six feet of land.
The county court found in favour of the doctor so the restaurateur took the case to the Court of Appeal. However, that too has now ruled in favour of the doctor and ordered that the restaurateur should pay the costs of both sides, estimated at around £160,000. In giving the court’s decision, Lord Justice Burnton, said it was sad that so much money was being spent on a few feet of lawn.
The doctor said afterwards that he bore his neighbour no ill will, but felt strongly that the case should never have gone to court.
It is not uncommon for neighbour disputes to get a little out of hand so that the costs and energy expended seem out of all proportion to the seriousness of the offence.
It is usually better for disputes to be resolved amicably but if this is not possible then both sides should seek legal advice before attitudes begin to harden.
Clarification of the legal position may help resolve the problem right at the outset. It there is still a disagreement then a solicitor may be able to help arrange mediation so that a settlement can be reached that is fair to both sides. This approach is usually far less stressful than going to court and it may help you to maintain a good working relationship with your neighbour. This is very important as you may have to live alongside each other for many years to come.
If agreement still can’t be reached then litigation may become necessary. It is then even more important to get sound legal advice so that the dispute doesn’t escalate to a point where the costs involved are out of proportion to the value of the claim.
Please contact us if you would like more information.
Woman not entitled to a share of her former partner’s home
The problems that can arise when a cohabiting couple fail to draw up a legal agreement between them were illustrated in a recent case before the High Court.
A woman failed to win a share of her former partner’s home because there was no evidence to prove that she was entitled to such a benefit.
The couple had been engaged to be married and had intended to set up an equine centre together. The man bought a property and some surrounding fields with his own money and the woman contributed by providing him with an extended loan.
She then decided to give up her career to help develop the equine centre. It remained her partner’s business, however, and its losses were covered by his account.
When the relationship broke down, the woman claimed that she had been promised a half share in the equity of the property. She submitted that she had played a major role in renovating and developing it and that entitled her to a beneficial interest. She said she would never have given up her career as a barrister if she had not been promised that half the property would be hers.
The court held that the woman had helped to develop the property but her role was not as significant as she had suggested. More importantly, there was no evidence to show that she had been offered half the property. Her former partner had not said anything that could reasonably be taken as promising her a beneficial interest. Her claim therefore had to fail.
In giving his decision, the judge said the rights of both sides had to be evaluated by principles of law, which might not always match the general perception of what was fair and reasonable between spouses.
Please contact us if you would like more information about taking legal steps to protect your interests.
Man injured by friend’s careless ‘horseplay’ awarded £1.8m
A man who suffered spinal injuries when his friend jumped on his back has been awarded £1.8m compensation.
The incident happened after the two men had been to a pub together. They left after drinking two pints of beer each. As they walked along, the man was knocked to the ground with considerable force when his friend suddenly jumped on his back without warning.
He suffered several fractures to his spine. He underwent surgery followed by physiotherapy but was left with reduced mobility and manual dexterity and was unable to live an independent life.
His injuries meant he was unable to continue his career in audio design and production or take up any other form of employment.
The man, who was 41 at the time of the incident, took legal action saying that his friend’s foolhardy act of horseplay was unnecessary and created a foreseeable risk of injury. The friend admitted liability.
Compensation totalling £1.8m was agreed in an out of court settlement.
Anyone who is injured as a result of someone else’s negligence is entitled to seek compensation. Please contact us if you would like more information about pursuing a personal injury claim.
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