Kent Solicitors

- This fact is certainly played out in the amount of existing Wills we have seen through our Free Audit service.

- Many of the Will we see have not been signed and witnessed correctly - if at all! Only last week I went to write Lasting Powers of Attorney for a couple who asked me to audit their existing Wills made in 2008.

- The Wills were well drafted and contained a relevant Trust to protect their property against 3rd parties such as through remarriage, but the Will writer had not taken the Wills back to supervise the attestation - the most important part of the process - merely posting them back to the couple, and as a result they had not been signed or witnessed at all!

- This couple had paid hundreds of pounds to have comprehensive Wills drafted to protect their loved ones and their assets, but had they died without them being properly signed and witnessed they would have been totally invalid at the time of death!

- Other invalid Wills we have seen have been signed but not witnessed, or only witnessed by one person.

- Worse still, we have seen Wills which have been signed and then witnessed by the spouse and children, a disastrous situation, as any beneficiary of a Will must not be a witness or they lose their inheritance!

Labels: signed, valid, Will, witness

Tenants should insist that the break date is the day before any rent payment date. Otherwise, if the break day is the same day as the rent payment date, the tenant will not know whether to pay the rent on the rent payment date or assume that the lease has already been broken so that he does not have to pay it

Labels: lease break rent payment date

- This may be because they just never got round to writing one, or because they wrote one but their Executors did not know where it was stored, or could not find it or get access to it.

- If you die without a Will don’t worry, the Government has one for you!! - your estate is dealt with under the Government appointed ‘Rules of Intestacy’ which lay down who will inherit from your estate and how much.

- This means that, contrary to popular opinion, your spouse will NOT necessarily inherit everything, which can actually result in them having to sell the family home to provide for their children’s rights to inherit.

- Worse still, your long term unmarried partner may not be entitled to inherit anything from your estate and, depending on how you own your assets, could be forced out of the home they have shared with you for many years, by members of your family - parents, siblings, step-siblings, grandparents and even aunts and uncles - who may all have a right under the Intestacy Rules to your assets.

- And if you have no family, the Government will take all your estate!

Labels: estate, Inherit, intestacy, Will

The only guarantees on which the landlord can now rely are those given by the guarantor for a current tenant and the guarantee given by the previous tenant under an Authorised Guarantee Agreement



Attempts to make the guarantors for previous tenants responsible fall foul of the anti-avoidance provisions of the Landlord and Tenant (Covenants) Act 1995

Labels: guarantor guarantee tenant Authorised Guarantee Agreement

- This is a question we are asked on a daily basis, as the Government (through HMRC) has been very active over the last few years in finding ways of clamping down on any way people can avoid paying tax. In practical terms ‘tax-avoidance’ is legal, whereas ‘tax-evasion’ is not!

General ‘lifetime gifts’ which are free from Inheritance Tax (IHT) liability are:

- Gifts to spouses / Civil Partners

- Wedding gifts of up to £5000 to each of your children/step children/adopted children or their fiancé

- Wedding gifts of up to 2,500 to each grandchild or their fiancé and £1000 wedding gifts to anyone else.

- Maintenance payments by court order

- Other gifts of up to a maximum of £3000 each tax year, and any unused balance from the previous tax

year

- As many small gifts of up to £250 to other people per tax year

- Gifts to: Charities, Housing Associations, Political parties, Museums, Universities, and The National Trust.

Reduced rates of IHT are payable for gifts made within seven years of death that are above the Nil Rate Band of £325k, as follows:

- 0-3 years - no reduction

- 3-4 years - 20 per cent reduction

- 4-5 years - 40 per cent reduction

- 5-6 years - 60 per cent reduction

- 6-7 years - 80 per cent reduction

- over 7 years - no tax paid

Labels: charities, IHT, lifetime gifts, reduced rate, tax-avoidance

The Tenant sought to terminate its commercial lease by exercising the lease’s break option after 5 years. Under the lease, the tenant had to give six months' written notice served by special delivery post or by hand on the Landlord to terminate the lease.



Six month before the expiry of the term the Tenant sent an email to the Landlord’s agent notifying the Landlord of his intention to exercise the break option and to terminate the lease. The Landlord’s agent accepted the email. Later the Landlord disputed the validity of the notice as it did not comply with the provisions of the lease.



The judge ruled that despite service defects, the Tenant’s termination of the lease by email was valid and effective because the Landlord accepted the email and the Tenant relied on the Landlord’s acceptance of the email.

Labels: Break clause, commercial lease, effective notice

- If you are a business owner or partner you may have considered leaving your business to your spouse or children through your Will, but have you really considered the consequences, and will this actually work?

- Leaving a gift in your Will of ‘my shares in my company’ when you die, may be invalid if the terms of your company’s Memorandum and Articles of Association, or your Shareholder Agreement determine a different course of action – and these documents will ‘trump’ your Will bequests.

- Do you know what provisions your company documents make? I have yet to meet a business owner that knows whether theirs make any provision for business succession. Many have just ‘downloaded the standard forms off the internet’ and signed them – does that ring any bells?

- When you die any assets in your name are frozen until after the Deed of Probate has been granted, which will be a minimum of 3 months but could take several years in complex cases. If you own a business outright and you employ people, failing to prepare for such an eventuality might mean your business would have to cease trading immediately on your death, and, as your accounts would be frozen, your staff would not get paid!

- If you are a Partner in the business, leaving your share to your spouse or children might prove a total nightmare to the other partners – consider your position if one of them was to die, would you want their spouse to take their place? If not, what provision have you made for the business to buy them out? Do you have a ‘Cross Option Agreement’ in place? And has this been phrased in such a way so as to ensure you do not lose the Business Property Relief (BPR) that would be due on your share?

- A business or interest in a business, including property (except businesses engaged in investments, land or buildings), may be fully or partially exempt from Inheritance Tax after death. Business property must be solely used for the purpose of the business and must have been running for at least 2 years. But, if that business is committed to being ‘put up for sale’ by the event of your death, your share may no longer qualify for BPR and hence would fall into your taxable estate.

- You should get your Company Documents checked by a legal professional to ensure they are going to do what you need them to do after your death, seek further advice from your accountant in relation to your tax position, and consider making Business Continuity provision in your Will.

Labels: business, children, death, partner, Spouse, Tax

If joint owners declare that they are each entitled to a 50% interest in a property, then that is conclusive



It did not matter that the parties had separated many years ago, the woman had paid the mortgage ever since, provided a home for their children and the man had contributed nothing but spent his money on another, solely owned property



So said the Court of Appeal, reversing a High Court decision that over the years the percentage had altered to 90%/10% in favour of the woman

Labels: cohabitation joint property shares

In contested ancillary relief proceedings, assets are usually divided as at the date of the hearing



The judge in a recent case has declined to do this in respect of a bonus awarded to the husband after the date of separation but before the hearing.



Different judges appear to take different approaches to post separation assets. Another one might easily say that the husband only got to a position where he could be awarded such bonuses by all his endeavours during the marriage, not just those post separation

Labels: divorce bonus post separation hearing

It is not uncommon for a husband facing both bankruptcy and divorce to agree a generous settlement for his wife, particularly with regard to the former matrimonial home and especially if their children are living there



However, recent case law has strengthened the hand of the trustee in bankruptcy in seeking to overturn such settlements

Labels: divorce bankruptcy settlement consent order trustee

Even though a party makes a Part 36 offer that is beaten at trial, it does not automatically follow that the successful party will be awarded all of its costs. The Judge may take into account the parties' success and failure on different issues, the costs thrown away on any part of the claim or counterclaim that is abandoned, and the parties’ conduct during the course of the proceedings and at trial.

Labels: conduct, costs, failure, offer, Part 36, success

The tenant, T, an electricity supplier, became the tenant of three contiguous plots of land (plots 1, 2 and 3) in 1953 for a term of 42 years. Under its lease, T was granted rights of way over a neighbouring plot (plot 4), and was also granted the right to lay and maintain cables through plot 4. T built an electricity sub-station on plot 2 and laid cables through plots 3 and 4.



The freehold titles were later sold to separate buyers, and T purchased the freehold to plot 2. Some other person, L, purchased the freeholds of plots 1, 3 and 4. T1's tenancy was due to be expired in 1994 but since no notice to quit was served on T and T continued to occupy the premises, the tenancy continued.



T brought a claim for the exercise of its rights over plots 3 and 4. L had argued that the tenancy in respect of plot 2 had merged with the freehold to plot 2 when T had purchased that freehold, meaning that the tenancy had ended. The judge found in T's favour on the basis that the tenancy under which T held the rights continued to exist; the judge held that although in principle there could be such a merger, that had not happened in the instant case because T did not form the intention for the tenancy to merge with the freehold.



The moral of the story: whereas the ordinary rule at law is that the coalescence of a lease and its reversion in the same person will result in a merger and the tenancy comes to an end, in equity it is open to that person to form an intention that there should be no such merger.

Labels: coalescence of lease, easements, Reversions, Tenancy

In a recent case, the Claimant (“C”) claimed that the Defendant (“D”) had made defamatory remarks regarding C in a letter to C’s solicitor. The Court, upon striking out the claim, held that if an employee sends a letter alleging unlawful conduct by the employer to the employer's own solicitor, this does not amount to a real and substantial act of defamation.

Labels: defamation, employee, letter, remarks, solicitor, unlawful conduct

When making your Will you may consider leaving your estate to a son or daughter in law in the event that your own son or daughter does not survive you. However don’t forget that if the son or daughter in law remarries their future new spouse will be first in line for their estate and therefore end up with your money!



Often people think – if my son dies then I want his wife to have the money to look after the children. Once the “in-law” has that share in your estate you have no guarantee that it will be used to benefit the children. The money may be taken from the “in-law” through divorce or bankruptcy.



When money is left to grandchildren if their parent (ie your child) does not survive, then provisions can be included in the Will so that the money can be used for the children’s benefit – but the money does end up with the grandchildren and not with a stranger who at some later date marries your son/daughter in law.

Labels: Executor Wills Probate beneficiaries, grandchildren, in-law, Inheritance Tax Spouse Exemption Nil Rate Band

Under the Equality Act 2010, employers cannot ask prospective employees about their health – at least before they have offered the job. Traditionally: employer would ask a previous employer about the number of sick days taken. Now you can only do this after the job has been offered. The intention is that the employer has to take his chances as to whether the employee is one for whom he will need to make reasonable adjustments so as not to fall foul of the disability discrimination laws

Labels: Disability discrimination health equality

EMPLOYMENT





Traditionally, the tribunal would not award legal costs. However, in several recent cases it has done so where the claimant has deliberately lied and effectively fraudulently pursued an application

Labels: Legal costs Employment Tribunal