- By Laura Thorpe, Joint Head of Dispute Resolution & Litigation
At PRH Solicitors, we specialise in litigation, but this does not always mean taking a case to Court. Part of litigation is considering alternative dispute resolution to settle disputes quickly and efficiently. Mediation is a form of alternative dispute resolution and can assist disputing parties in negotiating a suitable settlement.
The Courts are increasingly encouraging parties to include mediation as part of the process of resolving disputes, whether between businesses or individuals. This is even more so as we come out of the pandemic, the justice system is seeking ways for parties to resolve disputes quicker and smarter.
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Mediation provides an opportunity for parties to discuss their issues in a confidential setting, with an independent third party. It often helps the disputing parties better understand each other’s positions and explore options for settlement that are more flexible, than would be awarded by the Court.
Understandably, many people prefer not to mediate because they believe they have a strong case that will be successful at Court, the other party is very difficult or the issue in dispute is too complicated. However, most disputes are suitable and capable of mediation and there are always risks with taking a case to Court.
In order for mediation to work effectively, the parties must both be willing to participate and for an independent mediator to be jointly selected. The mediation, will usually take place at a neutral location, which is convenient for all parties. The parties can have separate rooms and the mediator will go back and forth between the parties to try and narrow the issues and see if a settlement can be reached. The mediator will not decide on the merits of the case, but works with the disputing parties to facilitate a resolution.
Mediators usually charge on a fixed fee basis, with the fees being split equally between the parties.
If the parties settle the case during the mediation, then an agreement will be prepared to reflect the settlement and where necessary, the document formalised and filed with the Court. This serves to avoid the risk of parties changing their minds or disagreeing about what was agreed, after the mediation. It is usual for parties to have legal representation at a mediation, in order to advise on any legal issues, settlement proposals and preparing an agreement of terms.
If you have a dispute and you’re not sure how to resolve it, contact our litigation team today on 01709 511100 or email firstname.lastname@example.org to discuss your options and how we can help.
Disputes and Out of Court Settlements
- By Laura Thorpe, Joint Head of Dispute Resolution & Litigation
Disputes either with a business or between individuals can arise for a number of reasons and can often escalate quickly. Often people who are locked in a dispute, feel that there only option is to take the matter to Court.
Involving a solicitor at the start of a dispute can help ensure that your claim is processed as quickly as possible through the Courts or may offer alternative ways to resolve the matter.
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Recent statistics published by the Ministry of Justice has shown that there are now significant delays to cases being progressed through the Courts. The average time taken for small claims to go to a hearing was over 50 weeks and up to 70 weeks for mutli track or fast track cases to reach trial.
Taking a dispute through the Courts can also be a costly process and it should be borne in mind, that generally, even though the losing party will pay the winner’s legal costs, very rarely do you recover 100% of the legal costs. Usually the Court will only award between 70-80% of legal costs.
It is therefore cost effective to instruct specialist solicitors, such as PRH, at the beginning of any dispute, to ensure your position is clear and for the most appropriate steps to be taken for your case.
When we receive instructions on a new dispute matter, we will undertake a review and advise you how best we think the matter can be resolved. This may either be via without prejudice correspondence to negotiate a settlement or by engaging a mediator. Mediation can often be successful in obtaining a settlement as it allows more flexibility in obtaining a resolution than would otherwise be awarded by the Court.
Sometimes it is also tactically advantageous to issue legal proceedings to help encourage an agreement to be reached between the parties. The process of Court proceedings can often focus parties’ minds on the risks and costs involved, which allows opportunities to settle to arise.
The Courts actively encourage parties to try and resolve disputes amicably either through negotiation or mediation. By engaging PRH solicitors to assist you at an early stage, we can advise you of the best available outcome for your dispute. We will apply our expertise and experience to help you avoid costly litigation and achieve a desirable resolution.
- By Laura Thorpe, Joint Head of Dispute Resolution & Litigation
Whether it is a dressing gown you don’t want or a gadget that you will never use, there are often unwanted gifts received over the festive period. Statistics show that 25% of Christmas gifts are returned, so what are you rights?
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Firstly, you should check the stores own policy on returns and the time limit to do so. Over the Christmas period most will extend the time limit to return goods and will provide gift receipts. If you have a gift receipt this will assist with a refund or exchange, however there will be difficulties, without a gift receipt or proof of purchase. A receipt will also assist in confirming the price paid for the goods, as without this, you will only be eligible for the current price of the goods.
The Consumer Rights Act 2015 sets out the law on when you can return goods or request a refund. It states that goods sold should be of satisfactory quality, be as described and be fit for purpose. If the goods you have received are faulty then you have a right to a refund, if it is within 30 days of purchase.
After 30 days the store could offer an exchange or replacement instead.
If you simply do not want the gift then there is no obligation for the store to offer you either an exchange or refund. Most stores, conscious of goodwill, will however offer an exchange, especially at this time of year.
If the goods were purchased online, then the person who purchased the goods will have to be the one to return it. They will usually have 14 days to return the items to obtain a refund.
Your legal rights may appear limited, but most stores are lenient and willing to provide refund and exchanges.
Making a Will during the Covid-19 Pandemic
- By Lynsey Oxley, Wills, Trusts & Probate Solicitor
The restrictions imposed due to the Covid-19 pandemic have complicated what was previously an otherwise straightforward task. However, these restrictions should not deter anyone from making a Will and it remains extremely important to make or update your Will.
Here, we answer your questions on how we can continue to provide a Will writing service in a safe manner.
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How can we give our instructions?
Clients can initially contact us by telephone or email to discuss their initial requirements. We are also able to offer video appointments via Facetime or Zoom to discuss the same. We can also offer safe, socially distanced face to face meetings at our offices and have installed screens in our meeting rooms to ensure that social distancing regulations are adhered to. Before your initial consultation it would be helpful for you to prepare as much as possible, for example by making a list of your assets and approximate values, thinking about how you may wish for your estate to be divided upon your death and whether you require Inheritance Tax advice. We can forward a questionnaire to you beforehand which includes points which you may wish to consider.
How do we receive a draft of our Wills?
We are able to send draft documents via the post or via email to be checked through by you at home before we make arrangements for them to be signed.
How can we sign our Wills and ensure that they are still valid?
The Wills Act 1837 states that in order for a Will to be valid it must be signed by the testator (the person making the Will) in the presence of 2 witnesses who must both be present at the same time as the testator. If you are able to attend our offices we are able to ensure that your Will is signed and witnessed correctly and confirm the validity of the document, whilst ensuring that social distancing regulations are adhered to.
However, we recognise that not all clients will be able to attend the office and as such we can send your Wills out for you to sign at home with detailed instructions on how these should be witnessed and who can and cannot act as a witness. It is vital that the correct procedure is followed in order to ensure that your Will is valid.
Whilst the above methods will be sufficient for the majority of testators, the Government has responded to the problem of witnessing Wills during the pandemic by making a temporary change to the Wills Act 1837. This change allows Wills to be witnessed via video link. This change will remain in place until 31st January 2022 or until as long as deemed necessary. After this time, Wills must return to being physically witnessed.
In order for a Will to be witnessed via video link strict requirements must be adhered to such as the witnesses having a “clear line of sight” of the testator signing. The testator must also have a “clear line of sight of the witnesses signing. The quality of the video and audio must be sufficient so that all parties can see and hear what is happening at the time.
The change in the current law means that we are able to offer an efficient and effective service to those who wish to make a Will but cannot attend our offices due to health reasons.
It is important to point out that the signing and witnessing of Wills via video link should only be used as a last resort – for example by those who are shielding for health reasons and wherever possible, Wills should be signed in the physical presence of witnesses.
For the whole of October, November and December, we are offering 10% off fixed fee Wills. Please contact us to discuss your requirements.
Where do I stand if my partner dies?
- By Marie Gooder, Wills, Trusts & Probate Solicitor
Many couples believe that they have the same legal and financial rights and protections as married couples, but when it comes to death, this is unfortunately not the case…
If your spouse or Civil Partner died before April 2017, you could apply for Widowed Parent’s Allowance if you looked after a child you had with your spouse or Civil Partner.
If your spouse or Civil Partner dies after April 2017, you can apply for Bereavement Support Payment. This consists of a lump sum payment of £2,500 - £3,500, and monthly payments of £100 - £350 for up to 18 months. The larger lump sum and monthly payments are reserved for those who have children or are pregnant.
Crucially, Widowed Parent’s Allowance and Bereavement Support Payment are only available to the spouse or Civil Partner of the deceased; they are not available to non-married couples, even if they have lived together for decades.
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In August 2018, the current system was declared incompatible with human rights legislation by the Supreme Court after hearing the landmark case of unmarried mother-of-four, Siobhan McLaughlin. Siobhan was refused Widowed Parent’s Allowance after her long-term partner of 23 years died from cancer in 2014.
More recently, in February 2020, the High Court ruled the law was against human rights law and discriminates against unmarried partners and their children after hearing the case of James Jackson and Kevin Simpson. James and Kevin were both refused Bereavement Support Payment when their long-term partners died.
Despite two court rulings, the government has yet to make any changes to this area of law.
Registering the death
The registration of a person’s death is normally done by a relative. However, a partner is not recognised as a relative, thus must be recorded as the ‘person organising the funeral’ rather than partner.
Moreover, the deceased’s relationship status must be recorded on the Death Certificate. Unless the deceased was married or widowed, their status will be recorded as ‘single’, irrespective of whether they have a long-term partner.
Rules of Intestacy
When someone dies without leaving a valid Will, their estate will be distributed according to the Rules of Intestacy. These Rules allocate your estate to family members in a strict order.
There is a common misconception that long-term partners will be entitled to the estate as a ‘common law spouse’. However, this is not the case; only a spouse/Civil Partner and direct family members will inherit under the Rules of Intestacy.
It is possible for a partner to make a claim against the estate under the Inheritance (Provision for Family and Dependants Act) 1975. However, any claim must be brought within strict time limits, and it can be an expensive and time consuming process. Bringing a claim against the estate will also add more stress at an already difficult time.
The best way to avoid the Rules of Intestacy determining who benefits from your estate is to make a Will.
At PRH Solicitors we have a team of experienced professionals who can assist with all your queries in relation to Will making. We offer a dedicated personal service on a fixed fee basis.
The Pain of Real Heart Break
An Organ Donation Week Blog
- By Charlotte Crookes, Immigration Billing Clerk
My journey to transplant started when my baby was born back in October 2015. After being at home with him for about 4 weeks, around Christmas 2015, I noticed I was becoming tired easily and found it more and more difficult to do day to day things. I didn’t think much of it at the time and I presumed it was because I was a first time mum and was just exhausted – lack of sleep! After about 2 or more weeks, I started to become breathless just doing the everyday things, hoovering and walking up and down stairs etc. It eventually got to the point it was near impossible to walk up the stairs at home without having to stop 4/5 times. My feet were so badly swollen I couldn’t get any shoes on. I knew this wasn’t normal. My GP initially diagnosed me with pneumonia and following weeks of different antibiotics, nothing was getting better, just worse. Eventually I dragged myself to the GP one last time and they told me to go straight to the hospital. After being there about an hour, I was scanned and told my heart was not working properly. The reason for the build-up of fluid was due to my heart not efficiently pumping blood round my body. My organs were starting to fail as a result. I realised the stabbing pain I could feel in my side was my liver enlarged. I was admitted to the Coronary Care Unit where I was pumped full of drugs to try and help my heart work more efficiently. I’d gone from thinking I had pneumonia, to heart failure, in a matter of hours, which at the time I don’t think I properly understood what was happening and probably couldn’t believe what was happening given I was 30 years old at the time. I didn’t think things like this happened to people my age. I was told by doctors that my heart function was approximately 7%. Given that someone my age, of good health, should have a function of over 50%. Everything that happened was a bit of a blur and I couldn’t seem to grasp the enormity of the situation. I was hanging on by a thread.
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I was blue lighted in an ambulance to Northern General Hospital from Rotherham Hospital and was diagnosed with Dilated Cardiomyopathy. This is a condition where the heart becomes enlarged and stretches. By being dilated, the chambers of the heart don’t fill up and the blood pumping around the body is reduced. My diagnosis came from an inherited gene I didn’t know I had. The doctors believe that Cardiomyopathy would have shown itself at some point in my life, I just wouldn’t have known when. It seems mine was triggered by my pregnancy.
After about 6 weeks in hospital I was eventually starting to stabilise. I was now on lots of daily medication, all trying to help with function, blood pressure, reducing the fluid build-up etc. I was still very weak but the doctors allowed me to go home on the provision that I had an Implantable Cardioverter Defibrillator (ICD) implanted. This is something that I found really hard to come to terms with. It was literally having a defibrillator under my skin, which could shock my heart back into a normal rhythm at any point, should my heart go into a dangerous rhythm. At this point, my husband was basically being a single parent, working full time and looking after me too.
Following months of recovery from the ICD being fitted, I slowly started to get on with attempting to live as much of a normal life as possible. I looked after my baby as much as I possibly could, but I still needed lots of help. Mum came to the rescue and helped me out. I was still determined that I would recover from this and that medication would fix me.
Living with heart failure is extremely difficult. I was tired, physically and mentally, unable to breathe and constantly out of breath, light headed and generally feeling unwell. There are no physical signs and only people around me knew I was poorly. Getting around was really hard, I had to limit things I could do in a day. I found it hard to drive, and I wasn’t able to do simple things like even go to the supermarket on my own. To be in this position at my age was really hard to come to terms with.
Throughout everything, I tried to remain optimistic and although my doctor in Sheffield referred me to see a Transplant Unit in Manchester, in all honesty I never thought much of this and still thought I would get better taking the right medication. I went to various appointments and over time, they decided I was doing ok living with it. I’m convinced that my positivity and drive to keep going was the reason I was doing ok.
Over a period of about 12 months I had to come to terms with the fact that this was how my life was going to be and I had to deal with it. I went back to work part time and things seemed to be going well. I remember thinking, if I can live like this and get on with things, then I’ll be happy. In November 2017, my ICD shocked me – not a very nice experience, given I was conscious when this happened and at home on my own with my then 2 year old. The device would keep shocking me until it had corrected my heart rhythm. The ICD had read my heart rate at over 220bpm.
In October 2018 I had an appointment with my Consultant in Manchester who told me that I needed to have an assessment to be considered for a heart transplant. I still thought I wasn’t really ready for this, I didn’t think I was poorly enough, but in fact if I was too poorly, I wouldn’t have been able to have it. The assessment took place at Wythenshawe Transplant Unit and over a period of 3 days I stayed on their Transplant Ward whilst I underwent the assessment process. It’s like having an MOT on your body and everything is checked. I had to be a suitable candidate for a transplant as it’s not available to everyone. They had to check if I was well enough to get through the surgery, but if things were too bad, then equally I wouldn’t have been able to go through the surgery. The circumstances have to be right and it’s very cut and dry whether a candidate is suitable. Not everyone is suitable so I was aware there could have been a possibility that it might not have been an option for me if that time came. The transplant process is very complex and not easy to understand, but essentially I needed to have a blood and size match. Throughout this process I had a Transplant Coordinator who explained everything to me in detail. They were there to answer any questions and go through anything with me if I needed it.
Following the assessment, I got a call from the Transplant Coordinator telling me that I was a suitable candidate. A couple of weeks later I was put onto the routine list for a heart transplant. This meant that I could stay at home and if a suitable donor match was found, I would be contacted. The Coordinator explained that I could be waiting for a long time, months, and so I had no idea of timescales as it is impossible to predict. All the while, I was struggling each day more and more.
A couple of weeks later, my health started to decline and my daily living reduced dramatically. I couldn’t sleep, I hardly ate anything and it was a struggle to even get out of bed. I couldn’t lay flat in bed which meant sleeping was impossible and the fluid on my body had come back worse than ever. I was ready to give up, I couldn’t carry on like this.
In November 2018 I had a routine appointment with my Transplant Consultant and he told me that he had found me a bed within their Coronary Care Unit. I couldn’t believe I felt like this but I was glad something was happening. I was glad I was being admitted to hospital. The doctors told me I needed to have intravenous drugs to help my heart. I remember dreading this as it meant cannulas being put in my jugular vein in my neck. I now needed to stay in hospital until a donor was found, no matter how long. Psychologically, this was really difficult because it meant that I was away from all of my family.
After a couple of days in hospital, the drugs started to help and I started to feel a bit better. Though this wasn’t me getting better, it was the drugs helping me out and making me think I was getting better. A day or so later, I was prioritised onto the urgent list. This meant that I would take priority if a match was found, over someone on the routine list. I was expecting a long stay in hospital on the waiting list and made myself at home there. What made this time a bit more bearable was the fact that visiting times were open so family and friends could come at any time to be with me.
On 28/29th November 2018, at about midnight I had a knock on my door from a Transplant Coordinator. I didn’t want to think it, and she didn’t have to say anything, I just looked at her and she nodded her head. A match had been found. It just didn’t seem real and I didn’t quite know how to react or even know what to say. I had to wait a while for checks to be done on the donor heart. Even though a match had been found, there was still lots of testing and checking of the new heart to be done by doctors. It could have even got to the point where I was sedated and it not go ahead. If there was any doubt that something wasn’t quite right with it, the surgery wouldn’t have gone ahead.
After waiting about 24 hours, nurses came and took me to Theatre. I just remember staying unbelievably calm, it’s hard to put into words but it’s probably because I wasn’t thinking about what was about to happen. The nurses were chatting to me and I met the surgeon and the anaesthetist and that is the last thing I remember. I just kissed my husband, held his hand and went to sleep.
After surgery, I was put onto a machine to help my new heart work. The ECMO - Extracorporeal Membrane Oxygenation machine is similar to a bypass machine. It pumps and oxygenates blood outside the body, allowing the heart and lungs to rest. I was sedated and on this machine for about 3-4 days - not aware of anything going on. The doctors left my chest open while I was on this machine so this could be taken out afterwards.
When I was stable enough to be taken off the ECMO machine I was slowly woken up. When I was starting to come round, I could hear voices, but it still felt like a really weird dream. I could see some faces I didn’t recognise and I could see my husband, mum and dad at first. The faces I didn’t recognise were the nurses looking after me. At first, I thought they were out to get me and I tried to resist them doing anything for me. It took about 2 days for the sedation to wear off and even then, I was still sleepy and confused. When I did come round, I couldn’t move, speak or work out exactly what had happened. I couldn’t move because of the machines I was attached to and my muscles had completely wasted away. This was because of being sedated – even for as little as a few days. I couldn’t even move my fingers. I couldn’t speak because my vocal chords were damaged. It was really frustrating and a scary time for me.
Eventually things started to feel better, although I couldn’t sleep for the first few days. Slowly some of the machines started to come off. I still couldn’t move and I had really painful drains and internal pacing wires in my chest. Step by step the medication was lowered and over a process of about 2 weeks, some of these were weaned off. I still wasn’t allowed to eat or drink anything so I had a feeding tube.
I was transferred to a transplant recovery ward, the same ward I had been on when I had my assessment, so at least this was a bit familiar to me. I’d gone from having 24 hour one on one care in intensive care, to a ward with 2 nurses to 2/4 beds. This was hard to adjust to and I still couldn’t get around on my own so needed help with everything. I was desperate to get about myself and so was determined. I’d been given this gift and opportunity at life so I threw myself into everything I could. I was determined to get home. I had to learn to walk, stand and sit on my own, eat and drink again. I had to build up muscles to get around and have daily physio. This I would say was by far the hardest thing I had to do – the surgery and immediately after was the easy bit for me! Without the support of the nurses and my family, I wouldn’t have been able to do it.
I had my first two biopsies whilst I was in hospital, one week apart from each other. Both times came back as a zero or minor rejection. This was fantastic as it showed that my body wasn’t rejecting the new heart. Although, I knew I had a long way to go, it was a massive boost for me. I will have to take anti-rejection and other medication for the rest of my life so my body doesn’t reject my new heart. I later found out that my old heart was 3 times the size of what it should have been – so no wonder it wasn’t working properly!
In total I spent just 24 days in hospital following the transplant. I was allowed to go home on Christmas Eve 2018. I managed to spend Christmas with my family at home.
I cannot even think about where I would be right now if that very thoughtful and generous person hadn’t decided to sign the organ donation list and their family consent to their decision of donation. For that one selfless act, it has given me a chance to live my life, be a mum and see my little boy grow up and be a family. I have so much to be thankful for and I will never forget the decision that person made. I have everything to live for now and I don’t take anything for granted. I don’t know any details about the donor as this is something I am not able to find out at this stage. As much as I know nothing about the donor, equally the donor’s family know nothing about me. I am able to write to the donor’s family, but it’s unknown whether they want any communication from me.
I continue to go to Wythenshawe Transplant Unit to have regular heart biopsies, to check that my body isn’t rejecting my new heart, but as time goes on, these become less and less. I’ll continue to go for regular check-ups to ensure everything is still going to plan.
You can find out more about Organ Donation Weekhere.
Brexit Frustrations for Landlords
- By Brian Fowler, Dispute Resolution & Litigation Solicitor
The European Medicines Agency yesterday lost their High Court battle to cancel their £500 million long-term office lease at Canary Wharf. They had sought to argue that their 25 year lease should be terminated on the grounds of "frustration" in light of Brexit.
Frustration is a concept in English law which allows a party to withdraw from a contract when an event fundamentally changes the ability of a party to perform the contract. Here the European Medicines Agency (which is an agency of the European Union) tried to argue that Brexit and the UK's transition to a non-EU member state was such an unforeseen event that it should be allowed to terminate its lease.
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Mr Justice Marcus Smith, who ruled in favour of the landlord, concluded that the UK's transition to a non-EU member state did not frustrate the contract. Neither did the European Medicines Agency's proposed shift of headquarters from Canary Wharf, London to Amsterdam constitute an event which would frustrate the contract. As a result, the European Medicines Agency are obliged to perform its obligations under the lease, including payment of the £500 million rent.
Rather ironically, the European Medicines Agency has until 29 March 2019 to appeal the decision - the same day that the UK is scheduled to leave the EU. In a time of such political uncertainty, this decision is a welcome one for the property and legal markets as it brings greater certainty as to the impact of Brexit on contracts.
Landlords – if you need any advice on how to deal with tenants who are trying to argue ‘novel’ reasons to end their lease or are simply not paying their rent, then please get in touch and see how Parker Rhodes Hickmotts can help you.
A New Year’s Eve tragedy has highlighted the importance of having a will professionally written.
Richard Cousins, a wealthy business man from Leeds, was killed when the seaplane he was travelling in plunged into a river in Sydney, Australia in 2017.
The accident also claimed the lives of Mr Cousins’ fiancée, her daughter and both of his sons.
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Just a year before the tragic incident, Mr Cousins added a “common tragedy” clause to his will. This clause allowed him to specify precisely what he wanted to happen to his fortune in the very unlikely event that he and his immediate family should die at the same time. Sadly this very situation arose and the charity whom Mr Cousins had appointed benefited from his multi-million pound fortune.
Bridget Thorpe, wills and probate specialist at Parker Rhodes Hickmotts Solicitors, commented: “A will should be tailored to individual circumstances and must specify your wishes clearly. An experienced solicitor will help you plan for every eventuality, and leave you with the peace of mind that your wishes will be carried out.
If you do not have a will or have not included a “common tragedy” clause, then your estate could be subject to the rules of intestacy, a legal structure based on blood line relationships. Unfortunately, this means that there is a real possibility your money and possessions could end up with someone who you would not have wanted to benefit.
There may be reasons why you do not want to leave anything to family, in these circumstances it is quite common to leave a legacy so that a charity of your choice benefits instead.”
If you would like to have a no obligation chat about a will, contact our friendly Wills and Probate team by calling 01709 511100 or email@example.com
A GENTLEMAN, AND A SCHOLARSHIP
- By Karl Taylor, Wills, Trusts & Probate Executive
In advising a client recently who, with no children or other dependants, had specific philanthropic and charitable goals, though who was unsure how best to achieve them, I ascertained he could fulfil his aims by leaving his estate to the University of Sheffield to provide scholarships for those from financially disadvantaged backgrounds.
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Having dealt with the University in the past, in respect of both the preparation of Wills and administering estates in which they were due to benefit, I made contact with the relevant person at the University to outline the proposal to help ensure such wishes could be carried out. After the University expressed their gratitude, it was explained to me there are two types of scholarship available – one that would only use income generated from the capital gifted to be used to fund the scholarship, the other in which the University had wider discretion to use both income and capital; a far more flexible arrangement and the one preferred by the University. Having relayed this information back to my client, he also felt the latter option was best. Further correspondence with the University took place and the wording ironed out thus giving confidence to me, the University and, above all else, to my client, that his specific wishes would be carried out.
As well as scholarships, the University of Sheffield, like all Universities, have many areas for which any additional funding will be greatly received – be it funding for particular research whereby each pound received has a direct impact, support for students or for their general use. At Parker Rhodes Hickmotts Solicitors we can help make sure such specific requirements you are considering can be achieved.
As well as giving directly to a cause you may have a direct affinity with, or feel is extremely worthwhile, there are also inheritance tax (IHT) benefits giving to a University as they have charitable status (if worded correctly) and as such these gifts are exempt from IHT.
A further benefit of including a University, or any UK registered charity in a Will is that it can, if done correctly, reduce the rate IHT is paid from 40% to 36%.
There are many ways to include a charity, or a specific cause in your Will, but is important to receive advice on how best to achieve your aims. At Parker Rhodes Hickmotts we have the experience and expertise to include gifts to those higher profile charities, but also for the many less well known charities and numerous other good causes out there. So, why not give us a call for an initial no obligation meeting to see how we can help.
- By Barbara Stevens, Head of Matrimonial Department
The Collaborative Law approach is a relatively new approach to resolving the matters that need to be sorted out when people separate.
It involves a commitment to reach an agreement without the need to go through contested court proceedings, which are expensive and stressful.
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You will meet with your lawyer, who must be trained in the Collaborative approach, to discuss the issues that have arisen, and what you hope to achieve.
You and your former partner, together with your lawyers, will meet at a neutral place (usually at the lawyers’ offices) to discuss matters with the aim of achieving a satisfactory settlement.
You can meet as many times as you need to, and you and your former partner will be involved in setting the agendas. This approach is particularly successful where there are financial matters that need to be dealt with, or where there are children, and difficulties have arisen concerning the arrangements for the children. When the financial settlement has been agreed, it will be recorded in writing and an application for a court order to reflect the terms of the agreement, and make it legally binding, is usually made. The Collaborative approach has many advantages; for example, you will have the opportunity to express your own views and proposals, with your own lawyer there to support and advise you, and you and your former partner will have control over the timescale for reaching settlement. The Collaborative approach has a high level of success, and is an opportunity to discuss important issues with your former partner in a civilised and co-operative way. It also can be cheaper than the traditional route of applying to court and having a contested hearing. Barbara Stevens is the head of the Matrimonial department at Parker Rhodes Hickmotts. She is a member of the Advanced Family Law Panel and as well as dealing with family disputes in the traditional style, has also been Collaboratively trained since 2006. She will be pleased to discuss the possibility of helping you to reach agreement in this increasingly popular alternative to contested court proceedings.
Lasting Powers of Attorney – get the right advice so you don’t lose out if you lose capacity.
- By Karl Taylor, Wills, Trusts & Probate Executive
A Law Society Gazette report stated that investigations into the actions of Attorneys appointed under Lasting Powers of Attorney (LPA) rose by more than 40% in 2017/18. The data was obtained from the Office of the Public Guardian (OPG) by Royal London who had made a Freedom of Information request. The sharp rise is seen to be a consequence of the rise in DIY and online LPA preparation and registration, which seemingly paves the way for the abuse of these important legal documents.
LPAs are extremely effective and powerful documents in which an individual (the Donor) can nominate who they want to look after their financial affairs and personal welfare matters should they become incapable of doing so. In respect of the Property and Finance LPAs, these can be used to deal with seemingly trivial financial matters, such as changing direct debit payments for utility accounts, to selling an individual’s property and investing funds on their behalf. An Attorney can therefore find themselves dealing with large sums of money.
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A consequence of the rise in DIY and online LPA applications is that there is increased potential that the Donor (the person who’s LPA it is), may not fully understand what it is they are signing, exactly who will be acting as their Attorneys or the extent of the powers the Attorneys will have. In addition, it is highly likely Attorneys don’t appreciate what they themselves can and can’t do as an Attorney. At PRH we can advise the Donor and the Attorney when it comes to considering LPAs.
If you are considering having LPAs, or if you know someone who would benefit from having LPAs put in place, please do not hesitate to arrange an initial appointment, free of charge, with one of our advisors. We can provide invaluable advice on relevant matters such as:
Who can act as an Attorney
Suitability of Attorneys
How the Attorneys can act together
The range of powers the Attorneys have
What Attorneys cannot do
Advise on both types of LPAs – Property & Finance and Health & Welfare
Inclusion of clauses to ensure your wishes are carried out as smoothly as possible
Issues of capacity
Should you agree to instruct us, we will:
Prepare the LPAs
Ensure capacity and obtain evidence as required
Correspond with Attorneys as required for them to sign the LPAs
Ensure all legal requirements for valid execution and registration are met
Submit the LPAs with the Office of the Public Guardian (OPG) for registration
Provide free storage of your registered LPAs
Provide certified copies of the LPAs as may be required
In addition to the above, we can offer initial guidance to Attorneys should they be required to act under the LPAs.
Our involvement will ensure you have a full understanding of what it is you are signing, as well as giving you greater peace of mind that your affairs will be looked after accordingly should you lose capacity.
- By Brian Fowler, Dispute Resolution & Litigation Solicitor
Gary Smith has today won a legal battle for working rights in a Supreme Court ruling expected to have huge ramifications for freelance workers.
Mr Smith had worked solely for Pimlico Plumbers (“Pimlico”) for six years, during which he was VAT registered and paying self-employed tax.
Mr Smith began his battle with Pimlico after his request to reduce his hours from a five-day week to a three-day week, following a heart attack in 2010 was refused. Pimlico took away Mr Smith’s branded van which he had hired from them. Mr Smith claims that he was unfairly dismissed by Pimlico.
The Supreme Court have today ruled that an Employment Tribunal was “entitled to conclude” that Mr Smith was a worker and therefore entitled to employment rights such as holiday and sick pay. This means that the Employment Tribunal can consider Mr Smith’s rights as a worker including his unfair dismissal claim.
The ruling is expected to be closely read by others with similar disputes, especially by workers in the so called ‘gig economy’ who are trying to challenge their employment status.
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In the ‘gig economy’, instead of receiving a regular wage, workers get paid for the ‘gigs’ they do such as food delivery or a car journey, or, in Mr Smith’s case, each plumbing job he completed as an independent contractor for Pimlico. Currently, it is estimated that five million people are employed in this type of capacity in the UK. Fans of the gig economy claim that people can benefit from flexible hours, control over how much time they work as they juggle other priorities in their life. From an employers’ point of view, the gig economy is flexible in nature and offers them benefits as they only pay when the work is available and do not incur staff costs when demand is not there. However, individuals are afforded no protection against unfair dismissal, no right to redundancy payments, and no right to receive the National Minimum Wage, paid holiday or sickness pay. Understandably, this is a contentious issue.
Despite today’s Supreme Court decision, the issue of employment status in the gig economy remains up in the air. Cases will continue to be argued on their specific facts and, for both businesses that continue to rely on self-employed contracts and the individuals who are employed in this way, this will inevitably lead to more uncertainty. The government is currently consulting on this issue and may opt to bring forward legislation to resolve such uncertainty.
At present, an individual must prove that they are employed and entitled to workers’ rights. The TUC wants the “burden of proof” to be reversed so workers benefit from employment rights “unless the employer can show they are genuinely self-employed”.
In February 2018, the government promised to overhaul employment rights to improve conditions for millions of workers, including those in the gig economy. The Taylor review carried out in 2017 recommended that all work in the UK’s economy should be “fair and decent”. It also recommended that workers for firms such as Uber and Deliveroo should be classed as dependent contractors, with extra benefits. How the Taylor review and the governmental review of the gig economy impact on those working within the sector remain to be seen. In the meantime, it remains up to an individual to prove that they are employed and therefore entitled to workers’ rights.
Employers – if you need any advice on how to deal with the current uncertainty surrounding the issues arising out of the gig economy, I would encourage you to get in touch with Fiona Shinner and see how Parker Rhodes Hickmotts can help you.
Deal with troublesome tenant’s early – don’t let it fester!
- By Brian Fowler, Dispute Resolution & Litigation Solicitor
The High Court in Zinc Cobham 1 Ltd (In Administration) –v- Adda Hotels  EWHC 1025 (Ch) (03 May 2018) have recently considered whether to make an order for specific performance against a tenant.
By way of background, the tenant of ten Hilton hotels failed to comply with the covenants to trade, operate and maintain their hotels in accordance with Hilton Hotels Brand Standards. The landlord issued proceedings to seek:
an order for specific performance to have the tenant perform their obligations under the leases to trade, operate and maintain each of the ten hotels consistent with Hilton Standards (which the Court found would cost around £100m) and/or
damages for breach of the lease.
Almost two years later, the landlord (who by that time was insolvent and had gone into administration shortly before the hearing), failed to convince the High Court that they were entitled to enforce the covenants in that way.
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The High Court held that damages at common law would be an adequate remedy for the landlord. In the absence of a legitimate interest going beyond financial compensation, specific performance would not be granted (Cavendish Square Holding EV v Makdessi  UKSC 67). The reduction in value of the landlord’s interest in the hotels was not anywhere near £100m so making an order which required the tenant to carry out works estimated at a cost of £100m would be disproportionate. On top of this the carrying out of the works would make no difference to the rent to be received by the landlord with the leases not expiring until 31 December 2029. As a result, the High Court quite rightly in my opinion, held that it would be unfair to order specific performance.
This case is an interesting illustration of the difficulty faced by landlords when seeking an order for specific performance. Landlords seeking to enforce covenants should consider options early as they may be able to forfeit the lease or carry out repairs themselves and recoup the costs as a debt. It is vital to consider all the facts as working out the best option for a landlord will depend on the individual circumstances and what is contained in the lease.
- By Claudia Hall, Wills, Trusts & Probate Solicitor
In April 2018 the tax allowance for properties passing directly to children or grandchildren increased to £125,000. With married couples and civil partners this allowance can transfer to the survivor giving a combined property specific allowance of £250,000.
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There are further increases due to be phased in over the next few years, so eventually the main residence allowance for a couple will be £350,000. Estates can therefore be inheritance tax free up to £1,000,000 if all the conditions are met and this is combined with the existing "nil rate" band. To make sure you and your family benefit from these allowances it is important to keep your assets and wills under review. Our will writing and tax specialists will be happy to answer your questions on this and give you the specific guidance you need.
The Windrush Scandal & How We Can Help
- By Chris Cole, Partner & Head of Immigration
The Windrush Scandal has been across the media for the last few weeks and has already cost the then Home Secretary, Amber Rudd, her job. But what exactly is the issue and where can those affected get the help they need?
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In the fifties and sixties many Commonwealth citizens, mainly from the Caribbean but also from Africa and the Indian Sub-Continent, were invited to the United Kingdom to help build the British economy. They have become named the Windrush generation after the ship HMT Empire Windrush which brought the first Jamaican immigrants to the United Kingdom in 1948.
When they arrived the Windrush generation were British Subjects and Citizens of the United Kingdom and Colonies and they were entitled to freely enter the United Kingdom. Children travelled on their parents' documents and some never registered for a passport as they did not intend to travel abroad.
The 1971 Immigration Act gave indefinite leave to remain (permanent residence) to Commonwealth citizens already living in the UK, because freedom of movement within the Commonwealth was ending. However, the Home Office did not record the details of each individual who was here and so it is hard now for those who did not get documents at the time to prove now that they are here legally.
Since 2013 the Home Office has introduced a “hostile environment” which means that without the correct immigration papers it is not possible to work, have a driving licence, have a bank account or rent a property. This has meant that many members of the Windrush generation are being asked for immigration papers that they do not have, despite the fact that they are in the United Kingdom lawfully and have lived here for many decades. Cases have even emerged of Windrush children, now adults who have lived here since the sixties, facing the threat of deportation.
The Home Office has set up a special unit to handle Windrush cases. They can be contacted by telephone (0800 678 1925) or byemail. There is further information on theHome Office website.
Despite the former Home Secretary stating that lawyers were not necessary for this process, we would urge any person, whether a member of the Windrush generation or anyone else concerned about their immigration status, to seek legal advice before contacting the Home Office. Specialised legal advice can make sure that the right application is made and can greatly enhance the prospects of a successful application.
Parker Rhodes Hickmotts has a team of nationally recognised expert immigration lawyers who will be able to assist any person affected.
We also hold a free Drop-in every other Friday afternoon from 2.30pm – the next Drop-in is Friday the 11th May 2018.
Lasting Powers of Attorney – Are You Due a Refund?
- By Abby Hammond, Wills, Trusts & Probate Solicitor
If you applied to register a Lasting Power of Attorney between 1st April 2013 and 31st March 2017 you may be due a refund on the registration costs. This is due to a new government scheme that started from 1st February 2018. The new scheme allows individuals who registered either Lasting or Enduring Powers of Attorney to claim a refund for the registration costs.
The Minister of Justice announced in April 2017 that the registration process for Lasting Powers of Attorney was to be reduced from £110 to £82. As a result of this reduction in the administration costs, the Office of the Public Guardian began giving refunds to individuals who had previously been charged the earlier increased fees.
This page details the amount of refund that you will get, dependent upon when you registered your Lasting/Enduring Power of Attorney. This information is as follows:-
When you paid the fee
Refund for each power of attorney
April to September 2013
October 2013 to March 2014
April 2014 to March 2015
April 2015 to March 2016
April 2016 to March 2017
The website offers a link enabling you to make a claim. You will need the donor’s bank details and a copy of the Lasting Power of Attorney. If you do not have these items, or for example, the donor doesn’t have a UK bank account, you should telephone the refunds helpline on 0300 456 0300.
STAMP DUTY SAVINGS FOR FIRST-TIME BUYERS… - BY KHALID SHAHJAHAN
So for those who have become tired of all the doom and gloom when it comes to politics, it seems there is some good news to be had out of the 2017 Budget with the abolishment of stamp duty IMMEDIATELY for first-time buyers.
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Okay, there is a catch – this abolishment will not apply to all price bands but rather only for properties up to £300,000.00 but it is still quite a substantial saving to be had. In fact, where first-time buyers are purchasing properties up to a value of £500,000.00 they too will benefit as any amount up to £300,000.00 will remain zero-rated with stamp duty payable only on the remaining amount lying between the £300,001 - £500,000.00 bracket!
This will mean that around 95% of first-time buyers will see a stamp duty cut, while 80% will pay none at all. As such, if there ever was a time to start looking for that dream home, it is now!
The criteria of being classed as a “first-time buyer” though is to be quite stringent: someone who has never owned freehold or leasehold interest in a dwelling before, who is purchasing their only or main residence, does not own residential property anywhere in the world and where there are joint purchasers, all purchasers are to be first-time buyers. For those buying in England and Northern Ireland, so long as you can tick all these boxes, then you are in for a financial treat; first-time buyers in Wales will also enjoy this benefit but only until the end of March 2018 whilst Scotland having its own independent system of land tax will remain unaffected.
But every piece of good news is often marred with bad and there has been some negative feedback on the change particularly from the Office for Budget Responsibility (OBR).
Having crunched the numbers, they believe that the main beneficiaries from this cut will be existing homeowners, rather than first-time buyers, as they expect all house prices to rise by at least 0.3% within a year as a result of it. However, do not let that worry you too much as in the same breath, they estimated that this radical move will result in at least an additional 3,500 first-time buyer purchases!
Whatever your thoughts on the matter, I shall end with some rousing words from the Chancellor, "This is our plan to deliver on the pledge we have made to the next generation - that the dream of home ownership will become a reality in this country once again.
Khalid Shahjahan is one of our Senior Solicitors and is Head of Residential Conveyancing at Parker Rhodes Hickmotts with over 13 years’ experience in the property arena.
The 8th-14th May is Dying Matters Awareness Week. The Dying Matters Coalition is an organisation founded in 2009 to promote public awareness of dying, death and bereavement and is dedicated to supporting changing attitudes towards these issues. Parker Rhodes Hickmotts is a member of the Coalition.
Many of us are reluctant to discuss death or dying, believing it to be morbid and something which does not bear thinking about. However, considering matters surrounding death, however difficult, often makes things easier for both ourselves and our families when the time comes.
What can we help you with?
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Making a Will
It is estimated that over half of the UK’s population does not have a Will. This can be due to a number of factors such as not feeling that it is necessary, believing that a family member will “do what is right” or the fact that people cannot bring themselves to think about what would happen upon their death. Making a Will is the only way to ensure that your assets will pass to those who you would wish to receive them. You may also include in your Will details of your funeral wishes and your desire to donate your body for the purpose of medical research.
Lasting Powers of Attorney
Lasting Powers of Attorney (LPA’s) are the only way to ensure that your affairs can be handled by someone of your choosing should you become ill or lose mental capacity. These people are known as your Attorney’s. There are two types of Lasting Power of Attorney: one which deals with your Property and Finances and another which deals with Health & Care Decisions. The Health and Care Decisions LPA allows you to decide whether or not you would want your Attorney’s to give or refuse consent to life sustaining treatment on your behalf. You may also include your preferences as to the type of medical and healthcare treatment you receive, details of where you should live in the event that you are no longer able to live at home and decisions in relation to day to day matters such as your diet and routine. This type of LPA only comes into effect in the event that you can no longer make decisions for yourself and it is important that it is made whilst you still have the capacity to do so.
An Advance Decision is more commonly known as a “Living Will”. It is a decision which you can make now to refuse a specific type of medical treatment in the future should this become relevant and you may specify the circumstances in which do not wish to receive the treatment. It is a way of letting your family know your wishes in the event that you become unable to communicate them due to ill health. An Advance Decision must comply with the Mental Capacity Act and it is important to seek both professional legal advice and the advice of a medical practitioner if necessary.
Probate fees increase on hold
It is welcome news to see that the highly controversial Probate fees have been placed on hold ahead of the snap general election.
It was announced last week that the changed fee structure, set to be implemented from May 2017, would not be going through imminently as planned. The Ministry of Justice cited a lack of time for the proposals to go through Parliament.
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The Conservatives are understood to be non-committal about whether the plans will be resurrected if they are re-elected.
The planned fee increase was to raise revenue to assist in running the UK Courts and Tribunal Service, but was subject to much criticism and mistrust as it was viewed by many as a hidden tax rather than an administrative fee.
Currently, Probate fees are paid to the Government via the Probate Court. The Personal Representatives of the estate pay the fee at the time of applying for a Grant of Representation, a legal authority that allows them to gather in and deal with a deceased's estate. At the present time, the fee is fixed at either £155 or £215 for all estates over £5,000 depending on whether a solicitor or personal application is made.
The proposed new changes introduce increased fees of up to £20,000 depending on the value of the estate.
As the UK faces an uncertain future, we wait to see what the outcome will be on this subject that has been hotly debated and perceived as an additional way of raising money – some have dubbed it a “death tax”.
Many people put off making a Will, they feel it is morbid and tempts fate.
However, ask yourself the following questions:-
What happens if I die without a Will?
Who will be guardian for my children?
Who inherits my estate?
Who will sort everything out?
Will my spouse/partner inherit my house?
Will there be Inheritance Tax to pay?
Do you know the answers to all these questions?
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A Will enables you to decide what happens to your estate when you die. Without a Will there is a strict legal order as to who deals with your estate and who inherits your assets – this is known as Intestacy. Under Intestacy if you are unmarried but have lived with your partner for 20 years in your house, when you die your partner will get nothing! Under the laws of intestacy if you are married with children then depending on the value of your estate your spouse may only get a proportion.
Before making your Will there are a few things you should consider:
Executors – These are the people who will sort everything out, they will collect in your assets, pay any debts and then distribute the assets between your Beneficiaries, as your Will instructs them to. This must be someone who you trust. It can be a partner, a friend, family members or your solicitors.
Guardians – These are the people who would look after your children should you die during their minority.
Legacies – A legacy is a specific gift.
Residue – This is what is left in your estate after all debts and funeral expenses are paid and after all legacies have been paid. This can be shared between as many different people as you want.
Beneficiaries – These are the people who inherit part of your estate. If they are under the age of 18 at the date of your death then the asset will be held in trust until they reach the age of 18. You may believe that 18 is too young and change this to age 21 or even 25. During this time the Executors would be subject to strict controls as to how the monies could be dealt with and they are under a duty to act in the best interests of the Beneficiaries.
I am married - Do I still need a Will?
Married couples do not automatically inherit the whole of each other’s estates. It is therefore very important to ensure you write a Will to reflect your wishes.
You should always bear in mind:-
Marriage generally revokes any previous Wills you have made;
Without a Will your children will not always inherit your estate;
A divorce excludes an ex spouse from your Will, separation does not;
Without a Will a cohabitee will not inherit any of your estate.
How would marriage affect my Will?
Tying the knot? Untying my Will!
There are only a few situations which will revoke your Will. You would think that only your clear intention to either make a new, updated Will or to simply destroy it would revoke it. However, you would be incorrect, there is a slightly more unknown way which revokes your Will. This could have happened to you, and you may not even know it!
If you create a Will and then tie the knot a few years down the line, your Will is no longer effective!
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Therefore if your Will was made prior to being married, and now you are, if the worst should happen and you passed away, your Estate would fall under the intestacy rules and not as you had previously planned under your Will. Naturally, when divorce and remarriage occurs family situations become increasingly complex, having no control over how your Estate is distributed in these situations can be difficult for those dealing with your Estate.
Unless your Will was drafted in consideration of marriage, your marriage will have revoked your Will, rendering it ineffective. Therefore, any legacies and any specific wishes you may have included may not be fulfilled.
This highlights the importance of reviewing your Will and updating it when necessary. Without a valid Will you, and your family, have very little control over your affairs. It is important for your peace of mind and ensuring that your wishes are met.
Beware all absent homeowners and landlords – is your property being sold by an identity clone?
Another property fraud case has recently hit the headlines whereby a firm of solicitors, Mishcon de Reya, were found to be liable where their buyer client was duped into buying a London home from a tenant posing as the owner.
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This again acts as a stark reminder to all absent homeowners and Landlords to be vigilant and alert to the risk of an increasingly common scam where rogue tenants or other criminal identity thieves pose as homeowners to sell your property right from under your nose.
Nowadays, we all need to be alert to identity fraud and Parker Rhodes Hickmotts Solicitors advises all homeowners, particularly absent Landlords of empty or tenanted properties to try and reduce this risk by signing up to the Land Registry Property Alert Service, which sends out free notifications if certain activity occurs on a registered property.
For further information on how to register for the Land Registry Property Alert Service please visitThe Land Registry
Lasting Powers of Attorney
- By Katy Delaney, Wills, Trusts & Probate Solicitor
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document which allows persons who you nominate to deal with your property and financial affairs and or your health and welfare. The two are separate documents and you can choose to have one or the other or both.
Do I need a Lasting Power of Attorney?
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Have you considered who would look after you and your affairs if you were unable to deal with things personally in the future due to ill health, loss of capacity or because of physical impairments?
Your spouse? Perhaps to some extent but there will be limits on the things that can be dealt with and what if they were to pass away before you? Then who would look after you?
Your children? Although you might class them as your next of kin, in fact it is often the case that Social Services take precedent over your own flesh and blood. Your children may be able to manage for a time but they will undoubtedly, eventually come across barriers that they cannot cross without the appropriate legal authority to do so.
A Lasting Power of Attorney ensures that a person or persons of your choosing can deal with your affairs. It also means that you can expressly exclude persons who you consider untrustworthy. Lasting Powers must be prepared whilst the person making the Power has the necessary capacity to do so. Lasting Powers of Attorney are therefore extremely important to persons recently diagnosed with Dementia or Alzheimer’s.
I know someone that needed one but it was too late…
The alternative to a Lasting Power of Attorney is an application to the Court of Protection to appoint a Deputy to deal with a person’s affairs – it is still possible to assist a person who lacks capacity but the process takes much longer and is considerably more expensive.
Inheritance Tax – rules and forthcoming changes
After the tragic death of George Michael on Christmas day, speculation mounts as to who will receive his £100,000,000 fortune.
It is expected that he will benefit close members of his family and his god children.
With an estate of that size, it will also no doubt be of interest to HMRC.
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As most of us know, Inheritance Tax is one of the highest rates of tax in the UK and with a large estate there often comes a large tax bill.
With that in mind, it is worth a recap of the rules and a brief look at the forthcoming changes:-
Each UK domiciled individual has an Inheritance Tax free threshold of £325,000 that allows them to leave assets of this without value Inheritance Tax becoming payable. There is no Inheritance Tax to pay, regardless of value, on assets passing to a UK domiciled spouse or qualifying charity and certain business assets and agricultural property can pass free from Inheritance Tax or at a reduced rate. If none of these exemptions apply, and your taxable estate exceeds £325,000 Inheritance Tax is payable at a rate of 40% over the excess. This figure of £325,000 is fixed until 2021.
It is interesting to note that there is a further allowance coming into effect from April 2017 and increasing from £100,000 to £175,000 per individual between April 2017 – April 2020 based on the value of property, provided that that property has been occupied by the individual as a home and is passing to lineal descendants – children and grandchildren.
Whilst this is a welcome introduction for many of us, it has antagonised some of society who find the provisions discriminatory to the childless or “renters” or those with an estate over £2,000,000 who will not benefit from the extra allowance. Whilst we are yet to see the impact of this in practice, it is likely that this will be a subject of great debate post April, as it opens up a new chapter for the private client adviser as we get to grips with the effect of the legislation that many perceive as ill thought out and divisive.
Brexit & the potential issues for European nationals and their family members
- By Paul Hindley, Senior Caseworker & Christopher Cole, Partner & Head of Immigration
Around 3 million people live in the UK relying on European Law for their legal right of residence; if formal applications are required for all these people once Brexit occurs, this will be a logistical nightmare for the Home Office - there will be significant backlogs, errors and lost applications would seem inevitable.
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If European nationals are required to prove their status at the point we leave the EU, nobody currently knows how this will look in practical terms. Questions remain around what evidence will be required, what fees will be associated, what the processing times will be, what the qualifying criteria will be, and what appeal rights refusals may attach. Potentially all of these could be more punitive than they are for European nationals currently.
In relation to the above point the work status of European nationals during the period any fresh applications are under consideration would be uncertain. If we are no longer a member of the EU and free movement rights no longer exist, it follows that the basis under which European nationals currently work no longer exist.
Very little of the debate around European nationals has focussed on the status of any third party national family members. Currently they can join their European national family members in the UK relatively easily and cost effectively. Should the status of third party nationals change significantly this could discourage European nationals from seeking employment or remaining in the UK, or make such an option prohibitively expensive for either individuals or employers.
If European nationals were required to meet the Tier 2 requirements for employment in place for non-European nationals, many positions in the NHS, such as porters, canteen staff, cleaners etc. would not be met. This is a real concern.
There are many uncertainties surrounding the impact of Brexit on European nationals and their family members living in the UK. Parker Rhodes Hickmotts would advise those affected to keep a close eye on any announcements from the Government and from the Home Office and seek expert legal advice at the earliest opportunity.
Why it is imperative for committed couples who are not married to have up to date Wills & Cohabitation Agreements in place
Joy Williams had lived happily with her partner for 18 years when he suddenly and unexpectedly died at the relatively young age of 69. Ms. Williams not only had to suffer the trauma and sadness of bereavement but has in addition had to face a harrowing and expensive legal battle because her partner’s estranged wife claimed half the home Ms. Williams and her partner shared.
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Although Ms. Williams has won the current round of this case, it may not be over as her partner’s estranged wife has indicated she will appeal which will involve further expenses for both sides as well as more emotional distress.
The trauma, upset and expense of this legal battle could have been avoided if Ms. Williams and her late partner had had up to date Wills and a cohabitation agreement in place.
Current law does not recognise the importance of two people in a relationship cohabitating under one roof.
It is imperative, that committed couples who live together who are not married have up to date Wills and a Cohabitation Agreement in place.
The team at Parker Rhodes Hickmotts have a wealth of experience in writing Wills, from the simplest of Wills leaving everything to a spouse, to complex Trusts incorporating Inheritance Tax planning, and Cohabitation Agreements.
We offer fixed fee packages as well as no credit card fees to help you manage the cost.
Protect your self and your loved ones by being ready for tomorrow, today.
Call 01709 511100 to book your no-obligation appointment now.
Are you affected by HS2?
As you are probably aware, the Government has recently announced its preferred route for the next phase (Phase 2b) of HS2 (the high speed rail link to London).
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If your property falls within one of the safeguarded areas, then your property will have become ‘blighted’, meaning that your property has been reduced in value as a result of the proposed HS2 development. In such circumstances, you may be entitled to serve what is known as a ‘Blight Notice’ on The Secretary of State for Transport, requiring them to buy the property at its untainted market value (that is, the value as if HS2 had never been announced), pay your reasonable moving costs (including legal fees and Stamp Duty Land Tax on the alternative property), plus you may be eligible for compensation (an additional home loss payment).
To be eligible to serve a Blight Notice under the Express Purchase Route:-
You must have a qualifying interest in the property (own the freehold or a lease with more than 3 years left to run and you must live at the property. Note – an investment property owner is not entitled to serve a blight notice); and
the property has to be partly or wholly within the safeguarded area.
If your property has been affected and you are a resident homeowner, then subject to you having a qualifying interest, you may be able to serve a Blight Notice. This has the benefit of speeding up the compulsory purchase procedure should you wish to sell and move home a.s.a.p.
Our firm is offering a fixed fee service for initially checking if you qualify and preparing and serving the initial Blight Notice on your behalf, in the sum of £200.00 plus VAT. If your Blight Notice is accepted, these fees may be recoverable by you as part of your claim. However, please note that such fees will not be recoverable where a Blight Notice is rejected.
Should you wish to discuss the matter in further detail, then please do not hesitate to contact Mrs Paula Gregory or Mr Ben Couch within the Property Department on 01709 388373 or 01709 388939.
The maps of the route and further information can be found at:-
A time to love and a time for business: Pre-nuptial agreements. - By Rebecca Baker, Senior Solicitor
I have recently become aware of an explosion of hearts and flowers. As I wander through Rotherham town centre, where I practice as a family law solicitor, I have noticed each card and craft shop festooned with pink and red, tempting the consumer to embrace the forthcoming 14th February as the perfect time to declare passion to their soulmate. Whilst I don't want to be labelled as a cynic, whose business is quite the opposite of romance, I always feel as though Valentine's Day leaves me a bit cold. I don't want to be told when to say I love you.
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In my work, timing can often be important, and I am rarely consulted at the start of love's young dream when a couple are considering marriage. However, in recent years, I have noticed a sea change. Pre-nuptial agreements.
Often clients feel a pre-nuptial agreement is very much reserved for the very wealthy or for those across the pond. However, this is no longer the case. In today's modern world, we often want to preserve hard won assets and couples often remove rose-tinted glasses, particularly the second time around, and seriously consider what will happen if this goes wrong.
It is important to remember that pre-nuptial agreements are not strictly binding on our Courts. However, in the event of a divorce, it is very likely a pre-nuptial agreement will be upheld if it is fair. This is why timing is so important. Amongst other things, such as exchanging financial information and each getting a lawyer, the agreement is best finalised well before the wedding.
So whilst it is always the right time to say I love you, remember to properly time popping the question of a pre-nuptial agreement. Make sure the church isn't booked and those far flung relatives haven't yet agreed to fly long haul to share your special day. However, if one does forget in the excitement of preparations, a post-nuptial agreement may well save the day.
Is your carer one of the estimated 100,000 people looking after children who haven't taken the opportunity to boost their state pension? - By Fiona Shinner, Managing Partner
In a lot of families, older relatives, often grandparents, help to look after children to enable their parents to work.
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In 2011, the government recognised that some of these older carers were losing out because they did not have the required 35 years of National Insurance contributions to qualify for a full state pension and had, by not working, because they were caring for children, lost the opportunity to do so.
The government therefore, launched the Specified Adult Childcare Credits Scheme (also known as Grandparents’ Credits) which allowed the working parent to pass to the carer the national insurance credits the parent would qualify for if they weren’t working, but looking after a child. This gives the carer the opportunity to top up their own national insurance contributions and assist them in gaining the magic 35 years of contributions to qualify for a full pension.
Information from HMRC, indicates that only 1,298 people registered for this benefit up to September 2016, even though it is estimated that about 100,000 qualify.
To check to see if your carer (be it grandparent or more distant relative) qualifies:-
Is the child, being cared for, 12 or under?
Is the carer over 16 but under state pension age?
Do the child’s parents receive child benefit?
Does the parent have a full national insurance record for the relevant tax year? Note. This does not mean they have to have worked all year.
Does the carer look after the child for some time for most of the year?
If you have answered ‘yes' to the questions above, then your carer may well qualify.
Applications for the National Insurance Credit Transfers can be made to HMRC and must be signed by both the parent and the carer.
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