News Archive for February, 2014

Rectification of a Will

The England & Wales Court of Appeal has ordered that a clerical error in the signing of Wills by a husband and Wife can be rectified after the event. Anthony Davies, a partner in local law firm DPA Law said, “The creation of a valid Will follows very strict rules in relation to how it is signed and witnessed”.

In this case, a solicitor had been instructed by the husband and wife to draft identical wills leaving his or her estate to the other and, if the other spouse had already died, to the claimant, whom they treated as an adoptive son. Through the solicitor’s mistake each signed the other’s will. The error was not noticed on the wife’s death but, on the husband’s death the natural sons of the husband and wife, who would succeed to the entire estate on intestacy, challenged the validity of the will signed by the husband.

For a will to be valid, it is required in law that the will must be in written form, signed by the testator or his representative in his presence, witnessed by at least two witnesses and that by his signature it appeared that the testator had intended to give effect to the will.

The court found that, although the will executed by the husband did not have his full knowledge and approval, there was a certainty as to his intention and as to how he would have expressed himself, if he had appreciated the mistake.  Accordingly it rejected the claims of the natural sons of the husband and wife and allowed the directions of the will to stand.

Anthony Davies, comments “The Court has clearly used its discretion in this case to allow a simple clerical error to be corrected; however, the ruling also underlines the need to follow correct procedure in signing and witnessing of wills”.

If you would like assistance in planning and writing your will, call Anthony Davies at DPA Law on 01554 749144 for further information.

PARTNER NOTES

Further information can be found at
Supreme Court
Marley v Rawlings and Another
Judgment, January 22, 2014

Posted by Peter Nicholas on Tuesday, February 18, 2014 at 11:28 AM

Registering Land as a Village Green

The law offers a way of protecting land that is used as a local amenity in order to ensure that it can be enjoyed for generations to come. Where land has been used by local people ‘as of right’ for recreational purposes for at least 20 years, it can be registered as common land (a ‘village green’) under the Commons Act 2006.

In this context, ‘as of right’ means that the land has been used without permission, without the use of force and openly (i.e. not in secret).

Registration of land as a village green makes subsequent development of it extremely difficult to achieve.

It is not necessary for land to be publicly owned for it to be registered as a village green. Privately owned land can be registered and the owner of land that is used for recreational purposes by the community can apply for their own land to be registered as common land.

The legislation that allows registration of common land applies throughout England except in Epping Forest, the Forest of Dean and the New Forest.

To register land as a village green, an application must be made to the appropriate registration authority, which is usually the local council. The procedure is largely the same throughout the country, with one or two exceptions. You do not have to have a formal legal right over, or a legal interest in, the land to make an application for registration: anyone can make one.

If the owner of land which has been used for recreational purposes by the community fences it off, or takes steps to prevent the continuance of the use, a registration must be sought within two years of the challenge to the use as of right.

The Act does allow land to be deregistered (‘released’) in certain circumstances.

Normally, an application to release land requires the registration of ‘replacement land’ as common land.  The Act also prohibits the sale or lease of common land.

From 2013, where a ‘trigger event’ has occurred (which includes the making of a planning application or the identification of land for potential development in a development plan), the ability to apply for the land to be registered as common land is suspended until the planning status of the land is resolved.

Lastly, it is not necessary for land to be ‘green land’ for it to be registered as common land: in 2013, a beach was registered as common land under the Act.

If you would like advice on any aspect of planning law, including how to protect your rights as a property owner, contact us.

Posted by Peter Nicholas on Tuesday, February 18, 2014 at 11:08 AM

Late Claim Against Estate Rejected by Court

The Inheritance (Provision for Family and Dependants) Act 1975 allows those who have been financially dependent on a person who dies to seek financial provision to be made for them from the deceased’s estate if that person has not made appropriate provision for them in their will.


An application under the Act must be made within six months of probate being granted, otherwise it is necessary to obtain the permission of the court in order to proceed with an application.

In a recent case, a woman in her 80s failed to gain permission to make an application for financial provision under the Act more than six years after the death of her husband in 2005.

The man’s estate was valued at approximately £7 million. It included shares in a family company, properties in Arizona and London, and a house in Surrey in which his widow lived.

Arrangements were made to provide an income for life for her, but early in the administration of the estate (which was entrusted to her sons) she expressed misgivings about the level of income she could expect to receive.

Although she did take legal advice at the time, it is not clear that she was advised that she could make a claim under the Act.

However, the fact is that she did not do so although she had taken professional advice and was not content with the
way the estate was being administered.

In his judgment, Lord Justice Black said, "In my view, it would not be appropriate... the appellant to be permitted to make her claim six years after the expiry of the time limit in the Act." Merely hoping that a dispute can be settled amicably is often not a successful strategy.

If you have misgivings about the provisions of a will in which you have a financial interest, contact us for advice.

Posted by Peter Nicholas on Tuesday, February 18, 2014 at 11:04 AM

Joint Accounts and Mental Capacity

If you are concerned about the future mental capacity of a relative or any other person with whom you have a joint bank account, it makes sense to consider setting up the appropriate power(s) of attorney.

The British Bankers’ Association’s guidance for members advises them to freeze all joint accounts if one of the account signatories becomes mentally incapable.

Should this happen, the account will remain frozen until the bank concerned receives a valid power of attorney.  Even where there is an appropriate power of attorney in place, there is likely to be some minor disruption.

However, where no such power exists, it can cause significant difficulties, especially where the account concerned is used for everyday living expenses or in connection with the operation of a business.

Contact us for advice on the creation and use of powers of attorney.

Posted by Peter Nicholas on Tuesday, February 18, 2014 at 11:02 AM

Misappropriation Case Highlights Value of Using Professionals

A sad recent criminal case illustrates the wisdom of appointing a professional person to assist when substantial family funds are being administered.

The case involved a disabled woman who received a settlement of £2.6 million in 1999 from Grimsby Scunthorpe Health Authority as a result of negligent treatment at the time of her birth.  She suffers from cerebral palsy and requires around-the-clock care.

The money was entrusted to the girl’s mother and her mother’s (now) exhusband to be used for her maintenance, care and other needs and was intended to provide for her for life.

However, the pair made deep inroads into the funds and were discovered to have extracted more than £500,000 from the settlement for their own purposes, living what was described as a ‘lottery winner’ lifestyle.

The couple were released on bail in October 2013 pending sentence, which the judge described as ‘inevitably a sentence of custody and of some significance’.

If a member of your family has a substantial sum which is intended to provide for them or you wish to make provision for the care of another person, the choice of who is entrusted to look after and manage the fund is critical.

Using a professional who has appropriate indemnity insurance offers a degree of protection that will give added comfort that the settlement is safe and in competent hands.

Posted by Peter Nicholas on Tuesday, February 18, 2014 at 10:59 AM

Ignoring Duty to Neighbours Costs Homeowner

Homeowners have a responsibility to ensure that they do not damage their neighbours’ properties and this includes a legal duty to keep their garden trees and shrubs under control.

When a North London woman ignored  her responsibilities in this regard, the result was an order by the court to pay more than £17,000 in damages to her neighbours after the spreading roots of her ‘dominating’ cypress hedge caused damage to the foundations of their home.

The couple who lived next door brought a claim for damages against the woman after they discovered cracks in the exterior and interior walls of their property.

The Technology and Construction Court found that expert evidence had established that the cypress trees were a significant cause of the subsidence damage and that a ‘reasonably prudent landowner’ would have appreciated the real risk posed by the trees’ roots.

Given the ‘dominating position’ of the hedge – described as ‘not an attractive feature’ – the damage to the couple’s home was ‘reasonably foreseeable’.

Finding the woman liable in nuisance, the Court found that it would only have cost between £700 and £800 to remove the hedge and that the woman had failed to take appropriate steps to eliminate the obvious risk.

However, the Court went on to rule that damage caused by a 50-year-old oak tree on the woman’s land had not been  reasonably foreseeable, and lopped 15 per cent off the couple’s compensation to reflect their contributory negligence in failing to complain to their neighbour earlier.

The Court awarded the couple damages for the cost of expert advice, surveys and remedial work, and for the distress and inconvenience caused by the tree roots damage.

If you are concerned about possible damage to your property owing to a neighbour’s plants or activities, contact us for advice on the steps you can take.

Posted by Peter Nicholas on Tuesday, February 18, 2014 at 10:47 AM

Private Residence ‘Deemed Residence Period’ Reduced

The UK tax system has traditionally exempted any profit on the sale of a person’s principal private residence (PPR) from Capital Gains Tax (CGT). The exemption applies to make any gain accruing during periods of use as a PPR exempt from charge.

A property which has been used as the taxpayer’s PPR for part of the period of ownership, but not all, may therefore attract a charge to CGT.

One valuable relief is that the last three years of ownership of a property have been deemed to be a period of actual residence whether or not the owner(s) actually resided there.

With the logjam in the property sales market now clearing, the Chancellor of the Exchequer sprung a surprise in his recent Autumn Statement by reducing the ‘deemed actual residence’ period to 18 months for sales which take place after 5 April 2015.

Posted by Peter Nicholas on Tuesday, February 18, 2014 at 10:45 AM

Religious Discrimination – The Right of Christians Not to Work on Sundays

A Christian care worker who resigned from her post after being required to work on Sundays – which she regarded as a violation of the fourth commandment – has failed in her landmark fight for compensation (Mba v The Mayor and Burgesses of the London Borough of Merton).

The woman worked at a children’s care home. Her employment contract required her to work on Sundays, although her wish not to do so had been accommodated by her local authority employer for two years.

When the home was short-staffed, however, she was put on the rota for Sunday working. This requirement led to her eventual resignation, ‘with regret', and she launched Employment Tribunal (ET) proceedings, claiming constructive unfair dismissal and religious discrimination.  Her constructive unfair dismissal claim was rejected.

As regards her claim that the requirement that she work on Sundays was a provision, criterion or practice that discriminated against Christians, the ET concluded that strict observance of the Sabbath was not a ‘core’ principle of Christian belief and her employer’s demand that she meet her contractual obligations was objectively justified within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 (now superseded by the Equality Act 2010). This claim was also dismissed, therefore.  The ET’s decision was subsequently upheld by the Employment Appeal Tribunal.

On appeal, the Court of Appeal found that the ET had erred in law in finding that observance of the Sabbath as a rest day was not a core component of the Christian faith. It had been wrong to ask itself that question in that it was not necessary for the woman to establish that all or most Christians, or all or most non-Conformist Christians, would be put at a particular disadvantage by a requirement to work on Sundays.

The Court, however, found that the ET’s error of law had ‘made no difference’ to the outcome of the case.

The requirement that the woman should work in accordance with her contract was not indirect religious discrimination as it was a proportionate means of achieving a legitimate aim.

This case should not be seen as giving employers the go-ahead to insist that employees work on Sundays. Whether or not this is permissible will depend on the specific circumstances of each particular case.

Contact us if you would like assistance with determining your organisation’s terms and conditions of employment.

Posted by Peter Nicholas on Tuesday, February 18, 2014 at 10:39 AM