How to Be More Organised Than Your Pet

Buttons, my Labrador retriever, did very little retrieving over his lifetime. Mainly he buried his treasured possessions in the garden and then forgot about them.

I am afraid Buttons’s approach to storage solutions is not unique to canines. I have seen people with a variety of creative filing systems come to Fairhurst Menuhin & Co for legal advice. Clients have put important family documents such as Wills under beds, in cupboards, and even one inside a Victorian crockery set, and then promptly forgotten about them.

Unfortunately, imaginative hiding places create complications with serious legal and emotional consequences. Too often legal documents are found after disagreements have already broken out over money, property and family heirlooms. Sometimes express wishes to be buried are only discovered after a deceased family member has been cremated. All the above situations are avoidable.

So where should you store your Will?

Taking the time to responsibly look after your family and estate by drafting a Will is something we all need to do.

In all fairness, however, it is not obvious what to do with a Will once it has been created. Some solicitors firms charge you for storing your Will at their offices, and some solicitors have filing systems only slightly more sophisticated than man’s best friend. If you are an organised individual, you can hold on to your Will at home, but it is still at risk of flood or fire damage or not making its way to a lawyer at the crucial time.

At Fairhurst Menuhin & Co, we can store your Will for free. We keep our documents in fire-proof storage units. And we stay in contact with our clients over the years in case any changes, however small, need to be made. Even if you have not drafted your Will with us, we are still happy to store it for free. Or we can review it for you.

And if we are storing your Will and you want to take a look at it, unlike Buttons, we are perfectly capable of retrieving it for you.

Contact Aaron Menuhin at aaron.menuhin@fmc-solicitors.com or call our offices on 01440 761 200.

The cost of care

The erosion of assets as a result of long-term care costs is becoming a concern for many. We are living longer and consequently professional care may become a necessity for many of us.

Care Legislation

The NHS and Community Care Act 1990 obliges Local Authorities to carry out an assessment of anyone who appears to have a care need and to ensure the individual has access to suitable care.

Once an individual’s care needs have been established, the Local Authority will carry out a Means Test to determine the reasonable cost of care required and assess the individual’s ability to pay for or contribute towards the cost, taking into account both income and assets.

Those with assets over £23,250 are unlikely to receive any funding for care, but may be entitled to other benefits to help contribute towards the costs such as Attendance Allowance.

The Government is looking at state protection for people concerned by asset erosion with the proposed introduction of a cap on the amount individuals will be expected to pay for care during their lives. The level of the cap is expected to be in the region of £70,000, which remains a significant sum in relation to the value of many people’s estates.

In situations where the person requiring care is leaving a vacant property, the value of the house will be included in their financial assessment but the individual or their attorneys will be free to decide how to raise the necessary funds to pay for the care. The Local Authority will not simply ‘take the house’ and it may be worth exploring other options which provide the required money whilst preserving the capital asset.

While a dependent relative is living in the house, the value of the house will be disregarded by the Local Authority when carrying out a Means Test.

Deprivation of assets

Making a gift of a home to children or making lump-sum payments in order to qualify for state support is known as a deprivation of assets.  If it is apparent that someone has deliberately deprived themselves of a property or assets in order to qualify for state support, and there is no other compelling reason for the gift, the local authority will carry out the assessment as though the assets still belonged to the individual. There are no time limits on how far back the Local Authority will look.

A properly drafted Will

That said, peace of mind can still come from having a professionally drafted Will. If, for example, joint owners of a property pass their respective shares to their children, subject to the survivor’s  right to occupy, only the survivor’s half of the property will be included in any future means test.

 

Simon Saunders is a member of our Wills and Probate Department at FM&C Solicitors and may be contacted on or + 44 (0)1799 526 849.

Email: simon.saunders@fmc-solicitors.com

 

The Great Common Law Marriage Myth

That well known phrase, “living over the brush”, is often used to describe an unmarried couple who live together. It originates from the tunnel building days of the 19th Century, when, if a boy and a girl took a liking to each other but could not afford a church wedding, they could earn the respect and recognition of others by holding hands and jumping over a brush or broom handle held by two older people. They were then “married” in the eyes of their peers.

Cohabitation today

In the UK today, statistics show that more and more people are choosing to live together before, or as a direct alternative to, getting married or entering into a civil partnership. In 1996 there were less than 3 million people cohabiting in the UK. By 2012 that figure had almost doubled to 5.9 million. What’s more, an increasing number of cohabiting couples, roughly 38% of them, are having children.

Sadly, there remains widespread confusion about their position in law. According to a 2006 British Social Attitudes survey by the Centre for Comparative European Survey Data (CCESD), “no less than 58% of respondents thought that cohabiting couples who split up were probably or definitely in the same position as married couples”.

The myth of the common law marriage is widespread. But it is just that, a myth, without any basis in law.

Unmarried couples and the law

At present, unless they have entered into cohabitation agreements, the legal protection for unmarried couples who part is extremely limited. If the property the couple live in is in the sole name of one partner and that partner should die without leaving a Will, the other will not necessarily inherit anything, not even the home they lived in together. The surviving co-habitee may only secure an interest if he or she can bring a case based on the law of trusts.

There is also a limited right for cohabitants to secure some provision for their financial support from their partners’ estates on death. Whilst it may be that their minor children are entitled to support, this ends when the children are older. The parent who brought them up may then be left completely adrift, with no further legal redress.

The solution?

Until such time as proper legislative change takes place within England and Wales (Scotland  already has laws governing cohabitation in place since 2006), the best an unmarried couple wishing to live together can do is to plan ahead. Have a solicitor draw up a cohabitation agreement, incorporate a Declaration of Trust and settle a mutual Will to give peace of mind!

Let’s leave the broom jumping safely where it belongs, in the past!

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Sue is a member of the Family team at FM&C Solicitors and may be contacted on +44 (0)1440 761 200 or +44 (0)7462 314 872.

Email: sue.rowlatt@fmc-solicitors.com

When the solicitor’s pen is mightier than the sword…

We have probably all been involved in a dispute at some time in our lives, whether an argument with a neighbour or a disagreement with a service provider who has let us down.

Disputes can be overwhelmingly stressful, particularly if the dispute does not resolve quickly, or as the complainant, we feel that our concerns are not taken seriously.

What starts as a small disagreement can often mushroom into an overwhelming battle, causing untold personal stress and anxiety. We have all experienced the frustration of our complaints falling on deaf ears as we are passed from pillar to post, having phoned somewhere ironically called a ‘Helpline’.

Based on personal experience, there is nothing more frustrating than feeling that you fighting a large faceless corporation which no longer treats you as a valued customer but rather as someone whose concerns are insignificant.

The power of a solicitor’s letter

As a solicitor specialising in dispute resolution, clients frequently tell me that they feel they need the services of a solicitor to ‘fight their corner’ or give them ‘a voice’ which will be heard. I am frequently informed by clients that ‘It is a matter of principle now. Can you just send them a letter….they won’t ignore a letter from a solicitor’.

Sadly, it is a reality that a solicitors’ letter carries more weight. Some years ago, a client approached me feeling completely exasperated by a well know high street organisation. He had a legitimate complaint and had been offered £100 by this service provider as a ‘gesture of goodwill’.

He came to my office for a chat about whether he should accept this token gesture. The offer was derisory, but for him it was not about the monetary compensation offered, but about how he had been treated.  He simply wanted a letter sent on his behalf to make them listen to him properly as a ‘matter of principle’. A solicitor’s letter was able to secure compensation of several hundreds of pounds, but more importantly, it secured an unreserved apology which, to him, was the greatest prize of all.

Price

The dilemma facing most clients is that instructing a solicitor who charges an hourly rate to write a letter can be costly. With the fear of costs spiralling out of control, many simply conclude that they ‘cannot afford to fight on a matter of principle’.

It is also often the case that those in our community who are vulnerable or feel unable to make their voice heard are also without the means to meet these costs.

At FM&C solicitors, in recognition that ‘matters of principle’ are important and that having ‘a voice’ brings peace of mind, we offer a fixed and affordably priced ‘letter of principle’ service to represent your views yet avoid costly litigation.

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Kerry Wigg is a partner at FM&C specialising in Employment Law. She may be contacted on +44 (0)7454 866 133 or +44 (0)1440 761 200.

Email: kerry.wigg@fmc-solicitors.com

What to do when someone dies

 When someone dies there are many things to sort out. When we are grieving for the loss of someone we loved, this can seem overwhelming.

 The first thing to do

If a person dies at home you should call their GP who will give you a medical certificate showing the cause of death and informing you how to register the death. If a person dies in hospital the medical certificate will be issued by the hospital. If the death was unexpected or a GP has not seen the person within the 14 days before their death, then the death has to be reported to the coroner who may order a post-mortem or an inquest, in which case the funeral may have to be delayed.

Register the death

You must register the death with the Registrar of Births, Marriages and Deaths for the district in which the death took place.

The Registrar will need:

The medical certificate, full name of the deceased, the date and place of death, the address of the deceased, the date and place of deceased’s birth, the deceased’s last occupation, the name, date of birth and occupation of the deceased’s spouse or civil partner.

The Registrar will give you:

A certificate for burial or cremation, a certificate of registration of death which you should complete and return to the deceased’s local social security office and a Death Certificate. It is worth getting more than one copy as they are needed for the probate application and for any pension providers, life insurance companies, banks and building societies.

Arranging the Funeral

It is worth checking the deceased’s Will to see if it includes any instructions about their funeral.

The person who arranges the funeral will be responsible for ensuring that it is paid for. You should check to see if the deceased had a funeral plan, if not it may be possible for funds in a current account to be released. This may not be possible until probate is granted, in which case you may have to pay the costs yourself and wait to be reimbursed.

Informing the authorities about the death

You should tell HM Revenue and Customs, the deceased’s bank and building society, insurance company, utility providers, dentist and optician. Their driving licence should be returned to the DVLA and their passport to the Passport Office.

Dealing with the estate of the deceased

If there is a Will this will name executors who will be responsible for dealing with the deceased’s estate. If there is no Will then the Intestacy Rules set out who will be responsible for dealing with the estate. These rules are complex and you may need legal advice. It isn’t always necessary to apply for a Grant of Probate if the estate is very small.

Inheritance Tax

Before Probate is granted any Inheritance Tax must be paid. At present Inheritance Tax is payable at 40% on an estate worth more than £325,000, unless the estate passes to the deceased’s estate or to charity. Any Inheritance Tax payable is due within 6 months of the date of death. The rules relating to Inheritance Tax are complex and you may want to get legal advice.

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Henrietta Brett looks after the Wills & Probate team at FM&C Solicitors. She may be contacted on +44 (0)7453 624 619 or +44 (0)1799 526 849.

Email: henrietta.brett@fmc-solicitors.com

 

 

Employment Law – a question of compromise?

Under plans for the introduction of the Enterprise & Regulatory Reform Act, Compromise Agreements will be renamed ‘Settlement Agreements.’  This legally binding agreement between an employer and employee exists to ensure a dismissal or redundancy is conducted in a clean and straightforward way.

The Government hopes that the simplification of Settlement Agreements will encourage more employers, particularly smaller ones, to use these before formal disputes with employees arise. It is hoped that the wider use of Settlement Agreements will empower employers to look at ways of resolving work place disputes rather than resorting to an often costly Employment Tribunal.

The settlement route facilitates an easy, cost-effective and swift resolution to ending an employment relationship with all the terms set out in a single document.

What does a settlement agreement involve?

The agreement usually involves the employee confirming they do not have any issues which have not been raised with the employer over leaving the company and agreeing not to bring any legal action against their employer in future. This agreement is often made in exchange for a tax efficient cash settlement from the employer, which is conditional on the former employee abiding by the terms of the Settlement Agreement.

Settlement Agreements usually include:

  • Details of the settlement offered to the employee
  • Assurances from the employer
  • An agreement to provide future reference for the employee
  • The terms under which the employee agrees to be bound
  • Acceptance by the employee that the Settlement Agreement is in full and final settlement and there will be no further action against the employer.

The importance of a solicitor

Whether you are an employer or employee, it is vital to understand the legal importance of a settlement agreement. Employers will want to ensure that the terms of the agreement are watertight, ending the employment relationship in a certain and clean break.

Employees, on the other hand, will want to understand their obligations and seek reassurance that the terms of the settlement are not a raw deal.  Employees do not sign their rights away when agreeing to a settlement agreement.

For a Settlement Agreement to be valid, an employee must take legal advice from a solicitor before signing it. Most employers will agree to pay for this advice or at least make a contribution towards it as it is in their interests to ensure the agreement is valid.

 

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Kerry Wigg is a partner at FM&C specialising in Employment Law. She may be contacted on +44 (0)7454 866 133 or +44 (0)1440 761 200.

Email: kerry.wigg@fmc-solicitors.com

When liability bites

England is a nation of dog lovers, but recently, the Haverhill Echo reported that dog incidents are an increasing problem in Haverhill. So, what is the law relating to dog ownership and what remedies can you take if you or your dog are a victim of a dog bite incident?

It is a criminal offence to let a dog be dangerously out of control. A dog is considered dangerously out of control if it injures someone or threatens to injure. It is also dangerously out of control if it attacks and injures another animal.

If you are bitten by a dog, we would recommend that you identify the owner of the dog and report the matter to the Police. If you have suffered an injury as a result of a dog attack you may want to consider pursuing a claim for compensation for your personal injury and losses. This can be made with reference to The Animals Act 1971 and/or a claim in Negligence.

Animals Act 1971

The Animals Act 1971 sets out the circumstances in which the dog’s “keeper” can be held responsible for the actions of their dog. Over the years, the Act has been interpreted in different ways, but one of the most important and controversial interpretations is that the Animals Act imposes “strict liability” on the keeper of a dog for its’ actions.

This means that the Act can hold someone responsible for an injury caused by their dog regardless of whether or not they themselves are at fault. The test which needs to be satisfied is whether the damage caused by a dog is attributed to a characteristic of the dog which was known to the keeper.

The Act however does offer defences for the keeper to the strict liability finding. If for example the person injured was either totally or partially at fault for what happened, or if they voluntarily accept the risk of injury.

Allegations of Negligence

All owners owe a duty of care to others in respect of the behaviour of their dog. If owners do not do all they should in respect to the control of their dogs, they will have breached that duty of care and may be held responsible for any losses suffered as a result of this negligence.

Dog owners would be well advised to have insurance to protect against claims in respect of their dogs behaviour. Knowledge again plays a part, for a dog owner to be held negligent it would have to be evidenced that they knew or ought reasonably to have known that the incident could happen.

Man’s best friend is worth the extra vigilance.

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Kerry Wigg is a Partner at FM&C and specialises in personal injury law. She may be contacted on +44 (0)7454 866 133 or +44 (0)1440 761 200.

Email: kerry.wigg@fmc-solicitors.com

Accident or injury? Why do I need legal advice?

Accidents can happen at any time, and the consequences of your injuries can be life changing and difficult to cope with.

Although it is natural after an accident to focus on your medical treatment and recovery, if someone else was to blame for your accident, it is also crucial that you seek legal guidance as quickly as possible.

If you have an accident, there are a few practical steps we would recommend:

  • Take legal advice about your claim as soon as possible from a specialist personal injury solicitor. There are strict time scales for pursuing a personal injury claim. A claimant has 3 years to issue formal legal proceedings from the date of the accident.
  • If you haven’t done so already, seek medical attention for your injuries. It is important that there is an independent record of your injuries and the treatment you require/receive.
  • Take photographs of the accident scene or any other item associated with your accident. This is important evidence.
  • Ensure that your accident is reported to whoever is responsible. Complete an accident report.
  • Make a note of any witness details. Any evidence to corroborate your account of the accident will be helpful.
  • Keep a pain diary, noting the extent of your injuries and the effect on your ability to work, or effects on your day to day life. Take photos showing the remedial work.
  • Keep any receipts or invoices of expenses you incur due to your accident and a record of any trips to your GP or the hospital.

We recommend that you arrange an initial meeting to discuss a potential claim with a trusted local solicitor. At FM&C, this would be done at no charge. We offer a free risk assessment to establish whether a Conditional Fee Agreement (CFA) often referred to as a “No Win No fee” agreement is the right funding option for you.

 

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Kerry Wigg is a Partner at FM&C and specialises in personal injury law. She may be contacted on +44 (0)7454 866 133 or +44 (0)1440 761 200.

Email: kerry.wigg@fmc-solicitors.com

 

 

Closing the stable door after the horse has bolted?

The equine industry traditionally operates on the basis of legally binding verbal agreements. However should you get a horse home to discover that it was not what you expected, you will have difficulty proving what was agreed and may have limited options available to resolve the issue.

When buying a horse, the sale agreement will usually be with a trader acting in the course of a business or with a private individual. Prevention is always better than cure and, whether you are buying from a trader or private individual, if you are buying a horse we would recommend:

• View the horse before buying it to ensure that it is what you are looking for.
• Have the horse vetted. Not doing so may save money in the short term, but could end up costing you far more in the long term.
• If you pay cash to the seller, always get a signed receipt.
• If you buy a horse from an advert, retain a copy of this as it may be helpful if any dispute arises as to what representations were made by the seller.
• Crucially, record the terms of the purchase in a written contract, drafted by a solicitor and signed by both seller and purchaser before payment is made.

A person buying from a trader has significantly more legal protection than against a private seller.

When purchasing a horse from someone acting in the course of a business, Section 14 of the Sale of Goods Act 1979 will impose implied terms to the agreement for sale, such that the horse has to be of satisfactory quality and fit for the purpose for which it was purchased.

These statutory rights give the purchaser a right to return the horse if it does not meet these terms. For example, if a horse has a vice making it unfit for purpose which was present at the time of purchase, but the buyer only discovers it once the sale is complete, the buyer can claim a breach of the implied statutory terms and be entitled to a full refund of the purchase price.

When buying from a private seller, the maxim “Buyer Beware” applies. The buyer needs to undertake their own investigations to ensure that the horse is of satisfactory quality and fit for the purpose.

A buyer may be able to rely on Section 13 of the Sale of Goods Act 1979 by proving that the horse does not match the sellers’ description.

Disputes may be avoided by having your solicitor draft a formal contract to ensure that the terms of purchase are clear. Not only will this give a greater degree of protection in what is a significant investment, it will also provide peace of mind.

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For further information please contact Kerry, our equine law specialist, on +44 (0)7454 866 133.

Email: kerry.wigg@fmc-solicitors.com

Where there is a Will…

Contested Wills

Dealing with disputes over family finances or inheritance can be stressful and emotional. No one wants to be in a position of having to fight family members or friends after the death of a loved one. However, there can be genuine reasons for a dispute and Wills can be contested for any number of reasons:

  • If a Will has been improperly completed or executed
  • The testator lacked mental capacity to make a Will
  • Undue influence was brought to bear on the Testator to organise a Will or organise their affairs in a particular manner
  • There is possible evidence of forgery
  • A promise has been made by the Testator prior to their death which has not been reflected in their Will
  • Disputes arising over the interpretation of a poorly drafted Will

If you believe that you have a dispute over a Will the key is to act fast, preferably before the Grant of Probate is obtained which enables the Executor to distribute the Estate.

If you are disputing a Will, you can lodge a caveat which will temporarily prevent any grant of probate issuing, to afford time to investigate and pursue any remedy.

Excluded from a will?

If you believe you have been unreasonably excluded from a Will, and satisfy a prescribed category of persons entitled to claim, you may be able to apply for reasonable provision from the deceased estate. These applications do however need to be made within six months of the first Grant of Probate.

What are your courses of action?

Sometimes litigation may be the only course of action, but it can slow down receipt of Inheritance and can be costly. Before embarking on litigation, we would always recommend exploring other options for resolving any dispute.

Quite often the disagreements which arise are less about money and more about wounded feelings and deep seated animosity between fractured family members. Mediated dispute resolution can often offer a solution.

Whatever the cause, disagreements with family members at what is already a stressful time usually requires sensitivity aimed at preserving relationships, whilst acting in your best interests.

 

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Kerry Wigg is a partner and disputes specialist at FM&C Solicitors. She may be contacted on +44 (0)7454 866 133 or +44(0)1799 526 849.

Email: kerry.wigg@fmc-solicitors.com