Challenging any will can be costly and time-consuming, although it is becoming more commonplace. It is thought that this is partly due to the rising number of people who draft their own wills. Without proper legal advice many people make elementary mistakes e.g. will is not properly signed and witnessed which may mean the will is more likely to be challenged by other potential beneficiaries at a later date. Although DIY wills may be suitable for those with simple affairs, anyone with a larger estate or more complicated finances (for example those with children from a previous marriage or whose estate is likely to fall into the inheritance tax net) should seek professional advice. Read more
A number of us from UTK were glad to be present at Adam Bruce’s recent ordination at St Davids Cathedral, as a Deacon in the Church in Wales, the first in a two-step process towards priesthood.
For Adam, this represents a long-awaited development in his spiritual life, which he sees very much as running alongside his work as a Solicitor and Director here at UTK. Adam will be a non-stipendiary minister, meaning that he is self-supporting and therefore will give such time to the Church as he can. He will continue to be an integral part of the practice, serving our clients and taking an active role in the management of UTK during the working week.
We wish him and his family every good blessing as he starts this exciting new chapter of his life.
When most people buy or sell a property, the usual process is that an offer for that property is accepted, solicitors are appointed, the due diligence process takes place and once all parties are ready, exchange of contracts takes place with an agreed completion date.
However if a property does not sell, it may be put into an auction where a lot of properties are usually listed to be sold on that same day.
At an auction, a legally binding sale is agreed as soon as the hammer falls and purchasers have to pay a deposit 10% on the auction day. Should the purchaser withdraw for any reason then they will forfeit this 10% deposit. Purchasing at auction also provides certainty for the purchaser as there is less likelihood of the seller withdrawing or being gazumped by another interested party.
When buying or selling property at auction, the key is to prepare in advance.
If you are selling a property at auction, ensure you instruct a solicitor at least 2 months before the date of the auction to assemble an auction pack, which can then be made available through the solicitor or through the auctioneer. The auction pack will contain details of the title, copy of the Contract and a number of searches which any interested party can view so they can be satisfied with the title prior to the auction.
If you are considering purchasing a property at auction, our main advice is to do your research. Once you have found a property that you are interested in making a bid on, you should consider instructing a solicitor to review the information in the auction pack. You should also consider having the property surveyed so should you be successful at auction, you will know exactly what you are buying either legally or from a structural point of view.
Auctioneers will set a guide price for a property which is normally quite low to entice buyers. However any potential purchaser at auction should always set themselves a budget as it is easy to get carried away once the auction is under way.
You should also get an indication from the auctioneer as to what interest there has been in any particular property you are interested in.
Any potential purchaser at auction should also have their finances in place as if you are the successful bidder you normally have 4 weeks in which to complete the purchase when the remaining 90% of the purchase price will need to be paid.
For further information in connection with buying or selling at auction, please contact our experienced solicitors in our Property Department on telephone number 01267 237441 or by email at firstname.lastname@example.org who will be able to assist further.
What is the 1954 Act?
The Landlord and Tenant Act 1954 sets out the rights and obligations of both landlords and tenants in relation to any premises leased for business purposes.
In simple terms, the 1954 Act provides a tenant under any commercial lease with security of tenure when an agreed contractual term comes to an end. This means that a tenant has the right to remain in occupation at the end of the contractual term and the right to apply to court for the grant of a new lease. The landlord is able to regain possession of the premises but only on certain specified grounds, namely:
• where the tenant has a history of not complying with obligations under the lease including not paying rent;
• where the landlord requires the property back to occupy himself or develop; or
• where any premises have been sublet into a number of units and the whole premises would command a higher rent if let together.
Excluding the operation of the 1954 Act
The security of tenure automatically conferred by the 1954 Act can be excluded by the agreement of the landlord and the tenant. The exclusion is usually desired by landlords as it provides certainty that a term will cease on as a specified date and legally allows the landlord to regain possession. This allows the landlord to enter into fresh negotiations with the existing tenant or potentially a completely new tenant with a view to agree a new lease.
The Importance of Legal Advice
In order to exclude the provisions of the 1954 Act the landlord and tenant must adhere to the strict procedures set out in the 1954 Act. Whether you are a commercial landlord or tenant, it is vital that you take specialist legal advice to protect your position in relation to the 1954 Act.
Please do not hesitate to contact our experienced Commercial Property Team on 01267 237441 for more information.
What is a Prenuptial agreement?
A prenuptial agreement is a formal written contract entered into by two people who intend to marry or enter into a civil partnership.
The agreement details all assets currently owned by each party and sets out what is intended to happen to those assets if the marriage was ever to breakdown. They can also detail intentions in relation to any anticipated assets within the marriage (e.g. Inheritance).
Admittedly a prenuptial agreement is not the most romantic topic to be discussing when preparing for your big day, but they can help clarify the financial position should the worst happen.
Why would one be needed?
There are a number of reasons to enter into a prenuptial agreement:
• to ring-fence assets an individual already has to ensure that they pass to children from a previous relationship/marriage
• to ensure that a person retains control of their business if the marriage was ever to break down
• to protect long standing family assets e.g. farm, land or other valuable assets
• to safeguard anticipated inheritance
• to make clear that liabilities brought into the marriage will remain the full responsibility of the person who was responsible for accruing the debts.
Are they legally binding?
Technically not. There is, at the moment, no statutory provision which binds the U.K. Courts to apply whatever has been agreed in a prenuptial agreement. However case law makes clear that they are to be given high evidential weight as to the intention of the parties and they will be generally upheld by the Family Courts, unless the terms are seen to be inherently unfair.
In a nutshell, if they are dealt with properly (in line with the Law Commission’s recommendations) and your circumstances have not changed to such a degree that it would be inequitable for the Courts to apply the terms of the agreement, your prenuptial agreement will be upheld.
The Law Commission guidance – what does it say?
The Law Commission have made some key recommendations of formal requirements that they believe should apply before the prenuptial should qualify:
1. the agreement must be contractually valid and enforceable
2. the agreement must be made by deed and signed by both parties
3. the agreement should be made 28 days before the date of the marriage or civil partnership
4. at the time the agreement is formed, both parties must have received disclosure of material information about the other person’s finances; and
5. both parties need to have had independent legal advice (a waiver is not possible).
What happens if there is no prenuptial agreement?
Essentially, any and all assets that are held within the marriage at the time of the breakdown of relationship will be considered as part of the matrimonial pot.
Despite the fact that there are a number of factors that guide the court when considering how best to split the pot, one of the key considerations in each case will be the needs of the parties. To find out more about the approach of the Court in these situations, please refer to our earlier article ‘Divorce: Financial Factors – What do the Courts look at?’ which can be found in our blog history.
In the event that you require further advice in relation to prenuptial agreements, please contact Nia Thomas on 01267 237441. We can offer a 30 minute free consultation and a fixed fee quote for a tailor made prenuptial agreement that will best safeguard your circumstances.
Most of us understand the importance of making a will. There are certain life changing events that might prompt us to take that important step and put a Will in place and the birth of a child is a common triggering event.
It is fair to say that the majority of parents have no difficulty in deciding who their money and assets should be left to. The difficult decision is deciding who to appoint as guardians, as nobody wants to consider the awful possibility of what would happen to their children if the worst were to happen.
Q. So what exactly is a guardian?
A legal guardian is appointed to care for a child where both parents die before the child reaches the age of eighteen. If you do not appoint guardians for your children and tragedy strikes, then an application must made to the court for a guardian(s) to be appointed, usually a willing family member or friends.
The appointment of a guardian bestows parental responsibility on an individual. Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property”.
In simplified terms the guardian is stepping into the shoes of the parent. Hence the guardian will usually provide a home for the child or children and essentially bring them up. However, technically parental responsibility means the right and duty to make decisions about the welfare of a child which might result in a decision for the child to live elsewhere such as with another appointed guardian.
Q. Who can appoint a guardian in a Will?
Broadly a parent who has parental responsibility for a child. However the appointment of the guardian cannot take effect whilst there is a parent alive who has parental responsibility. In that event, the appointment will only take effect on the surviving parent’s death.
Q. Do two parents with parental responsibility have to agree to an appointment?
Strictly speaking no. Each parent can appoint a guardian of his or her own choice in his or her Will, but the appointment will not take effect until (as stated above) the surviving parent’s death. Hence there may be two separate guardians appointed by virtue of the two Wills. On the death of the last surviving parent both guardians will have parental responsibility and they will need to agree between themselves major decisions such as where the child will live, schooling etc., as both guardians will have been endowed with the rights and responsibilities of a parent.
Q. How many guardians can I choose?
Up to four people can be appointed as guardians although it may be worth noting that the more people you appoint could give rise to problems if the guardians are unable to agree. It may be worth discussing your choices with the guardians you have chosen and your families so that they are aware of your wishes.
A guardian must be over 18.
If you appoint guardians in your will, you can also appoint substitute guardians so that if the original guardians pass away, the substitute guardians will then undertake the role giving you certainty as to who would step in.
It is recommended that professional advice be sought from a suitably qualified Solicitor before making a Will and appointing guardians. We offer fixed fees for Wills – please contact us on (01267) 237441 to find out more.
After last weekend’s chaos due to the IT problems at British Airways which resulted in delays and cancelled flights, many people may be looking for compensation.
However Brexit could undermine the right of British airline passengers to claim future compensation for delayed and cancelled flights under EU consumer protection legislation known as EU261.
At present, the Government will only confirm that the existing compensation arrangements will remain in force until Britain leaves the EU and would not be drawn on any commitment about the future of EU261 afterwards.
Currently in order to claim compensation for a delayed flight, then you can only claim for EU-regulated flights. An EU flight is where the flight departs from an EU airport, regardless of the airline OR where an EU airline lands at an EU airport. Under this law, EU airports also include those in Iceland, Liechtenstein, Norway and Switzerland. So a delayed Manchester to Miami flight qualifies, regardless of the airline. Yet for Miami to Manchester, you would be entitled to compensation flying Virgin or KLM, but not on Air India.
How far back can I claim?
In theory you can apply for compensation for any past delays stretching back as far as February 2005 – but in practice it’s extremely unlikely you’ll be able to go back further than 2010.
However in England, Wales and Northern Ireland, due to the statute of limitations, if you need to take the airline to court to get the compensation, then you can only go back six years. In Scotland, it’s five years. So older claims can be tricky.
How do I check how long my flight has been delayed for?
Don’t remember how long your flight was delayed for? You can check this using sites such as FlightStats. You may need to register to use them, but many are free although they may not show older flights and they will not tell you what caused a delay.
When am I entitled to compensation?
You are only entitled to the compensation if the delay was something within the airline’s control such as staffing problems and underbooking – political unrest in a country or strikes cannot be claimed for.
The rule about claiming for compensation for delays is about when you arrive at your destination, not when you leave. So if you’re on a flight that takes off four hours late but lands 2 hours 55 minutes late, you’re not over the three-hour delay needed to be eligible for compensation. Your arrival time however is actually deemed to be when the plane opens at least one of its doors, not when it touches down.
What can I claim?
Compensation claims are also per person but if a passenger travels free of charge – a child, for example – you cannot claim. Compensation payments are also based in euros, meaning the amount you’ll get in sterling will fluctuate, depending on the exchange rate at the time the payment is made.
Compensation is calculated for a delay, not a refund of the flight ticket cost, so the amount you are due is fixed dependent on the delay length and distance travelled:
1. if you are delayed for 2 hours or more, reclaim the cost of food and drink ( reasonable costs and not the gastro pub!). If you need to phone a friend or keep them up to date by email from your smart phone -reclaim this cost. If you are forced into an overnight stay at the airport then reclaim the cost of a room. Airlines normally give you the vouchers at the airport, but failing that, keep your receipts to reclaim expenses later.
2. if you are delayed for 3 hours or more in addition to the above ( provided it is the airline’s fault) you are entitled to set amounts of compensation which depend on the distance of the flight of anywhere between €250 (for flight less than and up to 1,500km ) to €600(for flights over 3500km).
3. if the delay is more than 5 hours then, regardless of whose fault it is, you can get a full refund or, if you are part way through the journey, a flight back to where you started in addition to the above rights.
4. likewise, if your flight is cancelled you can get a full refund.
What if the airline rejects my claim?
If the airline has rejected or put your case on hold, this doesn’t necessarily mean they are correct. If you feel you’ve a legitimate claim but have been fobbed off, you can take your case to the relevant regulator or ombudsman to look into.
We hope you get to where you are going on time but, if you need help or clarification regarding your rights if you do not, then please contact us on (01267) 237441.
A money judgement is a court order requiring a debtor to pay a sum of money to the creditor by a specified date. Although a creditor may obtain judgement against the debtor, this may not be the end of the matter as the debtor may not be in a financial position to make the payment; it is then for the creditor to decide how best to enforce the judgement.
You can ask the Court for an Information Order if your Debtor is evading payment and enforcement. The Debtor must then attend before the Court to answer questions regarding their assets and means.
The County Court Bailiff – An application can be made for a Warrant of Execution, this allows a Bailiff to attend the debtor’s premises to seize assets to satisfy the debt. It is important to be aware that Bailiffs have no power to force entry into residential premises and it is not always easy to obtain goods to the value of the debt, particularly if the debtor has removed the goods first.
Attachment of Earnings Order – This allows for the creditor to compel the debtor’s employer to make regular deductions from the debtor’s earnings and pay them to court. The court must take in to account the debtor’s circumstances and living expenses, the result can be the court ordering repayment in relatively small instalments. Of course, the debtor must be in gainful employment!
A Charging Order – Where a debtor has an interest in property, a Charging Order may be obtained against that interest. A Charging Order means that when the property is sold, the debtor must satisfy the debt out of the proceeds. Searches of the Land Register can be made to investigate the extent of someone’s ownership of property and any charges or mortgages already secured against their property.
Third Party Debt Order – Where a creditor is aware that the debtor is owed money by a third party or where the debtor’s bank or building society account is in credit, the creditor may make an application for the third party, bank or building society to pay that sum to the creditor in full or partial payment of the debt. An application can be made without notice being given to the debtor, however, the creditor will first need knowledge of the debtors bank or building society accounts. You can also apply to freeze any monies in the Debtor’s bank account if you are aware of these details.
Bankruptcy/Liquidation – This can be an expensive and potentially risky option which is only worth considering if you are owed a significant amount of money and there are no or few other secured or unsecured creditors. Before issuing a Bankruptcy Petition (against an individual) or a Winding-Up Petition (against a company), you may serve a Statutory Demand which does not involve expensive court fees and may encourage the debtor to ‘show their hand’ and thus indicate if they have anything to lose.
For specialist advice on how to enforce your Judgement, or indeed in relation to aspect of debt recovery, please telephone our Litigation Team on 01267 237441.
Property Purchase in Joint Names – What You Should Know
Where a property is owned by two or more people, under English and Welsh Law the co-owners must hold it by one of two methods, namely as beneficial joint tenants or as tenants in common. Both methods have very different implications on the death of one of the co-owners.
As tenants in common, co-owners of property can specify in what shares the property is owned between them, for example a wife might own 70% of the property while the husband owns 30% depending on what each may have contributed to the purchase price of the property. On the death of one co-owner, their share will pass under their will or according to the laws of intestacy – it does not automatically pass to the other owner(s). This is often a popular choice where a co-owner has children by a previous marriage.
As joint tenants, co-owners of property together own an equal and undivided share in the property, regardless of their contributions. On the death of one co-owner, their entitlement passes automatically to the surviving co-owners. This might be a sensible choice for an unmarried couple where they would wish the surviving partner to remain in the property. The share does not form part of the deceased’s estate for administrative purposes, although it does for the purpose of Inheritance Tax. Please note that Inheritance Tax is not payable on dispositions between husband, wife or civil partner.
For informed and comprehensive advice on how to hold your joint property, or indeed on any aspects of buying or selling a property, please contact our Conveyancing Team on 01267 237441.
All of our Wills and Probate Solicitors are involved with STEP. What does this mean?
STEP (The Society of Trust and Estate Practitioners) is the world-wide professional association for those advising families across generations. STEP members are recognised experts in their field with proven qualifications and experience. All members are subject to an extensive Code of Professional Conduct and in many cases have had to sit exams to hold full membership. Adam Bruce and Ceri Davies of our office both hold full membership and Luned Voyle is in the process of working through the exams. STEP provides top class training to its members and ensures that they maintain and develop their knowledge and skills relevant to their role as a condition of their continued membership.
Full members of STEP can use the letters ‘TEP’ after their name, which stands for Trust and Estate Practitioner. Working with a STEP member means that you are dealing with a trusted adviser with expertise, in terms of training and experience, backed up by a top professional body.
Why use a TEP?
As specialists in inheritance and succession planning, STEP members draft wills and trusts, administer estates, act as trustees and advise families on how best to structure their finances to ensure compliance and preserve their assets for future generations. In their professional practice, TEPs often help people at difficult or emotional times, such as after the death of a close family member. Choosing a professional to help you to deal with such important and often sensitive issues can be difficult. Many aspects of planning are non-regulated, meaning anyone can write a will, for example, regardless of training or expertise. With a TEP, you are in safe hands.
Currently STEP has more than 20,000 members across 95 countries from a range of professions, including lawyers, accountants and other specialists which enables them to share knowledge and expertise. STEP members are organised between branches and Adam Bruce of our office is Chair of the STEP Wales branch.
STEP also takes a leading role in explaining its members’ views and expertise to Governments, tax authorities, regulators and the public and has been very influential in the development of legislation in this country.
For more information about STEP please visit www.step.org or contact our Wills and Probate Department on (01267) 237441.
Ungoed-Thomas & King is a trading name of Ungoed-Thomas & King Ltd. Company registered in Wales no: 2755783
Copyright © Ungoed-Thomas & King Ltd. Authorised and regulated by the Solicitors Regulation Authority, no 471940
VAT Registration Number 123 1830 11.
Copyright © Ungoed-Thomas & King Ltd. Authorised and regulated by the Solicitors Regulation Authority, no 471940
VAT Registration Number 123 1830 11.
Registered Office: Ungoed Thomas & King Ltd Solicitors, The Quay, Carmarthen, SA31 3LN
A list of Directors can be inspected at the Registered Office.