Author: Wellers

Has Your Privacy Been Violated? You Don’t Have to Put Up With It

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For many people there is almost nothing more painful than having their private affairs aired on the internet or in publicly available print. As a High Court decision showed, however, specialist lawyers know exactly how to deal with such intrusions.

The case concerned a woman who had a relationship with a man who she claimed had subjected her to a sexual offence. She complained to the police, but the man was not charged with any offence. His employer, however, instituted disciplinary proceedings which had adverse consequences for him.

A self-published book was subsequently offered for sale which appeared to describe the relationship and its aftermath from the man’s perspective. The woman asserted that he had written the book and published it under a pseudonym. Deeply concerned that the book would come to the attention of her family or friends, she launched proceedings against him.

Ruling on the matter, the Court found that she had established a strong case that the man was the book’s author and that its publication breached her fundamental human right to respect for her privacy and amounted to a misuse of her confidential information. Although she was not named in the book, she was likely to be identifiable by a large number of people as the woman referred to. She also had a strong argument that the book tended to identify her as a complainant of a sexual offence, in violation of her statutory right to lifelong anonymity in that regard.

She was more likely than not to succeed in establishing that the book’s invasion of her privacy was serious, extensive and disproportionate to its author’s freedom of expression rights. It contained much salacious detail of a very private nature and appeared to do no more than restate the author’s version of events. In any event, its contention that the author had suffered as a result of corruption and a miscarriage of justice did not appear at all persuasive.

Noting that the author had expressed strong negative feelings against the woman referred to, and a wish to do her harm, the Court issued an interim injunction banning any further publication of the book. The order would remain in force pending a full trial of the woman’s claim or further order.

Licensing Houses in Multiple Occupation – Ignorance of the Law is No Defence

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Landlords who fail to license houses in multiple occupation (HMOs) commit a serious criminal offence and can expect to be hit hard in the pocket. In making that point, the Upper Tribunal (UT) emphasised that stiff financial penalties are generally required in such cases as a deterrent to others.

The case concerned a landlord who let six bedrooms in his former family home as bed sitting rooms. There was no dispute that the property was an HMO and, after discovering that it was unlicensed, the local authority notified him that he had committed an offence under Section 72 of the Housing Act 2004. As an alternative to prosecution, the council imposed on the landlord a civil financial penalty of £10,000.

In upholding the landlord’s appeal against that penalty, the First-tier Tribunal (FTT) accepted that he was unaware of the licensing regime and had no knowledge of the term HMO. On being notified that a licence was required, he had applied for one immediately. He had also spent considerable sums on swiftly making safety improvements to the property.

Noting that the landlord’s wife was suffering from cancer and that he was under considerable stress, the FTT expressed surprise that the council had seen fit to impose a penalty. It was also unimpressed by the council’s delay in processing his licence application. Overall, it found that the threat of prosecution had served its purpose and that a financial penalty was unnecessary and unreasonable.

In upholding the council’s appeal against that decision, the UT noted that prudent landlords make inquiries to ascertain their legal obligations and that ignorance of the licensing regime is no defence. The landlord had no reasonable excuse for not having a licence and, in deciding that no penalty should be imposed, the FTT had taken an exceptional course in what was an unexceptional case.

Parliament intended that the offence should be treated as serious and there was a need to impose deterrent penalties, even on non-professional landlords with only one or two properties. The landlord’s belated licence application afforded him only limited mitigation. In the light of his personal circumstances, however, the UT reduced his penalty to £4,000.

We advise both Landlords and tenants on the full range of matters including tenancy agreements, evictions, breach of tenancy and landlord & tenant disputes. Please do get in contact.

Inheritance – Lifetime Promises Can Be Legally As Well As Morally Binding

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When it comes to inheritance, the obligation to keep your promises may well be legal as well as moral. In a case on point, a judge followed the demands of conscience in ruling that a hard-working man should inherit the farmland of a close friend who for many years treated him as a son.

When the friend died without making a will, the land passed automatically to his next of kin, his only daughter. The man launched proceedings on the basis that that outcome was unconscionable in that the friend had repeatedly assured him that, when he died, the land would be bequeathed to him.

Upholding his claim, the High Court found that the friend had on more than one occasion clearly represented to him that the land would one day be his. In reliance on those assurances, he had worked hard on the land for about 20 hours a week for more than 20 years. The relationship between them was clearly a special one, akin to father and son, and he had trusted the friend to keep his word.

Whilst she would retain the farmhouse, the daughter was ordered to transfer to the man the farmland and outbuildings, which were worth about £330,000. The Court also upheld a claim by the man’s brother in respect of a small plot of land on which he had placed a log cabin as his family home. He too had acted to his detriment in reliance on the friend’s assurances that the plot would be transferred to him.

Cross-Border Child Abduction and Habitual Residence – Guideline Ruling

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A parent who wishes to move from one country to another with his or her child must first obtain the consent of the parent left behind. That principle of international law is easily stated but, as a guideline Court of Appeal ruling showed, applying it in a way that protects the child’s welfare is often a much more complicated matter.

The case concerned two children, aged six and eight, who were born in Germany, where they spent the first years of their lives. Both their parents were also born in Germany. After the parents’ marriage came to an end, the father agreed that the mother could move to England with the children for 12 months or so.

After disagreements arose concerning the level of contact between the children and their father, the parents engaged in mediation. An approximate date for the children’s return to Germany was agreed and a letter of intent signed by the parents stated in terms that the children’s home would remain in Germany.

The mother, however, later announced that she would not be returning to Germany with the children. She had by then formed a relationship with a man in this country, whom she had since married, and was heavily pregnant with his child. The children had settled quickly in England and were doing well at English schools.

The father’s response to the mother’s decision was to launch proceedings under the 1980 Hague Convention, which enshrines the international ban on cross-border child abduction. In ordering the mother to return the children to Germany, a judge found that they remained habitually resident in the country of their birth and it would not be intolerable for them to go back there.

In upholding the mother’s appeal against that outcome, the Court noted that she had always been the children’s primary carer and that they had predominantly lived in England for a year prior to her decision. Whilst not diminishing the importance of their links to Germany, the Court found that the extent of their integration and the stability of their lives with their mother in England meant that they had become habitually resident in this country. The father’s application was dismissed.

We can assist if you need legal representation in relation to worries about or actual child abduction or children law generally, Please do get in contact,

Upset By Your Neighbours’ Building Plans? You Are Far From Powerless

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If your neighbours have obtained planning permission for building works to which you object, you may think that is the end of the matter. However, as one case strikingly showed, with the right legal advice you can still win the day.

A company obtained planning permission to build a large, six-bedroom family home on a vacant plot of land. The project, however, would breach a restrictive covenant in the plot’s title deeds which forbade construction of any substantial buildings in front of a line 50 feet away from its rear boundary. With a view to overcoming that difficulty, the company applied to the First-tier Tribunal (FTT) under Section 84 of the Law of Property Act 1925 to either discharge or modify the covenant.

A couple whose home was on adjoining land objected to the application on the basis that the height and bulk of the new house would overshadow their own. The development would harm their views, together with their sense of privacy and seclusion, and would substantially reduce the value of their property. The company retorted that the new house would have little or no effect on the couple’s amenities and enjoyment of their home.

Ruling on the case, the FTT found that, although the new house could be regarded as overbearing, its construction would represent a reasonable, even desirable, use of an empty plot. In refusing the company’s application, however, it ruled that the covenant continued to yield practical benefits of substantial value or advantage to the couple and that it should therefore remain in place, unmodified.

Construction of such a large house, much of which would encroach over the line set by the covenant, would thoroughly spoil the rural outlook from the couple’s garden and change the whole character of their property. If it were built, the couple’s privacy, particularly during the winter months, would depend on the survival and proper maintenance of a hedge over which they had no control. The FTT noted the uncertain future of any such organic barrier.

Lasting Powers of Attorney – How do You Know When to Act?

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A recent article published in the Sunday Times told the sadly all too familiar story of an elderly person being scammed out of significant amounts of money. And even more sadly, she could have been protected.

The fraud was discovered when the octogenarian suffered a collapse at home and her daughter decided it was time to act as her mother’s attorney under the financial lasting power of attorney (LPA), which had been set up some years beforehand.

Unfortunately, by the time the daughter gained access to her mother’s accounts she found some serious anomalies and tens of thousands of pounds were ‘missing’; various direct debits had been set up to companies that the daughter did not recognise and a five-figure credit card debt was also unfathomable to both mother and daughter. The mother could not remember what, when or why the monies had gone out of her accounts and what any of the payments were for.

The story was one of a fiercely independent woman who assured her daughter that she was able to cope and a daughter who desperately wanted to believe her. But, in all likelihood, scammers all-too-readily recognised the mother’s mental frailty and took full advantage of it.

It’s a very sad story, and one which many people with aging parents probably fear happening to them.

Lasting powers of attorney – not an infallible safety net

A lasting power of attorney for property and financial affairs allows a trusted person (the attorney) to make decisions about finances for someone who can no longer handle such things as paying bills, selling a property or managing bank accounts.

Attorneys have a legal duty to act in the best interests of the donor (the person who creates the LPA) and, whenever possible, must involve the donor in any decision making process about money. However, the difficulty for attorneys is knowing when to intervene. If the donor is adamant that they are able to manage their finances and don’t need assistance, many attorneys (frequently the sons and daughters of donors) will take the decision not to ‘meddle’ in the donor’s affairs.

But, as the story mentioned above informs us, vulnerable people can easily be targeted by scammers and the thieves will use all manner of falsehood to con people out of their money.

Action Fraud, the City of London Police crime reporting service, says that since the coronavirus pandemic began more than £14 million has been stolen in related scams. Reports of fraudsters pretending to be from HMRC, the police and various other authority figures have been made.

Not meddling – but money minding

The question of intervention in a parent’s financial affairs can be a really tricky one, but if you propose actions as protection rather than intrusion your assistance may be more welcome. By helping a donor understand how fraudsters operate, you may be able to convince them that your support would be useful and there are a number of practical measures you can take to tackle the sort of unwanted approach that vulnerable people might be caught out by.

However, an elderly person may be reluctant to ask you, as their attorney, to take over, because they may feel that once you act on their behalf there will be an automatic assumption that they have lost mental capacity. This could be devastating, as it could perhaps be one of the last bits of independence they have.

If you have been named in a valid LPA, you can of course take over a donor’s financial affairs when the donor has lost mental capacity, but it is also possible to act in a supportive role under a financial LPA, while the donor still has mental capacity. This could mean that the donor understands the decisions you are making on their behalf, but they perhaps just require your assistance with certain aspects of their finances.

It is possible for a donor and their attorney to act in this way, provided the donor made the appropriate election when they prepared their financial LPA. If you are acting as an attorney in that instance, you are acting with the donor’s consent, and at any point, the donor can revoke that consent if they wish to do so. This can be of some comfort to a donor as they won’t be relinquishing all control. If the donor makes such an election in their LPA when it is prepared, it can make the LPA much more useful for both the donor and you, as their attorney. It also means your intervention might be perceived as useful assistance, rather than taking away the donor’s independence.

Donors and attorneys working together

If the LPA is registered with the donor’s bank, the donor could, for example, request that copy bank statements are sent to you, as their attorney, so that you can review them together or so that you are able to keep a careful eye on payments leaving the account. This means that any fraudulent transactions on an account might be spotted quickly and limit the potential harm caused. It could also be possible for you, as an attorney, to have internet banking capabilities if the donor prefers, and you could assist with making payments or checking balances in this way. This is a service which has almost certainly been of great use to some vulnerable people who have been required to “Shield” due to COVID-19.

Considering the donor’s feelings

As an attorney, any action you take must always be with the best interests of the donor in mind and you should always consider the donor’s past and present feelings. And this is when the decision to act often becomes tricky for the children of donors, because the donor might be reluctant to accept your help. However, if you believe that the donor no longer has the mental capacity to look after their finances themselves, as an attorney you can intervene at this stage.

Ultimately, if it is necessary to intervene or perhaps if the donor has requested that you assist them (with their consent) you will need to register the LPA with a financial institution before they will discuss any account matters with you. A bank will require a certified copy of the LPA in order to grant you access to the donor’s accounts and it can take some time for documents to go back and forth if you are using the postal service.

Recent digital technologies have been put in place to make it simpler for attorneys and donors to share LPA details with organisations and the “use a lasting power of attorney” service, launched by the Office of the Public Guardian on 17 July 2020, means that when a donor registers a new LPA they can utilise an online tool which provides a personalised access code. This code can then be given to an organisation, such as a bank, and the organisation will then be able to view a summary of the LPA online so they can verify that the attorney has power to act for the donor. This means that the attorney can make checks much more quickly if they believe there could be a problem.

What about deputyship?

And lastly, if it’s too late to set up an LPA because your loved-one has already lost mental capacity, you can apply to the Court of Protection to become the person’s deputy. A deputy’s powers in relation to the affairs of the person who has lost mental capacity are similar to that of an attorney, but there are rigorous controls and reporting procedures incumbent upon a deputy and the application process is complex and more costly.

In our opinion, it is always preferable to put set up an LPA before mental capacity is lost, particularly as it allows the donor to choose who they would like to appoint as their attorney, rather than a court deciding who they believe is best placed to act on their behalf.

Speak to a solicitor today

If you wish to put a lasting power of attorney in place or you need to make a deputyship application to the Court of Protection, our experienced solicitors can assist you and make sure the whole process is conducted accurately and as quickly as possible.

For further information or to make an appointment with a member of our legal team, please email enquiries@wellerslawgroup.com or telephone 020 8464 4242.

Don’t Leave It Too Late to Put Your Affairs in Order

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People often talk about putting their affairs in order but then sit on their hands until it is too late. The serious consequences of delay in seeking legal advice were underlined by a case in which a woman waited until she was resident in a hospice, terminally ill with cancer, before instructing a solicitor to prepare her will.

The woman signed her will 10 days before her death. Her main asset was a house she jointly owned with her mother, who survived her by about four years. An issue of great significance, however, later arose as to whether they owned the property as joint tenants or as tenants in common.

If they held the property as joint tenants, the principle of survivorship applied and, on the woman’s death, her half share passed automatically to her mother. In that event, the property formed part of the mother’s estate when she died and the entirety of the proceeds of its sale – more than £400,000 – fell to be distributed in accordance with her will. If, on the other hand, they held the property as tenants in common, the woman’s share of the property fell into her own estate.

On the same day that the woman made her will, she signed a notice which purported to sever her and her mother’s joint tenancy, thereby converting it into a tenancy in common. A letter containing the notice was sent to her mother by registered post. A few days after the woman died, however, the letter was returned undelivered.

Against the background of those unfortunate events, the executor of the mother’s estate launched proceedings. Half the proceeds of the property’s sale were held in a solicitors’ account pending a judicial resolution of the matter.

The High Court noted that the non-delivery of the letter meant that the mother had not been served with the notice. That deficit had not been cured by a letter sent to the mother by the Land Registry four days before her daughter died. The joint tenancy had therefore not been validly severed and the Court ruled that the entirety of the proceeds of sale formed part of the mother’s estate.

Contact us to find out how we can help you with wills or estate planning.

Estate Planning and Presumption of Advancement (or making sure your intentions are upheld)

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Advancement, as a legal principle, is a gift given during an owner’s lifetime, typically referring to real estate or large assets gifted by the transferor (title holder) to a transferee – “one day, this will all be yours” is the phrase that springs to mind.

Presumption of advancement occurs within specific relationships and the principle originally arose because wives could not hold legal title and fathers were morally predisposed to “advance” the prospects of their children. In English and Welsh law presumption of advancement occurs only between fathers and children, husbands and wives, a man and his fiancée

All other circumstances involving transfer of property are treated as resulting trusts (in the case of property) and resulting loans (for money).

Presumption of advancement was set to be abolished under section 199 of the Equality Act 2010, but has yet to be ratified and further attempts to end the legal principle, such as in 2016 when the private member’s bill entitled Family Law (Property and Maintenance) was entered into parliament, have failed.

But the issue of presumption of advancement and resulting trusts are knotty legal issues which can lead to acrimonious legal disagreements between families, so it’s always best to understand the ramifications and do as much as you can to prevent misunderstandings regarding money and property.

Presumption of advancement and resulting trust in English courts

In English law, it is presumed that when property is passed between individuals it is a gift – there is a presumption of advancement. In the event of a failure of the transfer (in cases of relationship breakdown and intestacy, for example) and where there is no evidence to support that the transfer was intended as a gift, the principle of a presumed resulting trust will be applied. Any litigation which takes place to restore the property to the transferee will need to clearly demonstrate evidence of advancement (it was given as a gift) or a court might rebut the principle if evidence is provided to show that no such gift was intended.

In some jurisdictions, for instance Canada, courts have been reluctant to uphold the presumption of advancement, particularly in cases relating to adult children. In Pecore v Pecore  2007 SCC 17 the court held that the presumption should not apply because the obligations of parental support typically end when the child is no longer a minor. The case created a principle in Canada in respect of gratuitous transfers to children being a presumption of advancement only if the transfer was made by a parent to a minor child.

Conversely, English courts are perhaps more likely to uphold the principle. In Wood v Watkin [2019] EWHC 1311 (Ch) it was found that although the transferee was an adult child, a presumption of advancement could arise. And in Kelly v Kelly [2020] 3 WLUK 94, a lack of documentary evidence to support the father’s claim that the purchase of a property for his son was a loan led to the court being unable to rebut the presumption of advancement. The father’s evidence was found to be inconsistent, with no mention of the purchase being a loan in any documentation that could be provided to the court. Witnesses gave evidence in support of the father’s claim that the purchase had been a loan, but the court found that this was after the fact

Documenting gifts and transfers

What the above cases highlight is that despite some solicitors suggesting that presumption of advancement can easily be disproved in English courts, a court is unlikely to rebut the principle without clear documentary evidence.

Ensuring that the intention behind any transfer of property or money is recorded accurately and adequately may not sound like a difficult thing to do, but it can be an emotionally fraught act. You may feel that your situation is clear, but in many a lawyer’s experience, these things are not always as straightforward as you would believe.

Loans and property transfers between family members can quickly result in differing opinions about the initial intentions and it is a surprisingly familiar story that a parent considered a money transfer a loan, while the child believed wholeheartedly that it was a gift. If evidence cannot be supplied to support the express intention of a transfer, litigation can be drawn out, complex and ultimately extremely costly both emotionally and financially.

Our tip: always document any transfer of money or property, especially if you cannot afford to lose the funds. If you are letting your child live in a property that you own, but that you fully intend to sell in order to fund your retirement, then this needs to be documented. If you are lending your child a sum of money so they can buy a house, but you cannot afford to gift them the money, you should draw up an agreement which sets out the terms of repayment.

How Wellers Can Help

Our website section on the Bank of Mum and Dad contains lots of information on how to go about drawing up a legally binding agreement, such as a declaration of trust and a family loan agreement. We also look at the choices you have in respect of gifts and loans and other ways you can help your children to get on the property ladder.

In circumstances where you wish to ensure that money or property is divided fairly after your death and you have allowed one child to borrow money or live in your home during your lifetime, your Will is the main document that will ensure this happens after your death. Drawing up a Will that is appropriate for your needs and wishes is a crucial estate planning tool in such circumstances. Wellers Will writing service provides a range of Wills suitable for complex family situations and we are able to tailor each type to your specific needs.

If you find yourself in a position where you believe assets or property, promised to you have been left to a third party, our litigation team will be able to help you understand your options. Please call on 0208 464 4242 for our Bromley office, 020 7481 2422 for London and 01372 750100 for our Surrey offices.

Court Urges Peace on Unmarried Couple at War Over Family Business

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Unmarried couples should be under no illusions that they do not have legal rights equivalent to those who have tied the knot. The point could hardly have been more powerfully made than by a case concerning an unmarried former couple whose close-knit life together yielded three children and a family business.

During their relationship, the couple were the sole directors and equal shareholders of a company that ran a vehicle repair and MOT garage. Had they been married, the value of the business would have formed part of the financial pot to be divided between them on divorce. As their relationship was never solemnised, however, the option of divorce proceedings was not open to them.

After the relationship ended, the man took steps to transfer the company’s business to a new corporate vehicle which he wholly owned. He did so without the woman’s agreement. She responded by launching unfair prejudice proceedings under Section 994 of the Companies Act 2006 on the basis that he had, by his unilateral move, unfairly prejudiced her position as a shareholder.

Ruling on the matter, the High Court noted that the man did not dispute that claim and had been ordered to purchase the woman’s 50 per cent shareholding in the company. The value of that shareholding was, however, not agreed and there was a risk that the costs of the proceedings would be disproportionate to the modest value of the business.

After hearing expert valuation evidence, the Court took a broad-brush approach to the issue and found that £45,500 represented a fair price that the man should be required to pay for the woman’s shares. Noting the commercial realities of the dispute, however, the Court urged the couple to settle their differences.

The woman could only receive what the man was able to pay and forcing him into bankruptcy would be futile. A fair division of their joint assets in a manner that secured both of their futures, and most importantly that of their children, would ultimately be in the best interests of all concerned.

If You Believe You’ve Been Sold a Pup, Consult a Solicitor Today

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If you have paid good money for goods or services and feel that you have not got what you bargained for, you should see a solicitor without delay. A case on point concerned a man who paid about £4,000 for what he believed would be a surgical hair transplant but got what he viewed as a toupee.

The man underwent what was described as a step-by-step hair replacement which involved samples being taken from his scalp and matched to a fine mesh of human and synthetic hair that was later attached back onto his head using a bonding solution. He said that the result looked like a hairpiece and that he suffered an asthmatic reaction to the bonding agent.

Taking legal action against the company that provided the treatment, the man alleged that he was specifically reassured at a preliminary consultation that what he received would not be a wig. He claimed he had been misled into believing that he was to undergo a hair transplant. He was distraught to the point of tearfulness when that turned out not to be the case.

The company argued that he was advised at length about the nature of the treatment that he was to undergo and should have been under no illusions. The non-surgical hair grafting procedure was accurately described as hair replacement and there was never any suggestion that he would receive transplant surgery involving hair follicles.

Upholding the man’s claim, however, a judge found that he had given a truthful and compelling account of what he was told during the consultation. He contracted with the company on the basis that what he received would not be a wig. He was entitled to effectively rescind the contract and to claim his money back. Together with damages and interest, his total award came to £5,887.