Category: News Stories

It is quite common for divorcees to claim that they have been placed under undue pressure to strike an unfavourable financial deal. In a big money case, however, a judge ruled that a wife was no lamb to the slaughter but voluntarily signed up to a compromise with her ex-husband which was toasted with champagne.

The German couple, aged in their 70s, enjoyed an immensely high standard of living during their marriage of over 30 years. Following their divorce in Germany, there was a meeting at a hotel during which both signed a settlement agreement by which the husband was to make substantial financial and other provision for the wife.

She, however, went on to swiftly repudiate the agreement and launched proceedings in England – where she resided – seeking financial relief against the husband under the Matrimonial and Family Proceedings Act 1984. She asserted that he and the couple’s son had placed her under massive pressure to enter into the agreement, which she had not signed of her own free will.

Rejecting those allegations, however, the judge found that she was the driving force behind the meeting taking place and that she could not be viewed as a supplicant cowed into submission by a bullying ex-husband and son. Far from being upset, disappointed or distressed at the meeting, her mood was one of relief. She willingly engaged in the champagne toast and considered at the time that she had achieved a good result. She signed the agreement voluntarily, with her eyes open.

Her subsequent repudiation of the deal was an act of foolishness that only served to weaken her position. The terms of the agreement were, in any event, not unfair and the provision it made for her future fell very much within the bracket of awards that she might have obtained from an English court.

Despite her repudiation of the agreement, the judge was confident that the husband – who had professed his wish to do the right thing by her – would comply with its terms. In order to secure her position, however, the provisions of the agreement were encapsulated in an order of the court. The judge hoped that his ruling would mark an end to the years of strife that had riven the family.

There can be few things more wounding or worrying than to be on the receiving end of a poison-pen letter campaign. However, as a High Court ruling showed, the law provides an effective means by which victims of such behaviour can achieve both public vindication and appropriate compensation.

In the background to the case was a history of friction and grievance between a rural landowner and a couple who were his longstanding tenant farmers. He held the tenants responsible for originating and circulating some anonymous poison-pen letters which surfaced over a two-year period in the village where he lived, and which made grave and salacious allegations against him.

After he launched harassment and libel proceedings, the tenants vigorously denied that the letters originated with them. They contended that the anonymous material came to them from somewhere else and that they gave it little or no further currency. Whilst not conceding the claim, they chose not to formally acknowledge or defend it on the basis that they wished for the stressful litigation to be brought to an end.

Following a hearing, the Court found that, as no formally pleaded defence had been filed, the landowner was entitled to a default judgment on his claim. There was no basis for inferring that the defamatory allegations made against him in the letters were, or were claimed to be, true. In order to vindicate his reputation, the tenants were ordered to pay him £8,000 in libel damages and £12,000 in harassment damages.

An injunction was issued against them with a view to restraining further publication of the same or similar allegations. Their daughter, who was alleged to have been involved in the publication of one letter, was ordered to pay £2,000 in libel damages. She too denied the allegation but had not formally defended the claim.

Those who delay making a will until they are at death’s door create a very real risk of conflict amongst their loved ones after they are gone. That was sadly so in the case of an elderly man who was in hospital, suffering from advanced bladder cancer, when he finally got round to instructing a solicitor.

By his will, which he signed less than two weeks before he died, the man left all that he owned to his wife. The document’s validity was challenged in court by his eldest son, who asserted that he was so confused at the time that he lacked the mental capacity required to make a legally enforceable will.

Ruling on the matter, the High Court noted that medical records in the days before he executed the will referred to him as confused and agitated. No medical opinion had been sought in relation to his capacity and understanding before he signed the document. One of his daughters testified that he had lost his mental acumen and that, in her opinion, he was in no fit state to make a will.

On the other hand, other members of his family who visited him in hospital had no doubt about his capacity. Expert evidence indicated that a change in medication had brought about a marked improvement in his condition by the time he signed the will. His accountant, who served as one of the witnesses to the will, had no concern at all that he was not fully aware of what he was doing.

The decisive evidence, however, came from the solicitor who drafted the will. He had known the man for over 40 years and had discussed the contents and implications of the will privately with him before he signed it. The document was read to him twice before he stated that it was exactly what he wanted. The Court rejected any suggestion that the solicitor had conducted himself unprofessionally.

Whilst the man was clearly unwell, the Court was entirely persuaded by the solicitor’s evidence that he had the required mental capacity to make a valid will. Rejecting the daughter’s evidence to the contrary, it found that she was motivated solely by the prospect of personal financial gain and not by any desire to tell the truth.

In upholding the will’s validity and admitting it to proof in solemn form, the Court was satisfied that the man knew and approved the contents of the document. His son’s further allegation that he had been subjected to undue influence was hopelessly misconceived in that it was supported by not one shred of evidence.

No one knows when death will come calling and it is equally a truism that, if you fail to make a professionally drafted will, you store up trouble for your loved ones after you are gone. As an unusual Family Court ruling showed, that is particularly so if you own property abroad.

The case concerned a father who owned a property in France, where he died without having made a will. In accordance with French succession law, the property passed in equal shares to his son and daughter. Difficulties arose, however, because the son was still a child and was habitually resident in England.

It was necessary under French law for the son to accept his succession to a half share in the property. However, as a matter of English law, his status as a minor meant that he was incapable of doing so. In those circumstances, his mother was constrained to apply to the Court for an order entitling her to accept the property inheritance on his behalf.

Granting the order sought, the Court was satisfied that her parental responsibility for her son, as defined by the Children Act 1989, extended to enabling her to act on his behalf in relation to the property. The order also entitled her to step into her son’s shoes and enter into a contract for the property’s sale.

The Court noted that the son’s welfare was the paramount consideration. However, he had supported his mother’s application in unequivocal terms and, having reached the age of 17, his views commanded profound respect. A ready and willing buyer had been found for the property and its sale would yield a sum that could be used to fund the son’s university education or to explore other investment opportunities.

Couples generally either own their homes as joint tenants or as tenants in common. The distinction between the two may not be widely understood but, as a High Court ruling in an inheritance case showed, it can matter very much indeed.

The case concerned a married couple who made mirror wills which, in broad terms, were intended to ensure that when the first of them died, their jointly owned home could continue to be occupied by the survivor. Following the death of the second spouse, the intention was that the property would pass equally to their four sons.

Following the wife’s death, however, the husband made a fresh will by which he bequeathed 75 per cent of his estate to one of his sons and the remainder to the other three. In those circumstances, an issue arose as to whether the husband owned the whole of the house when he died at the age of 92 or only half of it.

The house having subsequently been sold for £500,000, the answer to that question was of great significance to the value of the respective inheritances of their surviving three sons and the heirs of the fourth, who died prior to his father. The issue hinged on whether the couple together owned the whole of the property as joint tenants, or in equal but separate parts as beneficial tenants in common.

If the former, ownership of the whole property passed to the husband by right of survivorship on the wife’s death and was his to bequeath in his will. If the latter, the wife’s half share formed part of her estate on her death and, subject to the husband’s life interest, passed equally to the four sons in accordance with her own will.

Ruling on the matter, the Court noted that, when the couple purchased the house in the 1980s, the conveyance made no mention of their respective beneficial interests. As a matter of law, it was nevertheless presumed that, at that stage, they owned legal title to the property for themselves as beneficial joint tenants.

However, the Court found on the evidence that, prior to the wife’s death, the couple had probably signed a document that severed the joint tenancy, converting it into a tenancy in common. The fact that no such document had been found after their deaths was not decisive. It would have been a single sheet of paper that could easily have been misfiled or even accidentally destroyed.

Even had there been no such document, the Court found on the evidence that they had in fact agreed to sever the joint tenancy. Alternatively, their course of conduct, in particular the making of the mirror wills, made it probable that they intended to hold the property as beneficial tenants in common. The couple’s estates would be distributed in accordance with the Court’s ruling.

When lending money to friends, acquaintances or anyone else, the terms on which sums are advanced may be entirely clear to you in your own mind. However, as a High Court ruling showed, the absence of a professionally drafted loan agreement is a positive invitation to subsequent dispute.

The case concerned a couple who agreed to advance £50,000 in order to assist friends whose business was encountering financial difficulties. When the friends failed to repay the money, the couple issued a statutory demand against them. The friends, however, argued that the loan had not been made to them personally but to a company which was by then in administration.

The loan agreement, which was not the work of a professional, was in the form of a private letter and stated that the money was repayable when the company had the ability to do so or at a requested date. A number of emails were sent and received which the friends cited in support of their case. Following a hearing, however, a judge found that the friends, not the company, were the borrowers and refused to set aside the statutory demand.

Challenging that outcome, the friends pointed out that the money was paid into the company’s account. They said that references to the company in the loan agreement indicated that the company was the borrower. In reliance on the email traffic, they contended that the loan agreement did not in any event reflect all sides’ true intention that the company should have the benefit of the loan.

In dismissing the appeal, however, the Court found that the loan agreement was as clear as it possibly could be that the money was being advanced to the friends personally. There was nothing in the email correspondence to undermine the conclusion that the loan agreement was a self-contained and complete contract and that the money was repayable by the friends on demand.

In November 2021, the BBC reported on the shocking case of a man who found his house in Luton had been fraudulently sold while he was working away. The man described the moment when he struggled to get back into his house and establish himself as the rightful owner, only to find that the Land Registry entry had been changed without his knowledge.

Property fraud often sees the scammers impersonating the registered owner and once they have convinced a conveyancer or lender that they are the owner and have the right to sell, they can list the property and net the proceeds.

The BBC reports that the Land Registry paid out £3.5m in property fraud compensation last year.

Lasting power of attorney fraudulent house sales

In December 2021, the Radio 4 consumer affairs programme, You and Yours investigated the sale of homes through fraudulently obtained lasting power of attorney (LPA), recounting the story of a 57-year-old woman who discovered her mortgage-free home, that she had owned for more than 20 years, had been put up for sale without her knowledge.

The woman, who had not been living in the property at the time as it was undergoing renovation, was alerted to the issue when she received an email from the property freeholder thanking her for a payment for a resale pack. She queried the details with the freeholder and was alarmed to find out that a fraudster, claiming to be her sister, had registered an LPA and was in the process of attempting to sell her house.

The astonishing and shocking story was mentioned in the House of Commons. Shadow Justice Secretary Steve Reed told parliament that the fraudster had gained the LPA by filling in an official form, using fake names and signatures of witnesses who did not exist. “Astoundingly,” he said, the Office of the Public Guardian (OPG) is not required to carry out basic identity checks and granted the LPA without ensuring this woman was who she said she was.

Are you at risk of property fraud?

Property fraud occurs when a scammer cons another party into believing they have an interest in a property in order to defraud significant sums of money. The criminals may claim to be the owner, a buyer, borrower, lender or conveyancer, or they may claim to be representing the owner through power of attorney.

Fraudulent property transactions have become a considerable threat for homeowners, especially if they are in one of the ‘at risk’ groups.

The types of property which are more likely to attract a fraudster are:

• Empty properties (both residential and commercial)
• Properties being redeveloped
• Probate properties
• High-value properties
• Properties not registered with HM Land Registry
• Property that is a contact address for an owner who lives elsewhere
• Property that is not mortgaged

You may be at greater risk of property fraud if:

• You have been the victim of identity theft
• You are elderly or vulnerable
• You live overseas or at another property
• You rent the property to tenants

How can I protect my property?

Properties bought or mortgaged since 1998 will be registered with HM Land Registry. If your property is not registered, this is the first thing you should correct. Unregistered properties do not qualify for compensation claims if property fraud occurs.

To check the information held about your property you should apply to HM Land Registry. You can do this online; however, there is a small fee for this service. You should inform HM Land Registry immediately if the information held is incorrect.

HM Land Registry alerts

You can sign up for alerts which will notify you when an application is made to change the registry details for your property. This service cannot block a change, but it will give you an early warning so that you can take action. This is a free service. You can register for alerts on up to ten properties. To contact the Property Alert team at the Land Registry you can call 0300 006 0478 or go to propertyalert.landregistry.gov.uk.

Submit a restriction for your title

This allows you to prevent activity in respect of your property, such as an application for a mortgage. Owner occupiers must pay a fee for this service.

Business owners can request a restriction for company-owned properties. Owners who do not live permanently at the address can also apply for a restriction. For these applicants, the service is free.

Preventing LPA-related property fraud

Sadly, the systems used by the Office of the Public Guardian for the creation and processing of LPAs are woefully out of date and, despite a 12-week consultation on the process which occurred in July 2021, they are still open to criminal abuse.

Dominic Raab, Secretary of State for Justice, has said that the Government is in the process of reforming the system; however, it appears that currently the requisite safeguards are not in place.

If you wish to create a Lasting Power of Attorney and appoint a person of your choice to handle your affairs when you are no longer able, contact Wellers today. We can ensure the LPA is created and witnessed correctly, and is legally binding. Once an LPA has been registered with the Office of the Public Guardian, in practice, it should make it more difficult for scammers to set up a fake LPA in your name.

Help, I think I’ve been the victim of property fraud

If you believe you have been the affected by property fraud, you should speak to a property fraud solicitor and they will be able to advise you on your best course of action.

You can contact the HM Land Registry property fraud team on 0300 006 7030 (restricted office opening hours may apply).

You can report the issue to Action Fraud on 0300 123 2040 at any time. This is the national reporting centre for fraud and cybercrime in England, Wales and Northern Ireland. When you make a report you will be given a police reference number and the details will be passed to the National Fraud Intelligence Bureau.

Legal advice on fraudulent property transactions

High-value property fraud has become increasingly attractive to scammers. Talk to Wellers Law Group today if you have been the victim of a fraudulent property transaction. We can explain your rights and help you seek justice through all available means.

Residential property often represents the majority of a person’s wealth and valuing it for Inheritance Tax (IHT) purposes is, par excellence, a matter for professionals. In a case on point, a son who dispensed with expert tax and valuation advice following his mother’s death found himself in very deep water.

When the mother died, she owned three terraced houses in the same street. When it came to calculating IHT payable on her estate, HM Revenue and Customs (HMRC) valued them at £2.42 million in total. Her son, acting as her personal representative, challenged that assessment before the Upper Tribunal (UT), arguing that they had an aggregate value of just £840,000.

The son represented himself before the UT, without the assistance of lawyers or a property valuation expert. He presented statistical evidence and argued, amongst other things, that the value of the properties was restricted by the returns that could be achieved by letting them. Ranged against him was HMRC’s legal team and a chartered surveyor with 33 years of experience in valuing properties.

Ruling on the matter, the UT noted that its task was to assess the properties’ open market value as at the date of the mother’s death. In doing so, it considered prices that had been fetched by comparable properties in the same area. It found that the properties were worth a total of £2.68 million on the relevant date – substantially more than HMRC’s original assessment.