Ilott v The Blue Cross and others – Back to the drawing board for disinherited beneficiaries?

Melita Jackson died in 2004 at the age of 70 leaving nearly £500,000 to the Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals, cutting her estranged daughter, Heather Ilott, out of her will.  Mrs Jackson and Mrs Ilott had been estranged for over a quarter of a century after Mrs Ilott moved out to live with her boyfriend in 1978 at the age of 17.

Mrs Jackson included a letter of wishes alongside her Will to explain her decision, stating that she “felt no moral or financial obligations towards her daughter” and she even instructed her executors to resist any potential claim.  It is important to note that a letter of wishes is not a legally binding document and it only serves to give guidance to those administering your estate.  Despite this letter of wishes, Mrs Ilott, now a mother of 5, living on state benefits, brought a claim against Mrs Jackson’s estate.

When the case first went to court back in 2007, Mrs Ilott was awarded £50,000 under Section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) on the grounds that it was unreasonable for the will to make no provision for her.  Usually, in 1975 Act claims, someone must prove that they were financially dependent on the deceased but here, the court decided that Mrs Ilott’s low income overrode this dependency requirement.

The case proved to be extremely litigious and there were five rounds of litigation in the lower courts, one of which saw Mrs Ilott awarded a further £163,000, before the case eventually went to the Supreme Court.  This is the first case under the 1975 Act to reach the UK’s highest court.

The Supreme Court made their final decision on 15th March 2017.  Their decision was unanimous and restored the original order handed down by DJ Million which granted Mrs Ilott £50,000.  Their reasoning behind their judgement was that DJ Million had not made either of the two errors which the Court of Appeal later relied on to revisit his order.

This will prove to be a landmark case with regards to the circumstances in which adult descendants ought or ought not to be able to make a claim on estates when the descendants have been purposely excluded from the will.  Although the judgement does not prevent adult children from making claims under the Act, it makes clear that the wishes of the testator will be respected.

Although Mrs Jackson’s Will and letter of wishes did not prevent the matter from going to court, it is always advisable to seek legal advice if you wish to leave someone out of your will who could potentially make a claim against your estate.

Eleanor Eastwood

Eleanor Eastwood
Paralegal
Wills & Probate team
EEastwood@LawBlacks.com
0113 227 9392

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Shades of grey

Computer games have historically been considered the preserve of children and students with too much time on their hands.  However, as those children and students have grown up and become adults, a lot of them have retained their love of computer games and it has become a more mainstream and acceptable hobby.

As often happens with the inevitable advancement of years, nostalgia begins to rear its head and thoughts turn to replaying those childhood games in an attempt to recapture those carefree days.  Unfortunately it can be difficult to source original versions of the games and consoles – many of which are rare, or command high prices on places such as eBay – and as a result there has been an increase in computer programs called emulators which allow for copies or “ROMS” of the games to be played on a number of different devices, as well as devices that actually play original versions of the games.

So is the downloading and use of ROMS legal under English law?

The first question to ask is whether what you are using is protected by copyright.  In general terms, a computer game will be protected by copyright, whether that is the coding of the software, the artwork and images, the music and sounds, or the text.  It is also likely, given the relatively young age of the computer game industry, that the copyright in the various parts of the computer game will not have expired.

The next question is to ask whether or not what you are doing is an “infringing act”.  The Copyright, Designs and Patents Act 1988 (or CDPA) sets this out clearly at sections 16–21 in terms of primary infringement, and sections 22-26 for secondary infringement.  In plain English, with some exceptions, you are committing an infringing act if you are acting as if you were the copyright holder or outside the scope of any licence that the copyright holder granted to the purchaser of the game.  This second bit is key because most people don’t realise that when they “buy” a game they are only buying the licence to use the game for use at home – they are not buying the right to do whatever they want with the game.

So what does this mean?  In simple terms, it means that generally speaking using an emulator to play ROMS is likely to be illegal and classed as an infringing act on several counts – firstly, in the downloading of the ROM, and, secondly, using the ROM.

Finally, a word of caution.  An argument that is often cited as justification regarding the use of ROMS is that the copyright holders are unlikely to take any kind of action against infringers.  However, it would be both foolish and risky to rely on this.  In recent years, many software companies – not least Nintendo, one of the largest in the industry – have taken to bringing back their old games in alternative formats, whether that is by official downloads on software platforms such as Steam and Xbox Marketplace, or to actually re-releasing versions of the original games console such as the mini-NES and mini-SNES.  These re-released consoles have proved to be a lucrative source of income and therefore the likelihood of the copyright holders taking enforcement action is likely to increase going forward.

Pete Konieczko-Hansom
Solicitor
Corporate and Commercial Team
PKonieczko-Hansom@lawblacks.com
0113 227 9384

Posted in Company & Commercial Law | Leave a comment

Equal pension rights for same sex married couples

Judgement has been handed down today in the Supreme Court which rules that a married gay man has been discriminated against by a pension scheme, and that his husband is entitled on his death to a spouse’s pension.

The appellant in the case Mr Walker had been in a civil partnership since January 2006 which was then converted into a marriage.

Mr Walker’s occupational pension scheme which was arranged through his employers Innospec Ltd refused to confirm that they would pay spouse’s pension to Mr Walker’s husband following his death because his service predated December 2005, the date from which civil partnerships were granted by legislation.

Innospec Ltd argued that the alleged discriminatory legislation was permitted under paragraph 18 of Schedule 9 to the Equality Act 2010.

Mr Walker’s initial claim was granted by the Employment Tribunal but was then overturned on Innospec’s appeal to the Employment Appeals Tribunal. Mr Walker’s consequent appeal to the Court of Appeal was dismissed and so he appealed further to the Supreme Court.

The Supreme Court today unanimously allowed Mr Walker’s appeal and made a declaration that: “i) paragraph 18 of Schedule 9 to the Equality Act 2010 is incompatible with EU law and must be disapplied and ii) Mr Walker’s husband is entitled on his death to a spouse’s pension, provided they remain married.”

Lord Kerr giving the leading judgement in the Supreme Court said: “unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to Mr Walker’s entitlement to a survivor’s pension for his husband, at the time that this pension would fall due, there is no reason that he should be subjected to unequal treatment as to the payment of that pension”.

Hence, the Supreme Court has ruled categorically that paragraph 18 of Schedule 9 of the Equality Act 2010 is incompatible with EU law and must be disapplied. A further step in the right direction for recognition of equal rights for all.

Andrew Smith

Andrew Smith
Associate Solicitor
Family Law Team
AJSmith@LawBlacks.com
0113 3222807

 

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Thirty two reasons to give replies to CPSEs your full attention

A recent case has highlighted the importance of providing accurate replies to Commercial Property Standard Enquiries (CPSEs) and keeping them up to date.

CPSEs come in many different guises depending on the particulars of a transaction, but the main and most frequently used beast is CPSE 1; a lengthy set of 32 enquiries which requires a property owner (maybe seller or landlord) to give copious amounts of information about the title and management of a property. The document is over thirty pages long and the thought of completing the same is daunting whether you’re a dab hand at property transactions or new to the market.

It is usual for a solicitor to have the first stab at completing the replies on behalf of its client using information provided by the client and its agent. However, the client must then review the replies, check that they are correct, add any additional replies and supply any supplemental documentation e.g. an insurance schedule, energy performance certificate and option to tax (if applicable).

And the client must get – and keep getting – this bit right. The whole point of the replies is to give the buyer or tenant a comprehensive set of accurate information and documentation about the property in which it is about to take an interest, and on which it can rely. Failure by the seller or the landlord to supply the information and documentation of which it is aware and to update the replies if necessary could lead to a claim for misrepresentation by the buyer or tenant.

In First Tower Trustees Ltd & Anor v CDS (Superstores International) Ltd [2017] the landlord completed its replies to CPSEs at the beginning of the transaction and in relation to environmental matters stated that it had no knowledge of anything untoward at the property. The parties went on to complete the lease and it then came to light that between completing the replies to CPSEs and completion of the lease the landlord had become aware of the presence of asbestos at the property but had failed to inform the tenant. The tenant brought a claim for misrepresentation and the landlord sought to rely on a clause in the lease that prevented the tenant from relying on any representation made by or on behalf of the landlord prior to completion of the lease. The court found that this ‘non-reliance clause’ was intended to capture information provided outside of and not relating to the CPSEs. It reiterated that the CPSEs are a standalone document and, under the terms of those enquiries, a party completing the replies is required to notify the other party of anything of which it becomes aware that renders the original replies incorrect and inaccurate. The landlord in this case had failed to do this and was therefore liable to the tenant for the cost of removing the asbestos from the property: circa £350,000 plus VAT.

So, what lessons can be learned from this case?

  1. If you are required to complete replies to CPSEs you must do accurately and with as much information as possible.
  2. If you are in any doubt as to the content of your replies then speak with your solicitor about the responsibility that can be placed on the buyer or tenant to seek the requested information on its own accord.
  3. The replies to CPSEs are a live document until the transaction is completed. If anything comes to light during the course of the transaction that should be disclosed to the buyer or tenant by reason of the CPSEs then do so. The consequences of the alternative could be costly.

    Beth Laidler

Beth Laidler
Associate Solicitor
Commercial Property Department
BLaidler@LawBlacks.com
0113 227 9209

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Tax Planning Queries – Who to Listen to?

It is common for us to sit and chat over a cup of tea about what one person has heard or been told, but is it always right to take tax advice from a friend over a cup of tea? Recently, I was sat on a train and I overheard a conversation where one lady was giving advice to another about how to avoid paying inheritance tax on her estate. She was completely wrong, and the advice she was giving would have left the lady paying larger amounts of inheritance tax and missing out on the available inheritance tax reliefs.

Further to this, have you ever had someone tell you to transfer your home into your children’s names to avoid care fees? In actual fact, if you transfer your home to a child, the local authority have the power to review this transaction and see whether you were trying to avoid care fees. If they consider you were trying to avoid care fees, they can overturn the transfer and use your property to pay for the fees.

Also, have you considered what would happen if your child became bankrupt? Your property would then form part of their assets and could be seized by creditors. Or what would happen if your child died, your house would then form part of their estate and would pass following their wishes in their Will. You could end up in a situation where your grandchild owns your house, they want to sell it and there would be nothing you could do. Further to this, if a child gets divorced then the property will then form part of the financial settlement and may need to be sold to meet the terms of such settlement.

There are a lot of organisations who are visiting clients at their homes, promising them they can protect their estate from inheritance tax and avoid paying for care fees. These organisations may suggest that you put your house and bank accounts into a trust for them to hold until you die, promising that this will reduce the amount of care fees and inheritance tax to be paid. Quite often, these promises are completely false.

We recommend that you, or any of your family seek independent legal advice to ensure that you are given correct and sensible advice with regards to care fees and inheritance tax planning.

Annie Beaumont

Annie Beaumont

 

Annie Beaumont
Paralegal
Private Client Team
ABeaumont@LawBlacks.com
0113 227 9269

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Knot On My Land

In what has been hailed as a landmark judgment, a home owner whose property was affected by Japanese knotweed from neighbouring land has been awarded damages against his neighbour.

Japanese knotweed has been described as the UK’s most aggressive, destructive and invasive plant. It has the ability to grow three to four metres during the growing season and its roots can spread seven metres.  It has been known to cause significant damage to buildings and walls.  The presence of Japanese knotweed on a piece of land or neighbouring land can devalue a property significantly and make it very difficult to secure a mortgage.

In the recent case of Robin Waistell v Network Rail Infrastructure Limited, Mr Waistell’s property suffered from the invasive growth of Japanese knotweed from the adjoining land owned by Network Rail.  This affected his enjoyment of his property as well as his ability to sell it so he took Network Rail to court.

Mr Waistell pursued his claim on the grounds of nuisance, namely:

  • Encroachment by the knotweed; and
  • Substantial interference with his use and enjoyment of his land.

Network Rail contested the claim saying that:

  • No significant physical damage had been caused to Mr Waistell’s property so the encroachment of the knotweed was not actionable.
  • The presence of the knotweed on Mr Waistell’s land did not interfere with the use and enjoyment of it.
  • Due to the amount of land which it owned, it should only have to take such steps as were reasonable in all the circumstances to avoid damage being caused to any neighbouring land; it only had limited resources and those resources were prioritised to operational safety.

The Judge held that the encroachment by the knotweed was not actionable unless it caused physical damage.  However, he found that there was an actionable nuisance as the knotweed interfered with the amenity value of Mr Waistell’s property because he could not sell it for its full market value.  He ordered Network Rail to pay for the cost of treating the knotweed and he also awarded Mr Waistell an amount to reflect the reduction in value of his property.

Although this was a County Court decision (which is highly likely to be appealed by Network Rail) it is seen as being significant.  It is the first time it has been held that the presence of knotweed on an adjoining property, even where there has been no encroachment onto the claimant’s soil, is capable of being a nuisance if it prevents the adjoining owner from obtaining full market value for his property.  It places an obligation on landowners not only to prevent any encroachment of Japanese knotweed onto their neighbour’s land but also to ensure that there is no reduction of the value of adjoining properties as a result of knotweed on their own land.

Picture of Luke Patel

Luke Patel

Luke Patel
Partner
Commercial Dispute Resolution Team
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks

Posted in Commercial Dispute Resolution | Leave a comment

Recognising good service – How to motivate and reward staff

Being well organised, legally compliant and incentivising staff at your holiday park will lead to a productive and loyal work force.

Organised chaos

It is essential that all parks have a staff induction and training process. This ensures that an employee begins their employment correctly, knowing what the business is about and their role within it. Where staff are a vital part of the customer experience, it is also essential to ensure the workforce are aware of their duties and capable of conducting them.

Not only that, but if an employer has a clear record of having spent time training its employees, in the event that their performance dwindles or a claim is issued, employers will have the ability to demonstrate having acted reasonably in providing all of the information required for them to carry out their role to an acceptable standard.

In addition, all staff need to be provided with an employment contract, including a staff handbook with appropriate policies within it and this should be provided at the outset of their employment.

Likewise, it is excellent strategy to keep personnel files for each of your employees, recording absence levels, holidays, training records and disciplinary/performance issues. Absence can occur for a multitude of reasons but failure to keep a record can lead to serious illness or disability being missed by an employer.

Happy families

It’s no secret that the majority of holiday parks are family run. Even the best of families have disputes. They can fall out, argue and even part ways. No employee will be motivated to work hard after spending the day hearing management arguing. Mutual respect throughout the workplace is key to running a happy ship.

Using appropriate communication should also be adhered to. Emails can often read bluntly, letters ought to be kept to formal correspondence and texts/Whatsapp messages ought not to be used as a means to communicate disciplinary action or dismissal.

Appraisals can play an integral role in staff development. Employers ought to meet with their employees every 6-12 months to agree targets, talk about successes and failures and where the business is heading. Employers who operate a transparent forum for employees to give feedback and share ideas are often those who find and retain loyal, well-motivated employees rather than those who practice an “us and them” type mentality.

Minimum wage, minimum effort

This brings us to the subject of wages. Firstly, pitch fees don’t count towards minimum wage. Informal arrangements with park wardens who work occasionally in return for a pitch fee can sometimes turn sour and at the end of the day, failure to pay minimum wage can be a criminal offence.

It is fair to say that unskilled labour is not going to warrant an incredibly generous wage, however employment benefits and recognition of hard work is not all about wages. Employees should be rewarded for loyalty and going above and beyond their remit. Remember that small gestures go a long way when it comes to staff (this can include a bonus or an end of season meal out/awards presentation).

David Ward

David Ward
Associate Solicitor
Employment Team
DWard@LawBlacks.com

Posted in Holiday and Home Parks | Leave a comment