Disappointed Beneficiaries – The importance of seeking early advice

In January the case of Sargeant v Sargeant decided that after 10 years since Probate was granted for her husband, the Claimant (Mrs Mary Sargeant) did not have permission to bring a claim against her husband’s estate.

The Inheritance (Provision for Family and Dependants) Act 1975, commonly referred to as the 1975 Act, allows for disappointed relatives to apply for some provision from the deceased’s estate, especially in circumstances where they were dependent on the deceased.  In this case, the wife of the deceased found herself in a situation where she did not have enough money to maintain her lifestyle.  Although the Judge recognised that the Claimant may have had a case, the claim was issued late and so she needed permission from the court for the claim to be heard.

According to section 4 of the 1975 Act, a claim must be issued within six months of probate being granted.  Therefore, a preliminary hearing was heard, based upon written evidence only, to decide whether the claim itself could be heard.

The Judge decided that Mrs Sargeant had been given enough opportunity to make a claim, and had been told numerous times that she could seek legal advice independent from the solicitor in charge of the administration of the estate.  He also recognised that there was not enough reason to delay the issuing of the claim simply because the deceased had said that the claimant would be a ‘wealthy woman’ once he died.  Mrs Sargeant knew of her financial issues and still continued to follow the instructions set out by the Will.

This case highlights the urgency of seeking independent legal advice as soon as a difficulty has arisen.  Six months is a short period of time for a claim to be issued within and so it is vital to seek advice as to whether there is a claim.

From this case, it appears that it does not matter how strong your claim may be, risking a delay in seeking legal advice means you may risk your chances of receiving anything from the deceased’s estate.

Nicola White

Nicola White

Nicola White
Associate Solicitor
Wills & Probate Team
0113 227 9235
NWhite@LawBlacks.com

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Additional rights for delayed rail passengers under the Consumer Rights Act 2015

Delayed rail passengers will now be given stronger rights to claim consequential losses, including taxi fares, hotels and missed flights following train cancellations and delays.

Currently the National Rail Conditions of Travel (the “NRCoT”) govern rail travel and this allows operators to refuse claims for consequential losses. From Sunday 11 March 2018, the NRCoT will be updated to state that a passenger’s right to claim for losses will be governed by the Consumer Rights Act 2015, ensuring that passengers will have additional rights to claim compensation.

What will rail passengers be able to make a claim for?

The Consumer Rights Act 2015 does not specifically refer to consequential losses however it does state that services must be carried out with “reasonable care and skill”. Under the impending changes to the NRCoT, passengers will be permitted to submit claims for consequential losses and rail operators shall be compelled to review these claims. In addition, passengers will be entitled to make a claim for poor service under the Consumer Rights Act 2015. This is in addition to the current position whereby rail passengers can claim for a reimbursement or partial reimbursement of the cost of their rail ticket following a delay to the service by the rail operator.

How will the rail operators respond to claims under the new rules?

The Rail Delivery Group (a leadership body that brings together the companies running the UK’s railway networks), has advised that passengers claiming consequential losses through the Consumer Rights Act 2015 need to pass a “very high legal hurdle” in proving that the train service was not provided with reasonable care and skill. It also states that while it has been happy to work with the Government to make customer rights clearer, “it is important for our customers to understand that it is very unlikely that they will be entitled to compensation for additional losses”.

It remains to be seen how the rail companies will deal with claims following the upcoming changes. 

Tips for making a successful claim

  • Take a note of the date, time, train company and service you are on including the reason given for the delay or cancellation and how long you were delayed for;
  • Record what impact this had on you and your journey and what steps out had to take because of the delay or cancellation – for example you had to get a taxi;
  • Keep any receipts and take photographs to support your claim; and
  • Apply within the time limit specified by the rail company.

Tate Chakrabarty

Tate Chakrabarty                                            
Associate Solicitor
Corporate and Commercial Team            
TChakrabarty@LawBlacks.com                
0113 227 9260  

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Ex-wife awarded £90million fighting for more

An ex-wife awarded a £90 million settlement in 2014 upon divorcing her property tycoon husband is seeking to argue that she should receive another £25 million – despite having signed a pre-nuptial agreement.  http://www.dailymail.co.uk/news/article-5363469/Wife-signed-pre-nup-says-90m-payout-unfair.htm

A pre-nuptial agreement is a contract that seeks to regulate the financial arrangements between two parties to an intended marriage/civil partnership in the event that their relationship ends; but these agreements are not currently legally binding in England and Wales.  https://lawblacks.wordpress.com/2014/02/27/prenups-to-be-made-binding/

The court will consider various factors when determining how much weight should be given to a pre-nuptial agreement which involves a consideration of the circumstances at the time the agreement was made. For example, was there any undue pressure and were both parties fully informed of its implications? Did both parties receive legal advice?  Would enforcement of the terms of the pre-nuptial agreement meet the needs of the parties and in particular any children of the family?

Whilst the court can regard pre-nuptial agreements as persuasive and even decisive in divorce settlements, they can depart from them if the prevailing circumstances mean it would be unjust to hold the parties to their agreement. This is precisely what Camilla Versteegh has sought to argue in appealing the court’s award of £90 million, claiming that this sum is “unfair” and that after 21 years of marriage and an extremely high standard of living she should be entitled to another £25 million from her ex-husband Gerard Versteegh – a property tycoon said to be worth £273 million https://www.thetimes.co.uk/article/90m-divorce-award-isn-t-enough-says-former-wife-camilla-versteegh-5h902rlb2.

Lawyers for Mrs Versteegh have told the court that the pre-nuptial agreement was signed without any legal advice, or even the opportunity for it, as the pre-nuptial agreement was presented to her the day before the wedding when Mr Versteegh turned up at her house. Lawyers for Mr Versteegh have argued that he has already been very generous to his ex-wife given that she signed away all her rights to his money before they wed, but with the Judge awarding Mrs Versteegh less than he otherwise may have done due to the existence of the agreement, her lawyers say it is only fair that she is due more.

The hearing before Lord Justice Lewison, Lord Justice Holroyd and Lady Justice King continues.

Paul Lancaster

Paul Lancaster
Partner
Family Law Team
PLancaster@LawBlacks.com
0113 227 9215

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“Till Death Do Us Part” – The perils of being a sole director/shareholder

The recent case of Kings Court Trust Limited v Lancashire Cleaning Services Limited highlights the difficulties that a company can face upon the death of a sole director and shareholder.  If the director/shareholder was to die unexpectedly there would be no executive officer available to run the company.

In the above case, Mr Pilling was the sole director and shareholder of a cleaning company who suddenly died.  Before his death, Mr Pilling had prepared a will appointing executors to administer his estate.   However the company’s Articles of Association did not allow the executors to appoint a director on the death of Mr Pilling.  Without a Grant of Probate, the executors had no legal authority to appoint a director or to make other important decisions regarding the company.  In particular, they were unable to change the Register of Members to remove Mr Pilling and to record the transmission of the shares into their names as executors of his estate.

The executors could not wait for the Grant of Probate to be granted because without a surviving director or company secretary the company’s bank account had been frozen by its bank which left the company unable to pay employees’ wages, creditors and tax due to HMRC.  Further, a buyer had been found for the company but it could only be sold at an attractive price if it was sold as a “going concern.”

The executors therefore made an emergency application to the High Court asking the Court to intervene by using its statutory powers to order rectification of the Register of Members to include the names of the executors.  This would then allow the executors to pass a written resolution to appoint a new director.

The Court granted the Order sought by the executors although the Judge stressed that he only did so due to the exceptional circumstances of the case. Had it not been the extreme urgency caused by the frozen bank account then it is likely that the executors would have been told by the Court to wait until probate was granted.

Companies with a sole director and shareholder should review their Articles of Association to ensure that they contain provisions which allow the personal representatives of the sole director/shareholder to appoint a new director immediately upon the death of the sole director.

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Luke Patel

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

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Ant n Dec-ree absolute?

News has hit the headlines recently of another high-profile celebrity divorce, that being TV presenter of Ant-n-Dec-fame Ant McPartlin who has separated from his wife Lisa Armstrong.

Ant McPartlin and Lisa Armstrong have been in a relationship for over twenty years, since 1994. They were married in 2006 and so they have had a very long relationship and a medium to long term marriage.

Many celebrity divorces in the past have raised questions of ‘special contribution’ or the issue of pre-owned assets, but the probability in this situation is that all of the wealth will have been built up during the relationship, bearing in mind they met when they were 19.

It would be reasonable therefore to expect an equal division of the assets, whether they are owned in the sole or joint names of either Ant or Lisa. There are no children to either of them and so they will be likely to be assessed as having equal financial needs. Ant will be likely to be earning more than Lisa in terms of ‘salary’ but Lisa is by all accounts a high earner in her own right.

It may well be the case that the court therefore would deem this a case suitable for a ‘clean break’ and an equal division of all of the assets. Reports suggest that Ant and Lisa are trying to reach a settlement on the basis of a clean break and avoid the spotlight of the court process. This would appear sensible, providing that the assets can be suitably divided by agreement with the assistance of their solicitors.

Andrew Smith

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

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Another Bright Spark

Developing land is one way of increasing its value.  However, not all landowners have the expertise or the finance to do that.  Landowners can, however, sell their land to a developer and benefit from the increase in the value of the land under an Overage Agreement.  An Overage Agreement requires the developer to make a payment to the landowner if they secure planning permission and subsequently develop the land thereby enabling the landowner to benefit from the increase in the value as a result of the development.  Typically, under an Overage Agreement the landowner will receive a percentage of the increase in the value of the land as a result of it having been developed and sold.

The recent High Court case of Sparks v Biden highlights the need for Overage Agreements to be carefully drafted.  In that case Mr Sparks owned some land with development potential.  Mr Biden agreed to purchase the land and then proceeded to develop it.  Under the Overage Agreement Mr Sparks was to be paid a purchase price of £600,000 for the land together with an overage equating to 33.3% of the sale price of each newly constructed house.  Mr Biden eventually constructed eight houses on the land but rather than sell them Mr Biden proceeded to occupy one and rented out the rest.  The Overage Agreement did not contain any express term obliging Mr Biden to sell the houses and therefore Mr Biden contended that there was no overage payment due to Mr Sparks.  Mr Sparks disagreed, arguing that a term should be implied into the sale contract that the properties, once constructed, should be sold thereby triggering the overage payment.

The courts are generally reluctant to imply a missing term into a contract and will only do so where they are satisfied that:

  • it is reasonable and equitable;
  • it is necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
  • it is so obvious that it “goes without saying”;
  • it is capable of clear expression;
  • it does not contradict any express term of the contract.

The Judge decided that in order to give the original sale contract business efficacy, a clause should be implied into the Overage Agreement obliging Mr Biden to sell the houses once constructed.

Mr Sparks was lucky in this case that the Court intervened to rescue the overage provision but there is no guarantee that a court would imply a similar term in another case.  This case illustrates the need for agreements to be drafted very carefully so that they anticipate all possible eventualities and to cover those eventualities as far as possible in the drafting.

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Luke Patel

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

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The difference between defamation and malicious falsehood

If someone makes a false statement about an individual or company then that statement could either be defamatory or a malicious falsehood either of which could lead to a claim for damages and/or an injunction against the wrongdoer.  But what is the difference between defamation and malicious falsehood?

Defamation

A statement is defamatory if it tends to lower a person in the estimation of right-thinking members of society generally.  If the statement is in a permanent form such as written words, pictures, a television or radio broadcast or on the internet then it is libel.  If it is spoken then it is slander.

For a claim to arise the defamatory statement must be published to a third party, contain defamatory words and must reasonably be understood to refer directly or indirectly to the claimant.  The claimant does not have to prove that the statement is false but he does have to prove that the words are defamatory of him.   If a statement is defamatory, it is assumed that it is false until proved otherwise.  The claimant does not have to prove intent so he can sue even if the publication was a mistake.

There are a number of defences to any claim for defamation.  These include:

  • Truth – if the maker of the statement can prove that the statement was true then this is an absolute defence to any claim.
  • Honest Opinion – it is a defence to a defamation claim if the defendant is able to show that the words complained of were opinion based on true facts.
  • Privilege – there are instances where public interest requires an ability to speak fully and freely about matters without raising the risk of a claim for defamation; in those situations the statements are treated as being privileged.

Malicious Falsehood

Although both malicious falsehood and defamation claims deal with the publication of false statements the main differences between the two are that a claimant in a malicious falsehood claim is not required to prove damage to reputation and the false statement does not need to have a defamatory meaning.

A claim for malicious falsehood may be brought against a defendant who maliciously publishes a false statement which identifies the claimant, his business, property or economic interests and which can be shown to have caused the claimant financial loss.  A typical situation in which a claim for malicious falsehood arises is where one competitor makes an untrue statement about another’s goods or services.

A claimant needs to demonstrate that the defendant intended to publish the statements complained of and did so with improper motive or malice.  Unlike in defamation claims, it is up to the claimant to prove that the statements complained of were untrue.  The claimant must also demonstrate that the statement has caused actual financial loss.

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Luke Patel

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

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