Welcome to DeBrieF…

With the summer holidays nearly upon us – and the sun in the sky – we wanted to publish one last issue of DeBrieF before people start heading off to warmer climates. As ever, the past few months have seen a flurry of activity across the firm with new starters joining our ranks, events being staged and some exciting deals and cases taking place.

In this edition, we’ve condensed some of the most interesting stories and views; we hear from our private client department on the rise in will disputes, we have our regular Q&A slot, as well as news of a big award win by one of our team, an opinion piece on Collaborative Law, some information on our next Employment Breakfast seminar as well as a brief introduction into the world of PI trusts from me.

Happy reading!

Kate Oldfield,
Managing Partner

Davis Blank Furniss Sees Large Rise in Will Disputes…

Earlier this week we reported a 35% spike in new Will dispute cases over the past 12 months (ending June 2013).

The Private Client department, which handles Wills for clients across the North West, saw the biggest rise in enquiries during the first half of this year.  Reasons given during recent dispute claims have included; when a Will does not provide adequately for an unmarried partner, when family members are cut out without written explanation, when illegitimate children – or when someone has children from multiple relationships – are involved, and when handwritten amendments are made to a Will after it has been executed.

As a result, the team is warning members of the public to firstly prepare a Will and to then ensure it is drawn properly if they want to avoid costly disputes.  Over the past few months, we have conducted a survey in the North West region and the research showed that 47% of respondents did not have a Will at all despite knowing the potential risks involved.

Since the start of the year, we have also seen a greater demand for our mediation services in these kinds of cases.  This is because clients are realising this option is often more preferable to lengthy and expensive court proceedings.  Mediation appointments are up some 40% since June 2012.

Karen Witter – partner in the Private Client Department – commented: “It may sound obvious but having a carefully prepared and robust Will is essential.  However, many people see it as a ‘job for tomorrow’ but that attitude can prove expensive; both financially and emotionally.”

Karen added: “It’s so important to have your wishes fulfilled and there’s nothing you can do after you die.  As a business, we are also seeing clients who have been advised wrongly by Will providers.  This is a worrying trend but the Lord Chancellor’s decision to reject the Legal Services Board’s recommendations that Will writing should be regulated means consumers need to be even more careful.” 

Kirsty Morbey Discusses the Hot Topic of Collaborative Law…

Collaborative Law was first established in the UK, approximately 10 years ago.  It originated in the USA and its success quickly spread to Canada and Australia as an alternative way to resolve disputes upon the breakdown of a relationship.

Through the support of Resolution in the UK, family solicitors in this country began to train as Collaborative lawyers.  Initially, the process was limited to certain areas; such as Cambridge and Bath, but, over the years, more solicitors from all over the UK have trained and the process has spread.

Most regions of the UK now have trained Collaborative lawyers and each local area should have a practice group of Collaborative professionals called a POD, where the professionals involved meet regularly to support each other in running collaborative cases, to raise the profile of Collaborative law and to provide ongoing updates and training to those involved.

Up until summer 2012, the High Peak did not have such a group.  However, with the establishment of HOTPOD, a collaborative practice group for High Peak, Oldham and Tameside, these areas can now access Collaborative services.

Collaborative Law is one of the best ways to resolve disputes upon the breakdown of a relationship, as the process puts all of the control with the parties involved.  The lawyers are there to advise and support their clients but they are also there to work together, to reach the best outcome possible for both of the couple involved.  It is hoped that the process allows the couple to emerge with dignity and respect for each other and the ability to have a civil relationship in the future.  This is particularly important when there are children involved.

Being either a trained Collaborative Lawyer, or one of the other professionals involved in the process such as a Financial Advisor or Counsellor, has great benefits for the professionals and firms involved.  The POD establishes a place where good and trustworthy relationships can be formed, so that when everyone comes together to work on a case, they are all able to work to the highest of their abilities and they know that they can gain support and guidance from others involved in the process who have expertise in other areas.  Collaborative Law is also able to provide the clients with the whole package.

Each year, more and more family solicitors are training as Collaborative lawyers.  In a recent survey of family solicitors conducted by accountancy firm Grant Thornton, 90% of those responding stated that they supported the Collaborative process and 58% of the response group had trained as Collaborative lawyers.  This had lead to an increase in cases being dealt with collaboratively.  However, in light of the many positives of using Collaborative Law, the number of Collaborative cases is still not reflective as many of the solicitors interviewed felt that clients still were not willing to try it and that there was still a lack of awareness.

Therefore, as a Collaborative lawyer, my job now has to be to raise awareness of the process and its benefit, so that when clients come through our doors, they are coming to enquire about the process, rather than raising it as a possibility with them.  HOTPOD and other similar groups in the North West are working very hard to spread the message.

For more information on Kirsty and her work, please click here.

Date for Your Diary…

Disability Discrimination Breakfast Seminar: 18^th July

Our next Employment Breakfast Seminar will be on topical issue of Disability Discrimination and will be taking place at 8.30am on Thursday 18th July at our head office on Deansgate.

Disability discrimination is a complex area of employment law and employers often get caught out by the positive duty to make reasonable adjustments in cases where employees are deemed disabled under the Equality Act.  With an increasing number of employees alleging disability discrimination, some organisations don’t know how to protect themselves against these potential risks or what steps to take.  This seminar will provide a comprehensive update on disability discrimination and will assist businesses in identifying potential risk areas; what steps to take when dealing with protected employees; and how to deal with difficult issues relating to employees on long term sick.

The session will be chaired by Shiva Shadi – our head of Employment Law – and she will be joined by colleagues from her department.

Shiva commented: “The issues and legislation around disability discrimination is often overlooked by companies of all sizes but it should be central to all procedures and planning alongside sexual and gender discrimination. We’ve designed the seminar to be informative and provide practical advice which delegates can take away and implement.”

Quick Fire Intro to Personal Injury Trusts from Kate Oldfield…

What is a PI Trust?
A personal injury trust is a legally binding arrangement, where funds are held by persons called trustees for the benefit of another or others upon the terms of a document called a trust deed.

Who should set one up?
They are designed for those people who have been awarded a large sum of compensation and who are entitled to means-tested state benefits.

Why is that?
If your compensation money and your total household savings are more than £16,000 then you are at risk of exceeding the threshold for claiming state benefits.  You can protect your entitlement to state benefits by putting your compensation money into a PIT Trust.  Any compensation money held in the PI Trust will not be included in the means-test and you will still be able to claim your normal state benefits.

What are the other advantages?
The compensation money will be held in trust purely for your benefit and the trustees are able to advance money to you at any time.  We can explain to you how a PI Trust works, help you to choose the right trustees, set up the PI Trust for you and give advice about running the PI Trust.  We can give you further reassurance by contacting the government on your behalf to explain that you compensation money should not be included in the means-test.

What happens if I die?
Whatever is left in the PI Trust upon your death will form part of your estate.  The money will pass in accordance with your Will or under the intestacy rule (if you have no Will).  It is therefore really important that you may sure your Will is up to date and deals with money held in the PI Trust.

For further information on PI Trusts, please contact Kate and she will be more than happy to talk you through the process.

Your Questions…

In every issue of DeBrieF, we try to answer a few questions sent in by our readers.  This month, we’re focussing on Property…

Q: I am the freehold owner of a building that is used as a workshop. Until recently, the building was occupied by an individual under a tenancy at will.  Suddenly, and without warning, the tenant vacated the building but left behind various tools.  He did not give any notice to me and has not left any forwarding address.  Rent was paid in cash and I have no official record or other means to trace the tenant.  I would like to try and recover the small amount of rent due and I want to get on with reletting the building.  What should I do about the tools?  They are bulky and I do not want the cost or responsibility of storing them.  I would prefer to sell them and keep the money as compensation for the lost rent.  Is this allowed?

A: A tenant is generally obliged to remove his or her belongings at the end of a lease and a lease will often specifically state this.  It is also common for a lease to clarify what the landlord can do with any items that may be left in the property.  In the absence of express terms in a lease, the belongings remain the tenant’s property and the landlord will be an “involuntary bailee”.  A person may become a bailee by voluntarily and knowingly taking possession of goods belonging to another.  A bailee has a wide range of duties, including the duty to take reasonable care of the goods.

It is often costly for the landlord to be left as involuntary bailee especially if the goods are bulky or valuable.  Unless you are prepared to store the tools indefinitely, you need to establish that the former tenant has abandoned them, so that you can sell them.  Until you have disposed of the tools, you must ensure that they are not damaged or destroyed deliberately or recklessly.  You should serve a notice on the tenant to come and collect the goods.  The notice should set out where the goods are kept, state when and where the sale will take place, if the goods are to be sold, state any sale and storage costs will be retained from the sale proceeds and also attach a schedule of the goods.  The notice should be sent to the former tenant, if its new contact details are known, and, in any event, attached to the premises in a place where it can be seen.

If all reasonable steps have been taken to contact the former tenant and he or she has declined to collect the tools, it is more reasonable to assume the goods have been abandoned and you would then be free to dispose of them.

Q: I am the buyer of a property, where the agreed purchase price is £250,000.  I have agreed that I will also pay the seller’s legal costs and the seller’s estate agent’s commission.  Will I have to include these costs when calculating my stamp duty land tax payment?

A: Stamp Duty Land Tax is paid by the buyer on the chargeable consideration.  The basic rule is that chargeable consideration is any consideration given for the subject matter of the transaction.  The consideration may be given in money or money’s worth, including services, the satisfaction, release or assumption of debt or the provision of other land.  The consideration may be given directly or indirectly and it may be given by the buyer or a person connected with the buyer.  It is, therefore, likely that the seller’s legal costs and estate agent’s commission will be treated as chargeable consideration because you would not have agreed to pay these unless the seller was selling the property to you.  It is important to realise that the sums do not necessarily have to be expressed to be part of the “sale price” to form part of the chargeable consideration.

However, where the buyer is a tenant under a new lease (as the buyer of a new flat, for example, might be) and not a freehold house – a tenant’s obligation “to bear the landlord’s reasonable costs or expenses of or incidental to the grant of a lease” does not count as chargeable consideration.

Karen Witter Scoops National STEP Award…

Finally, we are all very proud as last month Karen Witter was named joint STEP Taxation of Trusts and Estates Student of the Year at a ceremony in London.

STEP is the worldwide professional association for practitioners dealing with family inheritance and succession planning.  It helps to improve public understanding of the issues families face in this area and promotes education and high professional standards among its members.

The annual STEP Excellence Awards 2013 celebrate those individuals who achieved outstanding results in either a STEP Diploma or Certificate examination or the Qualified Practitioner papers in England, Wales or Scotland.

STEP has over 18,100 members based in 87 countries from a broad range of professional backgrounds, including lawyers, accountants, trust specialists and other practitioners in this area.  Its members help families plan for their futures, specialising in a wide range of activities, from drafting a relatively simple will to more complex issues surrounding international families, protection of the vulnerable, family businesses and philanthropic giving.

Kate Oldfield had this to say: “Karen is an integral part of the Davis Blank Furniss family so we are all delighted at her success.  She is a fantastic lawyer and the award really is testament to her commitment to both her work and her clients.”