   |
|
Case Sounds Foreign Will Warning A man who died in Barbados leaving a will there as well as a will made in the UK created a problem for his family. The will made in Barbados was drawn up after his English will and contained the usual clause ‘revoking all former wills and testamentary dispositions’. The will contained details of various bequests and dealt with the man’s property in Barbados, but it made no mention of any arrangements for his interment or his UK assets. The court accepted that the later will was an additional will, intended only to deal with the man’s assets in Barbados, and therefore his English will was the basis under which his other assets should be distributed. The important issue here for people with assets (such as a holiday home) abroad is that whilst it is normally very sensible to create a ‘local will’, this should specify the assets it covers. In the worst case, an inappropriately drafted will may revoke an earlier English will, but at the very least, as in this case, it may add time and expense to the administration of the estate. Contact David Cocksedge or Alison Damant for advice on estate planning, wills or any related matter. Partner Note Benjamin v Bennett and others [2007] All ER (D) 243. Cohabiting Couples – Case Shows Wisdom of Formal Agreements Setting down on paper their intentions regarding the ownership of assets is not likely to be one of the first things two people think about when they start living together, but a recent case shows the wisdom in such circumstances of making sure that at least some aspects of your arrangements are properly agreed and evidenced. The case, which reached the House of Lords, concerned the division of the value of a house. The property had been bought by Barry Stack and Dehra Dowden and was in their joint names. They lived together for almost thirty years and had four children, but they eventually parted. When the house was purchased, Mr Stack paid both the endowment premiums required to repay the mortgage and the mortgage interest. There were two policies, one in his name and one in their joint names. The house cost £190,000, of which Ms Dowden had contributed nearly £129,000 from her savings and the sale of her own house. The couple had lived together in that property for ten years, but it had been owned in Ms Dowden’s name only. During the time they lived in the house they owned jointly, Mr Stack paid £27,000 and Ms Dowden paid £38,435 in capital repayments. The arrangements of the couple were unusual in that their financial affairs were kept completely separate and each was responsible for specific areas of expenditure. When a property is bought jointly, there is a presumption that it will be owned equally. However, that presumption can be overturned if there is evidence that equality was not the common intention of the owners. Mr Stack claimed he was entitled to a half share in the value of the house. Ms Dowden disagreed. Lord Hope of Craighead, in his judgment, said, “I do not think that it is possible to ignore the fact that the contributions which they made to the purchase of that property were not equal. The relative extent of those contributions provides the best guide as to where their beneficial interests lay, in the absence of compelling evidence that by the end of their relationship they did indeed intend to share the beneficial interests equally.” In this case, the fact that the couple’s resources were never ‘pooled’, together with the greater contribution made by Ms Dowden, led the Lords to conclude that her share should be 65 per cent of the total. Says Lorraine Moser, “Cohabiting couples are well advised to have their intentions as regards beneficial ownership of properties they buy properly recorded and evidenced.” Stack v Dowden [2007] UKHL 17. See http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd070425/stack-1.htm. See also, NLJ, 4 May 2007 p 634. Consumer Law Gives Protection in Standard Form Contracts In many commercial situations, businesses are used to dealing with each other by the use of ‘standard form’ contracts. One of the common instances of the use of such contracts is in the building industry, where construction projects are often governed by standard JCT contracts. In a recent case, a builder who entered into a standard JCT ‘minor works’ contract with a residential occupier sought to enforce the decision of the adjudicator that he should receive interim payments which had been withheld by the customer. The payments were withheld because of disputes about delays in the work and the quality of some of the workmanship. The withholding of the interim payments was not accompanied by the issuing of withholding notices, which are required under the JCT agreement. The adjudicator therefore ruled that the interim payments were due to be made, because the customer had not complied with the terms of the contract as regards the withholding of payments. This decision was challenged, using EU consumer law, on the grounds that the contract entered into took away normal standard consumer rights and thereby created an imbalance of rights between the builder and his customer. To rely on the provisions of the contract, it would be necessary for the builder to have specifically drawn the attention of the customer to the relevant terms of the contract. Because this was not done, the court ruled that the stage payments were not payable. Says Kate Barnes, “Any business that relies on standard contracts and whose customers are private individuals must make sure that where the contract contains clauses limiting the usual consumer rights, these are brought to the customer’s attention and agreement to them is specifically evidenced. Failure to do so could result in the relevant clauses being considered to be void by the court.” Partner Note Domsalla (T/A Domsalla Building Services) v Dyason [2007] EWHC 1174 (TCC). Failure to Act Causes Loss of Claim A recent case illustrates the point that where a personal injury claim is anticipated, it is important to commence the claim promptly and not to adopt a ‘wait and see’ attitude. It involved a serviceman who was partially deafened by a thunderflash whilst on a training exercise in 1993. He immediately noticed the effect on his hearing and in 1993 and 1994 had audiometric testing, which confirmed that he was suffering from tinnitus (ringing or noises in the ears) and deafness in his left ear. The hearing loss was of the sensorineural type, which is irreversible. In the case of noise-induced hearing loss, the loss of hearing is particularly acute in the band of frequencies necessary to make speech intelligible. It is often accompanied by an inability to tolerate loud sounds, with the difference in sound level between a sound being inaudible and being painful becoming problematically small. The serviceman’s hearing loss eventually caused his status to be downgraded as a temporary measure in 2001. In 2003, he was formally downgraded. This meant that he was likely to be permanently excluded from active service. In 2004 he commenced a claim against the Ministry of Defence (MoD). The MoD argued that the claim should be rejected for being ‘out of time’ since the injury had been sustained more than three years prior to the commencement of the claim. In the case of a personal injury claim, the normal rule is that legal action must be commenced within three years of the incident giving rise to the claim or its having an impact on the claimant. In all cases, an injury must be significant to give rise to a claim. The court rejected the MoD’s argument and it appealed against the decision. The Court of Appeal came to a different conclusion, ruling that the test of whether an injury is significant in such cases is an objective one, based on the injury itself, not a subjective one based on its impact on the claimant’s quality of life or ability to earn a living. The reaction of the man to the injury was not in point – he was in possession of all the facts he needed to be aware that the injury was significant in 1994. Accordingly the claim was out of time. Says Mark Heselden, “If you are injured in circumstances which might give rise to a claim for compensation, take advice as soon as practicable. Waiting to see what happens later as a result of the injury may mean you lose your right to claim at all if you delay too long.” Government Proposes Changes to Law on Damages The Department for Constitutional Affairs has issued a consultation document on the civil law relating to claims for damages. The paper considers making it possible for a wider range of people to bring claims for damages where someone has been killed as a result of the negligence of another. It is proposed to extend the categories of persons considered to be dependants and of those eligible to claim damages for bereavement. The main proposals are:
Another idea under consideration is the possibility that in the case of injury, the injured person could claim the cost of private medical treatment where appropriate. The consultation paper can be seen at http://www.dca.gov.uk/consult/damages/cp0907.htm. For further information contact Mark Heselden As the summer holiday season comes around again, the thought of a permanent arrangement for discounted holidays in the sun could seem attractive, but take care! The Office of Fair Trading (OFT) has warned that there are many bogus ‘holiday clubs’ being marketed. Holiday clubs are marketed as a more flexible and often lower cost alternative to timeshare ownership, offering worldwide holidays at attractive prices for life. However, warns the OFT, many of these offer little or no real benefit. The OFT’s advice for avoiding being scammed is to beware any ‘cold call’ over the telephone or being approached whilst on holiday. Typically, a holiday resort tout will offer a free scratch card (all of which will be ‘winners’). To collect the prize, a presentation must be attended at which high-pressure sales tactics may well be used, or you may be lured by the ‘exclusivity’ of the offer. Techniques used by bogus holiday clubs include:
In practice, many of the holidays that can be obtained after paying thousands of pounds for membership are the same as those which could be booked elsewhere without the need to belong to a holiday club. Says Kate Barnes, “Many people who buy a holiday club membership or a timeshare whilst on holiday live to regret it. Given the cost involved, it makes sense to take time to think it over, check out the vendor and take advice on your legal rights.” Partner Note See the press release at http://www.oft.gov.uk/news/press/2007/33-07. Oral Agreement Gives Rise to Property Rights It is a well-established principle of English law that contracts involving land must be made in writing. However, that is not to say that just because an agreement relating to land is not made in writing, it is unenforceable. One circumstance in which rights over property can be created orally is when a constructive trust arises due to an oral agreement being made with regard to a property. A constructive trust is where a person has responsibility over another person’s property as a result of the operation of law. A recent case illustrates such a circumstance. It involved two men, Mr Oates and Mr Stimson, who bought a house jointly in 1995, each paying an equal share of the mortgage. Mr Oates had financial problems and moved out in 1997. He agreed to sell his interest in the property to Mr Stimson for £2,500 and that Mr Stimson would pay him when he was able. Mr Stimson then took over sole responsibility for making the mortgage payments and for the maintenance of the property. In 2000, Mr Stimson attempted to pay the £2,500 to Mr Oates. Mr Oates denied that the agreement existed and claimed £50,000 as his share of the value of the house. The judge accepted Mr Stimson’s evidence that the agreement existed and that by taking over the responsibility for the mortgage payments and repairs he had suffered a detriment. The court therefore found that this gave rise to a constructive trust in Mr Stimson’s favour. Once he had paid the £2,500 to Mr Oates, therefore, the full value of the property belonged to him. Says Kate Barnes, “This is another example of a dispute ending in litigation which could easily have been avoided had the agreement been properly documented in the first place. Relying on someone else to confirm an agreement for which there is no written evidence is risky at best. If you find yourself in similar circumstances, take legal advice.” Partner Note Oates v Stimson [2006] EWCA Civ 548. See http://www.bailii.org/ew/cases/EWCA/Civ/2006/548.html. Surround Not Integral Part of Speed Limit Sign The courts are taking a dim view of motorists who attempt to avoid conviction for driving offences by bringing forward technical and/or somewhat specious arguments in their defence. Recently, a group of six motorists, led by a man from Bromley, attempted to argue that they could not be convicted of speeding because a speed limit sign on London’s Tower Bridge failed to comply with the Traffic Signs Regulations and General Directions and so was not a proper warning of the prevailing speed limit. The relevant sign did not have the usual surround as specified in the Regulations. The court rejected their submissions. In its view the surround was not an integral part of the sign. More than 150 other drivers, whose prosecutions were in abeyance pending the decision in this case, now face conviction. The court ruled that the six motorists should contribute £1,500 towards the costs of the prosecution. Partner Note Canadine & ors v Director of Public Prosecutions [2007] EWHC 383 (Admin). For further information contact Helen Korfanty **** The information contained in this newsletter is intended for general guidance only. It provides useful information in a concise form and is not a substitute for obtaining professional advice. We respect your time online and your privacy. If you would not like to receive any further newsletters then please send an email to opt-out.newsletter@bwblegal.com with 'unsubscribe |
||