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Home / FAQ’s

Frequently Asked Questions

  • Who should defend a claim that a will is not valid?

    Ordinarily it is for the beneficiaries of the will to defend a claim because they are the ones who have an interest in the outcome of the claim.  Of course, it is often the case that the executors and beneficiaries are the same people.  However, as an executor you must remain impartial over such claims.  Your role in ‘defending’ a claim against the will is limited but you will require professional advice to ensure that you take appropriate steps and do not do anything to adversely affect the claim or create avoidable costs. So long as an executor remains impartial and acts reasonably, they should recover their legal costs involved in dealing with a claim from the estate.   

    There are some circumstances where an executor must defend a claim perhaps on behalf of minor or mentally incapacitated beneficiaries (where there is no one else able or willing).  In such cases it is important to take steps to protect you position on costs as far as possible.  Advice should be taken as early so that the most appropriate course of action can be taken. 

    Disputes against a will or an estate can arise for other reasons also including claims under the Inheritance Act.  For more information on Inheritance Act claims click here

  • What happens if a will is not valid?

    If a will is successfully challenged and found not to be valid, the will does not stand and cannot be put to probate (or if it has already been put to probate, probate will be set aside).   If there was an earlier, valid will the earlier will replaces the later invalid will.  If there was no earlier will, the rules of intestacy will apply because there will be no valid will.  For more information on intestacy click here

  • How can the validity of a will be challenged?

    Common reasons why a will might be invalid are;

    1. The testator did not have mental capacity to make the will;
    2. The testator was subject to undue influence when making his/ her will;
    3. The testator did not understand/ have full knowledge of the terms of the will or did not approve the contents (want of knowledge and approval)
    4. The will was not written and/ or signed in the correct way (formal validity)

    A will or clauses in a will can also be invalid if it is not possible for the executor (or the court) to interpret what the testator meant or clauses can be invalid because items gifted no longer exist or the beneficiaries of those gifts no longer exist.  For more information on problems arising from poorly drafted wills or the interpretation of wills click here

    Capacity

    In order to make a will, a testator must have the mental capacity to do so.  One of the most common grounds for challenging a will is to claim that the testator did not have capacity when the will was made.   If the testator did not have capacity, the will is invalid.

    For more information on capacity to make a will (testamentary capacity) please click here

    Undue Influence 

    A will, or part of a will, can be invalid if the testator was put under undue influence when they made the will.     

    Undue influence is difficult to establish – it is more than mere influence or pressure – it must be such strong influence as to effectively amount to coercion such that the testator could not be said to have been acting under his/ her free will when the will was made.  Undue influence tends to arise in cases involving elderly or vulnerable testators and will often be argued alongside a claim that the testator did not have capacity to make the will.  lt is for the person seeking to argue that the will is invalid to prove the existence of undue influence and good evidence is required.  It is not likely to be sufficient to show a relationship where undue influence could occur – specific examples of undue influence being exercised will be required.   Such influence may be evidenced over a period of time (a slow ‘grinding down’ of the will of the testator) or may be over a shorter period of time involving (perhaps) blackmail or threats. 

    Want of Knowledge and Approval 

    A testator must have known and approved the contents of his will when the will was signed.  It is for the person wishing to prove the will (the executors) to show basic evidence of knowledge and approval (so the onus of proof rests with the executor here, unlike in cases of undue influence or lack of capacity where the onus rests with the person wishing to challenge the will).  Where a will is drawn up and signed with a professional will writer present, there will be a presumption of knowledge and approval.   It would be rare for a testator who has capacity to lack knowledge and approval and so the two allegations tend to go together. 

    It is important for a professional will writer to record the meeting at which both the instructions for the will were given and the will was signed as well as evidence the will being explained to the testator before it is signed.  

  • What can I do if I am not included as a beneficiary under the intestacy rules?

    Unfortunately the rules of intestacy are fixed and cannot be changed but if you are within the category of potential claimants under the Inheritance Act, you may be able to bring a claim for reasonable financial provision.  For more information about bringing or defending claims under the Inheritance Act click here

  • What can I do to stop someone applying for a grant of representation?

    If you are a beneficiary of an estate and you are worried about the potential conduct of an executor who has been appointed under a will or about the person who wants to apply to administer an estate where there is no will, there is a process that you can follow to prevent that person from taking out a grant of representation.  This starts with lodging a caveat at the probate registry (court).   If you take this step, the intended executor can respond (by lodging what is called a ‘warning’) and if they do so, you must respond with good reason why they should not apply.   A caveat only lasts 6 months.  It is often the first step taken where there is a will dispute and so if you are the executor of a will where a caveat has been lodged, you should take advice as soon as possible.

  • What can I do if the executor is not correctly administering the estate?

    If you are the beneficiary of a will and the executor does not appear to be doing his job – in other words, you do not think that the executor is taking the right steps (or any steps) to obtain the grant of representation and administer the estate there are steps that you can take.  See our FAQ above: what are my rights as a beneficiary?  Sometimes, it might be simply that the executor is not being transparent about what they are doing when in fact they are taking the right steps.   

  • What responsibilities do I have as executor?

    You are in an important role which carries with it responsibilities and the potential for personal liability.  For this reason, if there are questions about the will or disputes arising between the beneficiaries or between you and the beneficiaries you should seek professional advice as soon as possible.   For a list of your responsibilities a executor, please visit our estate administration page 

  • What rights do I have as a beneficiary?

    This depends upon whether you are a beneficiary of a specific legacy (a specific gift of money, property or a particular item) or whether you are the residuary beneficiary.   However, in a nutshell, a beneficiary has an enforceable right to the estate being correctly administered under the terms of the will or intestacy.    If the estate is not being correctly administered, you can take action against the executors to ensure that it is.  If estate assets suffer a loss due to negligent or dishonest conduct by the beneficiary the executor can be held personally liable for those losses.   A beneficiary also has a right to receive certain information from the executor to enable him to assess whether the estate is being correctly administered.  This depends upon what type of beneficiary you are.   

  • Do the wishes of the deceased matter?

    There can be many reasons for not including someone in a will – relationship breakdown, a desire to benefit someone else who the testator feels has greater need etc.  A court will consider the deceased’s wishes and reasons as part of their evaluation of the claim and when applying the relevant s3 criteria (see here) particularly the ‘any other matter’ and the deceased’s ‘obligations’ criterion.  However, this will have no more weight than any of the other criteria.   A court is not bound by the deceased’s reasons or wishes and can make an order for provision regardless.  

  • Is there anything that can be done to prevent a claim under the Inheritance Act?

    There is no way to prevent a claim if someone who would expect to inherit and who falls within the category of people able to claim is either entirely excluded or only included in a very limited way.  However,  the Deceased’s wishes and reasons for making his will is a factor which the court will consider, and so it is a good idea when writing a will which is likely to cause problems, to write a clear statement of reasons which should be kept with the will.  This is often known as an Inheritance Act statement.  

    There are other steps, such as including a small gift to the person not otherwise included made contingent upon that person not disputing the will.   Advice should be taken on the wording of such a clause which, to be valid, must be clearly and carefully drafted.    

  • How do I set up a trust for jointly owned property?

    For more information about declarations of trust for jointly held property please click here

  • What is trust registration and do I need to register my trust?

    For more information on trust registration and the trust registration scheme please click here

  • How do I set up a Trust?

    There are a lot of factors to consider when setting up a trust and it is important to take specialist advice.  You will need to think carefully about who will be the trustees, how much control you want them to have and who you wish to benefit from the trust including when and how much they should benefit.  Trusts carry tax consequences and it is important that you take careful advice about the tax consequences before you set up a trust.    Whilst trusts can be a very useful estate planning tool, if they are not set up carefully, they can have unintended tax consequences.

    Once you have decided to set up a trust and you have identified your trustees, your beneficiaries and what type of trust you require, you will need to identify what assets or funds you will transfer to the trust at the outset (the ‘initial fund’).  Normally, trusts are set up so that more assets can be added in the future (although, again, professional advice should always be sought before adding further trust assets due to the potential for unforeseen tax consequences).

    A trust is set up by executing a trust deed and transferring the initial fund to the trustees.   Ideally, the initial fund will be transferred to the trustees at the same time as the trust deed is signed.  How assets are effectively transferred will depend upon the nature of the assets and it is recommended that professional assistance is sought.

     

  • What types of trust are there?

    If you are thinking about trusts, you need to be aware of the different types of trust which exist so that the right trust is set up for you and those you wish to benefit.

    Trusts can be divided into several broad types.   These can be briefly summarised as;

    Discretionary Trusts

    A discretionary trust gives your trustees discretion to benefit a defined group of beneficiaries. The power to add beneficiaries to this group is often included in the trust.  As a beneficiary cannot benefit from the trust without the trustees deciding whether to benefit them and to what extent, this type of trust is good at protecting a beneficiary who might make bad decisions for themselves.    This type of trust is also suitable if you are unsure exactly who you might want to benefit from the trust or where you wish to allow maximum flexibility for tax planning reasons.  

    Disabled Persons Trusts

    These are based upon a discretionary trust model as set out above but are specifically designed to benefit the disabled person.   Since this trusts give the trustees discretion as to when to benefit the disabled person rather than giving the disabled person an absolute right to the trust assets, the disabled person’s entitlement to means-tested benefits is preserved. 

    Life Interest Trusts

    These grant a beneficiary the right to income from trust assets (or the right to use the trust asset) but do not grant them a right to the capital value of the asset, although the trustees are commonly given a discretion to forward capital to the beneficiary if they consider it necessary.  These types of trust are often seen in wills where there is a second marriage or partnership and a person wishes to provide for their spouse/ partner whilst ultimately ensuring that the asset passes to their children (often the family home).

    Bare Trusts

    These are simple trusts, where a person holds an asset on behalf of another person until that person reaches the age of 18 and who can then take over management of the asset themselves.  The beneficiaries of these trusts have an absolute right to the trust asset which passes to them as soon as they reach the required age.  This type of trust is most commonly used to hold assets (often property) for minors until they come of age. 

  • What are trusts used for?

    Trusts are often used for tax planning reasons, as well as to protect assets held for young people or vulnerable adults.

    Trusts can also protect assets that are to be used to help someone who is in receipt of means-tested benefits, without affecting their right to those benefits.  They can also provide protection for someone who you would like to benefit from an asset, but who (for whatever reason) may not be able to deal with the management that asset for themselves.

    Trusts are an important part of estate planning and are often included in wills, especially when second marriages/ civil partnerships or blended families are involved.

  • What is a trust?

    In a nutshell, a trust exists where an asset is held legally by one or more person(s) (called trustees), for the benefit of someone else (the beneficiary or beneficiaries).  The trustee cannot benefit from that asset themselves but they are responsible for looking after it for the beneficiary.

    There are a number of different types of trust and reasons for setting up a trust.

  • Is it possible to make an LPA for someone after they have lost capacity?

    An LPA cannot be made unless the donor has capacity.   If there is no LPA in place at the time that capacity is lost, the only way that someone can be appointed to act on their behalf either for financial decisions or health and care decisions if via an application to the court of protection to appoint a deputy (a deputy is like an attorney but appointed by the court of protection with powers specifically granted by the court).

    For more information about applying to appoint a deputy click here 

  • How can I control what my attorney(s) can and cannot do?

    Restrictions imposed by law

    The law limits what your attorney(s) can do and how they must act. The most important rule is that an attorney is only allowed to act in your best interests and in accordance with the Mental Capacity Act 2005 (MCA) and the MCA Code of Practice. Another important rule for an attorney for financial decisions is that they must keep accounts and be able to submit them to the OPG if requested.

    Other rules include:

    • Strict limits on the kinds of gifts that an attorney for financial decisions can make on your behalf. For example, they can make gifts on customary occasions (for example, birthday, Christmas and weddings) but they cannot make gifts for inheritance tax planning or pay school fees for grandchildren without making an application to Court of Protection.
    • The law against euthanasia and assisted suicide. Your attorney cannot break the law even if you try to allow them to do so in your LPA for health and care decisions.

     

  • What types of LPA are there?
    1. LPA for financial decisions (otherwise known as LPA for property and financial affairs or LP1F)

    The LPA for financial decisions allows you (the donor) to appoint one or more persons (your attorney(s)) to make decisions on your behalf relating to your property and financial affairs.

    You have the option of granting as wide or as restrictive powers as you wish, which can include anything from managing your bank account and paying your bills, to selling your home. An LPA for financial decisions also allows you to appoint attorney(s) to manage your property and finances regardless of whether you have lost capacity or not, which can be useful. Your attorney(s) can only act on your behalf after the LPA has been registered with the Office of the Public Guardian (OPG).

    2.  LPA for financial decisions (otherwise known as LPA for property and financial affairs or LP1F)

    The LPA for financial decisions allows you (the donor) to appoint one or more persons (your attorney(s)) to make decisions on your behalf relating to your property and financial affairs.

    You have the option of granting as wide or as restrictive powers as you wish, which can include anything from managing your bank account and paying your bills, to selling your home. An LPA for financial decisions also allows you to appoint attorney(s) to manage your property and finances regardless of whether you have lost capacity or not, which can be useful. Your attorney(s) can only act on your behalf after the LPA has been registered with the Office of the Public Guardian (OPG).

  • What should I think about before I make a will?

    It is important to think about your family circumstances, your assets and who you would most like to benefit. It is also important to think about guardianship options for your children and to talk first to your chosen guardians. Think about who you want to oversee your estate when you die and talk to those concerned before your will is written.
    Even in the most straight forward situation, there are still likely to be issues that need to be considered carefully to ensure that the wider implications of these decisions are understood. The more complicated your family or financial situation, the more issues need to be considered.

    To get you started, here are some preliminary suggestions that you may wish to consider:

    • Make a list of your assets and try to value them.
    • Think about what debts you may have and how they will be paid when you die. Pre-existing creditors will have first call on your assets after your death.
    • Are there any specific belongings or family heir looms that you would like to give to a specific person?
    • Do you want to leave everything to your spouse/ civil partner or partner?
    • Consider the consequences of remarriage, children from different relationships and care home fees.
    • Do you wish to ‘ring fence’ any money or specific assets for any of your children after your death?
    • How old do you want your children to be when they inherit?
    • Who would you like to manage and control your estate when you die (your executors) or to be in charge of your children’s money before they receive their shares? These should be people who you trust and who you believe will be capable of managing potentially complicated issues.
    • Do you have children from previous relationships who you wish to benefit?
    • Do you own any property or other assets overseas?
    • Do you own property or other assets jointly with other people and, if so, do you know how it is held by you?

  • What about inheritance tax?

    Everyone has an inheritance tax (IHT) nil-rate band. If your estate falls within this band then it may be left to your chosen beneficiaries tax-free on your death. In addition, gifts to particular people (e.g. spouses/ civil partners and, in certain circumstances, children), gifts of certain types of assets (such as interests in a business or a farm) and gifts to charities may qualify for IHT relief.

    If you think that the value of your estate might be such that IHT will apply, it is important to take professional advice when you write your will, to ensure that you consider tax efficient ways to plan your estate.

    IHT rules are complicated, and the guidance below is a very brief and simple summary only.

    IHT of 40% is paid on every penny in your net estate which exceeds your IHT threshold. IHT used to apply to only the wealthy in society, but due to the increase in the value of assets (property in particular) and the fact that the IHT threshold has been frozen for many years, far more people are now affected by IHT – many of whom may not expect it.
    The IHT threshold is normally referred to as the “nil rate band”. This is the value of assets within your estate which is not subject to tax. The nil rate band is currently set at £325,000. Everyone has their own nil rate band. If you are married or in a civil partnership, your nil rate band can be “passed” to your spouse or civil partner when you die (if you do not ‘use’ it by leaving assets to anyone other than your spouse/ civil partner or exempt charities). This means that on the death of a surviving spouse/ civil partner they will have their nil rate band and the balance of your nil rate band to claim. As things stand, up to £650,000 may be claimed this way on second death. There is also an additional “residence nil rate band” which applies to the value of your home (your main residence). This only applies if your home is inherited by direct lineal descendants on your death and is set at £175,000 per person. Like the nil rate band, this can be passed to your spouse or civil partner if it is unused on first death.

    For further information on inheritance tax and succession planning  click here

  • What does a will do?

    A will enables you to control how your estate is administered and distributed after you die.  Your estate may include your house and any other property that you own, your personal possessions, money in bank or other accounts, investments, savings of any sort and any business assets or shares belonging to you personally.  It may also include your interest in assets that you co-own with other people.

    A will allows you to decide who should inherit, how much they inherit, when the inherit and who is responsible for collecting and distributing your assets.  It also enables you to make gifts to charities should you wish to do so.

    If you have children, a will enables you to appoint guardians if both parents die whilst the children are under 18.  If you have children, it is vital to provide as much security and certainty as possible both for your children and for the wider family with responsibility for them.

    A will also enables you to express your wishes over what type of funeral you want.

    A properly drafted will can prevent (or put to rest) family disputes which could otherwise arise.

  • How much will my sale or purchase cost?

    An indication of fees for purchases are listed here: Purchase – indication of costs

    Property sale costs are shown here: Sale – indication of costs

  • Who will do the work for me?

    We appreciate that property transactions can be stressful, which is why we go beyond other law firms to ensure our clients have easy and direct access to the person handling the transaction. The following link will take you to our legal advisers who deal with residential property transactions: Meet the Team

    One of these advisers will be allocated to your transaction and will liaise with you directly.

  • What is a collective action?

    The potential for a collective action arises when a wrong causes loss to a group of people in a similar way. UK rules provide for various ways in which collective actions can be structured from simply taking a test case forward and asking the court to manage the litigation appropriately, bringing a representative action or under a group litigation order. Such claims are dealt with on an opt-in basis, i.e. claimants must elect to join the action in order to be considered a member of the class and share in any damages recovered. Following the introduction of section 47B of the Competition Act 1998, consumers and businesses can bring private actions for damages suffered as a result of infringement of UK competition law on an opt-out basis, i.e. on behalf of an entire class of claimants (except for those that have expressly opted-out) without the need to identify every claimant.

  • Who will do the work for me?

    David MCrum. Please view the following link to view David McCrum’s profile which details his experience and qualification: https://www.maitlandwalker.com/our-lawyers/david.php.

    The stages set out above are an indication and if some of the stages are not required, the fee will be reduced. You may wish to handle the claim yourself and only have our advice in relation to some of the stages. This can be arranged on your individual needs.

  • How long will my matter take?

    The time that it takes from taking your initial instructions to the final resolution of you matter depends largely on the stage at which your case is resolved. If a settlement is reached during pre-claim conciliation, your case is likely to take 2-3 weeks. If your claim proceeds to a Final Hearing, your case is likely to take between 3 months and a year. This is just an estimate and we will of course be able to give you a more accurate timescale once we have more information and as the matter progresses.

  • What is a collective action?

    The potential for a collective action arises when a wrong causes loss to a group of people in a similar way. UK rules provide for various ways in which collective actions can be structured from simply taking a test case forward and asking the court to manage the litigation appropriately, bringing a representative action or under a group litigation order. Such claims are dealt with on an opt-in basis, i.e. claimants must elect to join the action in order to be considered a member of the class and share in any damages recovered. Following the introduction of section 47B of the Competition Act 1998, consumers and businesses can bring private actions for damages suffered as a result of infringement of UK competition law on an opt-out basis, i.e. on behalf of an entire class of claimants (except for those that have expressly opted-out) without the need to identify every claimant.

    If you wish to discuss collective or group actions further with one of our specialist team please contact Adrian Render, Julian Maitland-Walker or Sheree-Ann Virgin.

  • What do we offer?

    Solicitors with excellent technical expertise and the ability to think creatively and tactically is key for claimants involved in collective actions and group redress. Our solicitors combine significant experience in group actions with an efficient strategy  and work closely with a team of specialist counsel and experts that is tailored to meet the needs of each case. Our clients benefit from our strong relationships with funding brokers, funders and ATE insurance providers.

    Our experience in collective actions has grown organically from its strong EU & Competition Law and Litigation & Dispute Resolution offerings and now spans a wide range of sectors including competition law, financial services, professional negligence and investment losses. We have acted in a number of the most high profile group and collective actions and we are currently involved in bringing a number of large high-profile collective claims in the Competition Appeals Tribunal on an opt out basis under section 47B of the Competition Act 1998.

  • How can Maitland Walker help?

    We have solicitors with specialist accredited expertise in dealing with vulnerable and elderly clients.  Two of our experts are fully accredited members of Solicitors for the Elderly.  Our experts can help to identify what support may be required and can help with applications to the court of protection including deputyship applications.  

    We can help with the following;

    • Court of Protection applications (including deputyship applications)
    • Statutory wills
    • Estate planning relating to vulnerable people
    • Advice on care home fees
    • Lasting powers of attorney 
    • Attorneyship services
    • Assistance in later life
  • What protection may a vulnerable person need?

    If the safety or wellbeing of a person is in question, protection will be needed to ensure that person is safeguarded from abuse or mistreatment.   Abuse can happen anywhere e.g. in a residential or nursing home, workplace, day centre, the person’s own home or in the street. The person abusing could be a family member, carer, friend, neighbour or volunteer.

    Abuse and mistreatment can take different forms, such as:

    • Physical – eg. hitting, slapping, punching, restraining.
    • Emotional or psychological – including threats and humiliation, being isolated, controlled and harassed.
    • Neglect – including being left without food, heating or personal care
    • Sexual – including rape and other acts to which consent has not been given
    • Financial – have their money stolen or misuse of funds
    • Discrimination – including unfair treatment because of your gender, culture, race, age, disability, background or illness

    The measures required to protect a vulnerable person will depend upon that person’s personal circumstances and the circumstances of those around them – for example, less professional support may be required if the person has close family able and willing to help.

  • What is a vulnerable person?

    When someone is unable to make a decision, the term “incapacity” may be used.  In legal transactions lawyers will consider whether someone has legal capacity to enter into the transaction.

    A person who lacks mental capacity may be a vulnerable person, but it does not follow that a vulnerable person lacks mental capacity.  A person who is vulnerable may be in need of extra support in some areas, but not in others.  They may also be unable to take care of themselves or protect themselves from harm.

    A vulnerable person is someone who, because of their circumstances, may be at an increased risk of harm.  There are many reasons a person may find they are be more vulnerable than others, this could be due to disability, illness, age, a recent bereavement or social isolation.

    4 key drivers of vulnerability are:

    • Health – illnesses or general health conditions that affect the ability to carry out day-to day tasks.
    • Life Events – such as bereavement, job loss or relationship breakdown
    • Resilience – low ability to withstand financial or emotional shocks
    • Capability – low knowledge of financial matters or low confidence in managing money.  Low capability in other relevant areas, eg. literacy or digital skills.

    Someone’s vulnerability can also be caused by a diagnosed condition such as dementia, learning disability, mental health problems or acquired brain injury.   Vulnerability may be permanent or temporary. 

  • What happens if an employer makes an unlawful deduction?

    The employee may make a claim to the Employment Tribunal within three months of the deduction, or the least in a series of deductions, but provided there is no break in that series of more than 3 months between deductions. The Tribunal may make a declaration that the employer has made an unlawful deduction and/or order that the employer to pay the sums deducted.

    The Tribunal may however only consider deductions made from wages paid within the previous two years.

  • Are there any exceptions to this?

    Yes, a deduction is permitted where it is made in respect of:

    • an overpayment of wages;
    • a statutory purpose to a public authority such as unpaid taxes;
    • a contractual obligation to pay a third party such as a union subscription;
    • industrial action; or
    • a court order requiring a payment from the employee to the employer.
  • Can an employer make a deduction from an employee’s wages?

    An employer may not make such a deduction unless it is required or authorised by statute, authorised by the contract of employment or the worker has provided written consent to the deduction.

  • Are any rights often excluded from a waiver under a settlement agreement?

    Rights in respect of an occupational pension scheme and personal injury claims of which the employee is unaware are usually excluded from any waiver.

  • Can an employer include a blanket waiver of all potential claims arising from the termination of an employees’ employment?

    No, for a settlement agreement to validly and effectively block a claim, the claim must be specifically identified in the body of the agreement.

  • What if a settlement agreement doesn’t comply with these rules?

    It will be void for statutory claims such as unfair dismissal but will be valid for contractual claims such as wrongful dismissal.

  • What are the essential components of a settlement agreement?

    To comply with statute, a settlement agreement must:

    1.   be in writing;

    2.   relate to the specific claim being settled;

    3.   identify a named, relevant independent adviser from whom the employee has received advice as to the terms and effect of the agreement. In particular the employee must have received advice as to the effect on his or her ability to pursue a claim in the Tribunal;

    4.   state that the adviser is covered by professional indemnity insurance; and

    5.   state that the above conditions are satisfied.

  • What is the benefit of a settlement agreement?

    It limits the employee’s right to pursue a statutory employment claim (such as unfair dismissal) in the Employment Tribunal.

  • Are there any terms which prevail following termination of employment?

    Confidentiality clauses

    There is an implied confidentiality clause which remains post-termination.

    During employment, the implied duty of good faith mentioned above encompasses a wide duty of confidentiality which prohibits the disclosure of information classed as a trade secret or information which the employer regards as confidential.

    Once employment has ended, the employee is under a narrower duty not to disclose information that is a trade secret or is so confidential that it requires the same protection as a trade secret. This usually includes technical information regarding manufacturing processes and high level strategic business plans. 

    It is still usually advisable for an employer to include an express confidentiality clause in its employees’ contracts.

    Restrictive covenants

    Employers may put further restrictions on their employees by the use of express terms, known as restrictive covenants. The courts look unfavourably on these terms, and in order to be enforceable they must protect a legitimate interest of the business and go no further than is reasonably necessary to protect that interest. Legitimate interests commonly include an employer’s trade connections and trade secrets.

  • Are any terms implied into contracts?

    Yes, terms may be implied as a result of statute, custom and practice, the officious bystander test, business efficacy and the duties of the employer/ee.

    Statute

    Statute implies terms relating to minimum notice, equal pay and working time.

    Custom and practice

    A term may be implied by virtue of the custom and practice of the workplace and/or employer, for example where an employer has given staff a bonus every Christmas for the past decade.

    The officious bystander test

    A term will be implied where it is so obvious that both parties would have immediately agreed to it at the outset, for example that teachers don’t need to report to school for teaching during the holidays.

    The business efficacy test

    A term may be implied to make a contract workable, for example a term requiring a chauffeur to hold a valid driving licence.

    Duties of the employer

    Duty to pay: if a contract is silent, the employee has an implied right to reasonable remuneration and can make a claim if they are paid under the minimum wage.

    Duty to provide work: there may be a duty where there is work to be done, the employee is willing to do it and/or there is a need for frequent practice of skills.

    Duty to take reasonable care for the employee’s health and safety: an employer must ensure the employee’s physical and mental health and safety and provide a safe system of work.

    References: an employer is not obliged to give a reference but if they are to provide one, it must be true, accurate and fair.

    Duties of the employee

    Duty to provide personal service: an employee has a personal obligation to perform work.

    Duty to work with reasonable skills, diligence and care: an employee must be reasonably competent to perform their duties with care.

    Duty of good faith and confidence: the employee must be honest and must not act against the interests of the business.

    The employer and employee also have a shared duty of trust and confidence.

  • What's included in a statement of written particulars?

    The following particulars must be provided in the same document:

    • name of employer and worker;
    • date employment commenced;
    • date when continuous employment began (for employees only);
    • scale, rate and method of calculating pay;
    • intervals at which remuneration is paid;
    • terms and conditions relating to hours of work (including the days of the week the worker is required to work, whether this may vary and if so, how they may vary);
    • entitlement to holidays, including public holidays and holiday pay;
    • any other benefits provided by the employer;
    • notice periods for termination;
    • job title or brief description of duties;
    • terms as to length of temporary or fixed term work;
    • probationary period, including any conditions and its duration;
    • expected place of work;
    • any collective agreements (entered into by the worker’s union and the employer) which directly affect the terms and conditions of the employment;
    • terms related to work outside the UK for a period of more than one month; and
    • any mandatory training and/or any training which must be paid for by the worker.

     The following particulars must also be provided:

    • a person to whom the worker can appeal if they are dissatisfied with any disciplinary decision relating to them; and
    • a person to whom the worker can apply for the purpose of raising a grievance.

    The following particulars must be provided, but the worker can be referred to the provisions of another document.  This will typically be the staff handbook or intranet pages:

    • sick leave and pay;
    • any other paid leave;
    • pension provision;
    • any training entitlement provided by the employer; and
    • further information about disciplinary and grievance procedures.

    If there are no particulars to be provided under any head, this fact must be stated in the written particulars.

  • What terms must contracts of employment expressly include?

    Employees must be provided with a statement of written particulars of employment, setting out the key pieces of information governing the employee’s employment. A contract of employment or letter of engagement will constitute a statement of written particulars.

    The particulars must be provided by the date on which the employment starts at the latest, although information relating to pension provision, collective agreements, training and disciplinary and grievance procedures may be provided up to two months after employment starts.

    If the written particulars change during the employee’s employment, the employer must provide them with a written statement of changes within one month.

  • What is an express term?

    An oral or written provision stipulating the key elements of a contract.

  • Can I be dismissed for taking industrial action?

    No, provided the action is organised according to very specific statutory rules regarding the ballot, and the notice to be given to the employer regarding the action being taken.

    If an employee is dismissed for taking industrial action within 12 weeks of the action, they may claim unfair dismissal.

  • What steps can the employer take in response to industrial action?

    Employers don’t usually pay their employees during periods of industrial action and can sue for breach of contract, though this is rare. Employers may also reduce an employee’s length of service which is important when working out pensions and statutory redundancy pay.

  • Can an employer force employees to work during industrial action?

    No, employees have the right to take industrial action.

  • What obligations transfer to the new employer?

    The new employer will acquire all rights and liabilities associated with the employees and their contracts apart from criminal liabilities and certain rights and liabilities associated with occupational pension schemes.

  • What obligations does the former employer have?

    There is an obligation to ensure that a proper consultation process is held with employees as to the fact of, reasons for and consequences of the transaction. A failure to do so can result in large financial penalties for both the old and new employers of up to 13 weeks’ pay per employee. 

  • What is the effect of TUPE?

    On the transfer of a business the contracts of employment of the employees employed within the business are automatically transferred to the new owner provided that:

    • the business is situated in the UK;
    • the business retains its identity after the transfer; and
    • the relevant employees are employed immediately before the transfer.

    Employees who do not want to be transferred will have their employment terminated, but it won’t amount to a dismissal.

    An employer may not vary any terms of its employees’ contracts where the sole reason is the transfer.

  • What is TUPE?

    TUPE protects employees in the event of a relevant transfer. There are two types of relevant transfer under TUPE:

    • a business transfer; and
    • a service provision charge.
  • Can I share leave with my partner?

    Employees can share up to 50 weeks of leave and 37 weeks of pay between them in the first year after the birth of their child, under complex legislation which it would take too long to repeat here!  Contact the firm for more detail.

  • Are there any eligibility criteria?

    For paternity leave, employees must give the correct notice and have been continuously employed by their employer for at least 26 weeks up to any day in the 15th week before the due date.

    For paternity pay Employees must be employed up to the date of birth, earn at least a minimum weekly amount, give the correct notice and have been continuously employed for the same duration as stated above.

  • What paternity leave and pay am I entitled to?

    Employees may take either one or two weeks within 56 days of the birth. The statutory weekly rate of Paternity Pay is the lower of the same statutory minimum amount as for maternity pay, or 90% of their average weekly earnings.

  • Are there any eligibility criteria?

    Employees must earn at least a certain amount each week, give notice and proof of pregnancy and have worked for their employer for at least 26 weeks by the end of the 15th week before the due date.

  • What will I be paid?

    The statutory minimum is 90% of earnings for the first 6 weeks and the lower of a statutory minimum amount, which increases each year, or 90% of the average weekly earnings for the next 33 weeks.

  • What maternity leave am I entitled to?

    Employees must take 2 weeks’ leave after your baby is born, but may take up to 52 weeks.

  • Am I entitled to leave to look after my child?

    Employees who have been working for their employer for over a year may take up to 18 weeks’ unpaid parental leave to look after their child’s welfare, such as spending more time with them, looking at schools, sorting out child care arrangements and visiting relatives.

    Employees must give 21 days’ notice.

  • Am I entitled to time off for issues which don’t involve dependants?

    No, but employers may allow compassionate leave which can be paid or unpaid. The contract of employment, company handbook or intranet will contain the relevant details.

  • Are there any exceptions to the rule?

    If an employee knew about a situation before it arises, they will not be entitled to the leave. 

  • Am I entitled to pay during these periods?

    An employer is not obliged to pay you, but they may. The contract of employment, company handbook or intranet site will likely contain the relevant information.

  • Am I entitled to time off to deal with an emergency involving a dependant?

    Employees are entitled to a reasonable amount of time off to deal with unexpected serious issues involving dependants, which will depend on the situation. There are no limits on how many times you can take such time off.

  • How can I enforce my rights?

    The above limits are enforced by the Health and Safety Executive and local authorities. An employee may complain to an Employment Tribunal about an employer’s failure to allow an employee to exercise their rights under the Working Time Regulations within three months of the alleged failure. Remedies include compensation and a declaration of rights.

  • What rights do the regulations confer?

    48-hour week

    Each worker should work a maximum of 48 hours per week on average, calculated by reference to a 17 week period of work. ‘Working time’ is defined as when the employee is working, at the employer’s disposal and carrying out their duties. 

    Workers may opt out of the 48-hour working week, but only voluntarily, and may opt back in by written notice.

    Annual leave

    All workers are entitled to 28 days of paid annual leave. Bank holidays are included unless the contract of employment says otherwise.

    Workers must be paid at a rate of a week’s pay for each week of leave.

    An employee may only roll over leave into the next holiday year in the following circumstances:

    • it is permitted by their employer and is over and above their 28 day statutory entitlement; or
    • the employee hasn’t taken all of their annual leave because they were on sick leave.

    Rest periods

    Daily rest:  Adult workers are entitled to 11 consecutive hours’ rest in each 24 hour period. 

    Weekly rest:  Adult workers are entitled to a rest period of 24 hours in each seven day period.

    Rest breaks:  After six hours at work, a worker is entitled to a rest break no shorter than 20 minutes.

    Night workers: A night worker is an individual who works at least three hours during night time on the majority of days on which they work. Under the Regulations, night time means a period of seven hours which includes midnight to 5am, but employers may stipulate differently. Night workers must not work more than an average of eight hours in every 24 hours during a 17 week period.

    Exceptions: the above rules don’t apply to workers in certain industries. These include hospital, airport and prison workers and those involved in gas, water and electricity production.

  • Who do the working time regulations apply to?

    Those who work under a contract of employment or any other contract to personally provide work to another party. This includes employees, agency workers, freelancers but not the self-employed.

  • When is a belief reasonable?

    As long as the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is, in the tribunal’s view, objectively reasonable, it does not matter if the belief subsequently turns out to be wrong.

  • What is a protected disclosure?

    An employee makes a protected disclosure if they share information which they reasonably believe is in the public interest and shows that one of the following has or is likely to occur:

    • a criminal offence;
    • breach of any legal obligation;
    • miscarriage of justice;
    • danger to the health and safety of any individual;
    • damage to the environment; or
    • the deliberate concealing of information about any of the above. 
  • What protection do whistleblowers have?

    The dismissal of an employee will be automatically unfair if they have made a protected disclosure. There is no qualifying minimum period of service to bring a claim of unfair dismissal where the reason for dismissal is whistleblowing, and the Tribunal is not restricted by the usual upper limit on compensation.

  • What are the different types of discrimination?

    Direct

    Where the employer treats the employee less favourably than someone who does not have the protected characteristic in question, so if an employer refuses a promotion to a gay employee because of their sexual orientation, that amounts to direct discrimination.

    Indirect

    Where the employer operates a provision, criterion or practice (PCP) which puts an employee with a particular characteristic at a disadvantage compared to an employee who does not share that characteristic, and the application of the PCP is not a proportionate means of achieving a legitimate aim.

    So, if an employer operates a shift system involving significant antisocial hours, that would be discriminatory towards women as the courts recognise that women in general bear the greater responsibility for childcare.  However, the employer may be able to demonstrate that the shift pattern is a proportionate means of achieving a legitimate aim.

    Harassment

    Harassment occurs when an employee engages in unwanted conduct related to a protected characteristic, and the conduct has the effect violating another employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee, and proved it is reasonable for the conduct to have that effect.

    So a manager would be harassing a pregnant employee if they were to make comments for example complaining about the disruption to the business caused by maternity leave.

    Victimisation

    An employer victimises an employee if it treats an employee unfavourably because it believes that the employee has either brought, or may bring, legal proceedings under the Equality Act, or has threatened to do so.  

  • What is unlawful discrimination?

    It is unlawful to discriminate against an employee in respect of the following “protected characteristics”:

    Sex

    Race

    Age

    Gender reassignment

    Marital status

    Religion/belief

    Sexual orientation

    Disability

    Pregnancy/maternity

  • What compensation can be awarded if an employee has been unfairly dismissed?

    An Employment Tribunal will award a Basic Award, which is the same as a statutory redundancy payment, and also a Compensatory Award, which is intended to compensate the dismissed employee for their lost earnings during the period that a Tribunal judges they are likely to be out of work, and is subject to a statutory maximum of one year’s pay, which is again subject to a statutory cap which increases each year with inflation.

  • How does an employer respond to an Employment Tribunal claim?

    The employer has 28 days from the date the claim is lodged in which to lodge their response, which again can be done online.

  • How can a dismissed employee make an unfair dismissal claim?

    They must firstly contact ACAS under the Early Conciliation procedure by not later than the end of the 3 month period starting with the date their employment comes to an end. So, if an employee’s termination date is 5th May, the last date that they must contact ACAS’s 4th August.

    ACAS then attempts to broker a settlement between employee and employer, but if that is not successful the employee has at least a further month in which to lodge their claim with the Employment Tribunal, which can be done online.

  • In what ways can a dismissal be unfair?

    A dismissal will be unfair if it is for a reason which does not fall into the categories of misconduct, poor performance, ill health or redundancy.

    It will then only be fair if the employer has followed a reasonable procedure, and if the dismissal is within the range of reasonable responses open to an employer given all the circumstances of the case.

    There is a significant amount of case law governing the circumstances in which a dismissal is fair, but overall it is a question of reasonableness, both in terms of the procedure and the decision to dismiss.

  • Who qualifies for the right not to be unfairly dismissed?

    Any employee with at least 2 years’ service, except for claims of automatic unfair dismissal, for example if the employee is claiming that they have been dismissed for having “blown the whistle”, in which case the right to claim unfair dismissal is a day 1 right.

  • Is there a relevant ACAS code of practice?

    Yes. The ACAS Code of Practice on Disciplinary and Grievance Procedures applies to all disciplinary and grievance situations, and should form the basis of any disciplinary and grievance procedures. Failure to comply with any requirement of the Code could render an employer liable to a 25% uplift in any compensation awarded against them in any Employment Tribunal case.

  • Does the employee have the right to be accompanied?

    The same right applies as in a disciplinary hearing.

  • Who should chair the grievance procedure?

    Usually it will be the employee’s line manager, unless the grievance is against that line manager, in which case the line manager’s manager should chair the process, or a manager from another department who has not been involved in anything in relation to the grievance.

  • What is a grievance procedure?

    A grievance procedure is a procedure that must be followed by the employer whenever an employee raises a grievance.

    The procedure should provide for a meeting or meetings with the employee, an investigation, an outcome and should any aspect of the grievance not be upheld.

  • What is a grievance?

    A grievance does not have any statutory definition, and so any complaint by an employee anything related to their employment could amount to a grievance if the employee wishes to treat it as such.

  • Does the employee have the right to be accompanied?

    An employee has the right to be accompanied by a work colleague or trade union representative (even if the employer does not recognise any trade union) at any disciplinary or appeal hearing (but not at any investigation meeting).

  • Who should chair the disciplinary procedure?

    Usually the employee’s line manager chairs the procedure, unless they are a witness to the misconduct in question, in which case a manager from another department should chair the process, unless that is not possible in the case of a small employer.

  • What are the components of a disciplinary procedure?

    A disciplinary procedure will provide for three distinct stages: investigation, hearing and appeal.

    Before issuing any disciplinary sanction it is necessary to hold a reasonable investigation, hold a fair hearing, in which the employee is given a full opportunity to state their case, and then offer a right of appeal to a more senior manager.

  • What is a disciplinary procedure?

    A disciplinary procedure is a procedure that should be adopted whenever an employer wishes to give an employee a formal warning or to dismiss them due to misconduct. A failure to follow a reasonable disciplinary procedure could lead to any compensation awarded as a result of a successful Employment Tribunal claim being increased by up to 25%.

  • How much does it cost to bring a claim in proprietary estoppel or constructive trust?

    These cases can be complex and difficult to run, and as a result can be expensive. We are able to offer flexible cost arrangements depending upon your circumstances and the facts of the case, including ‘no win no fee’ or deferred fee arrangements.   To discuss your options in more detail, contact us. 

  • What is Constructive Trust?

    A constructive trust can arise where someone (person A) has contributed to or entirely met the cost of acquiring property which is legally owned by person B.  If person B tries to take property for himself or gift it to someone else, person A can stop him from doing so by asking the court to construct a trust in his favour – in other words, to impose a trust such that person B does not really own that property but rather holds legal title for the benefit of person A (or person A and person B in particular shares). 

    These cases most commonly arise in connection with ownership of the family home where the home is in the legal name of only one party but where both parties have financially contributed to that home either by mortgage payments or perhaps funding renovations over a period of time.    These cases often go hand in hand with proprietary estoppel as they often also involve a ‘common intention’ – a promise between the parties that whilst the property is legally owned by one, it really benefits them both (referred to as a common intention constructive trust) and very commonly involve a detriment on behalf of the person who does not hold legal title. 

    These cases are legally complex and frequently involve evidence over a very long period of time.  For advice on bringing or defending an alleged claim under proprietary estoppel and/ or constructive trust contact our specialist team. 

  • How are proprietary estoppel claims resolved?

    If person A can establish that a claim exists by proving all of the elements outlined above, the next question is how Person A should be compensated.  Should the promise be fulfilled or should person A be compensated for his detriment?   This question has been the subject of much debate in the courts and in reality will turn upon the proportionality between the promise and the detriment.  

    For more information on how a court may resolve this sort of claim click here [HYPERLINK TO CASE STUDY ON GUEST V GUEST] 

  • What is proprietary estoppel?

    Proprietary estoppel in the context of disputed wills and estate claims arise where property or land has been promised to person A but the land is then gifted by will or intestacy to person B.   Person A may seek to challenge the gift by arguing that the owner should not be allowed to break his promise.

    To succeed with such a claim, person A will need to establish the following;

    1. A clear promise having been made; and 
    2. That person A relied on that promise; and
    3. That person A will suffer a detriment if the promise is not fulfilled. 
  • How much does it cost to defend a will which is challenged?

    This will depend on how complex the claim is and how long it takes to defend.  We can discuss the likely costs involved with you and we can offer flexible funding arrangements including delayed and reduced fee arrangements to enable you to settle your fees when the case is resolved and you receive your inheritance.  We will advise honestly as to your best option for defending cases whilst preserving as much of our inheritance as possible. 

  • What does it cost to challenge a will?

    How much it costs to challenge a will depends upon the grounds for challenge and whether a claim can be resolved at an early stage.   We will discuss the likely costs with you and whether the likely value of a claim justifies the costs involved.  We are able to offer flexible funding arrangements to help you fund your claim including full or partial conditional fee agreements.

  • What are the rules for making and signing a valid will?

    There are strict rules about how a will must be made and signed and if those rules are broken, either the whole of the will or part of the will could be invalid.    This means that either the whole of the will, or the invalid part, will fail.   

    A will can also be invalid if the testator (the person who made the will) did not have the mental capacity to do so.   The test for whether someone has mental capacity to make a will is complicated but put simply the person making the will must be able to understand broadly what assets they own and their value, who they should consider including in their will (for example who their close family are) and the effect of the will that they are making.  If it can be proved that when the will was made the testator did not have capacity, the entire will may be invalid and fail.  If you are worried about whether someone has capacity to make a will (or there is any doubt), a medical opinion should be sought at the time that the will is made.  Instructing a solicitor to help draft the will is also important as they will also assess capacity and keep clear notes.

    The other way in which a will (or part of a will) might be invalid is if the testator was put under undue influence when they made the will.   In other words, if a will (or a gift within a will) is made because someone (the beneficiary most likely) is applying serious pressure on the testator, such that the testator is no longer able to think or act freely.   Undue influence is difficult to prove and is often caught up in the issue of capacity.  

    One thing to consider is what will happen if the will (or part of it) is invalid? Broadly speaking, if there was an earlier valid will this will likely stand or if there is no will the rules of intestacy will apply. 

  • I am named as executor but I do not want to act, can I refuse?

    You can refuse to act if you do not think that it is appropriate to do so by signing a deed of renunciation. 

  • How can I pay for the costs of bringing or defending an Inheritance Act claim?

    Legal costs which arise in Inheritance Act claims can be very expensive especially if court proceedings are issued.   We can discuss your options and, where appropriate, offer conditional or deferred fee arrangements.  

  • Who defends an Inheritance Act claim?

    It is the residuary beneficiaries who are included in the will or under the intestacy rules, who have a vested interest in the outcome of a claim as it is they who will ultimately lose out if a claim is accepted or settled.   It is therefore for the beneficiaries to actively defend an inheritance act claim against the estate.  

  • Can an executor defend an Inheritance Act claim on behalf of the estate?

    As an executor you will have to be involved in a claim and there is certain information that you should provide a claimant if a claim is proposed.  However, as an executor your function is to remain impartial between beneficiaries and potential beneficiaries (including claimants) of an estate.  

    There are some circumstances where there may be no beneficiaries able to defend the claim (perhaps if all the beneficiaries are minor children) and in such circumstances the executor / trustee may need to defend the claim on their behalf.   It is important to seek specialist advice as early as possible if this issue arises as the executor/ trustee will need to take steps to protect their position (particularly on the issue of costs).

  • When should an Inheritance Act claim be bought?

    If you have not been included in a will or you are concerned about limited provision, you should seek specialist advice as soon as possible.  A claim must be lodged with the court within 6 months of the grant of probate being issued.   You do not (and should not) wait for the grant of probate to lodge your claim and it is wise to advise the executors as early as possible about your potential claim.    The earlier that you can prepare your claim and notify the executors the better.  

  • What is an Inheritance Act claim for?

    The claim is for ‘reasonable financial provision’.  A claimant must firstly show that reasonable financial provision was not made under the will/ intestacy.  

    If a court finds that reasonable provision was not made, the court will decide what reasonable financial provision for the claimant might be.   

    This will firstly depend upon whether the claimant is a spouse/ civil partner because a spouse / civil partner is entitled to a higher level of provision than other claimants.   

    The assessment of what reasonable provision might be will turn upon the particular facts of each case, to which the court will apply a list of criteria provided by s3 of the Inheritance Act.  

    Each criteria is given equal weight but, depending on the case, some will be more relevant than others.  Each will be judged upon the prevailing circumstances at the time of the hearing and in the ‘foreseeable future’.   The criteria are;

    1. The financial resources and needs of the claimant; 
    2. The financial resources and needs of any other applicant;
    3. The financial resources and needs of any beneficiary of the estate;
    4. Any obligation and/ or responsibilities which the deceased had towards the claimant or any other applicant or beneficiary;
    5. The size and nature of the net estate of the deceased;
    6. Any physical or mental disability of the claimant or any other applicant or beneficiary;
    7. Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
  • Who can bring a claim?

    Only those listed in s1 of the Inheritance Act can bring a claim and they are;

    • Spouse or former spouse (or civil partner/ former civil partner)
    • A child of the deceased or any person treated by the deceased as his/ her child
    • A cohabitee who has been living with the deceased as though a spouse (or civil partner) for a period of at least 2 years prior to death 
    • A person financially supported by the deceased immediately prior to their death.  

    Claims can only be bought under the Inheritance Act if the deceased died domiciled in England and Wales.

  • What is an Inheritance Act Claim?

    An Inheritance Act claim is a claim against an estate of a deceased person for financial provision.  The Inheritance (Provision for Family and Dependants) Act 1975 enables certain categories of people to bring a claim for provision where they have not been included in a will or under the rules of intestacy (or have been included but only to a limited degree).

  • Is the mediation confidential?

    Mediation provides a private forum in which the parties can gain a better understanding of each other’s positions and work together to explore options for resolution. During the mediation, the Mediator meets privately with each party to discuss the problem confidentially. This allows each party to be frank with the Mediator and have a realistic look at their case in private, without fear that any weaknesses discussed will be communicated to other parties.

    At Maitland Walker we provide clear and practical advice having taken into account all of the options available to you and risk involved throughout the dispute resolution process. In most cases we encourage clients to consider mediation. 

  • What are the costs of a mediation and what costs consequences follow a refusal to mediate?

    The costs for the Mediator vary greatly depending on the experience and expertise of the mediator, the value of the dispute and the duration of the mediation. It is not usual for a mediation to last longer than a day even in complex cases. 

    If a party rejects the other party’s suggestion to mediate without any consideration of whether mediation is suitable, it is likely that a court would impose costs sanctions on that party. If a suggestion to mediate is considered but rejected and a thorough explanation of the reasons for rejection provided, there is still a risk that a court would impose costs sanctions. It is difficult to predict in advance the court’s likely view on the reasonableness of a refusal to mediate since this decision will only be made at the end of a case after trial so extreme caution must be exercised before rejecting mediation. 

  • What are the benefits of mediation?

    There are many potential benefits of mediation most of which result from the role of the Mediator acting as a neutral third party intermediary. Other benefits include: 

    • Costs efficiency compared with the cost of litigating to trial; 
    • Business relationships can be preserved or enhanced by mediation; 
    • The private and confidential nature of the process – public judgments are avoided; 
    • Flexibility of remedies – a remedy might be agreed in a mediation that it would not be possible for a court to order; 

    Even if a mediation does not result in a settlement and the litigation continues it is likely that the parties will have benefited from the mediation process by developing a better understanding of each other’s case and objectives and narrowing some of the issues in dispute.

  • What is the role of the Mediator?

    The Mediator’s role is to control the mediation procedure, remain impartial and try to facilitate an agreement between the parties. He or she will at no point impose any decision on the parties although they might play “devil’s advocate” and test the position the parties are taking. 

    The Mediator will act as an intermediary between the parties by using shuttle diplomacy, communicating offers, information and questions between the parties subject to their permission. 

    The parties will usually agree on the appointment of a Mediator. Selection is usually made on the basis of the nature of the dispute and the Mediator’s experience or known approach. A Mediator may have a variety of backgrounds including as a lawyer or other professional, e.g. surveyor, etc. 

  • What happens at a mediation?

    The parties will usually have exchanged “position statements” in advance of the mediation setting out what each party regards as the critical issues of fact and law, an estimate of the costs expended to date and estimated going forward and an account of any previous negotiations. 

    The Mediator will usually greet the parties and show each party to its own private room. The mediation is usually formally opened by the Mediator with all parties present and here the Mediator will give an overview of the process, their role and the procedure. Each party usually then has an opportunity to make an opening statement, giving its perspective of the dispute. After this opening, the Mediator will have private discussions with each party to assist in the negotiating process. 

    The negotiations might reach a settlement at the mediation or shortly thereafter. Studies suggest that the success rate of mediation could be as high as 67% of cases settling on the mediation day and 19% settling shortly after the mediation day.

  • When should parties mediate?

    The optimum time to take a case to mediation will depend on the nature of the case and on factors like whether the issues have been properly defined (in pre-action correspondence, in pleadings, in responses to Requests for Further Information or post pleading correspondence) what disclosure there has been, whether interim orders are necessary, limitation issues, enforcement considerations, etc. Our team advises our clients on the best time to mediate or suggest it to ensure that it has the best chance of achieving success. 

    In large cases the parties are required, in the Directions Questionnaire, to confirm whether they want to stay the proceedings for one month to attempt settlement which might include mediation. 

    After disclosure might also be a good time to mediate as the parties understand the case against them and are in possession of the other party’s documents that support or harm their case (assuming that there has been standard disclosure) and it is still early enough in the proceedings to provide the incentive of cost savings if the mediation is successful since the witness evidence and trial costs will be avoided.  

  • What is mediation?

    Mediation is a form of alternative dispute resolution (“ADR”) in which a neutral third party (“the Mediator”) helps parties to work towards a negotiated settlement of their dispute. It is a means of resolving a dispute that is alternative to the litigation process that goes through the Court system, although it is often used after court proceedings are under way. Mediation can be used to attempt to settle most types of disputes ranging in value and complexity.

    The most commonly used form of mediation is facilitative mediation in which the Mediator will work to facilitate an agreement between the parties but the parties, not the Mediator, decide whether to settle and on what terms. The process is usually completely confidential so that all discussions and documents are treated as confidential and ‘without prejudice’. This means that the facts and matters discussed during the mediation and the documents prepared for it cannot be referred to in front of a judge until after the dispute has been formally decided at trial or formally settled. 

    The dispute resolution team at Maitland Walker are experienced in taking a wide range of cases to mediation and negotiating settlements at those mediations or after.  

  • How long will my sale take?

    How long it will take from the offer being accepted until completion will depend on a number of factors. The average transaction takes between 6-12 weeks.

    It can be quicker or slower, depending on factors such as: the number of parties in the chain; title problems needing to be resolved; surveys revealing items of disrepair which require rectification; some parties in the chain not wanting to complete quickly.

     

    *request a quote link / contact us * 

  • What should I do if someone claims against the estate?

    Where an estate falls to the intestacy rules, there may be people who the rules do not include as beneficiaries who might have otherwise have hoped to inherit.  This can give rise to claims under the Inheritance Act.  If such a claim is intimated, you should take professional advice as soon as possible.  Our specialist disputed wills and estates team will be able to advise you further.

  • Can anything be done to change who will inherit under the rules?

    The intestacy rules cannot be ignored or dis-applied, but it is possible for a beneficiary due to inherit under the rules to vary their entitlement in order to pass assets to others instead.   We can advise you as to whether this may be appropriate and how best to re-direct assets to those who may need them the most tax efficient manner.    This is done by a deed of variation. 

  • What does the administrator of the estate need to do?

    The administrator must administrate the estate in accordance with the rules of intestacy in the same way that an executor must administer an estate in accordance with the will.   

  • Who can apply to administer the estate where there is no will?

    The Intestacy rules set out who is entitled to apply for letters of administration to administer the estate.  The order runs in the same order as the rules for inheritance.  If the person applying is lower down the order – they must explain to the court why those higher up are not applying.   As such, if there is a spouse/ civil partner, the spouse/ civil partner will apply unless they cannot do so.    

  • What will it cost to have professional help administering an estate?

    For information relating to the costs of our estate administration (probate) services please see here (add hyperlink to costs information on fees page)

  • Who is entitled to inherit where there is no will?

    The intestacy rules provide an order for those who are entitled to inherit.  Those at the top of the list inherit with first priority, those lower down the list only inherit if those higher on the list have already died or do not exist.    

    Where the deceased was married or in a civil partnership:

    1. Spouse/ civil partner but no children– spouse/ civil partner will inherit the whole estate
    2. Spouse/ civil partner and children – Spouse/civil partner receives the fixed statutory legacy which, from July 2023, is £322,000 (if the estate has assets valued at or over this sum) and also the deceased’s personal possessions.  Any assets over an above the statutory legacy and personal possessions pass equally between the spouse/ civil partner and children.

    If the deceased was not married or in a civil partnership:

    1. Children (if more than one then equally between them)
    2. Parents
    3. Brothers and sisters (if they have already died, their share passes to their children)
    4. Half-brothers and half-sisters (or to their children if they have already died) 
    5. Grandparents
    6. Uncles and Aunts (or their children if they have already died – the cousins)
    7. Half Uncles and Aunts (or their children if they have already died – half cousins)

    If there are no living relatives the estate will pass to the crown. 

    There are some very important points to note about the intestacy rules:

    • Spouse/ civil partner does not include an unmarried partner or cohabitee.
    • Children includes biological and adopted children.  It does not include step children unless they have been adopted. 
  • What should I do if someone disputes the will or claims against the estate?

    While the role of a personal representative in administering an estate is generally neutral, we are alert to the possibility of disputes arising. When this occurs, we are able to advise the personal representatives of the role they must assume in the dispute to ensure that they comply with their duties correctly.    If an estate becomes contested, we can refer you to our specialist disputed wills and estate team

  • Can I change or redirect my inheritance under a will?

    There might be a number of reasons why you might wish to change or redirect your inheritance.  The most common reason for re-directing a gift in a will is for tax planning purposes either to improve the tax position of the estate or as part of the beneficiary’s personal estate and succession planning.  Sometimes, however, the will might have unintended consequences and the beneficiaries may agree to ‘correct’ this by redirecting assets between themselves or to other people. 

    It is important to understand that a will cannot be changed as such but a beneficiary can choose to redirect their entitlement by a document called a deed of variation.  In such cases all of the beneficiaries who might be affected by the change must agree (and to agree they must be adults with capacity) and if the change effects the tax liability of the estate, the executors must also agree.  

    If drafted correctly and as long as it is done within 2 years of death, a deed of variation can have advantages for inheritance tax and capital gains tax because the re-directed gift is treated for tax purposes as though the testator’s will had already provided for the ‘new’ gift.   A common reason to vary entitlement under a will is to enable an estate to take full advantage of the residence nil rate band for inheritance tax.   We can advise you whether a deed of variation is appropriate for you and advise you over the tax and other consequences of such a variation. 

  • What happens if there is a will but no executor?

    In this situation someone will need to be nominated to act as the personal representative.  There are rules dictating who has a right to apply and professional advice should be sought.   That person will obtain a grant of administration (with will annexed) which will give that person the power to administer the estate in accordance with the will, as though they had been appointed under the will. 

  • When should I seek professional help with the estate administration?

    The role of an executor is both time consuming and onerous and carries with it obligations which can expose those assuming the role to personal liability. As a result, executors should carefully consider whether they wish to act personally, or whether to instruct a professional to act on their behalf. 

    An executor should especially consider instructing a professional if any of the following applies:

    • They have no experience of dealing with legal documents, or financial assets
    • They have limited time to deal with an estate
    • If the will is complex, particularly if it includes continuing trusts
    • Where the estate is likely to have an inheritance tax liability
    • If there are multiple beneficiaries, particularly if those include charities, or children who are under 18 years of age
    • If the will is being contested, or where immediate family members or other dependants of the deceased have been excluded (or substantially excluded) and the risk of a claim exists
    • Where there are relationship complexities or difficulties within the family of the deceased or between beneficiaries.  
    • If there are foreign assets
    • If the deceased owned agricultural or business assets
    • Where there are likely to be final income tax and capital gains tax liabilities to settle (and where the estate may also have income tax and capital gains tax liabilities to declare and settle)
    • Where those who inherit the estate wish to vary their entitlements
    • Where there is no will
  • What are my duties as executor?

    If there is a will and you are named as the executor (otherwise known as personal representative), your role is to administer the estate in accordance with the will.  You will face a number of tasks and obligations.  The complexity of your role will depend upon the size and nature of the estate.   In many cases you will need to obtain a grant of representation (grant of probate) to deal with the estate assets. 

    There are some circumstances in which an executor will not need to obtain a grant of representation, but whether or not this is required, the first task will be to gather as much information as possible about the deceased person’s assets and debts so that an informed decision can be made.

    If a grant of probate is required, you will need to apply to the probate court for a legal document known as a grant of representation, which authorises you to administer the deceased’s estate, including all of their savings, investments, property and possessions.  It will also involve you settling all taxes and debts of the deceased and their estate and then distributing the remaining assets to the correct beneficiaries.

  • Can I get financial help to pay for my home care?

    You may be entitled to benefits such as Attendance Allowance (AA).  This is a benefit for people over State Pension age who need extra financial help to stay independent at home due to illness or disability.

    If you are under State Pension age, you may be eligible for Personal Independence Payment (PIP) instead.

    If you have a carer, you could be eligible for Carer’s Allowance.

    These three benefits are not means tested, so will not take into account your income or capital savings.

  • How much does homecare cost?

    If you are paying the fees yourself (self-funding), then you will arrange and pay for your own care, but the local authority should provide advice to support you.

    Costs for homecare vary from area to area, but average around £15 per hour.

  • Will the local authority pay for my home care?

    If the local authority carry out a care needs assessment and agree that you are eligible for care and support at home, they will do a means test which will take into account your income and savings.  

  • How do I get home care?

    If you are having trouble with everyday tasks such as washing, cooking or getting dressed, ask your local authority for a care needs assessment.  This works out what would help you to stay independent at home for longer.  Your carer, relative, GP or district nurse can refer you for an assessment on your behalf.

    If you are being discharged from hospital, the staff on your ward can arrange homecare services to ensure you are safe and properly supported at home, or to help rehabilitate you.  This is often overseen by a social worker.

  • How much will you have to pay?

    If you are eligible for support with funding your care home placement, your local authority must calculate the overall cost of your care.  Then, using a means test, they will calculate how much you have to contribute to the overall cost of your care.    The cost figure that the local authority calculates is called the ‘personal budget’.  This must be sufficient to meet all your eligible needs.  The personal budget must be high enough to meet the cost of at least one suitable care home.  The local authority will pay the difference between the personal budget figure and the amount that it has assessed you as being able to pay.  

    You will also be expected to pay towards the cost of your care from your income, for example pensions, however you must be left with a Personal Expenses Allowance (PEA), which must be at least £25.65 per week.  The local authority does have the discretion to increase this amount, depending on your circumstances.

  • Will the local authority pay for care home fees?

    If you need residential care, the local authority may have a duty to arrange it once it has assessed your needs.  They will carry out a care needs assessment.  If this finds that you need care in a care home, they will then carry out a financial assessment, this is a means test to see if you qualify for help with the fees.  It is likely that you will have to pay something towards residential care home fees from your own income and capital.  If you are eligible for support with funding your care fees, the local council could pay for some or most of these fees.  

    If you have more than £23,250 in capital assets the local authority do not contribute towards your fees.  You will need to pay full care home fees (self-fund) until your capital reduces to the upper capital limit of £23,250.  It is a good idea to contact the local authority a few months in advance of this happening, so they can carry out a financial assessment in good time.

    If you have capital between £14,250 and £23,250 this is assessed as if you have an assumed income (or ‘tariff’).  For every £250 or part of £250 above £14,250 you are treated as if you have an extra £1 per week income.

  • How can we help?

    Applications to the Court of Protection require a number of specific forms to be completed and the court’s procedures will need to be followed to obtain an order. We can guide you through the processes and assist you with the completion and submission of the forms (which can include serving notices on interested parties).

  • Who can apply for a statutory will?

    Anyone can apply as long as they have permission from the Court of Protection before making the application.  However, certain people are exempt from obtaining the Court’s permission before making an application and they include:

    • Court appointed deputies
    • Attorneys under an LPA or EPA
    • Someone who, in an existing will or through the intestacy rules, might become entitled to property, for example a spouse or civil partner
    • Someone who the person who has lost capacity might be expected to provide for
  • How much does a statutory will cost?

    The court fee for making an application for a statutory will is £371.  Other fees may apply, for example, if the court decides to hold a hearing you may also have to pay £494 hearing fee and the Official Solicitor’s fees if one is appointed.  There will also be solicitor’s fees if you appoint a solicitor to assist you with the application.  In general, the costs of the application will be paid out of the person’s estate for whom the will is for. 

  • Who is the Official Solicitor?

    The Official Solicitor is part of the court’s system in England and Wales and acts on behalf of those who lack capacity to represent themselves in court proceedings.  In statutory will applications, the Court usually appoints the Official Solicitor to act for the incapacitated person as their ‘litigation friend’. 

    The Official Solicitor may ask for more information about the person and their circumstances.  The person making the application will work with the Official Solicitor to reach an agreed draft of the will, which is then approved by the Court. 

  • What does the application process involve?

    The application is usually made by the person’s deputy or attorney.  Other people can make an application for a statutory will, but they made need the permission of the Court to do so. 

    The Court of Protection will make its decision based on the best interests of the person who has lost capacity. They will also consider the person’s own wishes, past and present, any beliefs, values and feelings; as well as the views and opinions of other people who know the person as to what is in the best interests of the person.

    Information and documents need to be sent to the court for them to consider the application, including:

    • Assessment of capacity, using a specific Court of Protection form (COP3)
    • Information about the person for whom the statutory will application is being made, e.g.:
      • a family tree
      • their financial information (assets, income, expenditure)
      • their current and future needs
      • accommodation and costs
      • medical condition and life expectancy
    • A detailed statement setting out the background of the incapacitated person and how their estate would be distributed under the proposed will and also if they were to die without the statutory will being made.  
    • Copies of any existing wills and amendments or codicils
    • A copy of the proposed will or codicil in draft form 
    • The consent of the proposed executors and beneficiaries 
    • Details of any expected inheritance tax liability that may occur due to the statutory will

    It is advisable to get professional help in making the application.

    The Court of Protection will confirm that they have received the application and will put the matter before a judge to issue an initial directions order stating what should happen next.  This might include an order to tell the Official Solicitor about the application.  It may also require you to tell anyone who is named in an existing will and who might be affected by the proposed statutory will, or if there is no will, anyone who might benefit under the intestacy rules, about the application. 

    A court hearing might be needed if everyone involved does not agree with the terms of the proposed will.  In this case, the court will appoint the Official Solicitor to represent the person who has lost capacity. 

    Once the statutory will has been agreed by the Court a final copy of the will must be executed (signed) by the authorised person, in the presence of two witnesses and then sealed with the official seal of the court.  

    An application for a statutory will usually takes several months and each case varies depending on the circumstances and whether there are disputes over the will between family members or any other interested parties.  However, if a statutory will is required urgently because the person’s life expectancy is short, it is possible to make an urgent application to the Court of Protection.  

  • When is it appropriate to apply for a statutory will?

    The will may be required because the person who has lost capacity does not have a valid will in place, or their current will is out of date because there has been a change in their circumstances.

    You can apply for a statutory will when the person is not able to understand:

    • What making or changing a will means
    • How much money they have or what property they own
    • How making or changing a will might affect the people they known (either those mentioned in the will or those left out).

    Without a statutory will a person’s estate will be dealt with in accordance with their last will (which may be out of date), or if there is no will in place, then the estate will be distributed in accordance with the rules of intestacy which may not be what the person wants.  

  • What is a statutory will?

    This is the name given to a will that can be put in place for a person who is over 18 and has lost capacity to make a will themselves (e.g. because they have had a serious illness, brain injury or they have dementia).  

    An application for a statutory will has to be made to the Court of Protection.

    A statutory will is effective if the person for whom the will is required is domiciled in England and Wales.  It deals with any property inside England and Wales.  A statutory will is ineffective in dealing with any immovable property (such as land and property) outside England and Wales, but is effective in dealing with moveable property (such as bank accounts and investments) outside of England and Wales.

  • How can we help?

    We can assist with applications to the court of protection and also help with the administration of a deputyship if required.

  • What is involved in being a deputy?

    Acting as a deputy is a serious task and a deputy should manage the finances of the subject of the deputyship order carefully. Yearly accounts need to be compiled and sent to the court for approval. It may be required for the deputy to deal with the sale of the house of the person subject to the deputyship order and deal with the investment of any funds created by this. A deputy should seek professional advice when dealing with this.

  • What can a deputy do?

    The deputy’s decision making powers are limited by the terms of the deputyship order. They generally allow the deputy to manage the person’s finances as if they were that person themselves, but there are normally restrictions of the buying and selling of freehold or leasehold property which would require a further order of the court. 

    A deputy has to act in the best interests of the person whose money they are managing and has to follow any directions that the court provides.

    For more information on how we can assist where a deputy has been appointed click here [hyperlink to assistance in later life]

  • What is a deputy?

    A deputy’s role is similar to that of an attorney. A deputy can be appointed for both property and financial affairs or for personal welfare decisions, although in practice it is very rare for a personal welfare decisions deputy to be appointed.

    Property and finance deputies manage the financial affairs of the person who can no longer make their own decisions. The scope of the decisions that the deputy can make is set out in the deputyship order that the court issues.

    A deputy’s role is a very responsible one.  As a deputy you will be supervised by the Office of the Public Guardian.  We can help with the yearly accounts that are generally needed and provide guidance and support for a deputy.

  • What does the Court of Protection do?

    The Court of Protection will decide whether a person has capacity to make financial or welfare decisions.  Evidence will be required in an application to the court that the person lacks capacity to make the decision or decisions in question.   The tests for capacity are set out in the Mental Capacity Act 2005 ss2-3.  

    If the court concludes that a person lacks capacity and that the court needs to take action, it has wide powers available and can:

    • Make declarations, directions and orders on financial and welfare matters affecting people who lack capacity to make such decisions.
    • Appoint deputies to make decisions for people who lack capacity to make financial or welfare decisions for themselves.
    • Recognise and enforce a foreign protective measure so it can be used in England and Wales. 
    • Remove deputies or attorneys who fail to carry out their duties properly.
    • Decide whether an enduring or lasting power of attorney is valid.
    • Make orders in relation to a person’s deprivation of liberty
  • What does a declaration of trust cost?

    This depends on the complexity of the arrangement that you put in place but a simple fixed interest declaration will cost £350 plus VAT, rising to £500 or more plus VAT for more complicated arrangements. 

  • What happens if I do not have a declaration of trust?

    If you own your property as tenants in common and there is no declaration of trust, the legal assumption is that you have equal shares. This presumption can be overturned by looking at the facts behind the property purchase and during the period of ownership (such as one person putting in the entire deposit or one person making most of the mortgage payments) and there a lot of legal cases about this (mostly arising out of relationship breakdown) but such arguments are expensive, complex and may not result in the outcome you hope for.

  • What type of arrangement can I make with a declaration of trust?

    A declaration of trust can be flexible and give effect to many different arrangements.  At its most simple, a declaration can simply provide for fixed percentage shares (for example 60%/ 40%) that will stay the same throughout ownership.  

    Alternatively, it can ‘ring fence’ an initial investment (the deposit) for the co-owner who paid it and thereafter split any remaining sale proceeds in fixed percentage shares. Under such an arrangement provision is made for prioritising payments upon sale.  

    At the more complicated end, a declaration can provide for shares to change over time to exactly reflect the money that each co-owner invests both at the outset and during the period of ownership.   This will allow an owner who puts less or no deposit payment down, to accrue an increasing interest over time by paying off the mortgage.

  • Can I protect my deposit with a declaration of trust?

    If you are paying more (or all) of the deposit, and you want to ensure that this deposit is protected for you as far as possible, you can draw up a declaration of trust which effectively ‘ring fences’ your initial deposit.  This type of declaration will stipulate that when the property is sold, the deposit should be repaid to the owner who paid it before any remaining capital is divided between the owners.   You can then choose whether the remaining capital is split between you in equal or unequal shares.   

    It is important to remember that if you have a mortgage, this will have to be repaid first and before your deposit.   A declaration will also not protect against the event that the property market falls significantly, leaving you with insufficient value to pay back the mortgage and the initial deposit.  

  • Why do I need a declaration of trust?

    You should have a declaration of trust if you do not wish to own your property in equal shares with your co-owner.  It is important to prevent misunderstandings or disputes arising when the property is sold or upon relationship breakdown or death of a co-owner.

    Common examples of when a declaration of trust is needed include:

    • If only one of the co-owners is paying the deposit or one is paying more than the other – perhaps using savings, an inheritance or a family loan.
    • Where the co-owners are not partners (perhaps friends or relations).  It is important to be clear who owns what.  
    • If you have children from a previous relationship that you want to save your share for.
    • To give someone a share who did not have a share before –for example if your partner moved in to your property and has been paying the mortgage with you, you can give them a share through a declaration of trust. 
    • To change shares of an investment property for the division of rental income between the co-owners. 
  • What is a declaration of trust?

    A declaration of trust is a document which sets out what share each co-owner holds in their property.   A declaration should be made wherever tenants in common do not have equal shares.  When the property is sold, the proceeds will be split between the owners in accordance with the declaration.   

    A declaration of trust can also be used to include other areas of agreement such as a process for sale if one co-owner wants to sell but the other one does not. 

  • How do I make an investment loss claim?
    • First step is for clients to make a complaint through the firm’s own complaints handling procedure.
    • FCA also deals with consumer complaints regarding financial services companies
    • Tax complaints can be made to the Taxation Disciplinary Board (TDB), or the Federation of Tax Advisors (FTA), or the Chartered Institute of Taxation (CIOT), if the tax advisor is a member of one of these professional bodies.
    • The Association of Certified Chartered Accountants (ACCA) and the Institute of Chartered Accountants in England and Wales (ICAEW) also offer a limited complaints procedure in cases of negligent accountancy in investment advice.
    • The Pensions Ombudsman investigates and adjudicates on complaints about pension schemes, but any compensation awarded may be limited.
    • Limitation for suing investment advisor is six years from the fate of the event constituting negligence or three years from the date they first realised it had occurred
  • Do I have a financial services claim?
    • Most cases of financial services claims where compensation is payable usually occur where Independent Financial Advisors’ (“IFA”) have given incorrect / inaccurate advice or where an IFA has failed to advise a client on the risks of a product.
    • Although these are the most common circumstances, there are also many other scenarios where action can be taken against an IFA.
    • In cases against IFAs, clients must be able to establish the following:
    • The IFA owed a duty to the client
    • The IFA failed to deliver adequate or competent service or advice
    • This advice or service was responsible for causing the client financial loss
  • How are competition rules applied and enforced?
    • UK businesses are subject to both domestic law and EU law, despite the effects of Brexit. EU businesses that operate in other jurisdictions are also subject to the domestic law of the jurisdictions in which they operate.
    • Public enforcement of competition law is enforced in the UK by the Competition and Markets Authority, in the EU by the European Commission, and by the relevant National Competition Authorities in foreign jurisdictions.
    • Private enforcement of competition law can be undertaken by anyone that has, or will, suffer harm from a breach of competition law. This can include producers, suppliers, customers, consumers or competitors.
    • Competition law can be relevant to all types of agreements, including verbal or informal agreements.
    • Breaches of competition law can result in fines and damages, as well as criminal sanctions for individuals in the UK, and director disqualification.
  • Is there any independent control over an attorney after they are appointed?

    It is recommended to include someone independent to your LPA (in other words, someone who is not your chosen attorney) to be notified before the LPA is registered.  The purpose of this is so that any concerns about the attorney can be raised if relevant.

    The OPG will closely scrutinise all applications that they receive to register LPAs to ensure that the documents have been completed properly. Once your attorney has been appointed by the OPG they have a duty to maintain and provide accounts and to keep details which show how they are managing your affairs. Your attorney is under what is called a fiduciary duty to act in your best interests and in accordance with the LPA.  If they fail to do so there can be penalties and there are situations where they can be held personally liable for any loss to your assets.

  • Should an LPA be registered with the OPG and how is this done?

    You or your attorney(s) can register your LPA with the OPG at any time. However, your attorney(s) can only use your LPA to make decisions on your behalf after it has been registered. You will need to decide whether you want your LPA to be registered immediately.

    If you wish to register your LPA immediately, you or your attorney(s) will need to complete sections 12 to 15 of the LPA and give notice to any people to be notified using form LP3. You will also need to pay the OPG registration fee of £82. If the LPA will not be registered immediately, these sections of the LPA form should be left blank until you are ready to register. We will assist you with this process if you make the application to register your LPA.

    The advantages of immediate registration are that:

    • The OPG checks the LPA when it is about to register it so any problems will be found immediately. If the LPA is not registered until you have lost capacity, you will not be able to rectify any errors and the LPA may be invalid. That is, your attorney(s) will not be able to use it.

    • The LPA is ready to use if it is needed in the future. As the registration process can take over 20 weeks, delaying registration until you lose mental capacity can cause an inconvenient delay when the LPA is required.

    The disadvantages of immediate registration are that:

    • The registration fee of £82 per LPA must be paid straight away.

    • Over time, you may decide that you want to revoke (i.e. cancel) your LPA and make a new one. If you have already registered your LPA, you will need to pay a second registration fee to register the new LPA.

  • When can my attorney begin to act?

    The appointment of your chosen attorney will not commence until your LPA has been registered with the office of the public guardian.  You can apply to register your LPA at any time whilst you have capacity, but if you lose capacity only your attorneys can register your LPA.  It is strongly advisable to register your LPA as soon as it has been completed and fully signed.

    If you have chosen to allow your financial affairs attorney to act before you lose capacity, they can act as soon as your LPA has been registered but this can only be with your consent.  Once you lose capacity, your attorney can act without your consent (as you will not able to give or withhold consent).   Your health and care attorneys can only act after you have lost capacity to make health and care decisions for yourself.

  • Who can be my attorney?

    You must only appoint people that you can trust to act as your attorney(s). You should consider the following categories of people when deciding who to appoint:

    • family members
    • friends
    • professional advisors such as your solicitor or accountant: this category is generally only appropriate for LPAs for financial decisions.

    You should also consider practical issues such as whether it would be better to have an attorney who is geographically close to you (this might be less relevant, for example, for an LPA for financial decisions if you deal with all your finances online). You should also consider the time, skill and expertise that each attorney has in relation to what they may need to do. If you choose to appoint professional attorney(s) you will need to pay them for acting as an attorney but you can also agree to pay other attorney(s) if you wish.

    Attorney(s) must be aged 18 or over and have mental capacity to make decisions. They must not be bankrupt or subject to a debt relief order.

    We recommend that you appoint at least two attorney(s) to act, or if you appoint an attorney solely to include replacement attorney(s).

     

  • Do I need an LPA?

    If you lose mental capacity (because you are unable to understand and make decisions for yourself), it is difficult for anyone to take care of your property and finances or make decisions about your health and care on your behalf if you do not have a valid EPA or LPA in place. If no EPA or LPA has been made and you lose mental capacity, the Court of Protection requires the person or persons who wish to help you to apply for a deputyship order before it will grant that person or persons the authority to act on your behalf. This can be a lengthy and costly exercise, which causes problems if, as is often the case, funds need to be made available to pay for expenses (such as care costs) or decisions need to be taken quickly. The orders required from the Court may become complicated and more costly if you hold joint property, have business assets or have a complex family dynamic, for example. It is only usually possible to obtain a deputyship order in respect of property and financial affairs as the Court only rarely make health and care orders.

    LPAs can, therefore, be seen as an insurance policy, which guard against applications to the Court being required. As nobody can predict whether mental incapacity will affect them and if so, when, we strongly recommend that you make and register LPAs as they allow you to control who will act on your behalf if you lose capacity and how this person or persons should act on your behalf.

  • What happens if I do not have a will?

    If you do not have a valid will, your estate will be distributed in accordance with the rules of intestacy.
    A few important things to understand are:

    • You do not control who inherits your estate, how much they inherit or when they inherit. There is no way to benefit wider family members, non-family members or charities. It is not left up to the discretion of your closest family but dictated by statutory rules (called the intestacy rules)• Currently, if your estate is worth £322,000 or less, your spouse will inherit everything but if your estate is worth more, 50% of the value of the estate over this sum will go to your children.
    • Your children will inherit their share as soon as they reach 18.
    • If you are not married or in a civil partnership with your partner, they have no right to inherit under the rules of intestacy. If you have children, your whole estate will pass to them. If you do not have children, your estate will pass to wider family.

  • Do I need professional advice to make a will?

    Taking proper legal advice will help to ensure that you consider all  your options and the implications of your decisions.  It will help you to think about issues you may not have thought about or known before.  It will also help you to make decisions which are as tax efficient as possible.

    If you have complicated financial or familial arrangements, it is sensible to take advice from a suitably qualified lawyer who specialises in this area of law, as they will take the time to understand your situation.  They can then ensure that everything is considered and addressed correctly.

    Taking professional advice will ensure that your will is valid and compliant with statutory requirements.   A will which fails to comply with technical statutory requirements will be invalid.

  • Do I need a will?

    The simple answer is yes.  All adults should have a will.  However, some circumstances make having a will even more important and these are:

    • If you have a long term partner who is not your spouse or civil partner;
    • If you have children;
    • If you have children or dependants from a former relationship;
    • If you own property;
    • If you would like to leave money or particular items to someone who is not your spouse/ civil partner or children or if you would like to make a gift to charity.
    • If you own or have an interest in a business.
  • Opt-in v opt-out cases
    • The majority of class actions in the UK operate on an ‘opt-in’ basis.
    • This means that in order to participate in a claim, each prospective class member has to actively join the proceedings or authorise another to bring the claim on their behalf.
    • Adopted by the UK in 2015 are ‘opt-out’ proceedings. These permit a single person to bring a claim on behalf of an entire ‘class’ of those damaged by the breach of competition law, without express permission from each of the class members.
    • The opt-out regime is much more effective than opt-in proceedings. In the former, a single person can bring the claim on behalf of millions of affected individuals (see for example, Boyle V Govia Thameslink Railway & Others, where a single person, Mr Boyle, represents approximately 1 million rail passengers in proceedings valued at in excess of £500m. if the same case were brought on an opt-in basis, each of the 1 million class members would need to opt into the claim, which would be expensive and very time consuming.
    • In opt-out proceedings the individuals in the class are bound by the Tribunal’s judgment and will share in damages.
    • Until recently, opt-in class actions were the only route to collective redress, but the UK adopted opt-out proceedings in 2015 which are rapidly becoming the dominant collective redress regime.
  • Follow-on cases
    • Follow-on cases exist where the infringement of competition law has been established by a competition authority, and those that are damaged can rely on the infringement decision as proof of the decision. The claimant in this case only needs to prove damages.
    • Follow-on cases can be brought before either the High Court or the CAT in the UK, or in the domestic courts of the damage where the damage has been caused or incurred.
  • Stand alone cases
    • Stand alone cases exist where an infringement has not been established by a competition authority. In these cases the claimant must prove the breach of competition law and also that the infringement caused harm.
    • Parties may bring their claim to either the Competition Appeal Tribunal (CAT) or the general courts (either in the UK or in another jurisdiction that could hear the claim).
    • In English courts, the limitation period allows claims to be brought six years from the date on which the breach accrued (but can be longer if the abuse is secret, and therefore not known for many years).