Legal 500 divorce recommendation for the sixth year running

We are delighted that our divorce and family department has been recommended by the Legal 500 for the sixth year in succession.

The reference to us reads as follows:

“Lincoln’s Inn firm Ambrose Appelbe delivers ‘professionalism, empathy, knowledge and care’. Lisa Bolgar Smith leads the team, which includes client favourite James Freemantle, whose ‘knowledge of international maintenance matters is first rate’. The group regularly handles money, adoption and co-habitation cases”.

A Legal 500 recommendation is particularly pleasing because it reflects the views of those who know us – barristers, clients, other solicitors and those who come across us in our work. The recommendation of  James Freemantle (pictured) as a “client favourite” means a lot to us, and the four words ‘professionalism, empathy, knowledge and care’ chosen to describe us are exactly how we would like to be thought of by our clients.

Please contact Lisa Bolgar Smith on 020 7242 7000 if you would like to talk about your own situation and find put how we can help you.

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Child abduction rises to 500 children a year

A prominent article in last Sunday’s Guardian 500 children a year are adopted from UK includes the rather chilling phrase that this time of year is “peak abduction season”. This is because children are taken abroad during the summer holidays and not brought back at the beginning of the new school year.

The problem arises on the divorce or separation of parents of different nationalities. A high proportion of these involve Islamic countries, with fathers as the abducting party. Sharia law gives priority to male parents when considering rights as between a father and a mother, which makes it almost impossible for a mother to get her child back through the courts.

A remedy is more likely to be available if the destination country is a signatory to the Hague Convention. Many of the usual destination countries are not signatories. This is not a problem which is getting easier to solve, not least because marriages between UK nationals and non-UK nationals are increasing.

Lisa Bolgar Smith specialises in cases involving children, and specifically in abduction and trans-jurisdictional cases. Contact her on 020 7242 7000 and she will be pleased to try and help.

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Divorce rate at lowest for 26 years

ONS, the Office of National Statistics, collated and publishes a wide range of figures indicative of national trends. One of the more interesting facts that the divorce rate in England and Wales is at its lowest level since 1981. In 2007 this equated to 11.9 divorcing people per 1000 married population, down from 12.2 per thousand in 2006. These and other statistics appear on this ONS page (or “nuggets” as they call them).

Anecdotally, it seems probable that the rate has gone down still further since the recession. This is a brute function of economics – falling house prices diminish the divided up values whilst the shortage of mortgage funds has made it even harder to create two households out of one. It seems likely that many people who might have have divorced are instead gritting their teeth and putting up with their situation.

As a counter to that, and again anecdotally, it is suggested that the strains imposed by recession, and in particular actual or anticipated job losses, are proving too much for marriages which might otherwise have survived.

The ONS statistics are inevitably collected and collated in arrears. It will be some time before we get any figures to show what the true position is.

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Preparing for a long retirement and old age

The deaths in the last few days of First World War veterans Henry Allingham and Harry Patch are extreme reminders that the uncertainties about retirement include its duration.

Allingham, born in 1896, retired in 1960. Harry Patch, born two years later, retired in 1963. It is pretty amazing, really, that either of them lived much beyond their teens. Allingham was at Great Yarmouth and experienced the first aerial raid on Britain when a Zeppelin bombed it by mistake. He was at the Battle of Jutland in 1916 and, as a founder member of the Royal Flying Corps, was on the Western Front. Patch fought at Passchendaele where mere survival was a feat. Both were already in their 40s by the start of the Second World War. Allingham saw W G Grace play cricket.

Retirement used to have a fairly fixed pattern. Men retired at 65, women at 60. Actuarial tables provided a reasonably good indicator of the interval between retirement and death, with women in general outliving men. Relative financial stability meant that pension predictions largely held good. The range of activities which pensioners engaged in was limited – the popular perception was that they dug their gardens, knitted clothes for their grand-children, played Bingo and sat on deck chairs at the seaside wrapped in blankets, drawing their pensions until, after a decent and reasonably predictable interval, death carried them off. It had the same degree of certainty, so it seemed, as Grace scoring runs or the Titanic reaching New York (which it failed to do in the year that Henry Allingham reached 16).

Damages Based Ageements in Employment Tribunals

There is increasing concern about the use of Damages Based Agreements, particularly in Employment Tribunals. Under a typical DBA, claimants are represented at Employment Tribunals by a person (who may or may not be legally qualified) whose reward for conducting the claim is a percentage of the damages or award.

The concern is not so much with the principle as with failures to tell claimants of other ways of conducting their claims and with terms which are unclear about the fee arrangements and other conditions.

London Probate Solicitors can help plan your estate

(even if you aren’t Michael Jackson and £300 million in Debt)

At first glance, Michael Jackson’s three and a half page Will looks too simple to make sure his estate and assets are distributed according to his wishes.  Jackson’s Will serves as a “pourover” Will, in which in Jackson’s individual name will “pour over” into the Michael Jackson Family Trust.  The Will names John Branco, his lawyer, and John McClain, music representative for Interscope records, as co-executors of the estate.  Barry Siegal was the third executor named, but he resigned as co-executor before Jackson died.  The executors have full power and authority of the estate and are to deal with any property outside of the state of California.

Pre-Nuptial agreements get Court of Appeal backing

It is not often that one can see a major developments of divorce law happening before one’s eyes. The decision of the Court of Appeal upholding a pre-nuptial agreement in Radmacher (formerly Granatino) v Granatino [2009] EWCA Civ 649; [2009] WLR (D) 227 will no doubt be distinguishable from others on the facts. Their Lordships’ careful analysis of the development of the law will, however, be persuasive in favour of enforcing (or, at least, giving serious weight to) ante-nuptial agreements for a wider range of future cases.

The case involved a marriage between German and French nationals. The wide, who was from a wealthy family, argued that an ante-nuptial agreement prevented the husband from claiming against her fortune. The judge had appeared to consider the pre-nuptial agreement as a factor but had given it insufficient weight, and the resulting exercise of her discretion under s25 of the Matrimonial Causes Act 1973 was wrong as a result.

Asset revaluations cut both ways after divorce

Lump sum and maintenance payments after divorce take account of a variety of factors, many of them, obviously, related to the means and the needs of the respective parties. The best valuations and predictions made at the time may prove wrong, and the credit-crunch and ensuing recession have increased the number of settlements whose premises have been subverted by events.

The most obvious examples – obvious in the sense that they were predictable once the downturn got under way – arise either through the loss of the employment which supported the payments or through changes in the valuations of property or shares which underlay the division of assets on the divorce. The landmark case of this kind was that of Myerson v Myerson where the husband, wealthy city trader Brian Myerson, failed to persuade the Court of Appeal to reopen his former wife’s divorce settlement after the value of his company’s shares collapsed.

Constructive dismissal grievances and dismissals

Ever since a case called Cyprus Airways v Lambrou in 2007, it has been assumed that the grievances about which the employee complained must be the same as the ones those on which he bases a claim for constructive dismissal. The employee must have complied with the requirements of the statutory grievance procedure in respect of the matters on which he relies as entitling him to terminate the contract before the Tribunal has jurisdiction to hear the claim under S32(2) of the Employment Act 2002. The point at issue was whether one can sever one or more items from a list of grievances.

The point has come up again in Parsons v Burworth Estates where  the Tribunal had found that the complaints relied on by the Claimant had not been the subject of a prior grievance. The Cyprus Airways case had been considered by the Tribunal.

Employment Act 2008 aims to ease dispute resolution

The Employment Act 2008 came into force on 6 April 2009. At the same time, a new ACAS Statutory Code of Practice on Disciplinary and Grievance Procedures came into force. The aim is to encourage earlier dispute resolution, to reduce the emphasis on the mechanics of managing disciplinary issues, grievances and dismissals, and to increase the flexibility with which problems  can addressed.

The new ACAS Code of Practice on disciplinary and grievance procedures which aims to define, or at least describe, what is “fair and reasonable”. Another change is that the former statutory duty to provide conciliation has been replaced by a discretionary power. The aim is to promote real discussion without compromising subsequent proceedings if they ensure despite the involvement of ACAS. ACAS can now be involved right through to judgment.

Potential Opportunity to Reclaim Inheritance Tax once paid

For those who have paid Inheritance Tax, the fall in value of assets bought in by the recession may bring relief for those who have inherited estates within the last few years.

Broadly, if assets are sold at less than the probate value on death within 4 years, IHT may be reclaimable on the difference. However this must be claimed within 12 months of the sale.

There are potential pitfalls and all the facts and calculations must be considered before submitting the claim, because once submitted, you cannot go back. Sometimes discounts previously claimed will be clawed back and there is a chance you could be a net loser.

However, your individual and Estate figures are well worth examining closely as you may well be entitled to a considerable rebate. We will be glad to look at this in detail for you.

Contact Felix Appelbe or helen Freely on 0207 242 7000 if you would like to discuss this or any other aspect of inheritance tax.

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Budget 2009 – driving away the high earners

The norm with a Gordon Brown Budget (no-one sees Chancellor Alastair Darling as more than an expensive amanuensis for his dominating predecessor) is that it takes weeks or months to find out what the true effect is of any measure. Sometimes this is because the rules are only roughly sketched – it took months, for example, before HMRC  published any useful guidance on the changes to the Transferable Nil Rate Band. Sometimes the effect only appears with the first payslips of the next tax year – even the Treasury was taken aback by the slow-burning impact, political as well as fiscal, of the removal of the 10% band of the personal allowances.

Often, however, the likely impact of a measure is immediately obvious. The sudden increase in the top rate of tax to 50% for incomes over £150,000 will drive high earners away to less punitive climes. If they do not go, they will find other ways to avoid the burden – by working less hard, by retiring early, or by some rearrangement in their affairs.

Time limits for equal pay claims – Slack v Cumbria County Council

Whatever else is unclear about a statutory employment right, the time limits should  cause no particular difficulty – by section 2(4) of the Equal Pay Act 1970, no equal pay claim can be referred to the employment tribunal if the claimant has not been employed in the employment within the preceding six months. Giving the judgment of the Court of Appeal in Slack and Others v Cumbria County Council, Lord Justice Mummery said:

The question is: when does the six months begin to run against the claimant? The ordinary litigant in an equal pay case could be forgiven for thinking that there is an easy answer to this straightforward question. Both sides in this case agree that there is an easy answer; but they disagree about what it is.

We will spare you the arguments which, as it turned out, might be raised to challenge the appaently simple trigger which the Act, and its amendment in 2003, provide. It is enough to point out that not all employments proceed from first recruitment to retirement on the same terms, nor do people necessarily remain in the same job whilst working fo the same employer. What if there has been a succession of contracts, each of which has the potential to give rise to a claim under the Equal Pay Act?

Australian Family Courts order Skype for parental contact

An issue which frequently arises in divorce cases is how both parents can keep in touch with a child when one wants to leave the country with the child. The most usual context in which this arises is where the mother has custody of the child and wishes to move abroad, perhaps to to her country of origin.

Australian family court judges have been addressing this by ordering that the parent with custody must buy a computer as soon as she (or he) reaches the destination and equip it with Skype. Skype allows telephone calls, with video, over the Internet for free and, whilst in many ways a poor substitute for physical contact, is much better than nothing or the expense of an ordinary international phone call. There is a report about it in The Australian of 13 April.

Australian courts are quick to make pragmatic use of everyday technology where it helps – there was a case there recently involving service of an order by FaceBook. It would be fair to say that we do not, in this country, expect too much understanding of technology advances from our judges. Skype, however, has become mainstream, available to anyone with a computer and broadband, and has been in the news recently as a means of avoiding the Home Secretary’s increasing wish to listen to your phone calls and check up on your e-mails. This firm is equipped to use it where it is helpful to our clients, and could explain its benefits to a judge if it became relevant to do so in a family case.

Lisa Bolgar Smith has particular expertise in jurisdictional questions arising from divorce and would be pleased to hear from you on 020 7242 7000.

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Proprietary estoppel may arise where conduct justifies expectation of inheritance

A course of conduct may entitle one person to inherit the estate of another in the absence of a Will if the circumstances amount to oblique assurances given by the owner on which the other reasonably relied. In legal terms this is called proprietary estoppel. In more everyday terms, it means that if the claimant can show that he or she had a reasonable expectation of inheritance and acted accordingly in relation to the property owner, then the court will give effect to the presumed intent of the deceased owner.

The House of Lords reached this conclusion in Thorner v Major and Others, reported in the Times with the title Oblique assurances create proprietary estoppel. Peter Thorner worked unpaid on the farm of his father’s cousin Davd Thorner. Peter came to hope that he might inherit the farm, not because any such promise was made to him but because, as he said in his evidence, David “made various noises that made me think I might well inherit, but nothing very definite”. The nearest that David came to anything formal was to hand Peter the evidence of life policies saying “That’s for the death duties”.

Ambrose Appelbe profiled in The Lawyer

The readership of The Lawyer is almost exclusively other lawyers, so you may have missed this week’s edition which carries an article about the firm following an interview with Senior Partner Lisa Bolgar Smith.

The article made the point that two areas of the firm’s work have been boosted by the recession – matrimonial arguments over diminishing assets and disputes derived from bonus and profit-sharing arrangements. Trust and probate work remains active, as has work for the many charities with which Ambrose Appelbe is involved.

If the breadth of the firm’s work is one of the benefits which is helping it through harsh economic times, the other is the loyalty of a client base which includes families whose connection with the firm goes back many years and through several generations.

A third, perhaps (in slight contradiction to the article’s closing words about the “London set”) is that the firm’s feet are set as firmly in the country as in London, reinforced by having an office in Gloucestershire. Nor is its scope limited to the UK – membership of EuréseaU, the international group of law firms, brings overseas work and work for UK clients with foreign interests.

If you would like to know more abut the firm and how it might help you, contact Lisa Bolgar Smith on 020 7242 7000.

D.I.Y. Probate

Sometimes people think they can do their own Probate. It is easy to look on it as just a bit of form-filling.

This may seem easy enough at first sight, but be aware that whilst the Revenue may well be polite to you, they will certainly not go out of their way to point you towards the tax advantages that you can sometimes legitimately claim. They are unlikely either to help steer you round some of the pitfalls that exist in areas such as Capital Gains Tax, values on death, loss relief, foreign property and other less obvious areas.

Recently we heard about a lady who had not claimed everything to which she was entitled. Our intervention came just in time to enable her to claim a further £300,000 or so that the Revenue would not have told her about. That arose from a chance meeting at a party.

Instead of leaving it to chance, it would be sensible to seek advice. Felix Appelbe or Helen Freely will be pleased to help. Contact them on 020 7242 7000.

Right to legal representation at disciplinary hearing

We have referred before to the way in which the original intent of the employment tribunal structure – that it should be  a quick and efficient way of resolving disputes – has been subverted over the years. The relevant law has grown in both scope and complexity, and the stakes are very much higher. It has become a cliché to refer to the whole business of employer-employee relations and to their termination, as a “minefield” but the old clichés are often the best, and “minefield” gets it about right. The involvement of lawyers becomes a matter of prudent necessity in many cases.

It is not just the size of the awards which matter. Dismissal can have effects which last for a lifetime if one of the consequences is an adverse entry of one of the state’s growing number of registers and databases. The case of R (on the application of G) v The Governors of X School and Y City Council concerned a potential entry made under s142 Education Act 2002 which gives the Secretary of State power to prohibit an individual from providing education at schools of further education institutions.

Put briefly, inappropriate conduct was alleged against a teacher who was said to have kissed a pupil. The teacher was dismissed after a disciplinary hearing and his dismissal was upheld on appeal. Because of the nature of the allegations and the dismissal, the school was obliged to report the dismissal to the Secretary of State.

Charities hit by recession just when they are most needed

With some 190,000 charities operating in England and Wales the importance of the voluntary sector becomes apparent. Over 600,000 people in the UK (volunteers not included) are employed within the third sector, which has even become the primary employment source in some countries all over the world. One crucial question regarding charities is how the economic recession affects their activity and how they can manage this difficult situation.

It has been reported that more and more charities have to operate on less income due to the ongoing downturn. Moreover, a significant decrease in donations forces charities to ask the government for financial support. Indeed, a £42.5m boost has been agreed upon, but this is far below the £500m that sector leaders had called for.

While charities get less funding the demand for their services increases and will continue to increase according to recent researches. In order to survive the recession it is important to think of new concepts instead of relying upon government aid packages. Questions concerning such fields as employment or property issues will arise when dealing with the consequences of recession.

Charities are advised to rethink their business models in order to use their resources as effectively as possible. This is where legal advice by competent solicitors should be sought. Thorough consultation by experts in the field of charity law can help identifying risks and making the right decisions – thus, ensuring that charities can pursue their goals more efficiently.

Contact Felix Appelbe or Helen Freely on 020 7242 7000 if you would like to know more about how we can help in any aspect of charities and charity law.

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UK compulsory retirement age challenged in ECJ

On 5th March 2009, the European Court of Justice (ECJ) decided that Britain’s compulsory retirement age of 65 will break European law if the Government cannot prove that there are social reasons for it.

The test case has been brought by the charity Age Concern, who have been trying to ascertain whether it is legal for employers to force employees to retire upon reaching 65. The ECJ has rejected the charity’s claim that the current regulations are discriminatory on their own and has declared that the practice is legal if it has a “legitimate aim”. The Court suggested that legitimate aims might be linked to social or employment policy.  The Government will now have to prove to the High Court that the laws are not intended solely to enable businesses to make money. They will need to establish that they have aims of a public interest nature “distinguishable from purely individual reasons particular to the employer’s situation, such as cost or reducing competitiveness”.

Under the current rules, a British employer can dismiss an employee when they reach the age of 65 without making redundancy payments, although employees do have the right to formally request to carry on working beyond the age of 65. Age Concern feel they have a strong chance of winning in the British Courts. However, the Government has agreed to re-examine the law in the near future in any event.

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Residential property still moving in Gloucestershire and the Cotswolds

We will leave talk of “green shoots” to Government ministers anxious for a feelgood headline, but it is fair to say that residential property is still changing hands in and around Cheltenham near where Felix Appelbe runs our Gloucestershire office.

Estate agents in Gloucestershire are reporting a substantial increase in viewings, and if conveyancing solicitors are not exactly rushed off their feet, there are new instructions around. We wait to see how much of the apparent interest turns into offers and whether the would-be buyers can get the mortgages they need.

There is, inevitably, an increase in gazundering, that feature of property selling in recessions which the government’s clumsy Home Information Packs do nothing to reduce. Gazundering is the opposite of gazumping – offers being made and acccepted but being renegotiated just before contracts are exchanged because the buyer finds some fault, real or imaginary. We try and minimise that risk by having contract papers ready to send out on the day the buyer is found, by checking as best we can that that the financing is sorted out, and minimising the need for unnecessary enquiries.

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Recession-hit husband appeals to re-open divorce settlement

We have referred before to the growing number of divorce settlements whose rationale has been undone by the effects of the recession. Now one of these has reached the Court of Appeal.

Bryan Myerson appealed to the Court this week to try and re-open a settlement reached with his wife last February, reports The Times today (see Credit-crunched fund manager Bryan Myerson tries to claw back £9.5m from ex-wife).

Mr Myerson’s barrister said that “unforeseeable and unforeseen combination of forces at play within the global economy has undermined the assumptions upon which the order was made” and that compliance with the original settlement would be “unfair and impracticable”. Lord Justice Thorpe is reported as saying “That’s a rum do” when told that the settlement as it stands would leave Mr Myerson half-a-million pounds out of pocket, and that his former wife would end up with 105% of the assets.

As usual with these big money cases, the outcome will depend to a great extent on its peculiar facts. Judgment was reserved, so we will have to wait and see if it produces any principles of wider application to other divorce settlements affected by the economic crisis.

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The secret life of elephants

If you missed the BBC1 programme The Secret Life of Elephants, which was broadcast in three parts in January, you may want to get the DVD, which is now available. There is more information on the web site of Save the Elephants.

Our interest lies in the fact that Felix Appelbe is one of the founding trustees of Save the Elephants. This was picked up by the Law Society’s Gazette whose Obiter column for 5 February included a reference to the programme.

Arguments at the funeral

A recent report in several newspapers suggested that disputes about sharing out the assets and belongings of the recently-deceased are increasing. It is not just those already dead who are the source of these disputes – those who are yet to die are, it seems, the cause of much of the reported concern. We are not sure that the catchy label “vulture syndrome” which appeared in the press adds very much to matters. We do not necessarily agree either with the assumption which accompanies the reports to the effect that the recession is driving the reported increase.

Taking the last point first, our perception is that inheritance disputes – by which we mean serious ones, not just squabbles over who gets the china dog, which we suspect represent a good part of the reported statistics – are just as likely to arise in good times as in bad. There is more to fight about, for one thing.

The “vulture” tag implies carries implications of outsiders hovering around waiting for the death. That too is inconsistent with our experience – and we do a lot of contentious probate work, to give the subject its more formal name. Such disputes are far more likely to involve people with legitimate reason to think that they would receive a slice of an estate after the death. Often, indeed, it is probable that the deceased so intended, but never got around to making the Will which would have given effect to their wishes.

Bankers’ bonuses and reopening divorce settlements

Since we have both a strong divorce department and a busy employment practice, we are keenly aware at the moment of the connection between the two. Sir Fred Goodwin’s pension arrangements are keeping bankers on the front page and do nothing to diminish the opprobrium being heaped on the heads of anyone employed – or previously employed – in any financial business. The legal position tends to be overlooked in the rush to find scapegoats.

The connection is not just that many people find themselves suddenly very much poorer than they were, and hope to reduce their commitments to former wives and children which they made in better times. Describing this, as one newspaper did in its headline this week, as “bankers seek new bonus in lower divorce settlements” may grab the eye, but the article itself was more balanced. The brute fact is that many such commitments are now unsustainable as assets disappear and incomes are cut or lost altogether.

New employment awards limits

Some new limits for basic and compensatory awards for unfair dismissal and for redundancy payments came into force on 1 February 2009 for dismissals occurring on or after that date.

A week’s pay used for calculating basic award and redundancy payment increases from £330 to £350, making the maximum basic award/redundancy payment £10,500.

The maximum compensatory award will increase from £63,000 to £66,200.

If you have any questions about dismissal from employment, redundancy or any other aspect of employment contacts, the termination of employment, or employment compromise agreements, please contact Andrew Penfold or Felix Appelbe on 020 7242 7000.

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Zimmer v Brezan – automatically unfair dismissal

In order to avoid a claim for unfair dismissal when making employees redundant, employers are required to adhere to a procedure rule process including consultation.  There is also the need for what is known as a Step 1 dismissal letter to be provided to the employee.  If such procedure and correspondence is not followed through correctly then there will be an automatically unfair dismissal

Business Property Relief and IHT

There are certain inheritance tax reliefs which a lay person administering an estate may not always be aware of.  One of those is Business Property Relief (BPR).  The law is contained in the Inheritance Tax Act 1984, sections 103-114. The recent ruling in HMRC v Trustees of the Nelson Dance Family offers tax-saving possibilities worth considering

Certain assets qualify for relief at 100%, i.e. sole business and partnership interests, shares of an unquoted company which gave the transferor control of the company immediately before the transfer, and any unquoted shares in a company.  Other assets qualify for relief at 50%, i.e. shares in a quoted company which gave the transferor control of the company immediately before the transfer, any land or building, machinery or plant which was used wholly or mainly for the purposes of a business carried on by a company of which the transferor then had control or by a partnership of which he was then a partner, any land or building, machinery or plant which immediately before the transfer was used wholly or mainly for the purposes of a business carried on by the transferor and was settled property in which he was then beneficially entitled to an interest in possession.  In order to obtain the relief, the asset in question must be held for a period of 2 years prior to the transfer. 

Wife’s claim defeated by tax confiscation order

Divorce settlements are often complicated by third party claims on assets, but few are as difficult as that which arose in the case of Colin Stodgell and his ex-wife.

Stodgell was a Torquay art dealer who was the subject of a criminal confiscation order on the application of HMRC for fraudulent evasion of tax. The sum in question, including penalties, was £900,453 and Stodgell was sent to prison. There were other debts, including charges on properties, and the wife was left with nothing.

She tried to persuade the court to postpone the divorce settlement against the possibility that Stodgell would be able to satisfy the confiscation order, but the Court of Appeal has now upheld the decision which went against her.

You may be interested in Mr Justice Holman’s judgment following the first instance hearing. It is perhaps of little consolation to the wife, but the judgment itself is a good example of a judge taking great pains to set out his findings in detail.

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Recession affects divorce financial decisions

We have had many enquiries recently about variations in maintenance and lump sums.

The last few months have seen enormous falls in both asset values and incomes. Agreements which were reached only a few months ago may appear not just unrealistic but impossible to comply with because their assumptions – house values, bonuses or job security – now look rather different.

Where deals have been done in respect of maintenance, this is a good opportunity, depending on all the circumstances, for parties to go back to Court to renegotiate.

It also may be an opportunity for people wishing to have a clean break to try to have it get done now while values are low.  Conversely, others may want to adjourn and try to get ongoing maintenance whilst both wait to see what develops..

This works both ways for men and women.  Often the women these days have more money than the men.  There is complete equality and a common law duty for mutual support.

Consult us early.  The markets are very volatile at present and timing can be critical.

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Do bankers deserve bonuses?

Bankers’ bonuses are in the news at the moment. There seems to be an assumption that all those who work in banks are of the same kind, are all equally targets for blame, and that their contracts can be ignored because a lynch-mob, with the Prime Minister at its head, is out to get them. It might pay to consider the contractual position – and to bear in mind that there will be many variants between the hopeful recipients.

Usually most bonuses are discretionary. There have been some cases in the past where employees have successfully sued for failure to pay a discretionary bonus guaranteed on the individual’s performance. In many cases the discretion depends on the whole company’s performance rather than the individual’s.

HMRC guidance on Transferable Nil Rate Band

The effect of the Transferable Nil Rate Band is that when a surviving spouse or civil partner dies, the nil rate band available at their death will be increased by the proportion of the nil rate band that was not used on the death of their spouse or civil partner.

The changes announced by the Chancellor in his Autumn Statement of October 2007 caused a certain amount of confusion. HMRC has now released a guidance note which includes several worked examples.The focus is on the extent to which the nil rate band of the first deceased spouse was unused.

If you think that this affects you, or if you have any other questions about Inheritance Tax (IHT), please contact Helen Freely or Felix Appelbe on 020 7242 7000.

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Lincoln’s Inn under snow

The photograph shows Lincoln’s Inn under the heavy snow which fell last week.

There are more photographs here.

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Disability discrimination – need to make reasonable adjustments

Employment legislation, is supposed to provide a relatively straightforward set of remedies for employees. As a corollary to that, it ought to be clear to employers and would-be employers what requirements govern the  relationship between employer and employee. Where it becomes necessary for the Employment Appeal Tribunal to overturn the finding of an Employment Tribunal by deciding that the word “and” imposed cumulative and not alternative requirements, then it is no wonder than employers – and Tribunals – occasionally err.

HMRC pays zero per cent interest on tax repayments

Those who think they may be entitled to a repayment of tax from HM Revenue & Customs should be aware that from this week HMRC will pay interest at o% on any sums due from them – even if the overpayment was HMRC’s fault.

If, on the other hand, a taxpayer owes money to HMRC, interest is charged at 3.5%, down from 4.5%, on tax and any penalties.

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Higher rate taxpayers not claiming relief on charitable donations

A survey by Third Sector Online shows that many higher rate taxpayers are not claiming tax relief on donations which they make to charity.

The place to do this in one’s income tax return, but it seems that many are unaware of the right to make the claim. The survey suggests that £200 million of potential relief is unclaimed much of which, they would hope, would itself go to charity. The bureaucracy involved in achieving this appears to put many people off.

A wider study into charitable giving is due to be published in March.

HMRC have a web page about this called Tax relief when giving to charity through Gift Aid.

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IHT burden is concern for most older people

It is not surprising that Inheritance Tax is a concern for many. It is part of an overall financial picture for which advice and planning is essential

A survey by Lincoln Financial Group of 1,000 people aged over 45 shows that 79% are seriously concerned about the amount of Inheritance Tax (IHT) their estates will bear when they die and the resulting effect on what their children will inherit.

Christmas plus credit crunch leads to divorce

The turn of the year usually brings an increase in those seeking divorce. It may be the result of New Year resolutions; some suggest that the strain of being together over Christmas is the final straw for many. Whatever the reasons for the annual trend, the credit crunch may well play a part in both the decisions and the outcomes.

For some, an acute shortage of money, whether or not as the result of redundancy, will be the final trigger which takes them to see a divorce lawyer. For others, the property downturn and the difficulty of raising mortgage money will have the opposite effect and make people put up with their marital circumstances.

Benefits of a falling residential housing market

The media fills us with gloom with the continuing downward spiral of the residential housing market for home owners. How can there be any benefits at this time with increased repossessions and rising unemployment?

One area of opportunity in the housing market created by the fall in residential prices is the opportunity created by enfranchisement under the Leasehold Reform Act 1967 for acquiring the Freehold to properties meeting certain criteria or for Lease extensions under the Leasehold Reform (Housing and Urban Development) Act 1993.

Apportioning trust expenses between income and capital

Questions sometimes arise as to whether professional fees incurred in respect of a discretionary trust should be charged against income or capital. The beneficiaries are not the only people to whom this may matter – HM Customs & Excise may have an interest in this as well.

The point came up before the Court of Appeal in Revenue and Customs Commissioners v Peter Clay Discretionary Trust. The judgment was delivered on 19 December 2008 and was reported in The Times on 2 January 2009.

Pre-nuptial and post-nuptial agreements

It is interesting to compare the reactions of different commentators to the Privy Council’s unanimous decision in the Isle of Man Macleod divorce case.

“Judges deal blow to pre-nuptial agreements” says the FT’s web site. “Court backing for post-nuptials” says the BBC web site. Neither heading really reflects the real effect of the decision which was that, on the facts of this case, the third of three agreements made during the marriage was enforcible.

The matter came before the Privy Council because Roderick Macleod and his wife Marcia lived on the Isle of Man. They made an agreement prior to their marriage and three agreements during it. The dispute, which concerned the funding for Mrs Macleod’s housing, required the court to consider all the agreements which had been made.

Protecting property with registration

Unregistered land is more susceptible to claims of adverse possession than registered land as the Land Registry may have no knowledge of your ownership. We are receiving an increasing number of cases where people are applying for ownership of land and properties which have been left vacant and unregistered.

When your property or land is registered, then if another person tries to acquire a property by adverse possession the Land Registry will serve a notice on the registered owner warning them. This gives the registered owner the opportunity to contact the Land Registry, helping to protect your property and enabling you to take the appropriate action to begin proceedings to remove the occupiers from your land.This is especially important if you do not live at the property, for example if you are a landlord or own a plot of land. You must of course keep the Land Registry up to date with your current contact details.

HMRC guidance on residence and domicile

HM Customs & Excise have produced some guidance notes in question-and-answer form on the related subjects of residence and domicile.

The questions are those which are commonly posed by tax practitioners and the answers are given by HMRC’s experts.

If you have any questions about residence or domicile which are not resolved by the HMRC guidance, please contact Andrew Penfold or Felix Appelbe on 020 7242 7000.

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MoJ seeks views on draft Family Procedure Rules

The Ministry of Justice is seeking views on a comprehensive set of rules to govern the practice and procedure in Family Courts. The draft rules apply to all kinds of matrimonial order or civil partnership order – divorce or dissolution, maintenance or other financial remedies including pension sharing, non-molestation orders, and of course, proceedings and applications relating to children, including adoption.

The rules cover everything from broad statements of principle down to the procedural details such as the giving of evidence, the disclosure of documents and the enforcement of judgments and orders.

Mitigating the effects of the tax changes

In the light of Alistair Darling’s announcement as Chancellor of the Exchequer that from 2011 those earning over £150,000 will be subject to a 45% income tax charge and that all employees liable to payment of National insurance Contributions face an increase in the level of their National Insurance Contributions, you may be considering how to mitigate these tax changes, especially if you are on the verge of changing jobs.

One way of mitigating the consequences of the increased tax liability is by way of a salary sacrifice scheme.  A salary sacrifice happens when an employee gives up the right to part of their salary due under the contract of employment in return for the employer’s agreement to provide some sort of non-cash benefit.  Where an employee has chosen a salary sacrifice scheme as part of his remuneration it may also be possible to encourage an employer who has saved at 12 percent on payment of Employer National Insurance Contributions to contribute that saving to enhance the pension payment that the employee has chosen as an alternative option to salary.

New Child Maintenance and Enforcement Commission

The Child Maintenance and Enforcement Commission is a new Non-Departmental Public Body which, from 27 October 2008, took over responsibility for the child maintenance system. The idea behind the new service is to give a wider range of choices to parents with day-to-day care of children for whom the Child Support Agency is now only one of the ways to seek and enforce support for children from a non-resident parent.

At the same time, parents may now disregard the first £20 per week of income before their entitlement to benefits is affected.

Child contact in the Children and Adoption Act 2006

The first part of the Children and Adoption Act 2006 relates to contact with children and provides, amongst other things, for the court to make contact activity directions. A contact activity direction is a direction requiring an individual to take part in an activity which promotes contact which the child who is the subject of the proceedings.

One of the purposes of the provisions to to help make people fit for contact by, for example, requiring them to attend programmes, classes and counselling or guidance sessions to help them establish or improve contact with the child. Orders can only be made of there is a dispute about child contact. One of the specific examples referred to in the Act is where there is a need for “addressing a person’s violent behaviour”.

Privacy and documents in divorce cases

The subjects of privacy and celebrity divorce came together in the High Court when Mr Justice Eady struck out Marco Pierre White’s privacy action against the divorce solicitors acting for his wife. It was not White’s first attack on his wife’s solicitors – he had earlier tried to have them removed from the case.

The chef said that his wife had taken private documents and correspondence for use in the divorce proceedings. In a claim against his wife (later dropped) White claimed that Mrs White had told him that her solicitors had told her to take her husband’s mail. Both Mrs White and her solicitors denied this. Marco Pierre White claimed damages for breach of confidence and privacy, wrongful interference with his property and misuse of confidential information.

Labour taxes employment and trusts

The Chancellor of the Exchequer’s Pre-Budget Report suggests that New Labour wants to bring down as many as possible of Old Labour’s traditional targets in its own death-throes.  Businesses, higher earners and trusts are the chief victims and the headline reduction in VAT has more than one sting in its tail. As always, the populist measures designed to appeal to Old Labour’s traditional allies will hurt most those on the margins – small businesses and small trusts – who are the unregarded victims of headline-grabbing attacks meant for bigger fish and to impress a particular sector of the electorate.

Logic, as well as fairness, goes out of the window when you purport to tackle imminent mass unemployment by increasing employers’ National Insurance Contributions. A tax on employment – for that is what it is – will hurt bigger businesses, but will devastate smaller ones whose owners are already squeezed by the withdrawal of bank support, pressure on their mortgages and the falling-off in trade.

Compulsory reading before you commit to an employment dispute

A read of the EAT judgment in Live Nation (Venues) UK Ltd v Hussain ought to be compulsory for anyone about to embark on an employment dispute

Sometimes the bare recital of the facts of an employment case is enough to make it foreseeable that no-one will emerge happily. Throw in some “blatant and deliberate flouting” of dismissal procedures on the part of the employer. Mix with allegations of age discrimination, a hint of racial discrimination and a touch of alleged sexism. By the appeal, once “a whole series of grounds” of appeal had been dismissed, including grounds directed towards the way in which the Tribunal dealt with the evidence, the Employment Appeal Tribunal was left with arguments over the compensation and a challenge to the Tribunal’s finding of age discrimination.

Celebrity civil partnership dissolved

Despite the catchy headlines about “quickie gay divorce”, the formal ending of the civil partnership between comedian Matt Lucas and his partner Kevin McGee is technically called a “dissolution” rather than a divorce.

It was one of 30 which were approved in one go by the court at the end of October. The numbers dissolved at once are a reminder that civil partnerships have more in common with traditional marriage than a ceremony at the beginning. There is, of course, no reason why the dissolution statistics should be any different, nor why the longevity (or lack of it) of civil partnerships – 18 months in this case – should vary from that of anyone else.

Public Guardian reviews Mental Capacity Act

All older people should consider having an Enduring Power of Attorney despite the hurdles which the Government has erected to make it harder and more expensive to register them. The Government has at last bowed to pressure to make it simpler and cheaper

Ambrose Appelbe was one of the many firms of solicitors who protested when the old Enduring Power of Attorney was replaced with the much more comprehensive Lasting Power of Attorney. The criticism was not of the Government’s overall intentions in the Mental Capacity Act of 2005– the wider range of circumstances covered by the new Enduring Power was welcome, as was the ability to distinguish between different circumstances – financial, medical and so on – and so to fine-tune the decisions which people could make about a future in which they may not be able to make decisions for themselves.

Senior Judge backs family court transparency

Sir Mark Potter, President of the Family Division, has said that the media should be allowed into family courts, subject to the discretion of the judge and the preservation of anonymity where appropriate.

The comment was made, with others, in an interview in the Times which has campaigned strongly for greater transparency in family matters, particularly those relating to children.

Another subject covered in the interview was pre-nuptial contracts. Sir Mark was against legislation to make them binding, but thought that their authority might be strengthened, particularly where the very rich were concerned. This seems to be happening anyway with courts increasingly finding such agreements persuasive, as happened in Sir Paul McCartney’s divorce from Heather Mills.

Sir Mark attacked the dramatically large increase in court fees which followed the government’s wish to make all the civil courts self-financing. One particular concern is the drop in the number of child care cases brought by local authorities since the fees went up. The costs were also a strong disincentive for parents to bring their disputes over children to the courts.

Lastly, he expressed his surprise and disappointment that the government had decided not to proceed with reform of the law relating to unmarried couples, despite a strong recommendation from the Law Commission that this area needs to be undated.

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Government consults on safeguarding vulnerable adults

The subject of financial abuse of the elderly is making news at the moment, with Helen Freely of our Private Client Department prominent amongst those who draw attention to it – see our article Financial Abuse of the Elderly of 9 September.

The abuse goes beyond financial matters. The Government has launched a consultation (see its News Release) on the wider risks to older people. The news release has a link to the consultation itself. The Daily Mail carried a thoughtful article on 16 October which highlighted the proposal to give social workers and others the power to break into homes.

This simultaneously indicates the scale of the problem and its difficulties. There are widespread concerns to do with the increasing powers which this government is giving to officials to interfere in peoples’ lives, derived not least from the social services’ track record of excessive and misused powers with regard to allegations of child abuse. On the other hand, we blame those same officials when an apparently obvious case of neglect or abuse goes unchecked. The answer perhaps lies in having a better system for choosing and training the people who are given the powers.

A little more discrimination in the range of government initiatives might help also in achieving some focus. The Department of Health web site opens with the boastful assertion that “A week rarely passes by without the Department making a major announcement“. If more attention was paid to detail and follow-through and less to the race to announce new “initiatives”, the history of the last eleven years might have been rather different.

Nevertheless, the attention paid to the financial and other abuse of the elderly is welcome.

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Elderly Client Adviser on financial abuse of old people

The advice web site Elderly Client Adviser has an article called Be aware – financial abuse of the elderly which includes a quotation from Helen Freely of our Private Client Department.

The article also includes some examples, including transfers of the ownership of houses, and a definition taken from a 2006 report by Action on Elder Abuse which includes misuse of enduring powers of attorney and other breaches of trust.

An article by Helen on this subject will appear in the January/February issue of Elderly Client Adviser.

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Employment Tribunal Respondents must be identified

A ruling by the Information Commissioner means that the names of respondents to industrial tribunal hearings must once more be published. This therefore again becomes a factor which companies must take into account when they fall into a dispute with an employee.

The practice of publishing respondents’ names was stopped in 2001 because employers were being pestered by businesses offering services to handle the applications on their behalf. The motive was not mere protection from the nuisance of cold-calling ambulance-chasers. The industrial tribunals were set up with the aims, amongst other things, of promoting settlements and providing a low-cost route to a remedy. Neither aim was advanced by encouraging the unsolicited services of these whose interests lay in encouraging a fight.

MoJ publishes consultation on forced marriages

The growing problem of forced marriages was addressed in the Forced Marriage (Civil Protection) Act 2007 which added to the Family Law Act new powers for the courts to make Forced Marriage Protection Orders. The Act is due to come into force on 26 November 2008.

As is usual in these circumstances, the Ministry of Justice has invited views from practitioners, judges and other interested parties as to the procedural detail, and the results of the consultation have now been published.

The intended audience is professional advisers whose task it is to explain the rules to those who seek their guidance.

If you are under pressure to marry someone against your wishes, are already married in these circumstances, or know someone who is and who needs advice, please contact Lisa Bolgar Smith on 020 7242 7000.

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Salvation Army captain stole from Alzheimer’s sufferer

We reported recently that Helen Freely of our Private Client Department had appeared on the BBC News Channel talking about the growing problem of financial abuse of elderly people by relatives and those whom they trusted.

Shortly afterwards, a former Salvation Army Captain was found guilty of stealing nearly £34,000 from the estate of an elderly woman whom she had met through her role in the Salvation Army. It appears that the thief simply wrote cheques when she wanted some money and that the bank paid them. She also stole from the charity itself.

The charity worker held a Power of Attorney from the estate of Kathleen Maggs, who lived in a residential care home in Midsomer Norton in Somerset. No-one spotted the thefts until Mrs Maggs’ husband died two years later.

Do contact Helen Freely on 020 7242 7000 if you want advice on similar problems and how to prevent them.

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Sex, race and whistle-blowing at school

The employment case of Grosvenor v Aylesford School was peculiar in many ways unrelated to the general run of employment matters. Not all cases have such curious facts or inordinate procedural delays, and there are quicker and more cost-effective remedies for employers and employees

A practice like ours which encompasses both divorce and employment law is bound to come across a wide range of human behaviour undreamt of in the Commercial Court, the Technology and Construction Court or the Chancery Division.

One might, over the course of a year, come across sexual harassment, drugs, racial discrimination, victimisation, inappropriate behaviour in front of children, forged documents and betting on the moral laxity of staff.

It is, fortunately, not very likely that all these would come together in one case, but they were all present in Grosvenor v Aylesford School with which we were not, thankfully, involved. Peculiar though the facts were, they would not themselves warrant a trip to the Employment Tribunal. That is what happened, however, though the points at issue (and the reason for us commenting on it) were more to do with procedural points than the rather esoteric facts.

HMRC publish transferable nil rate band guide

A nil rate band is that part of a deceased person’s estate which is not chargeable to Inheritance Tax. For 2007/08 the nil rate band was £300,000, This rises to £312,000 for 2008/09.

A part of a nil rate band which is not used because the deceased did not leave sufficient assets chargeable to IHT can now be transferred to a surviving spouse or civil partner and added to their own allowance. This is called a transferable nil rate band.

Another member of Solicitors for the Elderly

Lucie Sleeman has passed the exams to be accepted as a member of Solicitors for the Elderly. She joins Felix Appelbe and Helen Freely who are already members.

Membership provides clients with the assurance that a firm has wide-ranging experience in dealing with the issues which arise in providing legal services for older people. There is more information about Ambrose Appelbe’s work for older people on our web site.

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Changes to additional maternity leave

The first 26 weeks of maternity leave is called ordinary maternity leave (OML), and the second 26 weeks is called additional maternity leave (AML). Hitherto there has been a difference in an employee’s statutory rights over the two periods. For births on or after 5 October 2008 the statutory rights are now the same.

From that date, all the terms and conditions to which an employee would otherwise have been entitled, except her salary or wages, remain in place for the whole 52 weeks and both periods count as part of her continuous employment e.g. for calculating redundancy pay.

If you would like to discuss this or any other aspect of employment law, please contact Andrew Penfold on 020 7242 7000.

Buy-to-let landlords to get tax visits

The credit crunch, and specifically the fall of Bradford & Bingley, is thought by some to signal the end of the buy-to-let market. It is in decline, certainly, as both house prices and letting values fall, but there are still many property-owners who let out one or more houses or flats.

These include many “accidental” landlords who let out properties which they cannot sell, as well as those who have hung on to letting properties, willingly or not, bought in more prosperous times. As if they did not have problems enough, HM Revenue and Customs is about to take a closer look at their books. Furthermore, they will have the power from next April to knock on the door and ask to see the accounts there and then.

HMRC is obviously keen to find those who deliberately understate their income or overstate their allowable expenses. There is also the possibility that the latter category includes those whose error derives from a misunderstanding rather than deliberate intent. It is only the interest element of mortgage payments which can be set off against tax. If you have a repayment mortgage, any part of the payments which goes to reduce capital debt is not allowable.

Contact Andrew Penfold or Felix Appelbe on 020 7242 7000 for advice on any aspect of property buying, letting or ownership, including any tax implications.

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Energy Performance Certificates

An Energy Performance Certificate is a certificate rating the energy performance of a property.  An EPC will be carried out by a qualified Domestic Energy Assessor.  The Assessor will “survey” your property using standard calculations, which allow a potential buyer/tenant to compare properties, and then produce a certificate showing its current rating and the potential rating.  They will also advise on how to improve your energy rating.  The cost of these certificates is approximately £100.00 and is payable by the builder, homeowner or landlord.

An EPC is required for every property built, sold or rented.  Builders and homeowners are required to include the EPC within the Home Information Pack to their potential purchasers.  As of 1st October landlords of self contained properties will need to provide an EPC to their prospective tenants.  However, a landlord is not required to provide an EPC to someone who is renting a room and sharing facilities.

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Increase to statutory legacy on intestacy

The Government has announced an increase in the amount of the statutory legacy on intestacy. The statutory legacy is the amount which a spouse or civil partner receives from the estate of their husband, wife or civil partner who dies without leaving a Will – assuming, of course, that there is that much in the estate.

It is often assumed that the assets pass like this automatically in these circumstances. Without a Will, however, the assets are divided according to the intestacy rules, which share the estate amongst a wide range of relatives. The statutory legacy ensures that spouses and civil partners benefit, at least to some extent, ahead of anyone else.

From 1 February the limit is set at £250,000 where the deceased also left children, and £450,000 where there are no children. The equivalent limits until that date are £125,000 and £200,000 respectively.

Please contact Helen Freely or Felix Appelbe on 020 7242 7000 if you want to know more about this or about making a Will.

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Penalties for partners who obstruct child contact

The Children and Adoption Act which comes into force this November provides that separated husbands and wives who obstruct their former partners from having child contact could be forced to carry out community service.

Fathers’ rights groups, who have recently led campaigns to highlight the problems so many fathers have with seeing their children, are likely to welcome this move.

A government spokeswomen said “these new measures, which include ordering an individual to attend contact activities such as a parenting class, or carry out unpaid work, give the court new ways to help find solutions where there is a serious conflict between parties.”

Cafcass advises the court on the interests of the children in family proceedings. Chief Executive Anthony Douglas criticises the proposed legislation.  “I’m not convinced unpaid work will change the way people think or behave…what we really need is more specialist family support services with counselling for both children and parents.”

Legal advice to protect your position may be extremely important whether you are a mother or father.  Ambrose Appelbe act for many clients in relation to contact with children and other child issues.  Please contact Lisa Bolgar Smith on 020 7242 7000 if you think we can help you.

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Lehman fall brings employment fears

At the time of writing, no-one has thought to update or remove Lehman Brothers’ web site, and its careers page tells applicants that they can “build a career with us and realise your full potential”. This, more than anything else we have read about recent events, brings home the fragility of employment in the present market.

Estimates of job losses in the banking and financial sector range between 40,000 and 110,000 and not just where the company has actually gone into insolvency. The take-over of HBOS by Lloyds TSB may save HBOS, but there will inevitably be job losses. Meanwhile, Barclays and others are said to be recruiting amongst those who have lost, or who fear they will lose, their jobs.

If you are in any of these positions – out of a job, fearful of losing your job, or being offered a new job – we are here to help, whether making claims on your behalf, advising on compromise agreements or considering a job offer.

Please contact Felix Appelbe or Andrew Penfold on 020 7242 7000.

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Adult child’s claims against parents’ estate

Adult children and other potential beneficiaries may bring claims against the estate of a deceased under the Inheritance (Provision for Family and Dependants) Act 1975 if they believe they have been unfairly excluded from a share in the estate under a Will.

We have a new article about this on our web site which will be of interest to anyone who believes that they should have been a beneficiary in these circumstances. The article includes summaries of some cases which help to clarify the circumstances which a court will take into account.

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Family department rated in Legal 500 again

Ambrose Appelbe’s Divorce and Family Department has again appeared in the Legal 500 rankings in the Private Client / Family category.

The significance of the Legal 500 is that its ratings are derived from what others say – the views of barristers, clients and other firms are taken into account.

Department Head Lisa Bolgar Smith said “We are very pleased that our work has again been recognised in the Legal 500, particularly as this reflects what others say about us. This is a tribute to everyone in the department and not just the partners.”

To find out more about our how we help our clients, please look at our web site or contact Lisa Bolgar Smith on 020 7242 7000 or use the contact form.

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Financial Abuse of the Elderly

Ambrose Appelbe’s Helen Freely was on the BBC News Channel on Saturday 6 September talking about the problem of financial abuse of the elderly, often by their relatives.

Charities specialising in older people, including Help the Aged and Action on Elder Abuse have drawn attention to the hidden nature of the problem. Physical abuse generally shows itself, but the surreptitious theft and misappropriation of money and assets is harder to detect, particularly where the thief is in a position of trust as a relative is.

Adverse Possession of land

Until recently, the rules for adverse possession were effectively the same whether the land was registered and unregistered. After the requisite period of adverse possession (in most cases 12 years) a squatter who had no documentary title to the land could claim ownership of it. The law remains unchanged for unregistered land. However, the Land Registration Act 2002 provides new rules for registered land.

The usual 12 year limitation period does not apply to registered land. A squatter in adverse possession for 10 years can apply to be registered as the owner of the land, either if they are still in possession of the land or if they have been evicted within the previous six months by the registered proprietor.

The risk with out-of-date Wills

If your circumstances have changed recently, because you have moved house, or had children or acquired new assets, these changes may not be catered for by a Will which was made a few years ago. This brings the risk that parts of your estate may not pass to the family and friends you wish your property to go to.

According to new research by the Law Society, 84% of 25-34 year olds do not have an up-to-date Will, and this is a period in life where many changes occur. Andrew Holroyd, President of the Law Society says: “Many people in that age bracket are likely to have bought a home in the last few years. That is a large asset that should be accounted for in the will. The research, however, would suggest that this is not being done.” The worst offenders in the country are in London, where 69% of the respondents didn’t know if they have an up-to-date Will.

Disclosure of house-buying incentives

If you are borrowing on mortgage to buy a new-build property or a renovated property, a new “disclosure of incentives form” will be required from 1 September 2008.

Changes bought in by the Council of Mortgage Lenders aim to ensure that valuations accurately capture the value of newly-built homes. The changes place new requirements on borrowers, estate agents and conveyancing solicitors. There is more information about this on the CLM web site.

If assistance is required in connection with this or any other aspect of property purchase, please speak to Leesa Glenwright, Andrew Penfold or Felix Appelbe on 020 7242 7000.

Mediation wins again

Disputes are a fact of commercial life, but litigation is usually both protracted and expensive. When we are asked to advise on a dispute, we try always to see if there is room for some alternative way of resolving it.

We have just acted for a Portuguese manufacturer in a mediation which resulted in a settlement with which our cient was well pleased and which was resolved at a fraction of the costs of court action.

Contact Felix Appelbe or James Freemantle on 020 7242 7000 if you are interested in discussing mediation as means of bringing an argument, commercial or otherwise, to an end without court proceedings.

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Subject Access Requests in employment disputes

It is worth bearing in mind that an employee in dispute with his or her employer (or, indeed any employee) is entitled to ask the employer for all information held about the employee. A Subject Access Request under S7 of the Data Protection Act 1998 (DPA) may well flush out information which is useful in a pending employment dispute.

There are exemptions relating to confidential information, to references to third parties, and to information which is privileged. The employer is entitled to negotiate with the requesting party as to what is to be provided, and it is important to frame the Request in a way which will get the maximum useful information from, say, the employee’s personnel file without giving rise to delay as a result of arguments over exemptions on which the empoyer is entitled to rely.

Once the precise terms of the request have been negotiated, and the statutory fee of £10 is paid, the data controller has 40 days in which to supply the information.

Please contact Andrew Penfold or Felix Appelbe on 020 7242 7000 for advice on this or any other aspect of negotiations with an employer.

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Agree employment terms before you start

The warm glow you get when you join a new employer often blinds you to the need to get the terms right at the outset. It can be quite hard to pin an employer down in that first welcoming phase, and the small print of the offered contract is not necessarily seen as the top priority which it undoubtedly is.

This is particularly so when you have been approached by a prospective employer. Potential catches lurk in the form of restrictive covenants which may not appear too obviously at a stage when your focus is on the salary and your new responsibilities.

Andrew Penfold and Felix Appelbe have considerable experience of dealing with the termination of employment contracts, experience which feeds back into the factors to be considered at the outset of a new job. Please contact either of them on 020 7242 7000.

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Economic Downturn and Employment Discrimination

Many employees have noted that the bleaker prospects for the UK economy as a whole is hardening the attitudes of employers.

Those new to a job may be concerned about their rights and their limited protection in respect of redundancy. Employers may seek to make employees’ roles less comfortable. Even if you have not worked for your employer for a year and would not otherwise be covered by the provisions as to Unfair Dismissal, you may be able to show discrimination has occurred in your employment. Once engaged as an employee, discrimination issues have no real time limit in respect of the period of your employment and discrimination provides a degree of protection in circumstances where a claim for unfair dismissal would otherwise fail.

The nil rate band discretionary trusts

You may be thinking that Nil Rate Band Discretionary Trust Wills are no longer necessary in the light of the new Inheritance Tax rules which allow a spouse or civil partner to transfer the unused nil rate band to the surviving spouse or civil partner.

You would be right to think that they are used much less since the introduction of the new rules, because surviving spouses or civil partners now have the benefit of two nil rate bands to give away free of Inheritance Tax on their death.

However, here are some advantages of Nil Rate Band Discretionary Trust Wills that you may not have considered:-

The Land Trust

Felix Appelbe is getting involved with the Land Trust which  is being set up by the Soil Association. The Land Trust aims to protect organic and ’special land’ for sustainable food production. The Trust will provide an opportunity for landowners and producers to carry forward their life’s work in perpetuity, safe in the knowledge that their land will continue to be farmed sustainably.

The Trust will work to protect sitting tenants and to give opportunities for communities and new farming entrants to become involved in organic farming and growing.

For more information contact Felix Appelbe on 020 7242 7000.

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Registration of Garden Squares

London has a large number of garden squares or similar private gardens which can only be used by local residents, normally those belonging to something akin to a residents’ association. There are also garden squares in many provincial cities, many of them with unregistered Title and relying on old Deeds and documentation, or no documentation at all, as to the usage and rights of such garden squares.

If you belong to a residents’ association and are concerned as to what rights your association may have in relation to a garden square, please contact Andrew Penfold or Felix Appelbe on 020 7242 7000 and they will be happy to help you.

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When divorce can ruin 30 years of estate planning

Trust lawyers think long-term and are used to planning for generations ahead including the unborn. Divorce is brutal and nasty, with judges increasingly treating trust assets as if they were part of the spouse’s bank account.

Similarly, not enough attention is paid in divorce cases to tax breaks which are the province of tax specialists.

Good use of tax efficient investments, such as qualifying policies and other potentially tax free assets can be of great benefit to settling a divorce case. Very often not enough heed is taken of such possibilities by matrimonial lawyers with scant knowledge of the relevant tax position.

Everyday Declarations of Trust

We prepare many Declarations of Trust between individuals. They often involve relatively straightforward, everyday things to do with the way ordinary people agree to hold property or an asset.

It is important not to go too far over devolving property after death. One effect of the Finance Act 2006 may be to create a settlement where none was intended.

Divorce and farming

Divorce has serious enough consequences in any family, but its effect on those who run a family farm can be particularly serious because of arguments over the future ownership of a large amount of illiquid assets tied up in the land.

Many farmers are asset-rich yet cash-poor, and having to pay out a spouse can very often lead to the splitting up and the sale of the farm. Along with death and debt, divorce accounts for a high proportion of farm sales.

Beware new VAT option to tax forms from 1 June 2008

Changes to the HMRC forms relevant to the VAT options to tax land and buildings take effect from 1 June 2008.

There is a note about with with helpful links to the new Notice 742A and to all the new forms on Robert Schon’s blog.

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Starting again after divorce

Felix Appelbe has been advising clients about divorce for many years and, as you will see from our web page about our Gloucestershire office, sees clients in Gloucestershire as well as in our London office, visiting them at home if that is helpful.

Here he notes some of the points which come up in his wider discussions with clients – the factors which go beyond the formal aspects of a divorce and into making a new life afterwards.

Musical instrument syndicate agreements

Aspirant world-class musicians often borrow a high quality or historic instrument which gives them the resonance and pitch so sought after in Concert Halls today.  It potentially gives them the edge in a very competitive world.

We have experience in contracts with performers and Musical Instrument Trusts where, for example, an expensive violin costing many hundreds of thousands of pounds might be syndicated with investors who put in significant sums in the hope of a good return on capital, with the instrument becoming even more famous in the hands of an able musician who might become well-known whilst playing it.

Celebrity divorce sets a pre-nuptial trend

As the dust settles on the Paul McCartney / Heather Mills divorce, we are finding that celebrity misfortune and media attention are helping to promote a subject which we have been urging on our clients for many years – pre-nuptial agreements.

Squatters and adverse possession

As we note in our web site article on Squatters’ Ttitle, even the most respectable people may find themselves able to claim squatters’ title over land to which they have no formal title.

As that article notes, the Land Registration Act 2002 altered the old law, particularly in relation to registered land, but the new and more formalised process still allows adverse possession to give rise to title to the land.

We are seeing several such cases, often to do with claims to block or unblock access to land where development is contemplated. There can be much at stake in such cases in financial terms, whilst other situations raise emotive issues to do with enjoyment of homes.

Contact Felix Appelbe or Andrew Penfold on 020 7242 7000 if you think you have or are affected by, a claim to title to land based on adverse possession.

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Charitable Incorporated Organisations

There is a new article on our web site about Charitable Incorporated Organisations, a middle way between registration as a charity and incorporation at Companies House.

They were provided for in a part of the Charities Act 2006 which is still under consultation and has not yet been implemented. You may, nevertheless, be interested in what is coming in this area.

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Credit Crunch and Compromise Agreements

The impact of the credit crunch over the last six months has made employment prospects bleaker for many and, in particular, for those in the financial services sector, retailing and construction.

Employees are far less certain that their job will be there next week, let alone next month, with redundancies forecast particularly in the financial sector in the City, not least for employees of various large banks.

If you are an employee facing redundancy, whether as a result of your occupation being affected by the downturn in the housing market, or through cost-cutting exercises being undertaken at your employer, and want to know more about your position as an employee, do contact us.

The context in which we often get involved is in relation to a compromise agreement offered by the employer. It usually makes more sense to reach an agreement on such a basis, but some care must be taken as to the precise terms. The employer’s opening position is not necessarily either the best they can do nor always drafted with proper regard to the employee’s overall position.

There is an article about employment compromise agreements on our web site.

Please contact Andrew Penfold or Felix Appelbe on 020 7242 7000.

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The Solicitors’ Assistance Scheme

Lisa Bolgar Smith and Felix Appelbe of Ambrose Appelbe are both panel members of the Solicitors Assistance Scheme. The SAS was set up in 1972 to provide a place where experienced solicitors could offer guidance and support to colleagues in difficulties.

This covers such things as disciplinary matters, parnership problems and financial worries, with advice in connection with interventions, the solicitors’ disciplinary tribunal and issues with the solicitors’ accounts rules.

We are doing a lot of disciplinary tribunal work at the moment. This kind of problem in professional lives – the intrusion of judicial or quasi-judicial intervention into private lives – mirrors in many ways the matrimonial disputes which we deal with every day, and needs the same kind of skills.

You can get help from the SAS either by ringing its confidential helpline 0207 117 8811 or by contacting Lisa Bolgar Smith or Felix Appelbe direct on 020 7242 7000.

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Cohabitation – property held in common

The big case on this is Stack and Dowden (“Stack”) in which the Judge said that the Court’s task was “the judicial quest for the fugitive or phantom common intention”. We have an article on Stack on our web site, and this note catches up with developments since then.

It is often difficult to predict accurately the outcome of such cases, but the court’s aim in Stack and Dowden was “The search…. to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it”.

It is possible to claim a share of property even if the property is in the name of one of the parties alone, but all the facts have to be ascertained in detail.

Taxation of Discretionary Trusts

This is a brief overview as to how discretionary trusts are taxed as at 8 April 2008, and is likely to change.

Income Tax

Higher rates of income tax are payable by a discretionary trust. No income tax charge should arise on the establishment of a Discretionary Trust. Discretionary Trustees will pay income tax at 40% on all Trust income from 6 April 2006 less the tax already suffered at the basic or lower rate by payment or deduction. (Dividends and other similar income are chargeable at the trust rate that applies to dividends – currently 32.5%)

Charman divorce takes offshore trusts twist

As we reported at the time, John Charman lost his fight in the UK divorce courts to keep the assets in a Cayman Islands trust out of account in the calculation of the divorce settlement to be paid to his former wife. The upshot, on the face of it, was that Beverley Charman would get a record £48 million.

In a move of interest to both high net worth divorce lawyers and trusts lawyers (and Ambrose Appelbe are both divorce and trusts solicitors), a Cayman Islands judge, Mr Justice Smellie, has taken a stand to defend offshore trusts against the widespread assumption on the part of onshore authorities that they are sham.

Becoming a Deputy at the Court of Protection

As our society is becoming an older society, more and more people are losing capacity to manage their affairs.

Often they have not anticipated this during their lifetimes and therefore they do not have an Enduring Power of Attorney or a Lasting Power of Attorney in place, so that someone else can manage their affairs on their behalf.

If there is no such document in place, it is up to the family (or friends or advisers) to apply to the Court of Protection to be appointed the patient’s Deputy.

This usually involves an application to the Court and a series of notices being served on all interested parties in the application.

If the application is not contested, then the court will make a decision on a paper application.  If it is contested, there will be a hearing.

We can help you apply to the Court to become someone’s Deputy at this difficult time.

If you would like any further advice in this regard, please do not hesitate to contact Helen Freely on 0207 242 7000.

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Making a Statutory Will

Did you know that if someone lacks mental capacity, it is still possible to have a Will made on their behalf?

The Will is called a Statutory Will and obtaining one involves an application to the Court of Protection.

What needs to be done after the funeral?

Someone has died and the funeral is over. What happens next?

• Have you thought about sorting out their finances?
• What should you do with all the bank accounts?
• What should you do with all their bills and debts?
• Do you need to sell the house / business?
• What do you do with all their belongings?
• Do you need to pay inheritance tax?
• What forms do you need to fill in?
• Do you need to go to court?
• Who gets what?
• How are you going to deal with the difficult family relationships?
• What are you going to do with their foreign assets or holiday home abroad?

Much demand for leasehold extensions

We are seeing a spate of instructions from clients who want to extend their leases or buy the freehold under the Leasehold Reform, Housing and Urban Development Act 1993 or the Leasehold Reform Act 1967.

When leases get below 80 years, there is a particular trigger point where the valuations start going up and it is therefore worth considering an early application.

There is an article on our web site about this called Time to extend your lease which you may find helpful.

Please contact Felix Appelbe or Andrew Penfold on 0207 242 7000 if you want to discuss this subject.

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Robert Levin and the OAE

Felix Appelbe and Lisa Bolgar Smith of Ambrose Appelbe were amongst the benefactors of a remarkable concert on Monday night at the Queen Elizabeth Hall in London.

Robert Levin led the Orchestra of the Age of Enlightenment in a performance of Mozart and Beethoven which earned 5 stars and a rapturous review from The Times.

The concert began with Mozart’s overture to Der Schauspieldirektor and Beethoven’s Coriolan Overture, directed by Kati Debretzeni.

The real excitement came with Robert Levin’s playing of Mozart’s D minor Concerto No 20 and the Piano Concerto No 21 in C. As the Times put it

[Levin] plays the music as if he’s writing it himself – for the first time. Every transformation and reinvention – not least his volleys of improvised ornament and embellishment – has the orchestra as much on the edge of their seats as the audience.

The concert was broadcast on Radio 3 on Friday at 7:00pm. Even without the visual excitement which is the mark of a Robert Levin concert, it was well worth catching.

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