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Some positive news for solicitors !

A recent poll conducted by RTS Media with 500 consumers contains some good news for solicitors and there has been precious little of that around for many months. First, the mildly bad news. It seems that nearly 1/3 of consumers would be prepared to instruct a major brand, not currently associated with law, as soon as that brand enters the legal marketplace.

On the other hand, for some types of matters, such as divorce and conveyancing, the percentage who would much prefer to instruct a solicitor was between 70-80%. This is good news for solicitors although perceptions may well change when and if some major brands enter the market. Solicitors have traditionally not prioritised marketing and it seems to us that what this survey shows is that most of the market is still there for solicitors to lose but a different attitude, budget for marketing, and ensuring this is well spent are likely to be critical in the next few years.

Predicting whether a marriage will succeed

Jonathan Romain, a Berkshire rabbi  has devised a 20 question quiz which he believes may help couples to find out if they are suited.

According to a 2008 population trends report from the Vital Statistics Output Branch, from the Office of National Statistics, one in two marriages end in divorce in England and Wales.

Below are the questions from Dr Romain :-

•             Do you know your partner’s  favourite food ?

•             Will your partner want to get a pet in the future ?

•             Does your partner suffer from any allergies ?

•             Describe one of the happiest moments of your partner’s life before you met ?

•             Answer the same question regarding the saddest moment ?

•             Does  your partner want to have children and if so, how many and when?

•             How regularly does your partner  visit  family ?

•             Are there any family traditions your partner has which he/she would wish to continue?

•             What is your partner’s favourite kind of holiday ?

•             Is  your partner  a saver or spender by nature ?

•             Is it easy for you to buy him/her a birthday present ?

•             Where would your partner like to live in the foreseeable future ?

•             Who is the biggest  influence on your partner excluding you ?

•             Your partner’s  greatest regret ?

•             Joint,  separate bank accounts or a combination ?

•             Private or public  education  for children?

•             Summarise the partner’s ideal view of the future?

•             What  habits or characteristics do you have which  he/she does not like?

•             What would you most like to change about him/her?

•             What are the main values he/she has?

We have highlighted some of the questions in bold as being very obviously significant and perhaps indicative of whether a relationship may flourish. Some of the others we are not sure about, but that’s just our opinion. Dr Romain concludes that getting 15 or more answers correct indicates a  great future, 9 to 14 suggest good chances but work is needed and less than 8 right suggests thinking again !.

Consumers defeat banks

Some good news for consumers today in that the major banks have lost a High Court challenge they brought to the principle that they will be liable retrospectively for any mis-sold payment protection insurance (ppi) policies. The decision has significant implications in that :-

• around 3 million people may now receive compensation
• The FSA estimates PPI providers will need to pay up to £1.3 billion in compensation for new complaints in the next 5 years, and up to £3.2 billion as a result of the obligation legally to  review previous PPI sales and advise customers affected by mis-selling.

Mock prenuptial agreement for the Royal Couple

We would highly recommend taking a look at a very amusing post on the divorce blog of some well known divorce lawyers in London. There are rumours that Prince William and Kate may have signed a prenuptial agreement. these agreements are becoming increasingly important. If you have any suggestions as to what might be added in the mock agreement, please do let us know, but obvioulsy, nothing libellous or abusive please !

5 good reasons to tread carefully with fixed term employees

Employers often believe that they are on safer ground, in employment law terms, if they have some employees on fixed term contracts, being under the misapprehension that the fixed term nature of the agreement lessens the employees entitlements to statutory employment law rights of other employees, As these points demonstrate, such a belief can prove very costly.

1. Fixed-term employees can be given less valuable benefits

Incorrect – under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 an employee can start a Tribunal claim for any less favourable employment terms or any other detrimental act by the employer due to fixed-term status

2.  A fixed term employee can waive entitlement to statutory redundancy payment

Incorrect – a fixed-term employee is entitled to the same statutory redundancy payments as any other employee as long as they qualify for length of service and the dismissal is due to redundancy.

3. If a fixed term contract has expired the employee can’t claim unfair dismissal

Incorrect – not renewing a fixed-term contract is still a dismissal, and as such the employee needs to follow procedure and be able to justify the dismissal.

4.  The ACAS Code does not apply to fixed-term employees

Generally incorrect – the Acas rules do say that they don’t apply if a dismissal is based on expiry of the contract but this does not mean that the rules do not apply if the fixed term employee was dismissed on misconduct or capability grounds.

5.  It is ok to keep renewing  fixed term without the employee becoming permanent

Incorrect – if an employee has worked on a fixed term basis for 4 years or more he or she can ask an Employment Tribunal for a declaration of permanent status.

Ways in which the Human Rights Act is being argued

There is a trend for tenants of council housing to use human rights arguments to defend eviction claims. Local Authority claims are commonly defended even where the tenant is a nuisance tenant and/or not paying rent using the right of respect for a home ! This issue is likely to become even more prominent under the UK Government’s new rules whereby council tenant rents may well be significantly increased in the near future, so it will be interesting to see how this situation plays out.

Assylum related claims are another area of growth in Human Rights related claims. According to reaserch from Sweet & Maxwell there has been a significant increase in reported immigration and asylum cases in which the Human Rights Act was argued, up 27% from the year before. Many immigrants seeking leave to remain in the UK or fighting deportation cite fear of persecution should they be sent home.

Beneficiaries of a will

When a loved one dies, practicalities are often the last thing on the mind of relatives. However from a legal perspective, one of the first matters that needs to be attended to is ascertaining the provisions of the will, if one has been made by the deceased. This document will set out who the executors of the will are, so that they can deal appropriately if the will has been validly made.

There are certain rules to be complied with, for example, the will must be in writing and the signature must have at least two witnesses, neither of whom can be beneficiaries under the will. Furthermore, the document cannot be damaged and the deceased cannot have married after the date of the will (unless the will anticipated this). The will should set how who is to receive what under the will who will be the beneficiaries and entitled to a portion of the estate. However, if it transpires that there is a problem with the will, for example if some beneficiaries had already died before the deceased, then there may be an issue of ‘intestacy’ or ‘partial intestacy’. This means that certain legal rules apply to determine what happens to the assets and estate of the deceased in the absence of a will (or partially effective will).

Assuming in the first instance that all is well and the will is valid, beneficiaries named in the will should inherit property, possession or money. One of the main considerations of the beneficiary from a fiscal perspective will be the tax liability which this inheritance attracts and such a beneficiary would be well-advised to take legal and financial advice on the situation to ensure that all formalities and taxes are appropriately paid. The liability to pay income tax may depend on what form the inheritance takes. A legacy (such as the designated lump sum or asset a beneficiary inherits) may not incur income tax liability, but any income from the residue of the estate may attract a tax liability. Similarly, issues of capital gains tax need to be considered as this tax may have implications on future dealings with an asset.

What happens, however, if the will was not valid and the rules of intestacy apply? First, an administrator will be appointed by a Grant of Representation to deal with matters. This administrator is issued from the Probate Registry of the High Court. The law deems that there is a ‘hierarchy’ of beneficiaries and they will inherit in a certain order of priority, depending on the family links of the deceased. For example, according to the rules of intestacy, if the deceased was married but had no children, then everything goes to the spouse. However, if there is a remaining civil partner and also children, then the estate is divided between them all and so on. In all cases, the inheritance is calculated once everything the deceased owes has been deducted. Sometimes the identity of the beneficiary is difficult to ascertain under the rules of intestacy and there are some specialist companies who can help in locating and identifying missing beneficiaries.

Some categories of property are treated slightly differently however. If the deceased (who died intestate) owned property with another person in a certain legal capacity called ‘joint tenants’, then the other person would inherit all the property irrespective of the rules of intestacy. However, if the property was owned jointly as ‘tenants in common’, the deceased share in the property would form part of the estate. This share can be any percentage and this needs to be determined before any transfer of property can be made.

Various categories of people are not recognised as beneficiaries under the rules of intestacy, such as unmarried heterosexual partners and homosexual partners who are not part of a civil partnership. There is also an option to apply to the court for a contribution from the estate under the rules of intestacy if there is an appropriate argument that an individual has a right an inheritance.

What happens if someone contents the provisions of a will and argues that there is something amiss? In these circumstances, it is best to seek legal advice so that the merits of the claim can be assessed. It is often difficult to prove that a will was created under undue influence, for example, but a challenger can often be successful in dragging out a case. Each case turns on its own merits and the best solution is to seek professional advice.

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