0800 652 3371

Cohabitation Awareness Week

Question - Common law husband/wife?

Question - Jointly own your home?

Question - Kids?

Question - Together over two years?

Question - Same rights as married couples?

Answer: WRONG!!!

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Forget the myths. COHABITEES DO NOT HAVE RIGHTS TO:

  • Maintenance.

  • Pension shares.

  • A different split of the home sale proceeds to reflect your needs.

  • A share of savings, investments or assets owned by your cohabitee.

Married couples enjoy these protections. In Cohabitation Awareness Week, shouldn’t you find out what you can do to protect yourself?

Telephone me, Lisa Grimmett, on 01743 280280 to find out more.

Epilepsy Drug Epilim and its Potential Impact on Pregnancy

Sodium valproate, also known by the brand name Epilim, carries a one in 10 risk of physical abnormalities in unborn babies, such as spina bifida and cleft palate, and a 40% risk of developmental issues such as autism and learning difficulties.

It is estimated that around 20,000 UK children have been harmed by the drug since it was first licensed in the UK in the 1970s.

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Women still ill Informed on the risks

The drug has been making headlines recently, as it appears that the risks associated with taking Epilim during pregnancy have been known by prescribers for over 40 years and yet even now, many women taking the drug are still unaware of the adverse effect it can have on an unborn child.

Indeed, in 1973 a “Dear Doctor” letter, designed to alert doctors about important information regarding marketed drugs, warned health professionals that sodium valproate had been teratogenic in animals, meaning that it could disturb the development of a human foetus. However, the then regulators chose not to inform patients of this fact directly as it “could give rise to fruitless anxiety”. The then Committee on Safety of Medicines therefore decided that this warning was not to be included on the drug package inserts, as then there would be no danger of patients themselves seeing it.

An article published in 1997 titled “Best practice guidelines for the management of women with epilepsy” again illustrates that healthcare professionals have long been aware of the teratogenic effects of anti-epileptic drugs. The article stated that women with epilepsy should be given pre-conception counselling, to make them aware of the consequences of teratogenicity, and ensure they are fully aware of the risks and benefits of treatment to enable them to make an informed decision about future pregnancy. It also states that counselling should start at the time they are diagnosed with epilepsy and at repeated intervals thereafter. Despite this clear guidance, it seems that some women are still ill-informed about the risks 20 years later.

Calls for stronger warnings on the drug packaging

A recent survey of 2000 women, commissioned by three charities – Young Epilepsy, Epilepsy Society and Epilepsy Action. Found that out of 475 women currently taking sodium valproate, 68% had still not received the warnings as part of the “Valproate Toolkit” launched in February 2016. This toolkit was created by the Medicines and Healthcare products Regulatory Agency (MHRA) in an attempt to try and aid healthcare providers in talking to women suffering from epilepsy about the risks of using Epilim during pregnancy, after it concluded that the guidelines on the drug’s use in women of childbearing age needed to be strengthened. However, the above study also found that one in six women taking the drug were still unaware that it could negatively affect the development of their unborn baby.

It is not as if this toolkit is the first attempt at better informing takers of Epilim of its ill effects during pregnancy. Following a review of valproate conducted by the European Medicines Agency’s (EMA) Pharmacovigilance and Risks Assessment Committee (PRAC) in November 2014, the Coordination Group for Mutual Recognition and Decentralised Procedures – Human (CMDh) agreed to strengthen the warnings on the drug’s use in pregnancy due to the risk of malformations and developmental problems.

They stated that a review of then recent studies from 2008 to 2011 had shown that up to 30 to 40% of pre-school children exposed to valproate in the womb suffered from developmental problems, including difficulty with speech and language, lower intellectual ability and memory problems. It also stated that previous data had shown that unborn children exposed to sodium valproate were also at increased risk of autistic spectrum disorder (around three times higher than in the general population) and of childhood autism (five times higher than in the general population).

Legal battle against manufacturer forced to end

An attempt to sue the Epilim manufacturer Sanofi-Aventis, under consumer protection laws that were introduced after the well-known thalidomide scandal, began in around 2004 by a number of families, who claimed the warnings about the potential risks of Epilim were inadequate in the 1990s, which caused a number of congenital abnormalities to their unborn babies, including spina bifida and deformities to their hands and feet.

However, in November 2010 around 80 families, then involved in the group action, were forced to discontinue their six year legal battle against Sanofi-Aventis when their Legal Aid funding was withdrawn. This for some highlights the flaws in the Legal Aid regime, although that is another matter entirely.

Safety review held to see if more could be done

The PRAC branch of the EMA held a public hearing on 26 September 2017 as part of a safety review of the drug, to review how effective its 2014 recommendations, discussed above, had been in minimising the risk of harm to unborn babies and to see if more could be done. The results of the above survey conducted by the three epilepsy charities were presented at the hearing, along with insight and advice from other participants, including 28 patients and patient representatives, 19 healthcare professionals and academics, 11 from the pharmaceutical industry and seven from the media.

A number of proposals were made which included strong support for a visible reminder of the risks on the outer packaging of valproate medicines, accompanied by information and discussion of the risks every time the drug is dispensed, and regular reviews for all women receiving long-term valproate. Following this public hearing the PRAC will prepare a report on measures to reduce the risk of valproate-containing medicines and set out their conclusions.

Although the recent news coverage will understandably raise concerns with pregnant women, and women of child bearing age, currently taking Epilim, it is important to note that they should not suddenly stop taking their medication unless they have been advised by their healthcare professional to do so, as stopping suddenly can increase the risk of seizures and their severity. It is therefore recommended that they instead make an appointment with their doctor to discuss their concerns and explore any possible alternative treatment options.

Liability for Abuse Caused by Foster Parents

Judgment has been given by the highest court in the land, the Supreme Court, in the case of Armes v Nottinghamshire County Council [2017 UKS C60].

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Miss Armes was placed into foster care by the Council with Mr & Mrs A and Mr & Mrs B during the 1980s. She was physically and emotionally abused by Mrs A and sexually abused by Mr B.

Vicarious Liability

She brought a claim for damages for the injuries including psychiatric injury which she received and consequential losses. It was accepted between the parties that the Local Authority were not negligent in the selection or supervision of the foster parents and that the abuse could not have been foreseen. The claimant argued however that the Council was nevertheless liable for the abuse, on the basis that they were vicariously liable for the wrong doing of the foster parents.

Vicarious liability usually arises in an employment context. If a fellow employee of a claimant is driving a vehicle and drives that vehicle negligently, the employer is nonetheless liable for its employee’s negligence and the injured claimant can bring the claim against the employer. This principle is known as vicarious liability and is well established law.

The claim was dismissed by both the High Court and the Court of Appeal. However, in a landmark Judgment the Supreme Court allowed the appeal, finding that the Council was vicariously liable for the abuse committed by the foster parents. An important part of the claimant’s case was that a decision taken by a Council during her childhood not by her, but by the Council, as between whether to place her in a local authority children’s home, or into the care of foster parents would be the difference between whether or not she was entitled to compensation without proving fault on the part of the local authority.

Had, for example, the claimant suffered the same abuse as she did suffer from the foster parents, in the hands of an employee employed by a children’s home, she would have been entitled to be compensated as the local authority would be vicariously liable for the acts of the employee carrying out the abuse. Until the Supreme Court’s Judgment the claimant, or those in a similar position, were prevented from any remedy from the local authority simply because the relevant abuse had been carried out by foster parents into whose care the Council had placed her.

The Council were vicarious liable for the acts of the foster parents in the Armes case for the following reasons:-

Integration and Business Activity

The local authority carried out the recruitment, selection and training of foster parents, paid their expenses and supervised the fostering. In those circumstances the foster parents were not carrying on an independent business of their own, and it was impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents. Thus the abuse committed by the foster parents against the claimant was committed by the foster parents in the course of an activity carried out for the benefit of the local authority.

Creation of Risk

The placement of children with foster parents creates a relationship of authority and trust between the foster parents and children, in circumstances where close control cannot be exercised by the local authority. This renders the children particularly vulnerable to abuse.

Control

The local authority exercise a significant degree of control over the foster parents: it exercises power of approval, inspection, supervision and removal. Micro-management or a high degree of control, are not necessary for the imposition of vicarious liability.

Ability to Pay Damages

Most foster parents have insufficient means to meet a substantial award of damages whilst local authorities can more easily compensate the victims of abuse.

There was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at a much greater cost.

The decision of the Supreme Court now gives parity for victims, whether their abuse was caused by a council care home employee or by a local authority appointed foster parent.

Continuity and Expertise

Lanyon Bowdler’s Ludlow office can trace its roots back to the 1850s, when Stanley Weyman moved his solicitor’s practice to 7 Mill Street which was occupied continuously by successor practices until our move to the Eco Park in 2008.

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The location of Ludlow, near the middle of the Welsh Marches, has meant that since that date the practice (in its various forms) has been firmly embedded in the farming community in the area, as well as in the life of the town. As a result, we have acted for succeeding generations of farming families over the years.

Four generations

A colleague recently came across a pleasing example when checking some farm deeds for a member of the team prior to registering the legal title at the Land Registry. The firm acted when the family originally bought the farm in 1914 and has continued to act ever since - some four generations later.

We are proud of our roots in the local community, and our long term involvement with clients is not confined to farming families, but this connection has allowed us to develop our expertise.

NFU's Legal Assistance Scheme

The whole firm enjoys a close relationship with the NFU and we are panel solicitors under the NFU’s Legal Assistance Scheme for the counties of Shropshire, Herefordshire and Staffordshire.

We are lucky to have a vibrant specialised agricultural department (which is ranked by The Legal 500 as being in Tier 1 for Agriculture and Estates in the West Midlands), and we have specialists in all our offices, which stretch from Oswestry in the North to Hereford in the South.

If one of our offices is not convenient then our specialists are ready to advise and, where necessary, visit clients and potential clients wherever they may be located in the Welsh Marches and beyond.

Tougher Sentencing Guidelines for Dangerous Driving Offences

Over the weekend, the press has widely reported on increases to sentences involving the most serious cases of causing death by dangerous or careless driving.

The maximum penalty could now be a life sentence for those convicted effectively sentencing on an equivalent to Manslaughter.

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Public consultation

The changes follow previous criticism that the statute limited sentences for those convicted over road deaths had been too lenient, where there were aggravating features involved such as the driver being under the influence of drink/drugs, driving at excessive speed, racing or using a mobile phone.

Following a public consultation last year, 70% of those questioned were in favour of the new sentence increases which will see;

Death by Dangerous Driving increasing from the current 14 years maximum up to life imprisonment, and Death by Careless Driving increasing from 5 years to 14 years, if alcohol or drugs are involved.

A new offence of Causing Serious Injury through Careless Driving is also going to be introduced to fill a significant gap that currently exists within the law for such offences.

Act Now - Changes to Personal Injury Claims

The Government is proposing to make substantial changes to claims made for personal injuries suffered in road traffic accidents. The changes are bad news for claimants.

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At present, if the personal injury element of the claim is worth £1,000 or more, the defendant’s insurers must make a contribution to the legal costs incurred by the claimant. This means that claimants are able to retain the majority (typically at least 75%) of the compensation they recover.

What are the Changes?

It is proposed that this figure, known as the small claims limit, will increase to £5,000. In claims worth less than £5,000, claimants will have to make a much larger contribution to their own legal costs, which will mean them receiving less compensation.

To put some perspective on this, at present, a typical whiplash injury lasting four weeks is worth around £1,000, whereas for the claim to be worth £5,000, the symptoms would have to last for 18 months to two years.

However, things get worse because at the same time as changing the small claims limit, it is also proposed that a tariff system be introduced which will set prescribed compensation figures for injuries lasting up to two years. This tariff system will leave claimants considerably worse off, as under the proposals claimants with injuries lasting for three months will receive just £225.

Why are the Changes being Introduced?

The Government has stated that the main aim of the proposals is to reduce the cost of claims to insurers, and therefore save motorists money through lower car insurance premiums. The changes will undoubtedly save insurers money, but whether this will be passed onto motorists in another matter altogether.

In 2013 substantial changes to personal injury claims were introduced which undeniably saved the insurers millions of pounds each year. The table below, published by the Association of Personal Injury Lawyers, based on information provided by the Association of British Insurers, shows how the cost of personal injury claims to insurers has reduced by 13% since then. It also shows that despite this drop, the average cost of insurance premiums has increased by 8%. It therefore seems unlikely that motorists will see any reduction in their premiums.

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When will this happen and how can I avoid it applying to my case?

It is planned that these changes will be implemented in October 2018. That might seem a long time away, but they could well impact on cases started prior to then, as the £5,000 limit could well apply to all claims issued at Court after that date. This could mean that a case may have been running for a substantial period of time based on the current rules, but if Court proceedings are issued after October 2018, and the claim is worth less than £5,000, the defendant would not have to pay anything towards the claimant’s legal costs, leaving the claimant considerably worse off.

It is also possible that the tariff system for valuing claims will apply to all cases started after the implementation date. The advice is therefore very clear – if you have had an accident and have been putting off starting a claim, do so now, otherwise you may be caught out by the new rules.

Leaving a Gift to Charity in your Will

After you have taken care of family and friends in your Will you may wish to consider leaving a gift to your favourite charities.

Charitable legacies are vital and often the main source of voluntary income for many UK Charities, which would not survive without gifts in Wills. However, current statistics show that whilst the majority of the UK population support charities during their lifetime, only a very small minority include a gift to charity in their Will.

Details you Should Consider

A donation in a Will can be a fixed amount, an item or a share of the estate. Your professional advisor can prepare a new Will for you or a Codicil (a document used to change a Will already made) to incorporate your wishes to leave a gift to charity.

To assist your professional advisor when giving them instructions, you will need to provide the following details:-

The correct charity name and registered charity number: This will enable them to check that it is a registered charity. This could have significant inheritance tax (IHT) consequences. For example, organisations whose aims are considered to be political are denied charitable status.

Branch of the charity you wish to benefit: Are the funds to be used locally? Is it a charity in its own right? What if, on death, that local branch no longer exists?

Is the legacy to be used for any specific purpose?: What if that project has already been completed? The charities themselves are the best to judge the greatest need at the relevant time but the Will could be prepared expressing a wish rather than a binding obligation

Your wishes as to the destination of a legacy if the originally named charity merges or ceases to exist or if the local branch no longer exists: If two charities merge then a gift to either will not necessarily take effect as a gift to the successor charity. It may be better to provide for this in the Will to avoid any application to the Charity Commission for adjudication.

Tax Implications on your Gift to Charity

Income Tax: Charities can reclaim income tax due from income arising during the administration of an estate (apart from tax credit on dividends).

Capital Gains Tax: Charities are not liable to capital gains tax. If assets are sold by executors during the course of the administration of an estate a capital gains tax liability may arise against the executors if the gain exceeds their personal allowance. Charities can generally ask for any assets likely to produce a gain during the administration of an estate to be appropriated to them before disposal so that the exemption applies.

Inheritance Tax: No IHT is payable on assets passing to charities. However, gifts to charities outside of the UK are generally not exempt from IHT except for gifts to organisations in the EU which would qualify for charitable status if they were based in the UK (This will obviously need to be kept under review post-Brexit). It may be possible to leave a legacy to a UK charity with links to the foreign cause which you wish to benefit thereby avoiding paying tax on that gift.

Cutting Your Inheritance Tax Bill: Leaving part or the whole of your estate to charity can reduce and in some cases eliminates IHT liability (currently 40% over £325,000.00 Nil Rate Band Threshold). Anything left to charity in your Will does not count towards the total taxable value of your estate.

You can also cut the IHT Rate on the rest of your estate from 40% to 36% if you leave at least 10% of your net estate to charity.

However, there could be IHT consequences if the residue of an estate is left partly to exempt and partly to non-exempt individuals.

These are matters which your professional advisor can discuss with you and upon which they can advise.

Holiday Sickness

As a personal injury solicitor one of the areas I specialise in is holiday accident claims.

I noted with interest recently the press release and guidance notes from the Solicitors Regulation Authority with regards to holiday sickness claims. The SRA states the Association of British Travel Agents reports that there is a 500% increase in compensation claims for holiday sickness since 2013. They are investigating more than a dozen firms in connection with holiday claims, including potential improper links with claims management companies and payment for referral of holiday sickness claims.

No ban on cold calling

It comes as quite a surprise therefore that the government will not legislate to prevent cold calling for personal injury claims as a whole. Recently the House of Lords gave all party support to ban cold calling by claims management companies; Conservative MP Baroness Altmann had attempted to include a ban in the Financial Guidance and Claims Bill. Incomprehensively Baroness Buscombe told peers (as per the recent APIL press release) “legislation for a ban on cold calling at this stage is not the right thing to do”.

I am having difficulty understanding this, cold calling is universally disliked and at a time when the insurance industry, and the government, had expressed concern over fraudulent claimants, and particularly the increase in holiday sickness claims (generated through cold calling), it makes no sense to me to not address this through a ban on cold calling.

SRA guidance

The SRA guidance goes some way to redress the balance warning firms of risk factors in holiday sickness claims which include:

  • the claim is made some time after the alleged incident

  • there were no reports of the claims to the hotel

  • there was no extensive sickness amongst others in the same accommodation

  • the claim comes from or involves people generating claims in the resort

  • the client’s contemporaneous report of holiday was positive

  • the client drank or ate excessively

However, unfortunately where people are cold called and approached about this there is going to be an increase in claims. I have already assisted a number of clients with claims, which other firms generated through cold calls, after they felt bullied and rushed through a process to initiate a claim without any full explanation of the process. Those clients described receiving a cold call and being told in no uncertain terms that they will receive compensation before the full facts of the case was known. This is incredibly damaging to those who have genuinely suffered illness abroad, not just holiday sickness claims but all types of accident claims.

Take advice from a reputable firm

This firm does not generate work through case management companies and the genuine claimant will have no difficulties in terms of the SRA guidance points. Where cold calling continues to exist I would encourage claimants to take proper advice from a reputable firm when pursuing any such claims.

Homemade Wills - The Dangers

Whilst some clients find it very tempting to avoid the cost of paying for a professional to draft their Will by ‘doing it themselves’, the problems created often outweigh any potential saving made. Quite often “homemade” Wills are rendered invalid due to lack of compliance with the formalities required by the Wills Act 1837 or are successfully challenged in Court. The end result is the same: the testator’s wishes do not take effect after their death.

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Legal formalities

At present a Will is only a valid document if it is executed in accordance with the Wills Act 1837. Errors in the drafting or execution of the document can cause confusion and may result in an application to the Court becoming necessary to clarify the position, which could become costly to the estate and/or render the Will invalid. For example, a Will may be rendered invalid if:-

Your signature is witnessed by a Beneficiary or Spouse/Partner

Your spouse or beneficiary will lose whatever gifts or bequests they were entitled to receive under the Will. It is often tempting and ‘easy’ to find a relative to witness a signature and happens more often than you think.

Your signature is not witnessed by two witnesses

It is surprising how many people miss this vital element. A Will signed in the presence of a single witness or indeed none will be rendered invalid.

You intend to marry but the Will is not made in contemplation of marriage

Any valid Will is automatically revoked upon any subsequent marriage. In order for a Will made before marriage to still stand it must be evident from the wording of the Will that it is made in contemplation of marriage. Homemade Wills may not incorporate such a Clause.

Challenges to homemade Wills

Defending a challenge to a homemade Will is often more difficult. One of the four grounds that can be used to challenge a Will is that the person preparing the will lacked ‘knowledge and approval’. This means that those seeking to challenge the Will must prove that the testator did not understand what he was doing or the effects. When a Will is professionally drafted there is a presumption by the Courts that the testator knew and approved of its contents and that the Will was explained or read to the testator to ensure that they understood it. However, a challenge is more likely to arise if:-

  • There is a radical departure from the content of a previous Will.

  • There is a lack of professional involvement and a major beneficiary was present at the testator’s signing of the Will

  • A beneficiary participated in the preparation of the homemade Will

Although the involvement of a relative or beneficiary may be entirely innocent, (for example, a son purchases a Will drafting kit online to aid his elderly father who is partially sighted and writes the clauses for him) the lack of independent, third party evidence gives rise to an element of suspicion, especially if the testator has excluded a spouse or child who seeks to challenge the will. Although the Will may reflect the testator’s wishes entirely, the self-serving evidence of a major beneficiary who helped draft the Will cannot be overlooked by the Court.

Although there is no guarantee that a professionally drafted Will cannot be successfully challenged, independent third party evidence of the way in which the Will was created is crucial in defending such a claim. A professional Will writer will usually insist on meeting with the testator on their own and make accurate and detailed attendance notes of the testator’s wishes and circumstances of execution, all of which can be used as evidence to any challenge.

The cost of instructing a professional to prepare the Will would be minimal compared to the costs payable by the testator’s intended beneficiaries in defending such a challenge – a challenge that could have been swiftly defeated had the testator involved a professional.

Pre-Action Protocol for Debt

Businesses need to be aware of a new legal process due to come into force in October which may see them having to wait longer to recover debts from clients.

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The new ‘Pre-Action Protocol’ is designed to cut the number of cases going to court but is also likely to cause delays for businesses.

The big change is that debtors will have 30 days rather than the current 14 day period to respond to a letter of claim.

The aim of the protocol is to encourage parties to communicate and exchange information about a debt at an earlier stage in the hope that court proceedings can be avoided, and also to encourage everyone involved to act in a reasonable and proportionate manner.

Many of our clients are naturally concerned that the increase in the notice period will lead to delays in settling a claim, but there are some potential advantages.

For instance, agreeing a repayment plan at an earlier stage will save on legal costs and court fees, and debtors may involve a solicitor earlier in the process which will actually lead to a speedier resolution overall.

Our main advice to businesses is to ensure they contact their solicitor as soon as possible when they have debts to recover so the claim can be instigated quickly.

And if anyone has any current debts, they should refer them to their solicitor now so they can issue a letter of claim before the new protocol comes into force on 1 October 2017.

The Pre-Action Protocol will apply to businesses claiming debts from any individual, sole trader or business, apart from limited companies or PLCs.

For more advice about debt recovery, contact me on 01952 211029 or email sian.samuel@lblaw.co.uk

Metal Detecting

Metal detecting and the prospect of unearthing buried treasure is something that has always fascinated me. I wanted to be an archaeologist when I was at school but my teachers seemed less keen, so that was that. The rest, as they say, is history.

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I have visited the British Museum in London many times over the years and marvelled at some of the finds that are displayed there, particularly the artefacts from the Sutton Hoo ship burial and the Mildenhall Treasure. The Staffordshire Hoard of Anglo-Saxon gold and silver is probably the most recent metal detecting hoard that I have been to see. Now that I have just begun my fifth decade, I am hoping soon to become the proud new owner of my very own metal detector. The fields of Shropshire await!

But what rules do I need to abide by?

First, the owner of the land, where I intend to use my metal detector must be contacted, and their written permission sought, to allow me to search with my detector on the land.

It is illegal to search on public or private land without permission, or to search on a designated area, such as a site of Special Scientific Interest. The National Council of Metal Detecting website has a model agreement which can be downloaded (ncmd.co.uk). Also, the National Farmers’ Union’s website has its own model clause for the use of NFU members. These agreements can help determine issues such as the area to be searched, and how any income received from a find will be split between the metal detectorist and the landowner (a potentially important consideration).

Second, follow the Code of Practice for Responsible Metal Detecting. All finds should be recorded with the Portable Antiquities Scheme.

Third, the Treasure Act 1996 redefined the meaning of “treasure” for England, Wales and Northern Ireland. In broad terms, “treasure” now includes all objects containing precious metal that were buried for any reason and are at least 300 years old. Failure to record a find of “treasure” could result in a fine and/or up to three months in prison. Finds must be reported to the coroner in the district in which it was found within 14 days.

The local finds liaison officer at your local county council can do this for you. If the coroner declares the find to be treasure, museums will have the opportunity to purchase it. The treasure is valued by the Treasure Valuation Committee and they recommend a figure to the Secretary of State for Culture. The museum pay that amount if the valuation is agreed and a reward (equal to the full market value of the treasure) is usually paid to the finder and/or the owner/occupier of the land.

If the reward is payable to more than one person, the Secretary of State will determine how much is to be paid to each, although it is usually split equally between the finder and the landowner (this is where a written agreement may come in useful). If a museum does not want to acquire the treasure, it can be disclaimed and given back to the finder or landowner.

Fourth, non-treasure finds are governed by the British Museum’s Portable Antiquities Scheme, where finders are encouraged to voluntarily record their archaeological finds. In the last 20 years the number of recorded finds – both treasure and non treasure– has increased exponentially. Apparently, about 95% of finds are discovered by members of the public and there are up to 10,000 regular metal detectorists. Again, a prior written agreement with the landowner will be helpful in determining what is to happen to any object found.

It is thought that there is a huge amount of treasure just waiting to be discovered and therefore there is no time to waste - I had better get that metal detector and start searching!

Estranged Children & Inheritance

Estranged Children and the Inheritance (Provision for Family and Dependants) Act 1975

The long-awaited judgment of the Supreme Court in the case of Ilott v The Blue Cross and others, was given on 15 March 2017.

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The case had caused some controversy back in 2015 when the Court of Appeal substantially increased a lump sum award to Mrs Ilott from her late mother’s estate, despite the pair’s long estrangement and Mrs Ilott’s very clear wishes to exclude her daughter from her Will and to benefit three charities instead. Her estate was worth approximately £500,000. The original award had been £50,000 but the Court of Appeal increased this to £163,000. Many people felt that Mrs Jackson’s wishes should have been respected and her daughter sent away empty-handed. However, the Supreme Court upheld Mrs Ilott’s original award of £50,000.

Long period of estrangement

The basic facts of the case were that Mrs Ilott was Mrs Jackson’s only child. When she was 17 years old, Mrs Ilott left home secretly to live with her boyfriend, of whom Mrs Jackson did not approve. Mrs Ilott went on to marry this boyfriend (without telling her mother at the time) and they had five children together. This began a long period of estrangement between Mrs Ilott and Mrs Jackson, which lasted for a period of 26 years, until Mrs Jackson died.

Although there were attempts at reconciliation over the years, they failed. Mrs Jackson made several Wills during this period, none of which made any financial provision for her daughter. The reason for this was the estrangement between them. Mrs Ilott’s financial circumstances were modest. She and her family lived in a house rented from the Housing Association. They were in receipt of state benefits, some of which were means-tested. Mrs Ilott wanted to buy her home and she was entitled to a discount as a sitting tenant.

The two dominant factors in this case were the estrangement between Mrs Ilott and Mrs Jackson, and Mrs Ilott’s very straitened financial position.

Reasonable financial provision

Following Mrs Jackson’s death, Mrs Ilott made an application to the Court for reasonable financial provision from her mother’s estate under the Inheritance (Provision for Family and Dependants) Act 1975. The Act permits certain individuals, including a child of the deceased, to apply to the Court for an order for financial provision from the deceased’s estate on the ground that the deceased’s Will, or the operation of the intestacy rules (if there is no Will), does not make reasonable financial provision for the applicant. If the Court is satisfied that reasonable financial provision has not been made for the applicant, it may make one of a number of orders, including a lump sum payment to the applicant out of the deceased’s estate.

At the initial trial, the court was satisfied that Mrs Jackson’s Will did not make reasonable financial provision for Mrs Ilott. It awarded Mrs Ilott a lump sum of £50,000 from her mother’s estate.

Court of Appeal

After several appeals and a cross appeal, the case came before the Court of Appeal for a second time. On that occasion, the Court of Appeal held that the original judge had made two fundamental errors of principle and increased the lump sum award of £50,000 to £143,000, plus a further £20,000 to be paid in one or more instalments. The Court of Appeal was concerned about the impact of the lump sum of £50,000 upon the state benefits that Mrs Ilott and her family received; it wanted to preserve their entitlement to benefits. It felt that the award of £50,000 would have little or no benefit to Mrs Ilott because of the impact on her benefits. The award of £143,000 was specifically intended to enable Mrs Ilott to buy the house she lived in, without affecting her state benefits. The option of a further award of up to £20,000 was also designed to avoid any impact on benefits.

Supreme Court

The animal charities appealed the Court of Appeal’s decision to the Supreme Court. The Supreme Court had to grapple with the fundamental question: what constituted “reasonable financial provision” in the circumstances of this particular case? They made it clear that reasonable financial provision means such provision as it would be reasonable for the applicant to receive for maintenance. It is designed to meet recurring expenses, being expenses of living of an income nature. The Supreme Court stated that, although the concept of “maintenance” is wide and flexible, and is not limited to subsistence level, it relates to meeting the everyday expenses of living, as opposed to giving an applicant any or every thing which he or she may wish to have. The power conferred by the Act is to provide for maintenance, not to give capital to the applicant.

The Supreme Court commented that some judges might legitimately have concluded that the very long and deep estrangement meant Mrs Jackson had no obligation to make any provision for her independent adult daughter but, as it was, the judge was perfectly entitled to reach the conclusion that he did, namely that there was a failure to make reasonable financial provision. What reasonable financial provision meant in this case would be coloured by the nature of the relationship between mother and daughter.

The Supreme Court found that the original award of £50,000 was not an award of little or no value to Mrs Ilott. That was because Mrs Ilott had put forward a strong case that she was unable to maintain the ordinary domestic equipment on which every household depends to function adequately, including essential white goods, basic carpeting, and the replacement of broken beds. The Supreme Court found that these items fitted perfectly within the concept of maintenance; the replacement of essential household items is the maintenance of daily living. If a substantial part of the award of £50,000 were to be spent in this way, the impact on the Ilott family’s benefits would be minimised because they would not for long be retaining capital above the ceiling at which entitlement to some of their benefits is lost.

No guidance

The judgment of the Supreme Court does not make it any more difficult for independent adult children to claim reasonable financial provision from a parent’s estate, but it does highlight some of the difficulties that applications by adult children, in particular, can pose. In particular, the current law offers no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of an award of reasonable maintenance.

For example, what weight should be given to facts such as the self-sufficiency of the adult child (albeit their reliance on state funds), their lack of expectation of inheriting anything, their lack of contribution to their parent’s wealth, and their lack of care and support for their parent? None of these issues are dealt with in the Act. The fundamental right to leave one’s property to whoever one wishes must also be considered.

Nahajec v Fowle

Since the publication of the Supreme Court’s decision in Ilott, judgment in a similar claim by an independent, adult child, has been given. The case of Nahajec v Fowle concerned Miss Elena Alicia Nahajec, the 31 year old daughter of her deceased father, Mr Stanley Nahajec. Mr Nahajec had not made any financial provision for his daughter in his Will and, in fact, had deliberately excluded her and his two sons from his Will, leaving his entire estate to his long-standing friend and executor, Mr Stephen Fowle. Mr Nahajec even left a note to his executor, with his Will, explaining why he did not wish to make any financial provision for his three children, the main reason being that (according to him) he had not had any contact with them for 18 years and he did not believe that they had any interest in his welfare. He also stated that his children were of independent means and did not need any financial provision from him.

Failed to make reasonable financial provision

However, notwithstanding the terms of Mr Nahajec’s Will and accompanying note, His Honour Judge Saffman found that Mr Nahajec’s Will failed to make reasonable financial provision for Miss Nahajec, in all the circumstances, and decided to exercise his discretion to award Miss Nahajec a lump sum of £30,000 from his estate. The net value of Mr Nahajec’s estate at the time of his death was £265,710.

Miss Nahajec accepted that she did not have a relationship with her father after her parents’ marriage broke down when she was 11 years old, although this was not for want of trying on her part. The relationship had been rekindled for a short period, between 2006 and 2009, but there was no contact between them from 2009, until Mr Nahajec’s death in 2015, because Mr Nahajec apparently disapproved of his daughter’s boyfriend. The judge considered that the reason behind the absence of a relationship between Miss Nahajec and her father was an issue that fell to be decided by the Court: was the reason as a result of her attitude towards her father, or Mr Nahajec’s attitude towards his daughter, or a combination of both?

Ambition to become veterinary nurse

Miss Nahajec lived alone in rented accommodation and had two jobs, including employment at a veterinary surgery. She was in receipt of working tax credits. She had debts of about £6,600, largely as a result of her taking time off work for a serious health condition. Her ambition was to become a qualified veterinary nurse and, to this end, she was working additional unpaid hours at the veterinary surgery in order to gain necessary experience. She would have to re-take her GCSEs, and then take a two year diploma in veterinary nursing costing about £11,350. Miss Nahajec wanted sufficient financial provision from her father’s estate to enable her to undertake this course of study with a view to qualifying as a veterinary nurse.

Ambition was genuine

The judge found that Miss Nahajec regretted the absence of a relationship with her late father and that she had made efforts to try to rekindle her relationship with him over the years, but without success. He also found that her ambition to become a veterinary nurse was genuine; it was a reasonable and realistic ambition. If she were to qualify as a veterinary nurse, that would enhance the quality and financial stability of her life. Miss Nahajec received a very modest income and was in straitened financial circumstances.

Award of £30,000

The judge found her to be an honest witness and accepted her evidence. He considered all of the factors in section 3 of the Inheritance (Provision for Family and Dependants) Act 1975 and concluded that Mr Nahajec’s Will failed to make reasonable financial provision for his daughter; he then went on to consider what financial provision ought to be made for her reasonable maintenance. He decided to award her a lump sum of £30,000, based upon capitalisation of maintenance.

In conclusion

It is clear from these two cases that successful applications by estranged adult children for reasonable financial provision from a deceased parent’s estate are difficult but not impossible; they need to be considered on a case by case basis and the reasons behind the estrangement looked at carefully. Estrangement, in itself, is insufficient to defeat a claim by an adult child.

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