Blogs

Why Should you make a Will?

It all goes to your family – doesn’t it? Not necessarily and this is a common misconception.

Almost 60% of adults in the UK have not made a Will and this can lead to family disputes and even court cases.

There are many myths and fallacies surrounding Will making and it may be helpful to discuss these here.

  1. If I make a Will, I am tempting fate and I am more likely to die

We can safely say that that our clients do not expire shortly after completing their Wills. We realise that thinking about your own mortality can be stressful and we make the Will writing service relaxed and comfortable so that you can give serious thought to your wishes.

  1. I’m married so I do not need to make a Will as my spouse will get everything

Not necessarily true. If you do not make a Will then your estate is distributed in accordance with the Intestacy Rules. Your spouse will receive any joint assets which pass by survivorship but sole assets will be distributed between your spouse, issue and wider family depending on your assets and family structure. It is best to make a Will to make sure your money goes to those you intend to benefit.

  1. Homemade Wills are just as good as professionally drafted ones

Sometimes that is true but we have seen many cases where the Will has not been properly executed or drafted and it has cost much more to sort out post death than the cost of the Will.

  1. The government will take my money if I die without a Will

If you die without a Will and you have no immediately obvious relatives then the estate is referred to the Bona Vacancia department. Genealogist companies then search for any relatives and if none can be found then the Crown would receive your estate. It is always best to make a Will where you have a no family or a small family as you may wish friends or charities to benefit. The costs of tracing family members can sometimes use up a higher than expected proportion of the estate.

  1. If I die my children will be looked after by my spouse

This depends on who has parental responsibility for the child. It is much better to have a Will which specifically deal with guardians so you can be reassured that your children will be looked after.

These are just a few of the common myths that are raised with us. We recommend every client has a professionally drawn Will to deal with the issues raised above but also think about:

  • Who should be executors – is the person entitled under an Intestacy the best placed to deal with your You choose executors who will sort out the will meaning there may be less likelihood of disputes and ensuring capable and trustworthy persons are in charge of administering your estate.
  • What about your business assets? Is it appropriate for them to go to the person designated under the Intestacy Rules? A Will gives you the opportunity to separate business and personal assets, if appropriate.
  • Avoid claims against your estate. People have blended and second families; or they have people that they support financially who ought to be provided for under a Will. If the Intestacy Rules kick in those people who may not be entitled under The Intestacy Rules may have no choice but to make a claim.
  • Do you need a trust for a vulnerable or disabled beneficiary? Sometimes it is not a good idea to leave money to people outright.  You may want to put protection in place for them.
  • Have you thought about what happens in extreme or unexpected circumstances where your immediate family does not survive you? Where would you like your money to go then?   Perhaps charities or friends rather than distant relatives?

Getting your Will drawn up professionally ensures it is properly executed and valid and also means you get professional advice and up to date inheritance tax information, helping you maximise the assets that actually pass to your chosen beneficiaries. Please contact Esther Janalli-Brown on 01306 884432 or email ejbrown@meaby.co.uk for more information.

 

 

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Is it discriminatory for employers to enhance maternity pay but not shared parental pay?

Permission to appeal to the Supreme Court has been refused for the two authorities involved in this important test case.

The Court of Appeal last year ruled in both  Ali -v- Capita and Hextall -v- Chief Constable of Leicestershire Police that employers can enhance maternity pay without having to enhance shared parental pay.

In the case of Ali, it was argued that it was direct sex discrimination to pay women enhanced maternity pay but not to enhance Shared Parental leave for men.   In Hextall it was argued that a policy of paying women on maternity leave more than those on shared parental leave directly discriminated against men.

Hextall’s appeal to the Supreme Court was also made independently of the Ali authority and the two cases were joined.

At Capita, women employees were entitled to maternity pay at the rate of 14 week’s full pay and 25 weeks at the statutory maternity pay rate.   In contrast parents taking shared parental leave only received statutory parental pay.

In the Hextall case, Leicestershire Police had a policy whereby women received an enhancement of 18 weeks’ full pay and then an additional 39 week’s statutory maternity pay whereas parents on shared parental leave only received the statutory payments.

The fact that permission to appeal to the Supreme Court has been refused means that the Court of Appeal decision is now binding in law.

It has been reported that Jane Van Zyl the Chief Executive at Working Families stated publicly last year that there are concerns that a ruling of sex discrimination in these cases would have undermined the essential protections afforded to women on maternity leave and could have resulted in employers reducing the amount of enhanced maternity pay on offer.

She went on to suggest that ‘The distinct advantage that women face in the workplace having experienced pregnancy and childbirth must continue to be recognised in law…..because maternity leave is designed to protect women’s health and well-being, it cannot simply be equated with childcare’.

The decision to refuse an appeal to the Supreme Court is welcome news for employers who can offer enhanced maternity pay without having to do the same for shared parental pay.

On the downside, this affects many working dads who would benefit from enhanced shared parental pay and it would encourage them to take time off work to properly bond with their newborn child.

Once again it is up to Government to make improvements to these new family friendly rights to ensure that employees and fathers in-particular are encouraged to take up these rights.  It is always a question of affordability in being able to take such time off and such rights are of no practical use if parents are unable to afford the drop in income to take up and enjoy those statutory rights.

If you have any questions about maternity and other family friendly rights then contact Steven Eckett – Partner and Head of Employment at Meaby & Co LLP by e-mail seckett@meaby.co.uk or by telephone: 020 7703 5034

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Fundraising Events in the past month

In the past month Meaby has taken part in two fantastic events that have raised money and awareness to excellent causes.

Bushfire Crisis Fundraiser

Australia is facing one of the most catastrophic bushfires it has ever seen causing the livelihoods, homes and up to one billion animal being affected by the damage. The world has certainly been stunned by the tragic bush fires that have engulfed Australia.

The Meaby team were able to contribute to an intimate event thrown by a fellow Australian client who has a personal connection and knows many families who have suffered as a result of the horrendous fires. Our team offered their time to provide legal advice to the Raffle, which helped the host raise and achieve their fundraising target of over £16,000.

The funds raised will support the Rossi Foundation who will place the funds in a variety of different charities that are aiding those affected by the fires.

We were hugely honoured to be able to take part in such a wonderful evening to support those who have suffered as a result of this tragic event:

Further donations can be made here: https://www.gofundme.com/f/australia-day-sunday-supper-bushfire-relief?utm_medium=copy_link&utm_source=customer&utm_campaign=p_lico+share-sheet

The Great Legal Bake Off

The Meaby Team baked this month to raise funds to support the London Legal Support Trust. Our teams dusted off their aprons and prepared a variety of treats that were sold from our Soho office to raise funds towards this great cause.

The London Legal Support Trust is an independent charity that raises funds for free legal services in London and the South East. Our range of sweet treats raised £200 which will assist those in need of legal advice by supporting law centres, advice agencies and citizens advice services. We had support from local businesses who stopped by and cleared out all the cakes made by the team.

 

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Dealing with the Stress of Separation and Divorce

Meaby & Co Solicitors in association with Paula Ruane, specialist stress prevention and resilience trainer invite you to a workshop for those going through separation and divorce in our Loughton office (First Floor 165 High Road, Loughton, Essex IG10 4LF) on Tuesday 7th April at 11am.

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When you are going through separation and divorce, the pressures and stress of the situation affect every area of your life.

It affects you mentally, intellectually, financially, emotionally and physically.

The very time you need to be resilient, firm and make good decisions is the very time that clarity of thought, resolve and health seem to diminish.

This is a free event, but places are strictly limited. Please contact our Head of Family Law, Joanna Toloczko on 020 3861 5155 or jtoloczko@meaby.co.uk to reserve a place.

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Days off in lieu of smoking

Eagle-eyed readers may have seen the recent article relating to KCJ Training and Employment Solutions, a Swindon company which plans to reward non-smokers by giving them additional annual leave than they would otherwise receive, and more than smokers receive. The amount of the additional holiday will be roughly commensurate with the amount of time each non-smoker saves by not having smoking breaks. The employer wished to incentivise its employees to quit smoking, which it considers will make for a healthier and more productive workplace.  In an ironic twist, the initiative was introduced by the Managing Director, who is a self-declared smoker.

The initiative has been met with broad approval by all stakeholders, focusing as it does upon the positive rather than the negative. No doubt the government will be pleased as it ambitiously targets the eradication of cigarette smoking in England by 2030.

Does the practice breach any employment laws?

The measure positively rewards non-smokers rather than penalises smokers, and so the imposition of the measure does not reduce any employee’s holiday entitlement. Accordingly, it is not a breach of their employment contract.

There is no directly discriminatory angle as the measure is not based upon a “protected characteristic” such as race, age or sex, and no employee is treated less favourably because of that protected characteristic. It could be deemed to be indirectly discriminatory if the measure, while applying to all staff, had the practical negative effect on one particular demographic, although it is likely that it would be saved in this regard by being a proportionate means of achieving a legitimate aim.

Meaby & Co are lawyers experienced in all aspects of regulatory and employment issues. Should you require advice on any aspect of employment law, including the above, please contact Chris Marshall on 0207 703 5034.

 

 

 

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A member of my team is under-performing in their role. As the employer what are my legal obligations in addressing this?

It is quite common for employers of all shapes and sizes to experience staff under-performing in their role.  There could be a variety of reasons for this, ranging from a general lack of ability and apathy, personal issues affecting performance, unreasonable and unrealistic targets and work overload to a lack of training.

Many larger employers will no doubt have comprehensive performance improvement policies combined with disciplinary procedures to address these issues.  These may be either contractual, in which case they must be followed, or they may be non-contractual which means that they may not be followed.

However, whatever the size and resources of the employer’s business, if the under-performing member of staff has in excess of two years’ continuous service then they have ordinary unfair dismissal rights that they can pursue.  The employer will in these circumstances be at risk if they simply terminate the employment relationship without following some form of fair process.

Here are some handy tips that it is recommended that employers follow if any members of their workforce are under-performing in their role.

  1. From the outset it is probably best to have an informal discussion with the employee in question and as soon as possible, commonly known as counselling. As the employer you will be able to find out why the employee is under-performing and whether there are any mitigating circumstances, for example personal problems at home, looking after dependents causing tiredness or any other external factors. It may well transpire that the employer  is at fault for creating an increased workload where for example, staff have left and are not replaced creating additional work or it could be that the employee is having problems with a new system of work and that more training is required.

 

  1. If there are no obvious causes for the under-performance and if counselling fails to address the problem, then it is recommended that the employer follows a formal disciplinary process which can be combined with some form of performance improvement plan. The aim of this is to improve standards of work and not to punish the employee in question.

 

  1. Where under-performance can be identified the employer needs to bring this to the attention of the employee and to explain where there are gaps in their performance and what needs to be done by the employee (and the employer) to get them to an acceptable level of performance. This must be measured over a reasonable period of time and it is recommended that the employer provide continuing support and training if required.

 

  1. If performance improves then this should be the end of the matter. If performance does not improve to the required standard, then it is recommended that you implement an ACAS approved disciplinary procedure.

 

  1. This is usually a three to four stage process which involves arranging a disciplinary hearing where the allegations are backed up with examples of under-performance which can be put to the employee and where they need to be given a full opportunity to defend their position. Remember that the employee has the legal right to be accompanied by an independent work colleague or a trade union representative at a disciplinary hearing.

 

  1. It is recommended that full minutes are taken of the disciplinary hearing which can be provided to the employee for their review and verification. If the employee wishes to record the disciplinary hearing then as the employer you can refuse to allow this, however as the process should be open and transparent it could be argued that it would provide a contemporaneous record of the hearing and that the employer records the hearing which will aid the preparation of the minutes.

 

  1. As under-performance is usually not classed as gross misconduct (unless it involves an act that causes serious loss, financial or otherwise) then it is recommended that a series of warnings be issued at each stage of the disciplinary process.

 

  1. At the first stage it is recommended that a verbal warning be issued lasting up to 6 months of the employee’s record. Thereafter if performance fails to improve to the required standard, a first written warning can be issued, followed by a final written warning lasting up to 12 months on the employee’s record.   The next stage would be dismissal with notice.  Do also sure that performance targets are attainable and are measured over a reasonable period of time to give the employee the opportunity to improve.

 

  1. Remember to conduct a disciplinary hearing at each stage of the process and to allow a right of appeal against all disciplinary sanctions that are issued to the employee.

 

  1. Any appeal hearing should be conducted by a senior manager that was not involved in the initial decision to issue a disciplinary sanction. If the business is very small and there are not enough independent senior managers available, then in is recommended that the appeal is outsourced to an established HR practice or business to deal with.

 

Where employees have less than two years’ continuous service then they generally do not have any ordinary unfair dismissal rights and so technically you could dismiss with notice without going through a disciplinary process as there is less risk.  However, you need to be careful that your disciplinary policy is not contractual or has not become a custom and practice as a consequence of using the policy for all members of staff over a period of time.

 

We would also recommend that you follow an ACAS approved disciplinary procedure as set out in their Code of Practice.  It is also good practice to follow these minimum standards for all members of staff regardless of their length of service.

 

If you have concerns about performance in the workplace and how to deal with it, then contact Steven Eckett – Partner and Head of Employment at Meaby & Co LLP.

 

E-mail: seckett@meaby.co.uk and Telephone: 020 7703 5034

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New Team Members

We welcomed three new members to the Meaby team early this year.

Esther

Esther Janalli-Brown has joined the Private Client Team and will be working from the Dorking office.

Esther is an experienced solicitor who is able to advise on all private client matters including estate administration, Wills, Lasting Powers of Attorney, Deputyships and Trusts. She also prepares Change of Name deeds. She has dealt with a wide range of matters for all types of clients including high value estates and foreign assets as well as dealing with complex issues relating to mental capacity, Powers of Attorney, advance decisions and Court of Protection applications.

Esther is a member of Solicitors for the Elderly and has trained as a Dementia Friends Champion.

Imogen

Imogen Leaman has joined the Family Team as a Legal Assistant and will be working from the Loughton office. Imogen will be assisting Head of Family, Joanna Toloczko, with all aspects of Family Law. Imogen has worked in law firms for many years and is enjoying working close to home.

Pranav

Pranav Bhanot has joined the Civil Litigation and Dispute Resolution Team and will be dividing his time between the Soho and Essex offices.

Pranav is a solicitor who undertakes a wide range of commercial litigation work including debt recovery, professional negligence, defamation and property disputes. His clients have included High Net Worth Individuals, start-ups, multi-national corporations as well as Local and Central Government. In November 2019, Pranav was shortlisted as “Junior Lawyer of the Year” in the Law Society of England and Wales Excellence Awards and is a former President of BPP Law School, London.

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Preparing to sell your home – get Conveyancing Ready

We are often instructed by clients at the point they have accepted an offer on their property. It is not uncommon for clients to contact firms for quotes a day or two after a sale has been agreed and appoint a solicitor later that week. Once instructed, the solicitor sends out various property information forms which the client needs to complete and return so contract papers can be issued to the buyer’s solicitor. We typically receive completed forms back from our clients within 1-2 weeks of us having emailed them. This is, essentially, wasted time during which the sale is not progressing, and the buyer’s solicitor has not been able to review contract papers and order their necessary searches and raise enquiries. The result is often that the sale takes longer than necessary and, if repeated throughout a long chain, can cause significant delay.

We therefore recommend that prospective sellers obtain quotes and instruct a local solicitor at the point of marketing their property. This avoids delaying the sale and means you are in a position of not having to make a decision whilst under time pressure, particularly when the estate agent in pushing for solicitor details so they can issue their sales details to all parties.

In an effort to offer an ultra-efficient service to our clients and further reduce the time taken to reach exchange of contracts, our Dorking office has launched a Conveyancing Ready service for those clients who wish to instruct us before a sale has been agreed. Once instructed, we provide clients with all the forms they need to complete and return. This gives clients plenty of time to complete the forms and gather together any additional required documents such as certificates and guarantees for any works carried out to the property. Once the forms are returned to us, these are simply held on file until a buyer has been found. We are then able to issue a full set of contract papers to the buyer’s solicitor, often on the same day or the day after the offer has been accepted.

We offer all Conveyancing Ready clients a no obligation fixed fee quote at the outset and do not require any payment on account. If for any reason you do not find a buyer, we will not make any charge.

If you have any queries regarding our Conveyancing Ready service or any other aspect of residential conveyancing, please contact Stephen Carr on 01306 884432 or email scarr@meaby.co.uk.

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Licence to Assign rules
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What is a Licence to Assign? Why do I need the Freeholder’s consent to sell?

When selling their flat, leaseholders are often surprised to find out that they need the freeholder’s consent to sell- this is known as a Licence to Assign. 

If you have any queries do not hesitate to contact us for a free, no-obligation quote by calling 0207 703 5034 or email us at info@meaby.co.uk. Find out more: Meaby&Co Solicitors Property Law 

Why is a Licence To Assign necessary?

A minority of leases will contain a provision stating that the property may not be “assigned”, i.e. sold or otherwise transferred, without the “prior consent in writing of the Lessor”.

This means that the freeholder’s consent must be obtained by the seller, and at the seller’s expense, before the sale may proceed to completion.

A Licence To Assign is usually found in leases for large purpose-built blocks of flats, often with a high service charge.  The reasoning behind it is  quite sensible. It is to ensure that the incoming owner is of suitable financial status to be able to pay the service charge.  For the same reason, some leases also prevent the sale of a property to a company, or particularly to an overseas company, without a personal guarantee from a UK-based director of the company.

How does a Licence To Assign work?

In order to establish that the buyer can afford the service charge, the freeholder will instruct their solicitors or managing agents to seek references from the buyer. This  is usually a bank reference stating that the buyer is capable of meeting the service charge payments, and either an employer’s reference or a personal reference (or both) to confirm that the buyer is of suitable character to live in what the freeholder clearly believes is a cut above the average block of flats.

Unfortunately, this often leads to considerably higher charges relating to the sale, with the freeholder’s solicitors frequently charging £1,000 or more for what is ostensibly an exercise in paperwork.  It stands to reason that any person buying a property, whether with a mortgage or as a cash buyer, can afford the service charge, even where the service charge is high.  But where the lease requires the freeholder’s consent, there is little that the seller can do but comply if they want their sale to proceed as planned.

How long does it take to obtain a Licence To Assign and can the Freeholder refuse to give consent?

Freeholders are barred by legislation from unreasonably withholding or delaying consent, but this is perhaps not legislation that many sellers will wish to rely on, as to do so would involve an application to court, which would naturally delay their sale by months.  Typically, obtaining the freeholder’s Licence to Assign will perhaps add three or four weeks to the overall timescale as long as the need for the Licence is spotted early on in the process by the acting solicitors.

Should you have any queries in relation to buying or selling a property, then please do not hesitate to contact Meaby&Co for a free, no-obligation quote by emailing info@meaby.co.uk or calling is on 0207 703 5034.

Find out more: Meaby&Co Solicitors Property Law 

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