APPOINTING THE UNDERTAKERS

The deceased may have left details of which undertaker they require to be used.  These details may be found with the deceased’s Will, other papers or someone in their confidence. If their preference is not known then usually one contacts the local undertakers to arrange whatever services are required e.g. church only, church and cremation.

 

Contact with the undertakers can be made by close members of the family, the executors, or someone else that was known to the deceased and who may have been involved with them prior to their death.

 

What the undertaker requires:-

 

  1. Certificate issued by the Registrar of Births, Deaths and Marriages
  2. Location of any service or services
  3. Whether the deceased is to be buried or cremated

 

If you are applying for a burial then the following information will be required:-

 

  1. Green certificate issued by the Registrar
  2. What religion (if any)
  3. Which cemetery
  4. If there is a plot reserved and if so, certificate or number
  5. The type of service and who will conduct the service at the graveside
  6. Any inscription for the headstone, or if one already exists, additional wording. (If a headstone is removed you will need to allow for a period of time (advised by the undertaker) for reinstatement.

 

If you are applying for a cremation then the following information will be required:-

 

  1. The deceased’s christian names and surname
  2. Full address including postcode
  3. Occupation
  4. Age
  5. Sex
  6. Marital status
  7. Are the ashes to be disposed of by the undertaker, buried, scattered or retained? Ashes can usually be collected by either the undertaker or a close family member a day or two after the cremation.

 

The church/cremation or both can usually be arranged by the person who has registered the death.

 

Flowers or donations should be given via the undertakers. Donations can also be left, before or after, the service on a church collection plate.

 

 

Blogs

Help to Buy – a general overview…

Help to Buy is the name of a government programme in the United Kingdom that aims to help first time buyers and those looking to move home, to purchase residential property. It is open to both first-timer buyers and home movers – but it is restricted to new-build homes with a value of up to £600,000.00.

Under the scheme, you are only required to raise 5% of the property value as a deposit. Homes England, a government body, will contribute a loan of up to 20% (or 40% in London) through the Homes and Communities Agency (HCA).

For the first five years the government loan is interest-free. In year six, you will be charged 1.75% which will increase at a rate of 1% of that figure plus any increase in inflation (as measured by the Retail Prices Index (RPI)), every year thereafter.

The loan will have to be repaid within 25 years but you choose to repay the equity loan at any time, without a penalty. You can pay back either 10% or 20% of the total amount, so long as the loan is worth at least 10% of the value of your home.

If you don’t repay the equity loan while you are still living in the property, when you come to sell it, the government will reclaim its original percentage contribution in your home of its current market value at the time of sale. Therefore if the value of your property has increased at the time you come to sell, you will repay the percentage of the current market of the property and not what you originally paid for the property and borrowed. The amount you repay depends on the value of your property at the time of sale.

Once you have reserved your new build property, you will need to complete a Help to Buy Property Information Form (PIF). You must complete this with details of your proposed purchase, your proposed main mortgage, deposit and you must include your household income. Included in the PIF will be a direct debit form, which you need to fill in to pay a monthly £1 management fee to the post sales agent. The PIF will also confirm your agreement to the funds being paid directly to the house builder to enable them to reduce the full purchase price of the property. The signed PIF and a copy of the builder’s signed reservation form must then be sent to your local Help to Buy Agent.

After the HTB Agency receive the Property Information Form (PIF) they will check that you are able to afford your main mortgage and make sure you have signed the declaration that states the Help to Buy property you want to purchase is your only residence. If you fit the eligibility criteria for Help to Buy, you will receive an ‘Authority to Proceed’ (ATP) from them within four working days of submitting your PIF and reservation form. This process may be delayed if you do not fully complete your PIF.

Before the ATP can be issued you will need to instruct your solicitor so their details can be included on the form The ATP will be accompanied by instructions to you and your solicitor/ conveyancer. The pack will include legal documents that will be explained to you by your solicitor/conveyancer. Once you have received your ATP, you (or your mortgage broker) will be able to make a full mortgage application.

Your Authority to Proceed is valid for 3 months from the date of issue. In most normal situations this should cover the period when you get your Help to Buy Mortgage in place – i.e. you get your mortgage offer for your Help to Buy property – and when your solicitor gathers together the mortgage offer, valuation and Council of Mortgage Lenders form (which lists any incentives the developer has offered you such as, for example, white goods or paying your stamp duty – this should not be more than 5% of the value of the property.)

 

Once your solicitor has sent back all these documents to your Help to Buy agent, the agent, if satisfied, then issues your solicitor with an Authority to Exchange (ATE), which allows you to proceed to the next stage of the Help to Buy conveyancing process, Exchange of Contracts. The ATE is valid for a maximum period of 28 days from being issued and completion must take place within 6 months of the same.

 

Before completion your solicitor will apply for a Confirmation to Provider (CTD) which is confirmation to your Help to Buy agent that the matter is ready for completion and that no information has changed from when the ATE was requested/issued. Completion cannot take place without the CTD and as there is usually only 10 working todays to complete in, your Help to Buy agent has a turn around of 2 working days. Once the CTD and completion is confirmed the help to buy funds will be directly released to the builder’s nominated agent or solicitor.

 

For further in depth details and information please refer to the Help to Buy website on www.helptobuy.gov.uk

 

 

If you are looking to buy a new home or just want a chat about the process of buying a new build home contact Prabjoth or Senay at Meaby & Co for timely advice at pbassan@meaby.co.uk / stalat@meaby.co.uk or call 0207 703 5034.

Who has authority to deal with a deceased person’s affairs after their death?

When a person dies, it is necessary to determine who has authority to deal with their affairs and to obtain a grant of representation to administer the estate of the deceased.  This person is referred to as a personal representative.  The appointment of the personal representative may be as:-

  1. An executor, under the deceased’s last will and testament;
  2. An administrator, if the deceased did not leave a will and has therefore died ‘intestate’;
  3. An administrator with the will annexed, if there is a will but an ineffective appointment of the executor.

In the event that the deceased has died intestate, the order of whom may be appointed is determined under the Administration of Estates Act 1925, and is usually a close family member.

Many of our clients ask us whether the following persons have any right to act as a personal representative in the administration of a deceased’s estate, if they have not been appointed under any of the methods set out above:-

  • The deceased’s ‘next of kin’;
  • The deceased’s Attorney appointed under a Lasting Power of Attorney;
  • The parents or guardians of minor children who are beneficiaries under the will.

Unless those people have also been appointed as an Executor under the will or have a right to become an administrator according to the rules set out under the Administration of Estates Act (see below), they have no right to act as personal representative by virtue of their next of kin, attorney or parental status.

‘Next of kin’ is a title that can be given to anyone from your partner, to blood relative to even your friends, and is primarily used by emergency services to keep loved ones informed.  Being ‘next of kin’ does not therefore grant any legal rights as a result of the title and that person cannot make decisions on someone else’s behalf, as an Attorney could for example.  However, if you are an Attorney appointed under a Lasting Power of Attorney, such appointment ends immediately on the death of the donor (the appointor).

Whilst the parents or guardians of minor beneficiaries under a will can ask the trustees to make a distribution under the Trustee Act 1925 for the maintenance or benefit of their children, they have no rights to make the decision themselves (unless of course they are also the trustee!) or meddle in the estate.

If you have any questions with regards to the administration of a deceased’s estate, please do not hesitate to contact Laura Sentkovsky in our Private Client team on 0207 703 5034 or at laura@meaby.co.uk.

 

Getting Your Paperwork in Order For Your Sale

In a conveyancing transaction, a seller’s solicitors will send contract papers to the buyer’s solicitors who will then review the paperwork and raise any necessary enquiries.  The seller and their solicitors will then need to answer the enquiries before the buyer’s solicitors can proceed to exchange.  Many enquiries are asking for documents which are referred to paperwork provided by the seller’s solicitors or in the buyer’s solicitors’ searches such as Land Registry documents, planning documents, building regulation certificates and guarantees.

A seller can assist in getting contract papers issued earlier and reducing the need for a buyer’s solicitors to raise enquiries by making sure they have their paperwork in order.  This may also save the seller money as parties such as the local authority, the Land Registry and other organisations charge fees to provide duplicate copies of documents such as leases, deeds and building regulation certificates.

When a seller buys a property, their conveyancer will send them a lot of paperwork during and after the transaction.  The seller should keep all the paperwork in a safe place so that they can give the paperwork to their conveyancer when they come to sell.  It’s fine to err on the side of caution and give your conveyancer lots of paperwork.  Your conveyancer will be able to work out what paperwork is relevant to send to the buyer’s solicitors.

If, during your ownership, you’re obtaining quotes for works such as window replacement works, gas boiler replacement and electrical works, it is a good idea to check that the company is registered with a reputable organisation such as FENSA, Gas Safe or NICEIC and to check that they will deal with the building regulations for the works.

If you carry out any works to the property, it is a good idea to keep the paperwork and add it to your file of paperwork for the property.  Buyer’s solicitors will usually ask for copies of planning permissions, building regulation certificates and guarantees and warranties in respect of works carried out at the property.  Providing this documentation at the start will mean the buyer’s solicitors won’t have to ask for these documents later on.

If when you bought the property, there were particular enquiries that were complicated and time-consuming to resolve, it is advisable to keep the paperwork in respect of those matters in case the same questions are raised when you come to sell.  For example, if you own a flat and your seller carried out building works without landlord’s consent and the seller had to obtain retrospective landlord’s consent in connection with your purchase, then when you come to sell, it is likely that your buyer’s solicitors will raise the same enquiry if you have not kept a copy.  If an issue was dealt with by the seller providing a legal indemnity insurance policy, then you can provide this policy to your buyer when you come to sell as most indemnity policies automatically pass to future buyers.  If, however, you have lost the policy by the time you come to sell, you may end up having to buy a new one.

If you are considering buying or selling a property, please contact Brian Craig on 020 7703 5034 or bc@meaby.co.uk for timely advice.

Blogs

Latest Ruling on Prenuptial Agreements

A Judge of the Family Division of the High Court decided to give no weight at all to a Prenuptial Agreement, which featured in a divorce case, last week.

The case concerned an heiress of the Avon Cosmetics business. The parties lived together from January 2005 and married in November of the same year. They had two children and separated in 2017.

The Prenuptial Agreement provided that, in the circumstances which prevailed at the time of the divorce, the husband should receive half of the increase in value of three properties which were in the sole name of the wife in Barnes, Hanwell and New York. In fact, by the time of the divorce, the three properties had long since been sold and it was not possible to establish exactly what had happened to the proceeds of sale, but it was assumed that they had been invested in the family home in Barnes. That property was worth less than the combined value of the three properties at the time the parties signed the Prenuptial Agreement in 2005, meaning that the husband would receive nothing if the court upheld the Prenuptial Agreement.

The Prenuptial Agreement also provided that the agreement was deemed to have been made under the laws of New York State and that its validity, effect and construction should be determined in accordance with those laws, regardless of where either party resided or was domiciled at the time of the divorce.

The marriage took place on 26th November 2005 and the husband met the lawyer who advised him regarding the Prenuptial Agreement for the first time on 3rd November 2005. The lawyer was the lawyer who had acted for the wife in connection with her divorce from her first husband.

The Judge heard expert evidence to the effect that the agreement suffered from a fatal defect under the laws of New York State and therefore would not be upheld in that jurisdiction. For that reason and the facts that the husband had not received any advice on the law of New York State; the advice he had received could not be regarded as truly independent and the agreement did not meet the husband’s financial needs, the Judge had no hesitation in deciding to ignore the agreement. Instead, he awarded the husband a total of £1,333,500 – £375,00 of which would have to be repaid to the wife at a later date.

Our Head of Family Law, Joanna Toloczko commented:

“This case does not mean that Prenuptial Agreements are of no effect in English Law. What it means is that there are no short cuts in the preparation of Prenuptial Agreements and they must be prepared in the proper manner.

The provisions of the agreement must be broadly speaking fair and at least sufficient to provide for a party’s needs; both parties should have truly independent legal advice, with sufficient time for negotiation, free of the pressure of an impending wedding”.

For information and advice on all aspects of family law, please contact Joanna on 020 3861 5155 or at jtoloczko@meaby.co.uk.

Blogs

Without Prejudice?

The Without Prejudice (“WP”) rule works to prevent statements, whether in writing or orally and made in a genuine attempt to settle an existing dispute, from being put before a court as evidence against the interest of the party which made them. Effectively, if WP applies, a court can never be told of the existence or content of the WP dialogue.

In an employment context, an employer and employee may wish to enter into a WP dialogue to try to resolve an employment relationship which has soured. The WP mechanism allows the parties to have a frank conversation to facilitate that, without fear that it could be used in future proceedings. Please note that although a WP conversation has some of the properties of the “Protected Conversation” mechanism provided by S111A Employment Rights Act 1996, there are differences in their respective coverage and application.

If a party seeks to rely on the WP rule, it is best practice to use the term before starting substantive dialogue with the other party. Although invoking it is helpful in showing that the dialogue was so covered, it does not automatically ensure that it applies. There are circumstances in which a court will decide that although the phrase had been used, the nature of the dialogue did not satisfy the requirements that it be deemed to be WP, with the consequence that both its existence and content can be used in court.

One of those circumstances is where the communication “would act as a cloak for perjury or other unambiguous impropriety”. This is commonly referred to as the “unambiguous impropriety” exception and is only applied in the clearest cases of abuse of privilege.

A hypothetical example in employment would be the following.

An employee is summoned to a meeting with his managers and HR representatives, and told that the meeting is “WP”. He is told that he is at risk of redundancy but is given a proposed Settlement Agreement to terminate his employment, which offers slightly better terms than the employee is entitled to if his redundancy was to be confirmed. Clearly expecting the employee to accept the terms of the Settlement Agreement, but not making it clear that the statement is predicated on that expectation, the employer tells the employee not to come back to work, and that he will receive his notice pay in lieu of working it. The employee does not immediately sign the Settlement Agreement as he is not satisfied with the terms. There follows a time period during which the parties attempt to agree terms, and during this period, the employee does not return to work. During this period, in the numerous email exchanges to attempt to agree terms, the employer makes no complaint about the employee’s absence nor invites him back to work. After a few weeks’ impasse, the employer, frustrated at the employee’s refusal to sign the Settlement Agreement, and in a naked attempt to coerce the employee into accepting the terms of the current offer, informs the employee that he is subject to disciplinary action by the employer on the grounds that he has been absent from work without permission. The sanction for this could be summary dismissal, if the purported “unauthorised absence” is deemed by the employer to amount to “gross misconduct”.

But what about the employer’s assurance in the WP meeting that the employee did not have to return to work? The employer now points to the WP properties of the meeting, effectively stating that such a conversation never happened, and so the employee has been unilaterally absent from work. Under the terms of the employment contract, the employee was entitled to rely on the instructions by his superiors in the WP meeting. Indeed, he would be in breach of his employment obligations if he did not. Now he is being told that in effect, the employer denies that conversation took place and so he, the employee, is putatively in breach of his employment contract.

If the employee was disciplined in such circumstances, and as a result, issued Employment Tribunal or High Court proceedings, he could claim that the purported use of the WP rule had been abused and so the contents should be admissible to the Court. After all, the absence of bona fides by the employer in making a statement which it now claims, due to the use of WP, never took place, had materially disadvantaged the employee – he had been disciplined after relying on an assurance by the employer which the employer now denied that it made.  If the court decided that the actions of the employer amounted to “unambiguous impropriety” it has the right to lift the cloak of WP and so allow admission of the contents of the meeting to the court.  In such circumstances, it is hard to envisage a situation in which the court could not find that the employee had been unfairly treated.

It should be noted that the “unambiguous impropriety” argument is a high hurdle to successfully overcome, and will only be granted by the courts where the “impropriety” is obvious and manifest. The lifting of the WP veil  is not lightly granted. All parties which enter into such a dialogue should be aware of WP limitations and exceptions.

 

Meaby & Co are lawyers experienced in all employment issues. Should you require advice on the use of the WP or “Protected Conversation” process, or indeed any aspect of employment law, please contact Chris Marshall on 0207 703 5034 or cmarshall@meaby.co.uk.

No Fault Divorce to be Introduced

The government announced today that it will introduce legislation to implement a system of no fault divorce “as soon as parliamentary time allows”.

This follows the consultation period on the issue announced in the Autumn of 2018. Over 600 responses were received which were mainly in favour of the move to no fault divorce.

The anticipated change in the law means that couples that have not been separated for a minimum period of two years will no longer have to rely on adultery or unreasonable behaviour to obtain a divorce. Instead the requirement will be replaced with a requirement to provide a statement of irretrievable breakdown. There will be a minimum timeframe of six months from the petition to the final dissolution of the marriage.

It will no longer be possible for one party to contest a divorce. The two stage process of decree nisi and decree absolute will be retained.

Our Head of Family, Joanna Toloczko commented “The change in the law is good news for those who want to divorce without having to wait until they have been separated for a minimum period of two years. Even when the separation is amicable people normally want to achieve finality on property and financial issues as quickly as possible. In the past one of them would have had to allege adultery or unreasonable behaviour on the part of the other – to get the divorce proceedings underway. This often led to unnecessary animosity between them. That will no longer be the case. It is also good news that one party will no longer be able to block a divorce – after all, what is the point in fighting to remain married to someone who no longer wishes to remain to you?”

For further information and advice in connection with all divorce related matters please contact Joanna on 020 3861 5155 or jtoloczko@meaby.co.uk

 

 

 

REGISTERING THE DEATH

The death must be registered with the local Registrar of Births, Deaths and Marriages and it is essential to have a doctor’s certificate of death. This sometimes can be delayed if a post-mortem or inquest is required. It may be that an interim death certificate will be issued. (The information the undertakers need to know is whether the deceased is to be cremated or buried.) Usually you need to make an appointment to register the death.

Information relating to the deceased that you need to take to register a death, although not necessarily in this order is as follows:-

1. Surname
2. Forename in full
3. Previous names e.g. change of name by deed poll, marriage or partnership; that the deceased was given when he/she was born i.e. on their birth certificate
4. Date of death
5. Place of death
6. Last permanent address i.e. where the deceased usually lived on a permanent basis and had the majority of their belongings. This could for example, be a rest home.
7. Occupation, of if retired, occupation prior to retirement
8. Religion e.g. Catholic, C of E, Jew, Muslim, Humanist
9. Date of birth
10. Place of birth

You will be asked how many copies of the certificate you require and will need to pay the appropriate fee. Consider how many will be required to enable administration of the estate, as not everyone accepts photocopies of the certificate issued by the Registrar. It may be appropriate to discuss how many copies to obtain with the solicitors or person likely to be involved with the administration of the deceased’s estate, if they are familiar with the deceased’s financial position.

There are some occasions when you may wish, for one reason or another, to have Meaby and Co assist with co-ordinating matters with the undertakers and to help with arranging the service.

It is prudent to check 48 hours prior to the burial/cremation that all the arrangements have been put into place to ensure everything goes smoothly at this difficult time.

Can you negotiate with a Vulture Fund?

Many non-performing (or sometimes performing) loans over properties in Ireland and the UK have in recent times been taken over by vulture funds.

A vulture fund invests in properties which are performing poorly and may therefore be undervalued. These funds buy the debt from the bank and effectively step into their shoes in order to recover the loans, whether it is by agreeing a payment structure or appointing a receiver over the assets.

Many Irish investors in properties in the UK now find themselves dealing with vulture funds instead of the banks. But can you reach an agreement with a vulture fund in respect of your outstanding liability or are they a bit more ruthless than your high street bank?

Following a recent decision in the Irish High Court, bargaining chips may be back on the table for some borrowers who want information about their loan when it was sold to the vulture fund.

In the recent case of Eileen Courtney .v. OCM EMRU Debtco DAC, a fund has been ordered by the High Court to provide full details of what it paid for the loan of a specific borrower. The judgment dealt with the borrower’s application to see a copy of the loan purchase agreement so that she could, inter alia, see what price the fund had paid for her loans.

The fund in question argued that what it paid for the loan was confidential. However, the Court stated that what distinguished this case from previous cases seeking disclosure of the purchase price was that the borrower had made a specific offer to the previous loan “owner”, NAMA, to purchase the debt, but the offer was not accepted. The borrower is now arguing that she has an equitable right to redeem the loan for what she initially offered NAMA. Whilst the court did not rule on that argument, and the judgment only dealt with the application to see the loan purchase documentation, it does open the door for the argument to be made that the vulture fund should be forced to accept the offer made to the previous loan “owner”, ie bank. This has not been tested yet in the courts, but it may yet be persuasive to encourage the funds to come to a deal with the borrowers.

Will we see this come across the pond also and translate into the UK courts?

At Meaby & Co, we regularly act for Irish and UK borrowers with property interests in the UK, whose loans have been sold to a vulture fund or who are battling with their bank in relation to outstanding liability. If you have an issue you would like to discuss, please contact Caoimhe Boyce on cboyce@meaby.co.uk.

PREPARING FOR SEPARATION AND DIVORCE

Often clients come to see me for a consultation prior to making the final decision to separate and divorce. Usually, they ask me whether there is anything they need to do in preparation for the journey ahead. What is appropriate will differ from family to family. There may be things you would like to do that are just not possible due to the level of hostility between you. Of course things are very different for the person who has decided to end the relationship and may have spent months thinking about their decision and planning the way forward, compared to the person who may have only just been informed of the decision and may be in total shock and disbelief. Here are some of my recommendations.

Talk to each other

The more communication there is between you, the less likely it is that you will end up in a bitter court battle. Communication is not a one way street, it also involves truly listening to the other person. Talking face to face means that there is less opportunity for a misunderstanding to arise than if you communicate by text or email. To put it bluntly, the more you manage to agree between yourselves, the less money you will spend on lawyers.

Plan how to tell the children

The better prepared you are, the more supported the children will feel. If you can, tell the children together. Prepare what you are going to say and present a united front. Do not give mixed messages and do not denigrate each other to the children. Don’t blurt it out – arrange a suitable time and place to tell them.

You may choose to complete a Parenting Plan together which sets out what you have agreed about the arrangements for the children. Many specimen Parenting Plans are available online.

Get your documents in order

Whichever way you decide to sort out the property and financial issues, you will both need to have a good understanding of what there is first. Indeed, if you decide to go to mediation or to negotiate via solicitors, you will be encouraged to go through the “disclosure” process as a first step. It may be that you will not have all of the required information and documents to hand. For example, it is unlikely that you will have a document confirming the cash equivalent transfer value of your pension, available. These things can take some time to come through so apply for them at an early stage. If you are able to present your solicitor/mediator with a full set of documents at the outset, this will also save you money as the solicitor will not have to keep reviewing the documents and chasing you for missing items.

Get a good solicitor on board

Family lawyers are happy to see clients for a preliminary consultation so that you can find out where you stand. Good quality, comprehensive advice will help you to make your decision with clarity and confidence. A good solicitor will not pressure you into making a decision before you are ready to do so.

Check out the Resolution website

Resolution is the largest organisation of family law solicitors in England and Wales. Members of Resolution are committed to a constructive and non-confrontational approach to family law cases, which puts the interests of the children at the heart of all decisions and aims to maintain the dignity of the parties. You can use the website to search for a solicitor or mediator close to where you live. Parts of the website are open to members of the public and contain a lot of invaluable information about all aspects of family law.

For all family law enquiries please contact our Head of Family Law, Joanna Toloczko on 020 3861 5155 or at jtoloczko@meaby.co.uk.