Pinkney Grunwells Lawyers Newsletters | Scarborough and North Yorkshire

Pre-nuptial agreements enforceable under British Law?

November 4, 2010 – 4:11 pm

The Supreme courts have ruled that pre – nuptial agreements can be enforceable under British Law. Due to a case hitting the national headlines on 20^th October 2010 the courts ruled that parties in divorce proceedings can be held to the terms of a pre-nuptial agreement.

We can not however disregard factors which the courts viewed would negate the agreement or limit the contractual force of the agreement highlighting the importance of obtaining proper legal advice and ensuring any documents are properly drafted to ensure the parties intentions are accurately recorded. Such factors might include; duress, fraud, misrepresentation, undue pressure such as exploitation of a dominant position. The parties circumstances at the time of entering into the agreement will also be relevant such as age, maturity and whether the terms of the agreement were fair at the time of entering into the contract.

What has been learnt from the recent case?

Pre-nuptial agreements are enforceable so long as they are put together correctly. To ensure this to be the case the following is strongly recommended to alleviate the risk of doubt:

- Correct and proper drafting of the contract.

- Both parties obtain separate and independent legal advice

- Evidence that both parties are aware of the others assets

- Evidence that both parties intended that the agreement should be effective

- To add additional force to the contractual terms a post-nuptial agreement may also be entered into.

Can we help?

Pinkney Grunwells have expert lawyers specialising in the drafting of Pre-nuptial and Post nuptial agreements. Offering a fixed fee, quotes start from £350.00 plus V.AT .

Even if parties do not intend to marry, to avoid any risk of uncertainty or dispute in the future, Pinkney Grunwells Lawyers also specialise in the drafting of Cohabitation Agreements which likewise can specifically provide the intentions of the parties upon cohabitation should the parties wish to regulate the terms of the relationship. To obtain a quote please contact Pinkney Grunwells and provide a brief breakdown of the assets involved. Our experts will then provide you with a quote for preparing and executing the contract.

Probate Services – Why solicitors are cheaper than banks

September 30, 2010 – 9:10 am

When a loved one dies, often the last thought is as to the process of dealing with the estate. However, this is an aspect which must be dealt with. The responsibility for dealing with the estate falls to the executor (where the deceased has left a Will) or the administrator (where the deceased died without a Will, known as intestacy).

Their job is to establish the assets and liabilities of the estate as at the date of death, prepare a return to HM Revenue & Customs and make an application to the Probate Registry to obtain a Grant of Representation. Once they have obtained the Grant, they draw in the monies and administer the estate in accordance with the terms of the Will or the laws of intestacy.

In simple cases, an executor can apply for a Grant of Representation themselves. However, even seemingly straightforward estates can prove surprisingly complex and time consuming and executors are legally liable for any mistakes. As a result, the great majority of people seek expert advice from a fully insured Probate Solicitor.

What are the average fees involved?

Of the various types of institutions that provide probate services, Banks and Will Writers often charge consistently higher fees than Solicitors. Most charge a percentage of an estate’s value as well as for time spent on the estate. Bank and Will Writers fees for estate administration can generally work out at between 4% and 5% of the value of the estate, so are generally not good value.

Solicitor’s fees are ultimately regulated by the Law Society. Generally, they charge for the work that they actually carry out, adding a modest percentage fee, which is a maximum of 1.5% of the value of the estate (and only 0.75% of the value of any property). Solicitors’ fees would still not usually exceed 2% of the value of most estates.

How do you make savings?

Prepare well for any face to face meetings and have as much information to hand as possible. Remember that letters take time, so ensure that correspondence is kept only to that which is essential. If you want, you can do some of the work yourself rather than leaving everything to the Solicitor.

Lastly, there are steps that you can take to make savings even at the stage of preparing your Will. For example, there is often no need to appoint professional executors in your Will as this can increase the cost to your estate. In addition, when you are having your Will drawn up, there is no need to pre-pay for probate services at that point. Some will-writing companies have been criticised for charging large sums of money in advance for services that may not be necessary and may end up costing your loved ones in terms of money and stress.

Our advice is to make a local Solicitor your first point of contact when it comes to both making your Will and in the unfortunate event that you are required to deal with an estate.

Joint Tenants or Tenants in Common???

August 19, 2010 – 8:40 am

Co-ownership of property

Co-owners can own a property in one of two ways:

As joint tenants.
As tenants in common.

It is important to specify how you want to own the property when you are buying it, to avoid any uncertainty in the future.

Joint tenants

If you own a property as a joint tenant, you and your fellow joint tenant(s) own the whole of the property together. You will not have a quantifiable share in the property and you will not be able to leave a share of the property in your will. If you sell the property, or if you separate from your fellow joint tenant(s), it will be presumed that you own the property equally, regardless of the respective contributions to the purchase price.

Survivorship

The right of survivorship means that if one of your co-owners dies, their share in the property will automatically pass to the remaining co-owners without any further action being required. The surviving co-owner(s) would then own all of the property. When the last co-owner dies, the property will form part of their estate. Married couples or civil partners often own a property as joint tenants because the right of survivorship makes it straightforward to inherit each other’s shares in the property.

Severance

If you own a property as a joint tenant, but decide that you want to split your interest in the property, the joint tenancy can be “severed” and turned into a tenancy in common at any time.

Reasons not to become joint tenants

If one joint tenant has made a larger contribution to the purchase price of the property, you may want this to be recognised if the property is sold or if you separate.
A joint tenancy is unsuitable if you have a family from an earlier marriage and want to leave your share in the property to them, instead of passing it to your fellow co-owner.

Tenants in common

If co-owners own a property as tenants in common, they each have a distinct share in the property. The shares can be equal, but they do not have to be. It is advisable for co-owners to state the proportions that the property is owned in, rather than leaving it to be implied from the circumstances and the financial contributions made by each co-owner.

Your share of the property can be passed on to another person, either during your lifetime or under your will. If you do not have a will at the time of your death then your share will pass in accordance with the rules of intestacy.

Declaration of trust

A declaration of trust is the document that formally records that you and your co-owner(s) own the property as tenants in common and sets out your respective shares in the property. If you sell the property, or if you

separate from your fellow tenant in common, the declaration of trust will be referred to in order to work out your entitlement to the sale proceeds from the property.

Holding property as tenants in common may be appropriate if you have children from a previous relationship and you want them to inherit your share when you die, rather than your co-owner. It may also be appropriate if you have made unequal contributions to the purchase price of the property.

Mortgaged Property

Please note that if you have a mortgage both owners will be individually responsible for payment of the mortgage. This is the case, whether the property is held as tenants in common or joint tenants. There are cases where one person may provide the capital while the other takes on the responsibility of paying the mortgage but this does not alter the fact that legally both owners are jointly and individually responsible for payment of the Mortgage.

More information

If you have any questions, please do not hesitate in contacting the property teams on Bridlington 01262 673445, Hunmanby 01723 890634 Scarborough 01723 352125 or Whitby 01947 601122 or alternatively e-mail alison.harvey@pinkneygrunwells.co.uk.

Reduce the risk of bad debts ruining your business!

July 8, 2010 – 2:25 pm

Business to Business invoices can take months to be paid, and statistics indicate that 80 % of start-up businesses fail within the first year. Suppliers of goods and services to new businesses should therefore be wary.

If an invoice is overdue, the creditor is providing credit to your customer. It is therefore vital that creditors have in place an effective system for pursuing debts. Some businesses continue to trade whilst insolvent due to their suppliers’ willingness to provide goods and services on account.

In an ideal world a supplier would never have any outstanding invoices as payment would be made prior to goods being released or services rendered, however giving credit is often the only way to attract business, as a supplier’s competitors would offer credit instead.

In short, if a supplier is going to offer account facilities, it is a case of knowing with who you’re dealing and ensuring that all is done to minimise the risk. It is worth undertaking some work at the outset of a trading relationship as a customer is more likely to give useful information at the time of opening an account as opposed to when the customer is being pursued for an unpaid invoice.

Things to consider undertaking are credit checks, a search of the Register of County Court Judgments, the Insolvency Service website for bankruptcy and voluntary arrangements, obtaining personal guarantees from directors of newly formed companies, bank account details and the principals’ home addresses. This information will assist if court proceedings are necessary.

Maximise profit by claiming late payment compensation and interest on overdue invoices. No longer is it necessary to incorporate terms regarding interest into the contract, a creditor in a business to business transaction is entitled to it by statute. Any extra money recovered may ultimately cushion any inevitable bad debt as no matter how careful a supplier is there is always the unexpected bad debt that arises.

The sooner a debt is chased, the better the chances of recovery. Help is at hand as we are able to advise on the ideal credit control system and can assist in the preparation of personal guarantees, terms of business and of course the collection of overdue accounts. In the majority of cases, if a debt is recovered in full, all your court costs and solicitor’s costs will be recovered from the debtor.

For a no obligation discussion as to how we can assist your business, contact Robert Jerome on 01723 352125 or email robert.jerome@pinkneygrunwells.co.uk and start to reduce the risk.

Doorstep Selling – Do You Know Your Rights?

June 24, 2010 – 2:24 pm

Doorstep selling is where a salesperson calls at your home, or stops you in the street or shopping centre, for example, to sell you goods or services – it doesn’t have to be literally on your doorstep.

Doorstep selling can be for anything from double glazing to cleaning products, home improvements or a gas or electricity supplier.

Did You Know?

As from 1^st October 2008 the rules relating to doorstep selling were extended. These cover almost all contracts valued over £35.00 which are made at your home or place of work.

Many individuals and traders still do not realise that the new regulations apply to them even if, for example, the trader has first made a telephone appointment with the customer to visit them.

In short, the regulations allow you, as a consumer who has entered into such a contract to have a cooling off period of seven calendar days during which time you have the absolute right to cancel.

These regulations also extend to the situation where you have offered to buy something or commission a service away from a particular organisations usual business premises. So, for example, if you go to a hotel presentation for a time share then the regulations will apply.

The regulations also apply even where the contract is concluded at a later date, provided the offer of the services is made either in your home or in your place of work.

So What Has to Happen?

The trader must provide you with a notice in writing giving your cancellation rights. If the trader does not provide this information they cannot enforce the contract against you, if you have paid a deposit they must return it, and in addition the trader may be found guilty of a criminal offence for breach of the regulations.

Are There Exceptions?

Yes, the main exception being that the contract can be enforced if you have signed a waiver confirming that they do not want the seven day cooling off period to apply to them.

There are also other limited exceptions where, even if the seven day cooling off notice has not been given, you will still have to pay for whatever work has been done during that cooling off period, for example, funeral services or personalised goods. Please contact us if you require further details.

If the seven day cooling off period applies and you decide to cancel the contract during that period then you must cancel it in writing and post, deliver in person or email to the trader a cancellation form or letter. You must however do this within seven days of signing the contract.

The above is for general advice only, please contact us if you require any further advice or have any matter we can help you with.

First Time Buyers save up to £2,500

May 6, 2010 – 2:07 pm

Are you a First Time Buyer?

Take advantage of the Stamp Duty holiday. For the next two years, buyers of homes up to the value of £250,000 will no longer have to pay stamp duty on the purchase price.

However, there are restrictions on who can take advantage of this tax relief, these include:-

To be a first time buyer you cannot have owned or had an interest in any property or dwelling anywhere in the world.
If buying with someone else both parties must be First Time Buyers.
The property must not be a buy to let.
Property to be purchased must be the purchasers’ main and only home.

This saving can only be achieved for properties being purchased and completed by 24 March 2012.

We have a number of specialists who can guide you through the process from instruction to completion. We pride ourselves on giving the best professional and personal service which is great for First Time Buyers who need that extra guidance.

Please telephone us to find out if you could qualify for the stamp duty relief and how to get a great deal on conveyancing at Pinkney Grunwells Lawyers LLP, or alternatively, please complete our on-line enquiry form.

What is a Lasting Power of Attorney?

April 15, 2010 – 10:30 am

A Lasting Power of Attorney (commonly known as an LPA) is a document in which a person (“the Donor”) can appoint someone of their own choosing (“the Attorney”) to act in their affairs in the event that they should become physically or mentally incapable in the future.

There are two types of LPA. The first, and most commonly used type, is called a Property and Affairs LPA, which allows the Attorney to sell properties and handle finances etc. The second type relates to the Donor’s Personal Welfare. Attorneys appointed under a Personal Welfare LPA can make decisions relating to the Donor’s living accommodation and care, and have the power to consent to or refuse medical treatment on their behalf.

Why make a Lasting Power of Attorney?

Nowadays, people are living longer and this means an increase in associated problems regarding mental capacity such as Alzheimer’s and Dementia. You need to make an LPA whilst you still have your mental capacity because it gives you a say in who might manage your affairs in the future. It can also make life much easier for the people trying to care for you if you lose capacity.

If you were to lose mental capacity and not have an LPA in place (or an Enduring Power of Attorney made prior to the 1 October 2007) then someone – usually a family member – would need to make an application to the Court of Protection to be appointed as a Deputy to act in your affairs. An application to become a Deputy can take many months, and would involve the person applying to be your Deputy having to provide full details of your finances and your personal welfare to the Court of Protection. The Deputy would also need to submit accounts on an annual basis to the Court for every penny that they use of your money.

If a person had no direct family or close friends who could apply for Deputyship of their affairs, then a solicitor, an officer of the court or someone else unknown personally to them could make the application. This would mean that the person could ultimately have decisions made for them by a total stranger!

If I were to make a Lasting Power of Attorney, who could be my Attorneys?

You are free to choose anyone to be your Attorney, and can have as few as one, or as many as you wish. You can also appoint substitute Attorneys to act in the event that any of your appointed Attorneys are unable to act. However, you must bear in mind that someone who is subject to a full or interim bankruptcy order is not able to act as an Attorney.

How soon could my Attorneys act under an LPA?

It is not possible for the document to be used unless it is registered with the Office of the Public Guardian. The registration process takes around 6-7 weeks.

What has been done to prevent Attorneys abusing the Lasting Power of Attorney?

Part of the registration process involves serving notice on another person or people (who you as the Donor would choose) that the registration was being applied for. This person would then have the chance to object to the registration if they felt that the person who you had appointed as your Attorney would not act in your best interests.

How do I obtain further information?

By contacting a member of the Private Client Team at Pinkney Grunwells Lawyers on 01262 673445 / 01723 352125 / 01947 601122

Child Maintenance

March 24, 2010 – 10:35 am

From April 2010 the rules regarding benefits and child maintenance are to change.

For parents who have the day-to-day care of their children who receive benefits or are on a low income and are in receipt of child maintenance, will from April, be able to keep every penny of the maintenance that is paid to them without it affecting the amount of benefits they can receive.

This will hopefully encourage parents to come to an agreement with regard to the amount of child maintenance payable, as they know that they will be receiving the full amount of money rather than have a substantial part of it deducted from their benefits.

If you require any further assistance on this subject you can contact the Child Maintenance Options Service on 0800 988 0988.

Alternatively, if you require any further advice or assistance relating to children, concerning contact or residence, please do not hesitate to contact our family team.

Non Payment of Rent – Commercial

February 25, 2010 – 3:40 pm

Many of your tenants are likely to have been adversely affected by the economic downturn and may, as a consequence, be struggling to pay the rent due under the terms of their lease. This sets out the key issues that a landlord should be aware of if a tenant fails to pay the rent due under the terms of a commercial lease.

Your tenant may become liable to pay interest (often at a rate higher than bank base rate) on the unpaid rent.

Your tenant may be liable to pay damages to you as the landlord.

You may be able to re-enter and obtain possession of the property.

Your tenant may be unable to exercise a break clause in the tenancy agreement while there are rent arrears.

You may be able to take steps towards having an individual tenant declared bankrupt or a corporate tenant wound up.

If your tenant has persistently delayed paying you rent, you may be able to block their application for a renewal lease.

You may be able to take action against your current tenant’s guarantor, a former tenant, or even a former tenant’s guarantor to recover the unpaid rent. You will have to serve notice in a specially prescribed form in order to seek payment from a former tenant (or its guarantor).

Your tenant may be liable for your costs arising from, or in connection with, the breach of their obligation to pay rent under the terms of the lease.

If you would like to discuss any of the issues raised please do not hesitate to contact us.