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Month: March 2024

Challenging a Will – Caveats

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If you are considering challenging the validity of a Will, you may wish to consider issuing a caveat.

Matthew Whipp, Senior Associate in our Private Wealth Disputes team, highlights the various steps to take and pitfalls to avoid.

What is a caveat?

A caveat prevents a grant of probate being issued, until the caveat is removed. If a grant of probate is prevented by a caveat, the estate cannot be administered, nor assets distributed.

When is it appropriate to use a caveat?

A caveat can be used in circumstances where you doubt the validity of the deceased’s Will, or you suspect the person applying for the grant of probate is unsuitable.

It is not usually appropriate to use a caveat where you simply wish to challenge the Estate because you are not happy with what you have been left in a Will. An example would be an application for reasonable financial provision from the Estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.

If you use a caveat where you have no reason to doubt the validity of a Will, or the person applying for the grant, you could be accused of abusing the process which may have costly consequences. You should instead use the Standing Search notification feature, whereby you will be alerted when the grant of probate is issued.

How do I issue a caveat?

The procedure for issuing a caveat is straightforward. You can issue a caveat online or by post using form PA8A. At the time of writing, the fee is £3. You will need to be careful to enter the deceased’s name as accurately as possible, without any spelling mistakes, as the protection will be against the estate of the exact name you enter.

How long does my caveat last?

A caveat will initially remain active, preventing the issue of a grant for 6 months. If you do not extend the caveat, it will automatically expire. You can only extend a caveat by writing to the Leeds District Probate Registry in the last month of the caveat’s 6-month period. You can extend a caveat as many times as needed, provided you have not been ‘warned off’.

Can my caveat be removed without my permission?

Usually, the person applying for the grant of probate will only find out that the caveat is in place when they make the application for the grant of probate. The person wanting to obtain probate will need to send you what is known as a “warning”.

The warning will be sent first to the Leeds District Probate Registry where it will be sealed and sent to the caveator. The warning should set out the details of the person applying for the grant and the Will or codicil the person intends to submit for probate.

Warning and entering an appearance

The person that lodged the caveat will have just 14 days from the date they receive the warning to do one of the following:

1) Agree to remove the caveat.

  1. The advantage of this is that you should not be liable for any costs involved with dealing with the caveat;

b. The process is simple and involves emailing the Probate Registry with the original caveat number.

c. The disadvantage is that this will allow someone to apply for probate with the Will that you may allege should not be accepted.

2) Refuse to remove the caveat and enter what is known as “an appearance”.

  1. Entering an appearance involves drafting a document saying why the caveat is in place and why you have the right to have entered it.

b. The advantage of this is that, if the Probate Registry accept, the caveat will remain in place and only an application for a court order can remove it.

c. The disadvantage is that if the person applying for the grant makes an application to remove the caveat and are successful, you may be liable to pay their costs. If done with a solicitor this could be thousands of pounds.

3) Apply to the court for directions and state why you do not want the grant of probate to be granted to a particular person.

Caveats may seem simple at a glance, but there are numerous problems you may encounter, particularly if you receive a warning.

How can Blaser Mills’s Private Wealth Disputes Team help?

At Blaser Mills Law we understand the stress caused by a questionable Will being used to obtain a grant of probate and are here to help. If you would like to discuss instructing us to act for you, please call us on 01494 788 998 and ask to speak to the Private Wealth Disputes Team or get in touch by email at enquiries@blasermills.co.uk

Understanding lease extensions

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A high percentage of homeowners own a leasehold property. It is therefore important to understand what a lease extension entails. Extending your lease can seem like a daunting process due to the complexities involved. However, as your lease term decreases, the value of your property in turn decreases, making lease extensions essential if you wish to maintain or enhance the value of your property. If you are considering extending your lease, it is important to discuss your options with a legal advisor. At Blaser Mills, we aim to provide clear and comprehensive advice in plain English to ensure a seamless transaction.

If you are coming up to only having 80 years remaining on your lease, you should consider extending your lease. Once the term of years goes below 80 years, the premium payable for a lease extension will increase considerably. It is also highly likely you will face issues obtaining mortgage finance and selling your property. If you are considering selling your property with a lease term of 80 years, it is advisable to start the process of extending your lease now to avoid delays with your sale.

There are two ways in which your lease can be extended:

Statutory route:

You are legally entitled to extend your lease under the Leasehold Reform Housing and Urban Development Act 1993, so long as you are classed as a “qualifying leaseholder”. To be classed as “qualifying leaseholder”, you must meet the following criteria:

  • You must have owned your property for 2 years or more
  • Your lease was originally granted for more than 21 years
  • Your property is not subject to conditions under freehold ownership by Crown or National Trust.

If you qualify under the Act, this allow your lease to be increased by 90 years and reduce your ground rent to a peppercorn (i.e. no ground rent would be payable).  The freeholder cannot refuse to extend your lease if you have owned your property for at least 2 years.

If you proceed via this route, the first step is to serve the freeholder with a S42 notice. A S42 notice is a formal notice from a leaseholder to a freeholder setting out the proposed terms of the new lease. Once this has been served, this begins the statutory lease extension process. The freeholder will then have 2 months to provide a counter-notice. The freeholder can either accept your offer or set out the terms acceptable to them You will be required to cover the freeholder’s legal fees as well as the valuation fees.

If the lease term drops below 80 years, marriage value also needs to be considered. The marriage value is the increase in the value of the property arising from the new lease. The Act states the marriage value must be shared equally between the leaseholder and freeholder. It is therefore in your best interests to begin the lease extension process before your lease term falls to 80 years to save additional costs.

If you are selling your property, you can begin the process of extending your lease and assign the benefit onto your buyer during the conveyancing process. This can save a lot of delays during the conveyancing process.

Advantages:

  • You are guaranteed an extension of 90 years.
  • You are guaranteed a reduction in ground rent to a peppercorn.
  • The terms are governed by the Act so you can therefore exclude any unreasonable terms.

Disadvantages:

  • The costs tend to be higher than the informal route.
  • Some leaseholders class the statutory time limits as being too generous.

Informal route:

If you have not owned your property for at least 2 years’, you can still extend your lease outside of the statutory process. Even if you have owned your property for at least 2 years’, you may still decide to proceed via the informal route.

You would be required to negotiate with the freeholder as to the terms of the lease extension however, there are no set timescales in place. A valuer should still be instructed to ensure the premium being paid is reasonable. Again, you will be expected to cover the freeholder’ legal fees as well as the valuers fees.

Advantages:

  • Some leaseholders prefer the informal route as they can extend the term past the 90 years permitted by the statutory route
  • The premium and legal fees can be less than proceeding via the statutory route.
  • If you own a share of the freehold, you can extend the term of years to as much as 999 years. In this situation, most leaseholders do not wish to charge each other a premium.

Disadvantages:

  • As the freeholder is not bound by the statutory time limits, they may not be proactive which could lead to delays.
  • Ground rent may not be reduced to a peppercorn. However, the Leasehold Reform (Ground Rent) Act 2022, states that freeholders are no longer permitted to add new ground rent to informal leases extensions (granted after 30th June 2022).

Timescales:

Lease extensions can take anywhere from 3-12 months depending on the complexity of the matter and how prompt the parties involved are. Instructing experienced solicitors and valuers will help reduce the length of time taken to complete.

Changes to rules on lease extensions:

In January 2021, the Government outlined proposals to change the rules in relation to leasehold properties. The proposals would enable leases to be extended by 990 years, abolish marriage value and abolish ground rent for new leasehold properties. As these are only proposals, these rules are not currently in force.

If you would like to discuss your lease extension further, please contact Shannon Terry, Associate in the Residential Property team, who specialises in lease extensions.

Unfair prejudice petitions – Update on limitation

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In Thg Plc v Zedra Trust Company (Jersey) Limited [2024] EWCA Civ 158, the Court of Appeal has confirmed that unfair prejudice petitions brought under section 994 of the Companies Act 2006 (the “Companies Act”) are subject to limitation periods.

Facts
Until now it has been readily accepted by Courts and practitioners that unfair prejudice petitions were not subject to a limitation period under the Limitation Act 1980 (the “Limitation Act”) and that the equitable doctrine of laches (an equitable defence that can be asserted where a claimant has delayed asserting their rights and is no longer entitled to bring an equitable claim) did not strictly apply to the statutory remedies under the Companies Act. The Court in Thg Plc acknowledged that it had been “undoubtedly received wisdom that no limitation period applies to” unfair prejudice petitions. However, this had not actually been an issue that has been argued before and determined by the Courts, although it was a point that was assumed to be correct and had been referred to in obiter in various judgments.

Notwithstanding the above, the Court has always maintained a wide discretion under the Companies Act to make “such order as it thinks fit” in respect of unfair prejudice petitions. It had been readily accepted before Thg Plc that an unjustified delay in bringing an action can be evidence that the petitioner has ‘acquiesced’ i.e. accepted the behavior on which the complaint is founded. In those circumstances the Court has always maintained the right not to hear the claim where it would be unfair to do so.

However, the decision in Thg Plc now confirms that the Limitation Act does apply to unfair prejudice petitions. The limitation period is calculated by reference to the remedy sought and is either (i) 6 years under section 9 of the Limitation Act 1980 where the claim is for compensation or monetary relief or (ii) in all other cases 12 years under section 8 of the Limitation Act 1980, calculated from the date on which the cause of action accrued.

It is a common remedy in unfair prejudice petitions for a share buy-out to be ordered. The Judgment clarified that those claims do not amount to claims for monetary relief as there is no entitlement to money until the share transfer is executed. As such, where the relief claimed is a buy-out order, petitioners will have 12 years in which to bring a claim.

Section 32 of the Limitation Act will apply to unfair prejudice claims and will operate to suspend the running of time for the purposes of calculating the limitation period in circumstances of ‘concealment’. This is particularly important in unfair prejudice claims where, quite often, a basis for bringing a claim is exclusion from management and can involve the concealment of information relating to the company and its affairs.

Analysis
There is no doubt that Thg Plc is a groundbreaking, and it would be fair to say, unexpected decision which will cause waves throughout this area of legal practice. Given the significance of the decision, we would not be surprised if the issue was subject to appeal to the Supreme Court.

As the limitation period is remedy dependent it is possible that a single claim could be subject to both limitation periods and careful thought will need to be given to the remedies sought in any petition.

The application of a limitation period to unfair prejudice claims is particularly in important given that many petitions rely on a course of conduct, sometimes over a significant period of time, which cumulatively amounts to unfair prejudice. It is our view that the limitation period could only sensibly begin to run once there had been sufficient cumulative events to demonstrate a case of unfair prejudice. However, this will be an issue to be determined by the Court. Where unfairly prejudicial conduct is continuing this may also give a petitioning party scope to overcome any limitation defence. This is an issue that will undoubtedly be the subject of further judicial scrutiny. 

If you would like to discuss any aspect of this article or require any further information or advice, please contact Jade Salton-Brooks on jkb@blasermills.co.uk.

Material Information – Streamlining the conveyancing process

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The earlier information can be provided in the selling process, the more certainty and control buyers and sellers will have making the conveyancing process simpler and quicker.

Guidelines have been issued to standardise Material Information provided in property listings and improve current practices.  This will allow sellers to potentially rectify any potential issues and buyers to make informed choices at the outset streamlining the conveyancing process.

The term Material information refers to any information about a property that could influence a buyer’s decision-making process. This includes information about the property’s condition, history, defects, or any other relevant details that could impact its value or desirability.

Estate agents and sellers are required to disclose Material Information about a property to potential buyers when the property is being marketed.  This helps promote transparency and fairness between buyers and sellers and reduces the risk of disputes or legal issues later in the process.

Current practices around disclosure are not consistent across the industry and standardising this essential information will help agents and sellers comply. 

The new guidelines issued by The National Trading Standards Estate and Letting Agency Team have three categories:

Category A  

Information which is considered essential for all properties (announced February 2022):   

  • Council tax band or rate
  • Property price or rent
  • Tenure information (for sales)
  • Details of deposit payable (lettings)

Category B

Information that must be established for all properties:

  • Physical characteristics of the property – property type and construction
  • Number and types of room – including room measurements
  • Utilities – how they are supplied
  • Parking

Category C

Information that may or may not need to be established.

These details must be included if the property is affected by the issue:

  • Building safety, e.g., unsafe cladding, asbestos, risk of collapse
  • Restrictions, e.g. conservation area, listed building status, tree preservation order
  • Rights and easements, e.g. public rights of way, shared drives
  • Flood risk
  • Coastal erosion risk
  • Planning permission – for the property itself and its immediate locality
  • Accessibility/adaptations, e.g. step-free access, wet room, essential living accommodation on entrance level
  • Coalfield or mining area

The Conveyancer’s role

Working together with sellers, conveyancers can assist in compiling the presale information before the property is marketed.  This will guarantee a seller will have the benefit of appropriate legal advice when compiling the necessary Material Information to be included within property listing.  Conveyancers help protect the interests of the sellers whilst ensuring they meet their obligations.  Otherwise, instructing non-regulated firms specialising in sale packs and not obtaining suitable legal advice could expose sellers to potential liability.

Reviewing property documentation – A conveyancer thoroughly reviews property documentation including deeds and Law Society Property Information Forms helping sellers prepare accurate and complete information about the property.

Advising on disclosure obligations – Conveyancers canadvise sellers on what information must be disclosed under relevant laws and regulations, such as defects, disputes, or encumbrances affecting the property.

Identifying potential issues – Conveyancers can identify potential issues or concerns enabling them to deal with these proactively.  As well as expediting the process when a buyer is found, this will also assist in reduce the number of abortive transactions due issues which can be resolved such as outstanding building regulation approvals or restrictive covenant consents.

By actively engaging in the disclosure process and ensuring that all Material Information is properly addressed, conveyancers help protect the interests of both buyers and sellers and facilitate a smoother transaction.

For further information or advice please contact Samantha Bellia on sxb@blasermills.co.uk.

Celebrating International Women’s Day

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We celebrate Blaser Mills Law’s inclusive work culture and the achievements of our colleagues on International Women’s Day.

Celebrating women in the legal industry is an important recognition of their contribution towards the legal sector, as well as their achievements in overcoming historical barriers to the profession.

Only 100 years ago, women were not classified as ‘persons’ under the Solicitors Act 1843. We therefore pay tribute to the women lawyers who paved the way for future generations of women to enter the profession, including Carrie Morrison who was the first female solicitor to enter a fully male dominated sector in 1922. In 1919, the Sex Disqualification (Removal) Act formally opened entry to the profession for women but this was 97 years after the Law Society was first established. However, progress has been made and we are pleased to note from statistics collated by the Solicitors Regulation Authority that the proportion of women in law firms has risen from 48% in 2015 to 53% in 2023.

We are proud that 74% of our employees are women, 50% of the Partners at Blaser Mills Law are women and more specifically within our Residential Conveyancing team, 90% of the team are women.

Our strong team of women lawyers positively contributes towards an equal and thriving working environment, whilst also promoting creativity and enhancing the firm’s ability to serve its client base more effectively in an ever-evolving and diverse society.

One of our women lawyers is Zara Liedl Carroll, a Senior Associate in the Residential Property department. Zara has always been a passionate advocate for women’s rights and equality and is a member of the Blaser Mills Law Inclusion Forum, an employee led group who help to influence the ongoing development of equity, diversity and inclusion at the firm.

Zara is also committed to providing pro-bono work, assisting fellow Solicitor Sabeena Pirooz at The Sky Project ( About Us – The Sky Project ), a small award-winning charity aimed at tackling the issues surrounding forced marriage and honour based abuse. She also makes time for her role of Conveyancing Regional Representative for the group Women in Residential Property (Meet our Regional Reps – Women in Residential Property) . The group seeks to connect, support, collaborate and share insight throughout the residential property industry.

Zara’s drive for these voluntary roles is fueled by a desire to help make a difference and also inspire young lawyers to become actively involved in pro bono work and action groups within our communities.

Zara commented: “Although there are limited hours in the day, I aim to make time for causes and initiatives which I feel strongly about. Blaser Mills Law has always been very supportive and encouraging of my voluntary work, which sends out a strong message about the firm’s values.”

Jane Hannaway, Partner and Head of the Residential Property department, encourages an inclusive work environment and actively supports the career progression of the women in Blaser Mills Law and the legal profession overall.

Jane commented: “Zara is a shining example of an advocate for inclusivity and empowering women within the workplace, the legal profession and the wider community every single day”.

Key differences between retirement and care homes

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Choosing the right living arrangement for yourself or a loved one in later years can be a significant decision, often marked by careful consideration of various options available. Among these options, retirement homes and care homes stand out as popular choices, each catering to different needs and preferences. Understanding the differences between the two is crucial for making an informed decision that aligns with individual circumstances and requirements.

Our Partner, Shabina Hussain, outlines the key differences.

Retirement homes
Retirement homes, also known as independent living communities, are designed for retirees who are relatively independent and do not require round-the-clock medical care or assistance with daily activities. These communities offer residents the opportunity to maintain an active and fulfilling lifestyle while enjoying the benefits of communal living. Typically, retirement homes provide amenities such as entertainment, social activities, dining options, and various supportive services like housekeeping and transportation.

Residents in retirement homes typically live in private apartments or bungalows within the community, retaining a sense of autonomy and privacy while also having access to on-site amenities and social opportunities. The focus of retirement homes is on promoting a vibrant and engaging lifestyle for seniors who value independence and community interaction.

Care homes
In contrast, care homes, also known as assisted living facilities or nursing homes, are intended for those who require assistance with activities of daily living (ADLs) or have complex medical needs that call for ongoing supervision and support. Care homes provide a higher level of care and assistance, including help with bathing, dressing, medication management, meal preparation, and mobility assistance.

Care homes employ trained staff members, including nurses and caregivers, who are available around the clock to attend to residents’ needs and provide medical assistance as required.

Key differences
The primary distinction between retirement homes and care homes lies in the level of care and support provided to residents. Retirement homes stress independence, autonomy, and a vibrant social environment, catering to those who are capable of managing their daily routines with minimal assistance. In contrast, care homes prioritise healthcare and assistance with activities of daily living, making them suitable for those individuals with more significant care needs or medical conditions requiring ongoing supervision.

How Blaser Mills Law can help
At Blaser Mills Law we have wide experience of acting for clients who are buying retirement homes and we know exactly what to look out for. We know that the sheer volume of documentation can be overwhelming, and we take great care to explain all aspects of the purchase as we move through the conveyancing process.

If a retirement home sounds like the best option for you please contact Shabina Hussain on 01494 788027 or email shh@blasermills.co.uk. 

Why everyone needs a Will

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In today’s fast-paced world, it’s easy to put off important tasks, and writing a Will is often one of them. However, having a Will is crucial for ensuring your wishes are carried out after your death and providing peace of mind to your loved ones. Heenal Chhipa-Gadday, Senior Associate in our Wills, Trusts and Probate team, highlights the importance of having a Will, and the steps to take in order to secure your legacy.

Why do I need a Will?
A Will is a legal document that outlines how your estate, including your property, money, and possessions, should be distributed after your death. Even if you think you don’t need one, having a Will ensures that your wishes are respected, and your loved ones are taken care of. Without a Will, your estate will be distributed according to the intestacy rules, which may not align with your wants.

What are the benefits?
Writing a Will offers several benefits beyond determining the distribution of your assets. Firstly, if you live with a partner without being married or in a civil partnership, they won’t automatically inherit your estate without a Will. Secondly, if you have children, a Will allows you to nominate a legal guardian who will care for them in the event of your passing. Additionally, a Will enables you to express your funeral wishes and can help mitigate inheritance tax.

What are the consequences?
Dying without a will, also known as dying intestate, can lead to complications and unintended consequences. The rules of intestacy determine how your estate Will be distributed, and these rules may not align with your preferences. For example, if you have a spouse and children, your spouse may only receive a portion of your estate, with the remainder divided among your children. In some cases, if you have no surviving relatives, your estate may be claimed by the Crown.

The process
Gathering information
Before your appointment, it’s helpful to gather relevant information that will assist in the process. This includes details about your assets, such as property, savings, investments, and valuable possessions. You should also consider any debts or liabilities, such as mortgages or loans. Additionally, think about who you would like to appoint as the executor of your Will, the person responsible for carrying out your wishes that you trust.

Seek legal advice
During your appointment, the solicitor will guide you through the process. They will ask you a series of questions to understand your wishes and ensure your Will accurately reflects your intentions. The solicitor will provide advice on legal matters, including inheritance tax implications and any specific considerations based on your unique circumstances. After the consultation, the solicitor will draft your Will.

Review and signing
Once the solicitor drafts your Will, they will provide you with an opportunity to review it thoroughly. It’s crucial to carefully read through the document to ensure all your wishes are accurately represented. If any changes or adjustments are necessary, discuss them with the solicitor. Once you are satisfied with the final version, you will sign the Will in the presence of witnesses, who will also sign to validate the document.

What happens next
Power of Attorney
While a Will is an essential component of estate planning, it’s also important to consider other aspects of protecting your interests and wishes. One such measure is establishing a lasting power of attorney. This legal document allows you to appoint a trusted individual to make financial and personal decisions on your behalf if you become incapacitated. By appointing someone you trust as your attorney, you can have peace of mind knowing that your affairs will be handled according to your wishes.

Regular updates
Creating a Will is not a one-time task; it requires periodic review and updates. Life circumstances change, and it’s essential to ensure that your Will accurately reflects your current wishes and circumstances. Significant events such as marriage, divorce, birth, or death in the family may necessitate modifications to your Will. It’s advisable to review your Will regularly and consult with a solicitor to make any necessary updates to ensure your legacy is preserved.

How Blaser Mills Law can help
The areas we deal with are never easy to discuss. Planning for the future can often be upsetting and daunting. Our team understands how difficult these conversations can be, and we take the time to understand your particular areas of concern and your wishes for the future.

We will ensure we always explain the situation clearly and we remain available on an ongoing basis to advise and update schemes where needed. Importantly, we will never hurry you and we will always make sure you are completely happy with the plans we put in place for you.

To speak to our team about managing your affairs email cad@blasermills.co.uk.