Legal Q&A

This Q& A is relevant where there is no surviving joint owner of the property Where a joint owner survives, they can take all steps needed to obtain possession. In the absence of a surviving co-owner, an executor’s role is to put into effect the instructions left by the deceased in their Will. Ordinarily, to implement those provisions, the executor will first marshal the estate, then meet what is owed, and finally distribute what remains to beneficiaries in line with the Will’s terms. Gather in all assets; Settle the liabilities; and Distribute the Estate’s proceeds as provided by the Will. To facilitate this, the executor must be recognised as legitimate, which is achieved through a grant of probate. Save where the estate is straightforward and of minimal value (usually under £5,000), a grant will be needed to secure the release of funds from banks and...

It has been assumed that: A’s entitlement under the trust to a 50% interest in the property constitutes a qualifying interest in possession ( QIIP) A’s trust interest is not within section 5(1B) of the Inheritance Tax Act 1984 ( IHTA 1984) Releasing A’s interest in possession will bring the trust to an end B is not a settlor of the trust The cessation of the QIIP, together with A’s gift of the remaining 50% share, each amounts to a potentially exempt transfer ( PET) by A. These transfers become chargeable to IHT if A were to die within seven years. See Practice Note: Qualifying interest in possession trusts— IHT treatment, especially the section ‘ Ending of an interest in possession during beneficiary’s lifetime’. Taper relief, as well as A’s available nil rate band, may operate to lessen any IHT...

If a property vendor makes an inaccurate statement of fact, and the purchaser relies on it when agreeing the contract, it could potentially be suitable to pursue a claim for misrepresentation......

A lease is treated as surrendered when it is handed over to the immediate superior interest. Surrendering a lease entails both a disposal by the tenant and a corresponding acquisition by the landlord, and it gives rise to capital gains tax ( CGT) accordingly......

The burden of costs in connection with legacies depends on the type of legacy. For a discussion of the various types of legacy, refer to the further reading link to Williams on Wills, Part H, Contents of Wills, Chapter 30: Legacies. From that extract, a gift of property constitutes a specific legacy if it comprises particular property that forms part of the testator’s estate at death, is described with sufficient precision to be identified, and is set apart from the testator’s estate in general......

We proceed on the basis that: the agreement for lease ( AFL) constitutes a new tenancy for the purposes of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) Effect of personal landlord covenant Under LT( C) A 1995, s 28(1)(b), an AFL falls within the meaning of a ‘tenancy’. As a result, any landlord covenant that is expressed—by whatever wording—to be personal to the named landlord providing it will not bind that landlord’s successors in title ( LT( C) A 1995, s 3(6)). This can be especially important where the AFL places wide-ranging obligations on the original landlord, for example to construct or undertake major works to the premises......

We proceed on the basis that the pension scheme in question is a defined benefit scheme and that the former MND is a member. Whether the former MND should first contest the outcome of the MND election through the pension scheme’s internal dispute resolution procedure, or complain straight to the Pensions Regulator, depends on the nature and seriousness of the breach......

Rights when assignee’s lease forfeited because of a former leaseholder’s breach An assignee’s personal exposure for breaches committed before a lease is assigned is restricted, and a tenant will generally be responsible only where the lease contains an express covenant dealing with those breaches and allocating liability. Without such an express term, the landlord has no covenant to pursue against the assignee for defaults that were fully committed prior to the assignment of the lease. Forfeiture, by contrast, is a proprietary remedy rather than a personal one under the lease. It can be exercised by a landlord against a tenant for breach of covenant under that lease. See Practice Note: .......

Section 7 of the Bribery Act 2010 ( BA 2010) provides: (1) A relevant commercial organisation (“ C”) is guilty of an offence under this section if a person (“ A”) associated with C offers a bribe to another person with the intention of: (a) securing or retaining business for C; or (b) securing or retaining an advantage in the conduct of C’s business. (2) However, it is a defence for C to prove that it had in place adequate procedures devised to prevent persons associated with C from carrying out such conduct. BA 2010, s 8 defines an associated person: (1) For the purposes of section 7, a person (“ A”) is associated with C if (disregarding any bribe under consideration) A is a person who performs services for or on behalf of C. (2) The capacity in which A...

The court holds comprehensive jurisdiction to sanction or decline a financial remedy consent order embodying the parties’ bargain (see section 33A of the Matrimonial Causes Act 1973 ( MCA 1973) and the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 9.26). Yet the court is neither ‘a rubber stamp’ nor a ‘bloodhound’ or ‘forensic ferret’ (see Pounds v Pounds and L v L). Its jurisdiction cannot be excluded. The court undertakes an autonomous and independent evaluation to enable it to discharge and fulfil its statutory duties by reference to the relevant factors set out in the MCA 1973, s 25......

When a property is held by a husband and wife as joint tenants, each is regarded as owning the entirety of the property, and if one dies the surviving joint tenant continues to hold ownership of the whole property. Under this form of ownership, it is simply not possible for either the husband or the wife to leave a ‘share’ in the property to any third party......

Broadly, a capitalised maintenance order is intended to achieve a clean break, bringing to an end each party’s financial responsibilities owed to the other, both during life and on death, pursuant to the relevant statutory provisions of section 25A of the Matrimonial Causes Act 1973 ( MCA 1973) See the Practice Notes: Capitalised maintenance— Duxbury calculations, and Financial clean break orders in family proceedings......

Much will turn on the exact provisions settled between the parties; for example, whether the essential component of child maintenance was set as a fixed sum with no top‑up payable at the time of the initial order because, at that stage, the payer’s earnings did not cross the relevant threshold. It will also matter whether, when that basic maintenance figure was determined, a 50/50 shared care regime was already in place and operating from the outset. The calculation used in the order appears to mirror the approach endorsed by Mostyn J in CB v KB, particularly at paragraph [49], where he indicated that in any case in which the non‑resident parent’s gross annual income does not exceed £650,000, the starting benchmark should be the output of the formula, disregarding the cap on gross annual income set at £156,000......

Parental responsibility Parental responsibility, as defined in section 3(1) of the Children Act 1989 ( Ch A 1989) itself, means all the rights, duties, powers, responsibilities and authority which, by law, a parent has regarding the child and his property. Anyone with parental responsibility is, as a matter of right, entitled to copies of both medical records and school reports, and the surgery or school should provide these......

When a baby is born, the birth must be registered, and the surname entered at that time is intended to be the name by which the child is known. If a parent later wishes to change the child’s surname, they should first consult any other person who holds parental responsibility before any step is taken. This applies irrespective of the existence of a child arrangements order, and regardless of whether that person has contact with the child ( Re PC ( Change of Surname)). Where there is disagreement, the matter must be placed before the court for a determination. A contested change of surname must not be made unilaterally ( Dawson v Wearmouth). Altering a name is a significant matter and should not be approached lightly. In deciding whether to grant leave, the court is guided by the welfare principle in section 1(1) of the...

There are a number of points to weigh up when determining if a consumer credit agreement is regulated by the Consumer Credit Act 1974 ( CCA 1974). Under the CCA 1974, s 8(1), a consumer credit agreement is described as an agreement between an individual (“the debtor”) and any other person (“the creditor”) whereby the creditor extends credit of any amount......

Is a tree a plant or a hedge? On conventional botanical understanding, a ‘tree’ is treated as a variety of plant; nevertheless, we have not identified any case law or alternative legal authority that conclusively determines whether a tree falls within the broader definition of plant. Even so, a hedge may consist of trees (see below). In short, while science leans that way, the legal position remains unsettled at present, for now, in practice......

It is not clear whether the donor holds a lasting power of attorney ( LPA) for property and affairs ( P& A), for health and welfare ( H& W), or both. As attorneys have determined that the donor’s home should be sold (necessitating a P& A LPA) and that the donor should move into a care home (necessitating a H& W LPA), we proceed on the basis that both LPAs exist and have been registered. We also proceed on the basis that there is more than one attorney. Where authority to act is several rather than joint, the lending attorney may opt out of any decision in which they have a conflict of interests. It is further assumed that: the donor had adequate capacity to enter into the loan the LPAs do not include specific instructions or...

General principles—privilege and confidentiality One of the trickier problems a practitioner encounters during litigation, especially at the disclosure stage of proceedings, is protecting a client’s confidential documents and information from review by other parties and from being put before the court. A principal way to secure protection for material relevant to a dispute is to assert that it is privileged. Once it is established that a document is privileged, the holder acquires a right to refuse inspection of that document. For wider guidance on the meaning and effects of privilege, see Practice Note: Privilege—general principles. Crucially, merely labelling a document ‘privileged’ does not settle its status. To benefit from this special protection—allowing a client to maintain confidentiality and withhold inspection of a relevant document—the criteria for one of the recognised forms of privilege must actually be satisfied (see below). More generally, for a claim to...

Stop press : The Levelling up and Regeneration Act 2023 obtained Royal Assent on 26 October 2023. This content is presently under review to ensure consistency with the Act. The Community Infrastructure Levy ( CIL) originates in section 205 of the Planning Act 2008 ( PA 2008) and took effect in 2010. It permits local authorities to levy a charge on new developments within their area where a new dwelling is created or additional floor space of 100sqm or more is provided. The detailed provisions are contained in the Community Infrastructure Levy Regulations 2010 ( CILR 2010), SI 2010/948, made pursuant to PA 2008......