A recent case illustrates how strong the evidence must be before the presumption that a person making a will has the mental capacity to so will be overturned.
It involved an elderly woman who died leaving an estate of a little under £150,000. Her only relative was her granddaughter. The woman had been looked after by a neighbour for some years and appointed him to be her executor and the beneficiary of her estate.
The woman’s granddaughter sought to have both the will and the man’s appointment as executor overturned, alleging that:
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the woman lacked testamentary capacity (i.e. was not ‘of sound mind’ when she executed the will);
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she did not know and approve of the contents of the will; and
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the will was procured by undue influence.
It was in point that the woman had previously instructed a firm of solicitors to prepare her will, but had not proceeded with it. Evidence was given by the firm that they had reservations about her testamentary capacity when she instructed them.
The court ruled against the granddaughter. There was almost no evidence that she did not know and approve of the contents of the will or that it was procured by undue influence. As regards the issue of testamentary capacity, the judge considered that she had ‘good days and bad days’, and that she could therefore be presumed to be of sound mind.
Partner Note
Cowderoy v Cranfield 2011 EWHC 1616.
Posted August 3rd, 2011 in Uncategorized |
Is plaster part of the structure of a building or merely, as was ruled in a 1992 case,“ merely a decorative finish and is not part of the essential material elements which go to make up the structure of the dwellinghouse.”.
One that simple point a case recently went all the way to the Court of Appeal, which held that the decoration was the finish applied to the plaster and not the plaster itself, which was part of the ‘structure’ of the building.
The result was an additional £750 repair bill for the landlord (which was responsible for maintaining the structure of the building) and a much larger legal bill.
Posted August 3rd, 2011 in Uncategorized |
An adjudicator in a construction dispute who issued a statement of ‘preliminary view and findings of fact’ without having received the evidence of the respondent was found by the court to have offended natural justice by failing to give both sides a fair hearing. The statement was said by the adjudicator to be ‘preliminary’ and ‘not binding’. However, it read like a draft of a decision.
The adjudicator’s decision, issued some time later, was essentially the same as the preliminary statement.
On appeal, the Technology and Construction Court found that the adjudicator’s decision was unenforceable on the ground that it failed to afford natural justice.
The failure to wait until the respondent had presented its evidence was compounded by the statement not being made available to both sides before being formally issued, thus depriving the respondent of the chance to challenge its contents, which gave the appearance of unfairness in the decision.
Posted August 1st, 2011 in Uncategorized |
Many homeowners know, to their cost, that the drains on their property are their responsibility, not that of their local water company. Owners of properties with septic systems will usually know this from the time they acquire the property – those connected to mains drainage often discover this for the first time when there is a problem with their drain.
Although problems with drains are an insurable risk, few homeowners take out such insurance. Worse still, it is often difficult, where a drain crosses adjacent property, to ascertain who is responsible for what. The Government therefore proposes to transfer responsibility for most drains to the water company that provides the local public drainage.
It is expected that this change will come into effect in October and the increased cost will be handed on in the form of higher water rates. However, drains whic h are exclusively for one property will remain the responsibility of the occupier of that property within the boundary of the property.
If you have queries about your rights and responsibilities as an occupier of property, contact us for advice.
Posted August 1st, 2011 in Uncategorized |
The High Court has taken decisive action in the war against the illegal distribution of copyright material by requiring BT, the UK’s largest Internet Service Provider, to block access to ‘pirate’ websites which allow the free download of films and music.
So-called ‘file-sharing’ sites, of which the original Napster site (which is now a commercial operation) is possibly the best known, have been the bane of the performing arts industry for many years.
The action was brought to prevent file-sharing site ‘Newzbin 2’ from distributing copyright material, especially films, which costs major film studios many million in lost profits.
Newzbin 2 is a site that was set up abroad when the original Newzbin site was closed down. By requiring BT to prevent access to it, Internet users in the UK will no longer be able to download copyright material from the site for free.
Posted July 29th, 2011 in Uncategorized |
When a party to a contract breaches the contract, the other party is normally allowed to bring the contract to an end. It is not normally possible (unless the contract allows it) for the party committing the breach to terminate the contract on the ground of its own breach.
In a recent case involving a motorway service area owner and a hotel group, both sides to a proposed lease agreement were entitled to terminate the contract if the necessary planning consents etc had not been obtained by a certain date. The landlord agreed to use all reasonable to obtain them.
When the necessary consents were not obtained, the landlord terminated the contract. The tenant argued that the landlord had not used all reasonable endeavours to obtain the consents.
The court was not asked to consider whether the landlord had in fact breached its obligations, but whether it had the right to terminate the contract if it had. This, the court ruled, it could not do. The intention of the parties was the building of an hotel and the granting of a lease. The purpose of the termination clause was to enable the parties to withdraw from it if the consents could not be obtained, not to allow the landlord to breach the contract and then terminate it on the basis of its own breach.
Posted July 29th, 2011 in Uncategorized |
The Office of Fair Trading (OFT) has made available a package of materials to help businesses comply with competition law. This includes:
· Guidance entitled ‘How Your Business Can Achieve Compliance’;
· Guidance entitled ‘Company Directors and Competition Law’;
· a Quick Guide summary of competition law compliance: and
· a film explaining how competition law works in practice.
An independent survey of over 2,000 businesses, carried out for the OFT, has revealed that awareness of competition law is increasing. 25 per cent of those surveyed said that they know ‘a lot’ or ‘a fair amount’ about competition law. This compares with a figure of 12 per cent in a similar survey conducted in 2006. For larger businesses, the figure was 45 per cent, with only 13 per cent of executives responding that they know ‘nothing’ about competition law.
John Fingleton, OFT Chief Executive, said, “Compliance with competition law is essential to ensuring that markets work well for consumers. We recognise that most businesses want to comply with the law and are keen to help them avoid breaching the law in the first place, supporting this by taking strong enforcement action against those who do not comply.”
The OFT urges any person with information on cartels, price fixing or abuse of dominance to telephone the cartels hotline on 0800 0851664 or to email cartelshotline@oft.gsi.gov.uk and gives an assurance that information provided will be dealt with in the strictest confidence. The OFT offers financial rewards of up to £100,000 in return for information that assists investigations.
Posted July 28th, 2011 in Uncategorized |
The Serious Fraud Office has advised that when considering whether expenditure on corporate hospitality can be considered to be a bribe, it will look at five factors:
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Whether or not the organisation has issued a clear policy regarding gifts and hospitality;
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Whether the expenditure in question was compliant with the policy and, if not, whether or not it had been sanctioned at the appropriate level within the organisation;
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Whether or not the expenditure was proportionate with regard to the status of the recipient;.
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Whether or not the expenditure had been entered in the organisation’s books of account; and
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The lawfulness of the receipt by the recipient under the laws of his or her own country.
We can assist you in setting up a clear anti-bribery policy.
Posted July 27th, 2011 in Uncategorized |
Despite the recent fall in corporate insolvencies, accountants PwC are predicting that company failures will rise during the year as the reductions in real incomes bite on consumer demand.
They consider the retail, hospitality and leisure sectors – which rely on discretionary spending and thus are always heavily effected by falling incomes – to be the riskiest sectors.
PwC also pint out that the need to refinance debt poses a significant medium-term problem for many businesses.
Posted July 20th, 2011 in Uncategorized |
Lion Steel Equipment Ltd is to be charged with manslaughter unde rthe Corporate Manslaughter and Homicide Act 2007.
The prosecution follows the death of a man who fell through a roof panel. Three of the company’s directors are also to be charged with manslaughter on account of negligence.
If convicted, the company faces a potentially unlimited fine and the directors possible imprisonment.
The announcement follows the conviction on appeal of Cotswold Geotechnical Holdings Ltd. earlier this year.
Posted July 18th, 2011 in Uncategorized |
