Haworth Holt Bell

THE BANK OF MUM AND DAD

‘Neither a borrower nor a lender be…’ – Hamlet Act 1, scene 3

Many parents give or lend a child money to help them buy a property. With property prices so high and children coming out of education with debt, getting on the property ladder means that a loan or gift is more common that it is not.

But what happens if the child enters into a relationship or marriage that later breaks down?

One person may say that money was a loan while another may say it was a gift. It can be difficult, time consuming and expensive for lawyers to try and unpick this once a marriage or relationship has broken down.

If you are lending money to or borrowing money from someone, enter into a formal written loan agreement or a Declaration of Trust which records that the person giving the money has an interest in the borrower’s property. There is a legal presumption against money being gifted, so if it is a gift this needs recording in writing by the donor. If the relationship does later break down it is much easier to establish that the money was a loan rather than a gift and vice verse.

Be sure to get advice from the experts here at HHB Law.

Family Litigation

Informal surrogacy arrangements

JP v LP, SP and CP [2014] EWHC 595 is a recent surrogacy case that highlights the problems of entering into informal surrogacy arrangements.

The family involved entered into an informal surrogacy agreement with a friend and difficulties started when the parents separated soon after the child’s birth. The parents were not aware of the legal position of entering into surrogacy arrangements.

Did you know…

Surrogacy agreements are not enforceable in law in the UK.
It is a criminal offence in the UK for a third party to negotiate surrogacy arrangements on a commercial basis.
The surrogate mother, and no other woman, will be the child’s legal mother.

The legal position in the UK is complicated. Parents should ensure they have all of the relevant advice before embarking on surrogacy, either in the UK or by way of an overseas arrangement. Get specialist advice from our Family Solicitor at HHB Law.

Wills & Probate

Do-It-Yourself Wills! DON’T DO IT!

Disputes relating to wills and estates continue to cause a lot of grief and expense to those left behind when some people die. The situation is almost always much worse when wills have been prepared by the deceased, and sometimes even when prepared by a lawyer who does not have the necessary training and experience.

Probate costs can start in the region of £2,500. However, the average cost of obtaining probate is probably in the region of £5,000 to £7,000, but disputes, usually between family members, can cost several times more than that.

An experienced lawyer will, in many cases, also be able to help your family save considerable monies in relation to inheritance tax and asset protection matters.

So – if you are thinking of making a will, get advice from an experienced Private Client solicitor. Don’t do it yourself!

Litigation

Is this Justice?

We all have notions as to what English Law is all about. We go to Law because we are looking for Justice. Do we get Justice and what does Justice mean? These are perennial questions.

Take a simple case, where a car driver has one account as to how the accident happened, and whose fault it was, and the pedestrian says something different. Who does the Judge believe? The pedestrian’s friends, who were with him at the time, all support his version, but the car driver was on his own, and so the Judge has to make a judgment based on the weight of the evidence. So one of them is going to leave the Court saying that the Judge was wrong and that he did not get Justice.

This is the nature of the beast. However, the Court procedure with which litigants are obliged to comply, has become more draconian because of a recent decision in the case of Mitchell. Before a civil claim gets to a Judge for trial, there are various procedural matters that need to be dealt with. The Court Rules require that the parties do comply with these procedural matters. However, for a variety of reasons one party may delay because, for instance, a witness cannot be found, someone has been ill or information which is required cannot be obtained in time. In such cases, the Court would normally given an extension of time and the parties themselves often agree to an extension, because such things do happen.

However, in the Mitchell case, the Judge was not prepared to give further time to comply with a relatively trivial part of an Order and struck out the defaulting party’s claim. This was the first occasion that there was a delay and was this really Justice? On the face of it, it has become easy now, because of this case, for one party to seek that a Claim be dismissed for a minor infringement of the Rules by his opponent. There may well be issues under the Human Rights Act because everyone should have access to Justice. It seems to me that the Courts are denying that access to Justice by imposing unjust administrative rules before a Claim even gets to trial.

“O just, but severe Law” as Shakespeare wrote it. After 330 years this should now read “O unjust, and severe Law”. Hardly progress!

Richard Bell

Family

Pre-nup update

Last week the Law Commission recommended pre-nuptial agreements should be given full legal force.

The commission is also suggesting research into whether a formula could be produced for divorcing spouses to determine the range of maintenance they should pay – rather than individuals having open-ended liability for life.

The Law Commission, which recommends changes in legislation to the government, says that the qualifying nuptial agreements would be enforceable provided both parties have disclosed financial information and received legal advice, and the agreements are signed more than 28 days before the wedding.

The agreements would be enforceable only after the financial needs of any children and the estranged partner have been met in areas such as housing.

Pre-nups were relatively new in the UK but commonplace in America and other countries. HHB Law has been preparing pre-nuptial agreements and post-nuptial agreements since their introduction. Although not formally law, great weight has been attached to them over the last couple of years and they are one of the best ways to secure your financial position. They are not just for the wealthy; they are for anyone wishing to take a pragmatic approach to the future.

For a special trial period only we are offering pre-nups at a fixed fee rate of £1,500.00 plus VAT. For your free consultation contact our family expert, Kirsty Leather, on 0161 925 4471.

Family

Pre-nuptial agreements to become law?

The Daily Mail has published that the Law Commission has recommended that pre-nuptial agreements are to be enshrined in law under plans to reform divorce rules. As of yet, no such report has been published by the Law Commission.

The Commission is due to publish a report on Matrimonial Property, Needs and Agreements on 27th February 2014.

The report will include a draft Bill. The report will reflect any points on which the Commission has changed its views during consultation. The final report will be laid before Parliament.

HHB Law have long been preparing pre-nuptial agreements for clients to secure their wealth. Although not yet law, they can certainly persuade a Court if entered into correctly.

If you have any queries about pre-nuptials, contact our family expert, Kirsty Leather, on 0161 925 4471 for a free no obligation chat.

Estates

To “scheme” or not to “scheme”? That is the question

Well, we are all entitled to manage our affairs to avoid paying tax. Is this morally right? Does it fit with the concept of “the Big Society”?

Taxation is by its very nature penal. It goes against the concept of the freedom of the individual to do what he/she pleases with his/her assets. It is the State taking money (usually) from the individual because that individual is a member of the State. This is nothing new. It has taken place since the dawn of civilisation.

But the problem arises when someone is not paying their fair share. And this is the issue. What is that fair share?

You come to us and tell us that you are selling a piece of land for development and you are making a handsome gain which will be liable to Capital Gains Tax. Now, should we tell you that if you transfer the land in to the joint names of you and your spouse or civil partner first there will be no Stamp Duty Land Tax and secondly when you sell and make that gain your spouse or civil partner will also be able (if it has not already been used up) to claim his/her CGT annual exemption, presently £10,600.00.

By a little bit of “engineering” you may have saved around £3.000.00.

The question is by this “scheme,” for want of a better word, is it fair to the Big Society that you have managed your affairs to avoid £3,000.00 tax? Or is it a matter of degree and, if so, where do you draw the line? I expect that very few people would agree where that line is. MPs are adept at using the Reliefs available when they buy a second home in London and save thousands by doing so. But that is perfectly legitimate, so should they be criticised for this “scheme”?

I suppose we all have to stop using the word “scheme” when looking at ways to mitigate the tax burden. It has become a dirty word. “Tax Planning” is not so offensive! I don’t know the answer. Do you?

RJB

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