Only the very simplest of Wills should be drawn up without the aid of a solicitor or other professional adviser. One of the problems with homemade Wills is not only recognising whether your situation is really as straightforward as you think but also making sure that the Will fulfils all of the legal requirements. There are specific witnessing requirements for Wills and rules about who should or shouldn’t witness a Will. Another important factor that people often fail to recognise is that Wills made before marriage are automatically revoked by marriage unless specifically drafted in contemplation of marriage. Even the simplest of Wills will be held invalid if the legal requirements are not followed.

There is more to a Will than simply disposing of assets. For example, you will need to consider who will be executors and how money will be looked after if, for example, children are too young to inherit outright on your death. You may also need Inheritance Tax advice at the point of making a Will. Of course not everyone will have a big enough estate to have to worry about Inheritance Tax liabilities but owing to the increase in house prices in recent years, some people are slipping over the tax thresholds without necessarily being aware of this.

A valid Will is the only way to ensure that your possessions and assets pass to whom you want them to go to and if there are problems with the drafting formalities of the Will then your wishes may not be carried out. If it is found that your Will is incorrectly executed or does not dispose of all of your assets, the distribution of the estate or of the remaining assets is left to the operation of the Law. Many people think that their husband or wife will automatically inherit everything but this is a common misconception. The situation is even worse for unmarried couples and it doesn’t matter how long they have been together, an unmarried partner does not automatically have a right to the estate.

These are only some of the factors that you should bear in mind when preparing a Will and it is always sensible to seek professional assistance.

CAPTION: Donna Bothamley. Partner, Wills & Probate Team

The personal injury market has suffered a big image crisis over the last few years with claims companies springing up all over the place and men in tents accosting you on street corners to ask whether your limp is accident related! As a result, people can often be reticent in approaching a solicitor as they fear that they will be criticised by their peers for being greedy or claim obsessed.

Indeed, many argue that England is adopting America’s ‘Compensation Culture’ and that nowadays people can sue for tripping over a matchstick. They call for a return to the good old days when an accident was no more than that – just an accident.

So have times changed and is the English law on compensation taking a turn for the worse? Absolutely not. The law of negligence is hundreds of years old and the basic principles have not greatly changed, save for the need to deal with modern problems and events. You simply cannot get compensation for a genuine accident which was just unfortunate and nobody’s fault, however bad your injuries.

In order to succeed with a claim against another person you will have to firstly show that they owed you a duty of care. By way of example, a driver owes a duty of care to all other road users and pedestrians. You then have to show that the person owing you the duty of care has breached that duty. Thus, the driver has pulled out of a side road without giving way and has collided with your car. He owed you a duty as a fellow road user to drive with care and reasonable caution and he has clearly breached that duty by pulling out when it was unsafe to do so. Finally, you have to show that you have sustained an injury as a direct result of the other person’s breach of duty.

If all of these elements can be proved – remember that the onus is on the claimant to prove their case – then your claim will succeed. You should not feel guilty about submitting a claim for compensation for injuries sustained as you have a legal right, deep rooted in history, to make such a claim. People have to be responsible for their actions and innocent parties should not bear physical and financial upheaval unnecessarily.

An accident may leave a person so badly injured that they cannot work again and it will be necessary for them to seek compensation not only for their injury but also for the years ahead without any income. Why should they suffer this burden themselves when their demise was down to the neglect of another?

The law in America is different to the law of this country and each state can have their own set of rules and laws, leading to wide divergence even within the country. I cannot see a day when people will be allowed by English courts to make spurious claims and I shall continue to encourage people with genuine claims to pursue them with their heads held high. The right to be compensated when you have been wronged should never be taken away from you.

CAPTION: Claire Kirwan. Partner, Personal Injury and Medical Negligence Team

It is currently possible on divorce for a wife to substitute her National Insurance records for that of her former husband’s. Such a substitution would not affect her former husband’s entitlement to state pension but it would generally ensure that both parties would have the same basic state pension following divorce. In order to take advantage of this substitution, a former wife has to make a formal application to the DWP and submit proof (usually a copy of her Decree Absolute).

However, this substitution will no longer be available for those wives reaching pension age after 2016 irrespective of the date of their divorce. This means that a former wife would be left with a lower state pension income on retirement. Quite often this arises because she has simply taken time out in order to raise the children and look after the home or only worked part time for part of the marriage. As a consequence a wife probably only paid a reduced stamp (known as the married women’s stamp which was abolished in 1977) or made no contribution at all.

There are a number of transitional arrangements proposed to lessen the impact on certain individuals, one of which affects married women who, prior to 1977, exercised her right to pay a reduced married women’s stamp. By its very nature it is only going to affect a small number of people, but there will be a few to who this applies to.

The relevant date will not be the date of the petition or Decree Absolute but the date upon which the wife reaches state pension age after 2016.

There are also further proposed changes in that the government is going to also withdraw the ability to share Additional State Pension. Although basic state pension cannot be split, it has been possible in the past to split any Additional State Pension. Any such orders to split the Additional State Pension made before the new Pensions Act becomes law should be honoured. This means that there is a deadline on these types of orders, which is likely to be April 2017.

CAPTION: Louise Sheasby. Chartered Legal Executive, Family Team

The answer to this frequently asked question is that there may be no answer. The only certain way of knowing who owns a hedge or fence standing on the boundary of a property is if its ownership is stated in the Land Registry register entries for the property or in the title deeds if the property is not registered.

Often ownership, or responsibility for the repair of a boundary feature, may be expressly stated in the deeds or sometimes it is indicated by reference to a plan which would show “T” marks along the boundary edges of the property. If the “T” mark is pointing inwards towards the property then the boundary in question belongs to that property.

It is certainly usually the case that for all properties constructed since around 1980, ownership of the boundaries will be indicated either by reference to “T” marks on the plan attached to the first Conveyance or Transfer of the property or by that Conveyance or Transfer specifically stating that the ownership of a particular boundary is “party”, i.e. shared jointly between the owners of the properties which the boundary separates.

With older properties it is not at all unusual for the deeds to be silent on the question of who owns a particular boundary. Reference would then need to be made to information provided by the previous owners of the property at the time of the sale. The standard Sellers Property Information Form completed by all sellers during the conveyancing process contains questions as to the ownership and past maintenance of the boundaries. However, if the deeds are silent on ownership, then clearly the reply of the seller as to who owns a particular boundary will only be his or her own opinion of the position and will not necessarily be correct.

The question of maintenance of a boundary fence can be relevant because if a fence has been erected by a previous owner then the fence belongs to that owner and all subsequent owners of the property.

It is sometimes assumed that a fence belongs to the property which has the structural side of the fence closest to it. This is however not necessarily the case and this assumption has no basis in law.

If a boundary consists of a hedge and ditch then there is a legal presumption that a property boundary will be on the opposite side of the ditch from the hedge. The reasoning behind this is that when the hedge was planted, the owner would have stood on the boundary line, then dug the ditch on his own land up to the boundary, formed a bank on his land with the soil from the ditch and then planted a hedge on that bank of soil. This is, however, only a presumption and it can be overridden by evidence to show that the hedge itself forms the boundary line in the deeds.

The overriding factor in determining ownership is the evidence that can be obtained from the Land Registry Entries or title deeds to a property and if these are silent then in the vast majority of cases neighbours just agree to share equally the cost of any necessary repairs.

CAPTION: Tim Lester. Partner, Residential Property Team

A Settlement Agreement is a document which records an agreement between you and your employer. It is a legal requirement that you seek independent advice on the Agreement and you must consult with a solicitor in this regard. You cannot use the same solicitor as your employer and so you will need to check first of all whether the solicitor has represented your employer in the past.

Once you have selected a solicitor, you should provide your employer with their contact details and your employer can forward the proposed Agreement to your solicitor or you can give the Agreement to your solicitor direct, if you already have a copy.

The solicitor will then meet with you to go through the Agreement (this is another legal requirement). If it is not possible to meet then alternative arrangements can be made. Your solicitor will need to see a copy of your employment contract (if you have one) together with any other correspondence relating to your employment or to the Agreement itself. At the end of the meeting you can decide whether you wish to sign the Agreement, go back to your employer with proposed changes or decide not to enter into the Agreement at all.

Normally your employer would contribute to your legal costs in seeking legal advice on the Agreement itself.

Richard Moon has advised on a multitude of Settlement Agreements so contact him on (01926) 884745 or rhm@blytheliggins.co.uk.

CAPTION: Richard Moon. Partner, Employment Team

Family lawyers across the country are bracing themselves for a large influx of divorce instructions. September is notoriously known as a busy time for family lawyers.

Family Lawyer Louise Sheasby comments, “The increase can be attributed to a number of factors. Couples have pinned their hopes on rekindling their relationship during their summer holiday. But couples have returned home disappointed and disillusioned”.

Miss Sheasby adds “If you are contemplating divorce you should ask yourself if you have exhausted all other avenues, such as marriage guidance counselling. Divorce is a big step. It may just compound money worries as finances may be further stretched by supporting two households rather than one”.

If there is really no other solution Miss Sheasby recommends that you appoint a specialist family lawyer. “A personal recommendation from a friend or a colleague is great. However, if you don’t know who to approach you should consider contacting Resolution (telephone number 01689 820272) whose members are committed to a constructive resolution of family disputes”.

“Further, make sure that your family lawyer has the contacts that you need. Such a specialist will be “networked”. Sometimes in putting a case together it is necessary to employ other professionals such as, valuers, pension actuaries and in big money cases forensic accountants. Your family lawyers should also be able to recommend mediators and have contact with collaborative lawyers if needed”.

“You should listen to the advice your lawyer gives you, after all you are paying for it! A good family lawyer will take a sensible approach to your case and give you sound and pragmatic advice. Most family lawyers adopt a non confrontational approach. A good lawyer will encourage solutions”.

Caption: Louise Sheasby, Chartered Legal Executive, Family Team

I have one natural child and one adopted child. If I die, will my estate automatically be shared equally between the two of them?

If you die without having made a Will, the laws of intestacy will apply. This means that there is a statutory order of who will inherit and how much. It isn’t clear from your question as to whether you are married and if you are this would have an effect on the amount (if any) that your children automatically inherit on your death.

If you have a husband/wife/civil partner, they would take a set amount outright and the balance would be split into two. The spouse would receive the income from half of the balance whilst they are alive but the capital would be payable to your two children upon the death of your spouse. The other half will go to your two children at the age of 18. Joint and nominated assets are however treated differently.

If you have no spouse, your two children will inherit equally. Adopted children inherit from their adopted parents rather than their birth parents and so your two children would be treated equally under the intestacy provisions. This means that if your child’s birth parents also die without having made a Will, your child will not inherit from both estates only yours.

It is, however, important that you consider making a Will as there maybe certain personal possessions that you would want to make sure each child gets. Furthermore, if your children are still under the age of eighteen you may wish to appoint trustees who will manage the money for them until they are old enough to manage it directly themselves. Under the intestacy provisions, children inherit their money at the age of eighteen years but you may consider this too young and want to defer to a later age. It would, however, be advisable to take professional advice as there can be tax implications of doing this. Also, it is important to consider who would look after your children on a day to day basis and this can be included in a Will.

CAPTION: Donna Bothamley, Head of the Wills and Probate Team

Abuse experts at Blythe Liggins call for immediate action to be taken over reports that more than 1,400 children in Rotherham have been sexually exploited from 1997 to 2013.

In an independent investigation carried out by reviewer Alexis Jay OBE, the report suggests that children as young as 11 were subjected to ‘horrific’ acts of abuse.

He concluded that the council and other agencies should have done more to protect children at risk.

The personal injury team at Blythe Liggins who act on behalf of abuse survivors, have raised grave concerns at the appalling nature and sheer scale of abuse, which span over 16 years.

Claire Kirwan, Head of the personal injury department, said that “The failings of so many institutions who were responsible for the safety and wellbeing of these vulnerable children is unacceptable and those responsible should be held accountable for their diabolical failings. It is thought that many of the victims were already known to social services as being at a risk of neglect, highlighting an extensive systemic failing which must be resolved”.

CAPTION: Claire Kirwan, Head of the Personal Injury and Clinical Negligence Department

Patients who were given faulty hip replacements at Warwick Hospital could be eligible for up to £20,000 in compensation, according to a leading personal injury lawyer.

Claire Kirwan, head of personal injury at Leamington law firm Blythe Liggins, who has appeared on BBC TV’s Watchdog programme as an expert on personal injury law, represents patients who have since undergone corrective surgery after being fitted with faulty hip replacements.

She said that during the period 2005 to 2010 the South Warwickshire Hospitals Trust performed 1,500 hip replacement operations, 120 of which were at Warwick Hospital using the DePuy Johnson & Johnson ASR product, which has since been recalled from the market.

“Any patient who has undergone corrective surgery as a result of this faulty product being used could be entitled to up to £20,000 in compensation,” said Ms Kirwan, who is also being consulted by patients who have had problems with their Biomet and Corin hips.

“Clearly there has been enough evidence to suggest that some metal-on-metal (MOM) hip implants were not fit for purpose and were failing at a much higher rate than other types made from ceramic and/or polyethylene – and should have been banned. The warning signs had been there for some time but no one had acted.

“There should have been calls for a regulatory body to be set up to ensure that these devices were thoroughly tested and approved,” she said. “These patients’ lives had been blighted unnecessarily.”

Problems reportedly occurred when friction between the metal ball and the cup into which it fits caused tiny metal filings to break off, resulting in seepage into the bloodstream and inflammation causing damage to muscle and bone.

Although most of Ms Kirwan’s clients had undergone surgery at Warwick Hospital, and some at St Cross Hospital in Rugby and the University Hospital in Coventry, she is also representing patients as far afield as Cornwall.

Anyone concerned about their hip should contact their GP or hospital, Ms Kirwan advises.

CAPTION: Claire Kirwan, Head of the Personal Injury and Clinical Negligence Department

Issued by Newsline PR. Tel: 01926 888308

Holidaymakers who experience a holiday from hell need not suffer in silence, according to a Leamington lawyer.

Adam Lloyd, personal injury solicitor at Blythe Liggins on Rugby Road, said that the law protecting consumers meant that holidaymakers were entitled to claim for accidents and illness suffered abroad.

“It is only right that holidays have to live up to certain standards and Package Travel, Package Holiday and Package Tour regulations mean that tour operators can be sued rather than a claim having to be brought against a foreign hotel owner,” said Mr Lloyd.

Even if holidaymakers have not reached their destination they may be able to pursue a claim in this country if they were travelling by plane, ship or train.

“We have had cases where clients have been injured on the flight out to their dream holiday and have had cruises with outbreaks of gastric illness – all of which lead to misery at times when holidaymakers should be leaving their stresses behind.”

Incidents should be lodged with the tour representative on holiday and, if possible, names and addresses of any witnesses should be taken. It is also advisable to photograph and video evidence to support the claim and keep all of the travel documents.

Mr Lloyd also warned that holidaymakers would often spend the insurance premium in the airport bar rather then get fully covered if anything went wrong.

“Accidents abroad can be devastating with medical fees costing thousands of pounds, different laws and language barriers to struggle with and the support of friends and families far away. Transport home can also be expensive so I would urge holidaymakers to make adequate arrangements for insurance and use ABTA member travel agents,” said Mr Lloyd.

When holidaying in Europe – or just travelling through – Mr Lloyd also advised obtaining a free European Health Insurance Card (EHIC) which allows holidaymakers state healthcare at reduced fees or sometimes for free. It is valid in all European Economic Area (EEA) countries, including Switzerland but will not cover any private medical costs so it is vital to have adequate insurance.

CAPTION: Adam Lloyd at Blythe Liggins

Issued by Newsline PR. Tel: 01926 888308