India

Wherever I Lay My Hat...

All too often Domicile is thought to be a relatively straightforward concept and Paul Young’s song is considered to be fairly apt in setting the scene that Home is wherever you want it to be.  However, this is not the case and Domicile is often a complex concept.  It is an important consideration in Inheritance Act claims as a claim can only be brought against the estate of a deceased person who was domiciled in England and Wales at the time of his/her death.


Wendy Rixon
Wendy Rixon
Associate – Estate & Trust Disputes Specialist

Everyone has a domicile of origin which is based upon the domicile of your father (in the event that your parents are married) or your mother (if unmarried or father has deceased), i.e. where they consider their permanent home to be at the time of your birth.  Therefore, even if you were born in, say, England; if your parent(s) permanent home was in, say, India – that is the domicile of origin that you will take. 

An individual over the age of 16 can revert to a Domicile of Choice.  They must be living in a different country from their domicile of origin and must have an intention to remain in that country permanently or indefinitely.

A recent case in the Chancery Division of the High Court addressed the domicile question as a preliminary issue in a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act).  Proles –v- Kohli [2018] EWHC 767 (CH) found that the deceased was domiciled in England at the date of his death on 8 December 2015.

The Claimant was the 5 year old daughter of the deceased (by her mother and litigation friend) and, given the content of section 1(1) of the 1975 Act, the burden of proof was on the Claimant to show that the deceased was indeed domiciled in England and Wales at the time of his death.

It was accepted that the deceased’s domicile of origin was India, but that he had lived for a considerable amount of time in England before travelling to and remaining in India for just a month before he died.   Therefore the preliminary issue to be decided can be divided into two further issues:

  1. Firstly, did the deceased acquire a domicile of choice in England? And, if so;

  2. Did he abandon his domicile of choice by travelling to India where he remained until his death?

When considering domicile, the whole of the deceased’s life and what his inferred intentions were,  need to be taken into account.

The facts in this case were, of course, detailed and varied and beyond the scope of this article.   However, the evidence before the court showed a long history of the deceased living and working in England.  Although he remained married, he held himself out as divorced and had other relationships, including a brief relationship with Amelie’s mother in 2012.  Although that relationship did not work out, he accepted Amelie as his child (at least initially) and retained a cordial and friendly relationship with her mother.  He did not travel to India much over the years and certainly spent more time in England and his business ventures were all ultimately in England.

There are some records of conversations around domicile while the deceased was alive which were not conclusive.  There is a report of him saying, in 2014, that he hadn’t decided whether he wanted to stay in England or return to India.  He was resident in the UK for tax purposes.  Solicitors acting for him in relation to a Will around this time mention that the deceased considered himself to be domiciled in India; however, the deceased did not respond to this, nor sign the draft Will.

Later, in 2015, he instructed different solicitors to prepare a Will and told them that he was domiciled and resident for tax purposes in the UK and that he held no property abroad or offshore, but his wife was currently in India.

The deceased was diagnosed with cancer in 2014 and after lengthy treatment decided to travel to India for rest and recuperation.

The claimant’s case was that in about 2010, following lengthy residence and estrangement from his wife, it is to be inferred that the deceased had the intention to reside in England indefinitely and to abandon his domicile of origin.   His return to India in 2015 was only intended to be temporary.   Indeed he had shown an intention to become a British national after Christmas 2014, for tax purposes, and as he has no intention of ever returning to India to live.

Mrs Kohli’s case was that the deceased never formed an intention to abandon his Indian domicile or acquire any settled residence in England  He held an Indian passport, identity card and election card; he had an international driving permit and a limited visa to live and work in the UK.

There is strong contemporaneous evidence that the deceased intended to return to England after a rest from his cancer treatment.  He had follow up appointments in England which he appeared to be intending to keep.

Therefore, in this case, it was found that the deceased took on a domicile of choice in England and Wales and did not abandon that domicile of choice when he returned temporarily to India.  Therefore, it was found that the deceased was domiciled in England at the date of his death on 8 December 2015.

Although it remains the case that domicile can be a choice; it is clear that this is not a simple concept and involves many factors; not just where you lay your hat.

We Can Help

At MW Solicitors our Mission is "To make quality legal services accessible to everyone" including those who wish to pursue Inheritance Act Claims.

Our Estate & Trust Disputes Team are dedicated and specialist inheritance disputes Solicitors and are experts in pursuing Inheritance Act Claims.  Take advantage of our FREE CASE REVIEW, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

Farm Fields Sun

A daughter claimed an entitlement to a dairy farm owned by her mother and late father.   The basis of her claim was that a promise had been made to her by her late father that the farm would pass to her on his death. As such she relied on this promise to her detriment dedicating almost 30 years of her life to her parents’ farm.  This claim is known as a proprietary estoppel claim.

In order to assess the claim, Justice Birss referred to the well established indicators of a proprietary estoppel claim in Thorner v Major [2009] 1 WLR 776 HL: “a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance”.

The claimant was able to successfully evidence that many representations or promises were made to her about the future of her inheritance such as being told to deal with the employees as they would in time be working for her, or that you cannot have it now and have it later. Justice Birss was satisfied that such assurances had been made.

In order to show that the claimant had relied on these promises to her detriment, Justice Birss accepted the evidence that she had been paid low wages, worked long hours, hardly had time off, and made a commitment to her parents’ farm as opposed to other farms because of the assurances given to her. Consequently, Justice Birss stated that her proprietary estoppel claim had been made out.

However, before allowing a conclusion to take place, Justice Birss had to deal with some other interesting points in order to finalise this dispute: firstly, whether her mother would be bound to a promise that was made by her husband to his daughter, and secondly whether a reasonable casual offer that was made by her parents and later rejected by the daughter 10 years prior would prevent the claimant from pursuing her claim.

Justice Birss firstly stated that in reference to the case of Fielden v Christie-Miller [2015] EWHC 87 (Ch) one can be bound by another’s promise if they were aware of it, and in this case he thought that the mother knew of the assurances made to her daughter and was therefore bound. With respect to the second point Justice Birss was of the opinion that “it was not put to the claimant that by refusing the offer…[that] she would forfeit that inheritance”, and that the refusal did not entitle the defendant to abandon the assurances provided to the claimant. However, Justice Birss did apply this fact into his calculation of what relief should be rewarded.

The daughter was awarded £1.17 million of an estate valued at £2.5 million. Evidently, a promise that changed her life.

We Can Help

At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including those who wish to challenge a will.  Sarah and Ravandeep are members of our Estate and Trust Disputes Team based at MW Guildford.

If you believe you may have inadvertently made such a promise or wish to rely on a promise of a gift on death our specialist Estate and Trust Dispute Solicitors are here to help you.  Don't delay, call our Team today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

The Supreme Court has ruled that the Metropolitan Police failed to effectively investigate allegations made against John Worboys, a serial sexual predator. As a consequence, two of his victim’s have been collectively awarded £41,250 in compensation.


Fleur Hallett
Fleur Hallett
Solicitor - Civil Litigation

The main issue in this case was the extent to which Article 3 imposes a positive obligation on the police to effectively investigate allegations made against other individuals.

The two victims brought a claim against the Commissioner of Police of the Metropolis under the Human Rights Act 1998. They argued that the failure to identify and arrest Worboys breached their rights under Article 3 of the European Convention on Human Rights, which states that

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment'.

This judgment has significantly widened the scope of police liability and paved the way for other victims to bring claims against the police should they fail to carry out an adequate investigation.

Commenting following the judgment, the Metropolitan police have recognised the implications this case will have on how they prioritise and resource their investigations. Coupled with the potential for future claims, it is not unreasonable to draw the inference that they vigorously defended the claim for fear of the financial repercussions; they appealed to both the Court of Appeal and then Supreme Court, following the original judgment in the Claimant’s favour in February 2014.

You can read the full judgment here

We Can Help

McMillan Williams is a leading specialist in bringing civil actions against the Police and protecting the rights and freedoms of ordinary citizens. We can represent you in pursuing a complaint, disciplinary proceedings or a civil claim against the Police for compensation.

If you have been a victim of crime and feel the police failed to sufficiently investigate or if you wish to speak with one of our solicitors who specialise in Actions Against the Police don't delay, all us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

We urge you to do this as soon as possible as there is a one year time limit ( from the date of the incident) in which to bring a Human Rights Act claim.

Minefield

The Government Minimum Energy Efficiency Standards (MEES) comes into force from 1st April 2018 and will add yet more regulation to the minefield which already affects landlords. 

What is a MEES and How Does it Affect Me?


Manjot Dhillon
Manjot Dhillon
Solicitor - Property Disputes

Essentially, the MEES will require all properties rented out in the private sector (bar a few exceptions) to have a minimum energy performance rating of an ‘E’ on an Energy Performance Certificate (EPC). It will affect new tenancy agreements and renewals of tenancies taking place after 1 April 2018, and will affect all existing tenancies after 1 April 2020.

What if My Property does not meet the E Standard?

If a property has an energy performance rating of an ‘F’ or ‘G’, the landlord must carry out energy efficiency improvements before they let the property or renew an existing tenancy arrangement.

The new regulations are additional to the existing requirement that a valid EPC must be provided to a tenant by a landlord, and form part of a wider clampdown on energy wastage as the UK works towards reaching its carbon reduction targets.

Stay Up to Date to Avoid a Fine

Penalties for non-compliance include a fine which is based on the rateable value of the property (up to a maximum of £150,000). It is therefore sensible for current and potential landlords to seek professional legal advice before they consider entering into a new tenancy or a renewal to ensure that they do not fall foul of the new requirements.

We Can Help

At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including Landlords who want to ensure that their tenancy agreements stay up to date with lettings legislation and regulations. 

If you are a Landlord and need help with your tenancy agreements, don't delay, contact us today.  Our experienced and specialist Property Disputes Solicitors are here to help.  Call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

Employee

April is fast approaching and with it come changes to the taxation of termination payments. 


Francesca Wild
Francesca Wild
Solicitor - Civil & Commercial

The tax treatment of termination payments has been the same for quite some time.  Rather than taking note of the old saying “if it isn’t broken, don’t fix it” the Government decided to review and “simplify” the process.  This has resulted in things becoming a bit more complex!

Some of the suggestions have (thankfully!) fallen by the wayside but a few are going ahead and they take effect in April 2018.  A key change is the tax treatment of Payments In Lieu Of Notice (PILONs).

Under tax legislation, it has been the rule for some time that certain payments made to employees on termination of employment can be made free from tax and National Insurance Contributions (NICs) up to £30,000.

As things stand, the tax treatment of PILONs is different depending upon whether the employer has the contractual right to make the payment. In simple terms, if the employee’s contract terms set out the right to make a PILON that means there is no breach of contract and it has to be taxed in the normal way like salary. If the terms are silent it can be paid tax free as damages, therby compensating the employee for the breach of contract in not allowing them to work their notice.

This has meant that employees can end up receiving a bit more cash and employers pay out a bit less too (no employer’s NIC’s).  From April 2018 all PILONs will be treated the same.  They will be subject to tax and NI contributions whether or not there is a clause allowing the employer to make a PILON.  This means that there will be no downside to including a clause in contracts of employment permitting payments in lieu of notice.

Other key areas of change include:

  • Requiring employers to pay employer NICs on payments made to employees over £30,000.  Currently, payments over the £30,000 are subject to tax on the excess but not NICs.

  • Additional tax free allowances relating to foreign service and injury to feelings will no longer apply.

We Can Help

At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including Employers and Employees.

Our experienced and specialist team of Employment Lawyers can help across a full spectrum of Employment Law issues including termination payments and drafting of employment contracts.  If you need and Emploment Lawyer call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

Tenancy Agreement

It can be very tempting to continue to re-use old tenancy agreements. They worked before, so why should they not work this time. Trouble is, the law moves on and those previous terms may now be deemed unfair and unenforceable.


Gary Leverett
Gary Leverett
Solicitor - Property Disputes

Any contract made on or after 1 October 2015 between a landlord acting in the course of a business and a tenant, being an actual person acting outside the tenant’s business (if any), is now subject to the Consumer Rights Act 2015.  The provisions made in connection with unfair contract terms by the Consumer Rights Act 2015 are similar to those made under the Unfair Terms and Consumer Contracts Regulations 1999 (which still apply to contracts made before 1 October 2015).  However, the major difference is that, under the Consumer Rights Act 2015, the courts will not uphold a term that is ‘unfair’, even when that term has been individually negotiated. 

The Office of Fair Trading (OFT) was abolished in 2014 and the Competition and Marketing Authority took over its power to take enforcement action in relation to unfair terms.  The Competition Markets Authority also adopted the OFT’s Guidance on unfair terms in tenancy agreements.

Although the new Competition Markets Authority Guidance has not been updated to take into account the provisions of the Consumer Rights Act 2015 and the repeal of the Unfair Terms and Consumer Contract Regulations 1999 in respect of contracts entered into after 1 October 2015, it still provides useful guidance, although it does need to be read with a degree of caution, until it is updated. 

The Competition Markets Authority’s Guidance identifies a number of terms as being potentially unfair, amongst which are:

  1. Terms excluding the tenant’s right of set off and that require rent to be paid free of deductions.  The Guidance gives an example of an unfair term

    “The tenant agrees to pay the rent at the time set out in the agreement, without exercising any right or claim to legal or set off.  All payments to be made by the tenant under this agreement shall be made in full without any set off, abatement, restriction, or condition and without any deduction for or on account of a counter claim.”

    By way of replacement, the Guidance suggests a revision of this sort of term but does not confirm that if used, that this will still be regarded as fair:

    “The tenant pays the deposit a security for performance of the tenant’s obligations it may be used to pay to compensate the landlord for the reasonable costs of any breach of those obligations or against any outstanding rent, unless lawfully withheld by the tenant.”

  2. Terms that permit the landlord to cancel or suspend the provisions of any significant benefit under contract.

  3. Terms that allow the landlord excessive rights to enter the property.

  4. Terms that require the tenant to pay the landlord’s legal costs on an indemnity basis, not just those reasonable costs reasonably incurred.

  5. Any terms that give the landlord’s agent or surveyor the final decision, where repairs have been satisfactorily carried out.

  6. Any absolute ban on assignment and sub-letting in any fixed term tenancy.

  7. Any terms that prevent the tenant from keeping any pets.

  8. Any forfeiture clauses that do not make it clear that the landlord must obtain a court order before evicting the tenant. 

If you have been using a lease precedent for a number of years, it may well be that some of the terms of such a leases would be deemed to be unfair.  It would therefore be advisable to seek legal advice to update your tenancy agreement and to check that all the terms are deemed fair under the Consumer Rights Act 2015. 

We Can Help

At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including Landlords who want to ensure that their tenancy agreements are fair and in accordance with the Consumer Rights Act and other contract legislation. 

If you are a Landlord and need help with your tenancy agreements contact, don't delay, contact us today.  Our experienced and specialist Property Disputes Solicitors are here to help.  Call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

Father and Son

In order to make effective gifts on death, the best way to do so is to make a Will, preferably with the advice of a solicitor. 


Sarah Arnold
Sarah Arnold
Solicitor - Estate & Trust Disputes Specialist


However, there are instances when a proprietary estoppel scenario can arise based on the fact that you made a promise to someone. The person to whom a promise has been made would need to prove that a promise or an assurance was made to them, which was relied upon by them, and as a result of this they suffered a detriment.

James v James

One such case where this line of argument was pursued was in the case of James v James and others 2018 EWHC 43(Ch). The case arose because the son of the deceased, who was excluded from his father’s Will, was claiming that his father had promised him land. The Judge found that even though in the past his father had discussed making his Will in favour of his son, this was not the same as promising to do so.

A further interesting point that was made by the Judge was that even if a promise had been proven (which he did not believe was evidenced), then as the son was being paid proper wages, he failed to evidence the reliance and detriment on such a promise. 

This attempt at proving an entitlement to land after death based upon a promise failed.  However, there are plenty of cases in which a promise is evident and the person relying on it has suffered a significant detriment i.e. declining paid work in reliance on the promise, and these cases can and do succeed.

Davies v Davies

In the case of Davies v Davies and Others [2015] EWHC 1384 (Ch) the son of a farmer successfully brought a proprietary estoppel claim as he was able to prove that oral promises were made, were relied upon and as such he did not pursue other potential careers paths leading to his detriment in investing all his time and money on his father’s farm. The Court awarded him the whole farm, excluding a Bungalow, as opposed to a fifth of it which was what the Will had dictated.  

We Can Help

At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including those who wish to challenge a will.

Sarah and Ravandeep are members of our Estate and Trust Disputes Team based at MW Guildford. If you believe you may have inadvertently made such a promise or wish to rely on a promise of a gift on death our specialist Estate and Trust Dispute Solicitors are here to help you.  Don't delay, call our Team today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk 

HMP Wormwood Scrubs

Tragically, a prisoner died yesterday after being stabbed at HMP Wormwood Scrubs.


Fleur Hallett
Fleur Hallett
Solicitor - Civil Litigation

This comes just under two months after the news reports that the prison was ‘dangerous and unsafe for both prisoners and officers’.

High Levels of Serious Violence

In August 2017 HM Inspectorate of Prisons undertook an inspection, which noted persistent problems that had not been addressed since they raised them in their 2014 inspection. The report further detailed that the prison had high levels of serious violence resulting in significant injuries. The surge in violence was thought in part to be down to understaffing.

The Ministry of Justice responded stating that the prison was recruiting additional staff in an attempt to "urgently" raise standards

Unsafe Institution

As a Civil liberties solicitor who represents both bereaved families and prisoners who have suffered serious assaults, I struggle to comprehend how as a society we can lock up, predominately vulnerable individuals, in an institution that is known to be unsafe, whilst appearing to do little to improve conditions. This contributes nothing to the rehabilitate process and puts lives at risk. One of my previous clients once said to me that she appreciated that her brother deserved to be in prison but that was his punishment, he didn’t deserve to die in there.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" including bereaved families who deserve to know the circumstances of their loved ones death.

If you have a family member or loved one who died whilst in custody and wish to talk to one of our specialist Lawyers, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

 

Police

A recent report by Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services (HMICFRS) highlighted that police forces are not doing enough to stop their officers carrying out sexual abuses and abusing their powers. 


Fiona McNelis
Fiona McNelis
Senior Associate Solicitor & Head of Public Law

The HMICFRS is an organisation that independently assesses the efficiency and effectiveness of police forces and fire and rescue services in the public interest.  In other words, they assist in holding these organisations to account for abuses of their power and breaches of public trust.

Sexual Abuse Offences by Police on the Rise

Sexual abuse offences committed by police officers are on the rise as is evidenced by a number of prosecutions against officers in recent years.  Not only are they committing a criminal act but they are abusing their position of public trust and this can have a devastating and traumatic effect on those abused.  It calls into question the relationship of trust the public hold with police officers and could result in a fear of reporting such crimes.  It also places already vulnerable people at risk of further harm from the very people they have turned to for help.  It is through their position as police officers that this abuse takes place.

Allegations of sexual abuse by police officers need to be dealt with now to prevent any further abuses.  The victim of abuse needs to feel that they will be taken seriously by the police force they deal with when reporting such abuse.  They need to know that the Force have a plan or policy in place to deal with such situations and to ensure that the victim of the abuse does not have to face or deal with their abuser whilst the matter s being investigated by the Force.  It calls for effective, considered and sensitive action.

HMICFRS Recommendations

In December 2016, the HMICFRS recommended that Police Forces take steps to implement a plan to deal with this.  It recommended that within 6 months, each Force implements a plan setting out how they propose to deal with obtaining information about alleged abuses by police officers.    It is vital that this is done to protect the more vulnerable members of our society.

The Forces may also need to consider the level of resources to be committed to this plan and to ensure that they reflect the seriousness of these abuses.  Existing policies may need to be changed and amended. 

The report acknowledges that there are only two Forces in the country, Derbyshire Constabulary and Merseyside Police, who currently have all elements in place

This is not a change which can happen overnight and is something which will need continuous review.  It will also need a commitment to prosecuting those officers who have sexually abused an individual and breached their position of trust.  Such prosecutions should be dealt with as expeditiously as possible and not be left for large periods of time thereby increasing the anxiety and distress caused to the victims of abuse. 

We Can Help

At MW Solicitors Our Mission is “To make quality legal services accessible to everyone.” including vulnerable people who are victims of abuse by those in public office.  Abuses of power by those in public office is something that we take very seriously at MW. 

If you are the victim of abuse by a police officer or anyone in a position of power, don’t delay, call our Abuse Team on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

Room For Rent

Leases usually include restrictions in respect of how you can use your flat.

A common restriction is to use the premises as a "private dwelling-house only" or alternatively as a "single private residence in one occupation only". There may also be a restriction "not to use the said premises or any part thereof for any business.”


Gary Leverett
Gary Leverett
Solicitor - Property Disputes

A lodger is not normally a member of the tenant’s family. This will usually be because they are not related or it is a purely commercial venture, to enable the lessee to meet the costs of running the premises. They will often share the use of rooms, such as kitchens, bathrooms, or sitting areas, but will have separate domestic arrangements. The lessee will pay the bills even if the lodger makes a contribution towards them.

Each case is fact specific. The relationship between the parties has to be considered.  For example:

  • An adult child who pays ‘keep’ or who moves into the parental home to provide care will be unlikely to be a lodger. They will probably be regarded as part of the lessee’s single family unit so that the lease would not be breached.

  • An unrelated carer, au pair or a student staying in the flat would be a breach, even if meals and bedding were provided.

  • Having lodgers would be a breach of such clauses.

The Consequences of a Breach of Your Lease

The landlord in these cases can stop you having a lodger by making an application to the county court or the First Tier Tribunal.  If the lodger continues to stay, you could, ultimately, in a very worst case scenario, lose your flat.

We Can Help

At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including leaseholders who wish to take in a lodger and wish to stay within the terms of their lease. 

If you are contemplating renting out your flat as a whole or just a room, westrongly advise that you seek the advice of one of dedicated and experienced Property Disputes Solicitors.  Timely advice at an early stage will no doubt lead to the avoidance of potentially expensive litigation.  Our Leasehold Enfranchisement Department can also assist in re-negotiating or extending the lease on your property.

Call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

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