trust

 

A man who was disinherited from his mother's Will is bringing a claim against solicitors who drafted an Estate Protection Trust in 2003 for his mother designed to ensure that he inherited her property, or the proceeds of sale, after she died.  However, she entered into a civil partnership with a woman 37 years younger than her in 2007 and sold her property in 2008 without her son's knowledge.  When she died in 2013, the majority of her estate passed to her civil partner.


Wendy Rixon
Wendy Rixon
Associate – Estate & Trust Disputes Specialist

The trustees in the Trust were the deceased, her son and her son's wife.  It is not clear why or how the property was able to be sold without the trustees' knowledge, but it appears as though the trust was not necessarily directly attached to the property and there was no restriction on the title to prevent a sale.   The son, through his solicitors, will undoubtedly have requested the solicitor’s files and these will be part of the evidence in the claim. 

The solicitors say that they were not instructed to advise on the trust; neither were they acting in any capacity for the son and his wife.   Generally speaking when drafting a trust of this sort, the solicitors acting would advise all parties to take independent legal advice on their position.   I would also expect them to advise the client on the advantages and disadvantages; but again it is impossible to comment on this without the facts and we will not know the outcome unless or until the case is concluded and reported.

Trusts are difficult and complex and each party should seriously consider taking independent advice to be sure to minimise any risk to them in the future of the trust not doing what it was considered it would do initially.

Although the Civil Partner is not a party to this claim, it has been reported that she also inherited a significant amount from a previous partner; again a lady considerably older than her who sold her property and moved in with her, leaving her a substantial sum when she died.  Although a claim was brought by the deceased's godson at that time it was settled out of court and the settlement terms are confidential. 

Although, because the claim was settled on confidential terms, there is no actual suggestion or evidence that the partner has done anything wrong on either occasion, it is a fairly common theme that elderly and vulnerable people can be taken advantage of and coerced or influenced into disinheriting their family in favour of someone who comes along and takes care of them and puts themselves in a position of trust.  Whilst is it fairly common and perfectly legal for someone to leave their estate to someone they love and trust and who has come along at a time in their life when they perhaps need someone to take care of them, there are undoubtedly people who see this as an opportunity to inherit from a vulnerable person and  it is also understandable for a close family member to feel aggrieved if the estate they believe was intended for them has been stripped away from them.

There are various avenues which need to be explored if you feel that an elderly or vulnerable family member has been befriended by someone whose intentions are not what they are said to be. 

As much as possible should be done while they are alive to ensue that they are not pressured into making a new Will and that no undue influence is used.  However, it is often the case that these things do not come to light until after the death.  At that stage, if there is any suspicion of coercion or undue influence, files from the Will writers can be requested and considered, together with any property transaction files, to establish what the deceased's intentions were when making decisions about their Will or their property in their lifetime.

Medical records are also often helpful in establishing whether the deceased had the necessary capacity and knowledge and approval to make a Will and/or deal with property transactions and also as to whether there were any concerns about undue influence.

We Can Help

At MW Solicitors, Our Mission is "To make quality legal services accessible to everyone" including Trustees of Estates or those who are trying to resolve a Trust or an inheritance dispute in which coercion may have taken place.

Our dedicated and experienced Estate and Trust Dispute Solicitors will happily discuss your case on a no obligation basis. Please call us on 020 3551 8500 or use our Contact Us form to arrange a callback.

NHS

 

The Clinical Negligence team at McMillan Williams Solicitors Limited acted for the Claimant in relation to a clinical negligence claim against Guy’s and St Thomas’ NHS Foundation Trust. 


Andrew Bentham
Andrew Bentham
Partner - Injury

The claim related to the management received at St Thomas’ Hospital in 1999 and 2000 for a serious bone infection in the Claimant’s right tibia.  The Claimant has sadly been left with a serious, permanent chronic pain condition which requires extensive medication and which has had a profound effect on his life.

The claim has a long and somewhat unfortunate procedural history.   A liability trial had originally been listed for March 2017.  In November 2016 it came to light that the Defendant had failed to disclose around 600 pages of crucial medical records.  As a consequence the trial in March 2017 had to be vacated and a liability only trial was listed for March 2018.  The liability only trial took place on the 7th March 2018 before Her Honour Judge Taylor sitting as a Judge of the High Court.  Mr Ben Collins QC of Old Square Chambers was instructed to act for the Claimant.

Summary

The Claimant suffers from sickle cell anaemia. On the 10th August 1999 he was admitted to St Thomas’ Hospital with a painful swelling over the right shin. Acute osteomyelitis was suspected and the Claimant underwent surgery for incision and drainage on the 13th August 1999.  Following the operation, the wound remained open and the Claimant underwent a long period after this operation when the exposed bone, including exposed cortical bone, remained uncovered by soft tissue or skin.  An attempt was made to close the wound in theatre on 3rd September 1999, but this was unsuccessful and the bone remained exposed on the 15th September 1999 when he was discharged home from St Thomas Hospital.

Over the following months the Claimant continued to have an open wound with exposed cortical bone. In January 2000 the Claimant was reviewed by an Orthopaedic Surgeon who noted the long period of exposed bone and continuing discharge.   A CT scan confirmed a cavity and a possible sequestrum.  The Claimant was admitted on the 16th March 2000 and underwent a guttering procedure on the following day.  A large area of bone was removed.  The Claimant was discharged home.   The bone infection developed into chronic osteomyelitis which has left the Claimant with a serious and chronic pain condition.

Judgment

It was argued by the Claimant that the Defendant’s antibiotic management was inadequate and that steps should have been taken to provide coverage of the bone left exposed following the operation on 13th August 1999, in particular by undertaking a local muscle flap.  It was also alleged that the Defendant should have undertaken further surgical debridement/guttering so as to facilitate a local muscle flap procedure.  It was the Claimant’s case that proper coverage of the exposed bone, together with a proper antibiotic management strategy, would have led to cure of the osteomyelitis such that the Claimant would not have been left with chronic pain.

Her Honour Judge Taylor gave judgment for the Claimant. She noted that on the 16th August 1999 the Defendant was in breach of duty in failing to take the Claimant back to surgery for further debridement, followed by tissue cover provided by a gastrocnemius flap.   The Judge held that had the Claimant been treated by debridement, flap and antibiotics, the likelihood was that he would have been cured of osteomyelitis, or at least free from it for a long period. Flap surgery would have succeeded and the current type of crater with friable skin would have been avoided. He would have avoided the long subsequent history of infection and pain specifically attributable to it.

There are a number of interesting aspects to this case, two of which are considered here.

This was, self-evidently, a case relating to matters which took place a long time ago. There was an incomplete set of medical records (and those records which were available were of the standards of the time – described as “telegraphic”). Nevertheless the Defendant did not rely on live witness evidence from any of the treating physicians or nurses who were responsible for the Claimant’s care.   The Defendant confirmed that attempts had been made to locate some of those concerned, which had not been successful given the passage of time.  Civil Evidence Act notices were served in 2016, some time before the trial, confirming that they had left the employment of the Defendant and efforts to date to trace them had been unsuccessful. The Judge noted that little information had been provided as to steps taken before or since then.  As a result the history had to be taken primarily from those notes which were available, and the interpretation of some key documents were in dispute between the parties.  The issue arose as to what inferences, if any, should be drawn from the records.  The Judge concluded that it would have been of assistance to hear from those involved what their practice would have been in 1999-2000, even if they did not recall all the detail of this particular case.   She held, therefore, that where the notes fell short, and were ambiguous or there were gaps, although the burden remained on the Claimant, the Defendant should not have the benefit of these deficiencies, nor of the unexplained lack of explanatory witness evidence. The ruling may be of assistance in other cases in which notes are limited and live evidence is not available to explain them or fill in gaps.

The case also serves as a warning as to the need for experts to maintain their independence, in particular in the circumstances of changing facts. The Judge was critical of the Defendant’s expert Orthopaedic surgeon. She took account of his “eminence and undoubted competence” but she “reluctantly concluded that in some respects in this case, his evidence was either diverted away from independence and genuine belief by errors underpinning judgements he made, which he then felt the necessity to justify, or that as a result his evidence on these aspects is not soundly based in fact”

By way of example, she continued:

“In particular, the error about the size of the wound led to his initial view both that the wound was healing rapidly, justifying a wait and see policy, and the options for tissue coverage of the wound. Similarly, his error about the unavailability of free flap surgery in 1999 underpinned his view that the approach taken in relation to tissue coverage was justified at the time. Once these errors were identified, he changed his approach, but only so as to maintain his original position, continuing to ignore some of the available documentary evidence. In this respect the criticisms made by the Claimant of his evidence are justified”.

It may be difficult for an expert who has formed a firm view about a case subsequently to accept a change of approach as new facts emerge. This is an example which demonstrates the importance of experts doing so.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including those who have suffered at the hands of medical professionals.

If you would like to speak to our team of specialist Clinical Negligence or Personal Injury Solicitors to discuss your case, call us today on 0203 551 8500 or use our Contact Us form to tell us more about your case and arrange a callback.

UK Government

 

McMillan Williams are pleased to note the recent announcement by the Ministry of Justice that an additional £8m is to be invested in the payments made to Criminal Barristers undertaking Defence work.

However, there is as yet no detail as to how the extra funding will be allocated, which remains a concern.

Additionally, it is disappointing to note that there is no similar increase in funding for Defence Solicitors, who have borne cuts of 8.75% in the context of fees which have been frozen since 1998. As recent studies have shown, the erosion of the Legal Aid fees paid to solicitors is putting off new entrants to the profession, resulting in areas of the country where the vast majority of Duty Solicitors are over 50 years old. This is potentially a ticking time bomb for access to justice and McMillan Williams urges the Government to take prompt action to avoid the emergence of Legal Aid advice deserts, which could have a catastrophic impact upon the most vulnerable in society.

We Can Help

McMillan Williams is widely recognised as one of the leading firms of Solicitors for having a formidable reputation in Criminal Defence work.  We have a reputation for providing clients with expertise and skilled advice in this area of law.  Our specialist Criminal Defence team can handle any or every stage of your case, any time of day.

With McMillan Williams you can rest assured that you will receive specialist advice and representation of the very highest quality.  Call us today on 020 3551 8500 or use our Contact Us form to tell us about your matter and we will call you back.

Houses of Multiple Occupancy

 

On 1 October 2018, the Government introduced new rules making changes to the licensing of Houses in Multiple Occupation (HMOs) meaning that more properties are now covered under the HMO scheme.

What is New?

The Licensing of Houses in Multiple Occupation (England Order) 2018 revokes the previous Houses in Multiple Occupation (Prescribed Descriptions) (England Order) 2006 making mandatory HMO licensing applicable to smaller HMO properties which are only one or two storeys high.

The 2006 Order previously imposed regulation on properties over three stories high. Any property now with five or more people who form two or more separate households and meets the 2006 “standard” test, the “converted building” test or the “self contained flat” test will be caught.

Where a property subject to numerous tenancies, checks will need to made to see if:

  • They are caught by the new HMO scheme
  • The appropriate licence has been obtained
  • All licensing conditions have been adhered to

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including those landlords who may fall under the new HMO rules.

Our team of specialist Landlord and Tenant Solicitors recommend legal advice at an early stage to avoid falling foul of an increasingly complex regulatory regime.  Don't delay, call us today on 0203 551 8500 or use our Contact Us form to tell us more about your case and arrange a callback.

 

Land Development

 

New rules under section 14 of the Neighbourhood Planning Act 2017 came into force on 1 October 2018 which mean planning permission for the development of land may not be granted subject to pre-commencement conditions without the prior written agreement of the applicant.

What are Pre-Commencement Conditions?

Pre-commencement conditions are those conditions on a planning permission which must be fulfilled before work starts on site or before the use of land changes. Developers and landowners could refuse the imposition of pre-commencement conditions where they believe it is unwarranted or impractical.

Local Planning Authorities will have to give notice of their intention to attach pre-commencement conditions to a planning permission, setting out the text of the condition, the reason for it including an explanation why it is a pre-commencement condition and when a response from the applicant must be received by.

The exception where planning permission may be granted subject to a pre-commencement condition without the applicant’s written agreement is if the applicant has been notified of the intention to impose a pre-commencement condition and has not responded by the date specified in the notice.

This means those who are intending to carry out development work should speak to a planning and specialist solicitor as early as possible to negotiate their conditions.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including those who are developing land or those who need advice on how to apply for planning permission.

Our specialist Property Solicitors can advise on all aspects of the planning system and can help to guide you through the Planning Permission Application.  Don't delay, call us today on 0203 551 8500 or use our Contact Us form to tell us more about your case and arrange a callback.

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