Houses are usually the most expensive purchases anyone ever undertakes and therefore we would encourage our clients to be as thorough as possible in respect of their due diligence including taking out searches, full surveys and not simply relying on mortgage lender valuations. Where properties are in certain areas it is always recommended that a buyer takes out extra searches and/or insurance for specific risks associated with those areas
My first Professional Negligence claim involved a transaction where the coal mining search came back clear.
So far so good you would think, but this property was in Cornwall and the correct search (which can be done) is for tin mining and this would have shown a risk which could have been insured against. When the garden subsided it became a Professional Negligence claim against the Solicitor. Whilst this claim was ultimately successful without litigation it caused considerable unnecessary stress for the homeowner whose property was condemned and ended up living in alternative accommodation in her advanced years.
An Insured Event is any accidental, unexpected or unforeseen event which is be insured against under your Home Insurance.
The type of subsidence damage described above is an “insured event” and there may be a third party, such as the National Coal Board (or its successor), who can be held liable for the damage.
In these circumstances your insurer will deal with your claim and look to recover what it pays out under your insurance policy by bringing a claim against the third party.
In our previous article Subsidence - Getting to the Root of the Problem I described how in heavy clay soils tree roots may cause a problem for homeowners.
However, in areas where soluble rocks such as limestone or chalk exist a “solution feature” (an erosion of the underlying soil that results in an underground cavern) may occur which eventually gives way and may cause subsidence to your property.
These collapses are often triggered by an escape of water or a rise in the water table. The first sign is usually a small hole appearing at surface level and needs to be dealt with promptly.
If the cause of the escape of water is due to mains pipes then you should put the Statutory Water Authority (SWA) on immediate notice of the problem and have them remedy the same. If the nuisance is not stopped then any damage that occurs after the point at which the SWA might reasonably have stopped the nuisance becomes recoverable in law.
The simple step of communicating with the SWA in time could prevent later difficulties.
At MW Solicitors our mission is "To make quality legal services accessible to everyone" including homeowners who are worried that their home is suffering or might be at risk from subsidence. If you believe that your property is suffering subsidence damage, it is important to act quickly.
We can help homeowners whose property is damaged through the actions of a third party. We will explore every legal avenue and our experts in MW’s are not just experienced in the law regarding these matters, but also in the underlying geological and biological causes.
We can advise if you are entitled to bring a claim for the recovery of your insurance excess and any repairs costs and we will act on behalf of your insurer should you wish to instruct a local firm. We can assist you with any discussions and negotiations with third parties in order to resolve any dispute. We are keen advocates of mediation and other forms of Alternative Dispute Resolution (ADR) and we will do all we can to resolve your dispute in a sensitive and cost effective way.
Fans of the ITV Soap Opera Coronation Street will no doubt be familiar with the current inheritance storyline following the tragic suicide of Aidan Connor. Whilst Coronation Street is a fiction, it has to be assumed that the bigger, more sensational storylines are researched thoroughly to ensure a true depiction before it reaches the homes of millions.
Aidan Connor left a Will which was found by family friend Michelle when the family was sorting out his possessions after his suicide. The Will purportedly leaves Aiden’s share of his business to his business partner Alya who had helped Aidan rebuild the business after it had previously gone bankrupt. Until recently, the terms of the Will have been concealed from the wider family and from Alya herself.
After the Will was made, but before Aidan's death, Carla Connor had given Aidan her share in the business in order to assist Aidan in a new venture. This was against the background of Aidan donating his kidney to Carla to save her life.
Michelle originally held back the Will and didn’t show anyone; but then showed it to Carla after she witnessed Carla’s "bullying" treatment of Alya and she also told Jenny, Aidan’s stepmother.
Everyone was outraged and promptly headed to the local solicitor (Adam Barlow) to get some legal advice.
Adam's initial advice was that the Will appeared to be valid and it would be difficult to challenge.
However, the three women were not satisfied with this answer and urged him to “think again" referring to the fact that he, previously, had not always acted by the book. That episode ended with him saying he would have a rethink. While in the solicitor's office, Jenny started to attempt to destroy the Will by tearing it up, but was prevented from doing so.
Adam has since suggested that the family could challenge the Will for lack of mental capacity; this is based on Aidan’s depression and subsequent suicide.
The story now hangs in the balance and we will have to wait, in true soap land style, for all the threads to come together before we see any outcome in relation to Aidan’s affairs. In the meantime, I will set out the facts of the scenario so far:
The Will will be deemed valid as long as Aidan had the necessary mental capacity to make the Will and was not unduly influenced to do so, and so long as it was signed by him and witnessed by two independent witnesses who were both in the presence of Aidan at the time he signed the Will (as per Section 9 of the Wills Act 1837). This can be challenged if there is strong evidence to support such challenge. It is unlikely that depression would be a sufficient reason to allege lack of capacity.
If the Will is deemed to be valid it is the duty of the executors to administer the Will in accordance with the terms of the Will. In the case of Aidan's Will, it is not clear who the executors are or what other provisions were made, but certainly insofar as the business is concerned, Alya is entitled to Aidan’s share.
It is illegal for anyone to destroy or otherwise conceal the existence of a Will. If Jenny had succeeded in destroying the Will it would have been a criminal offence.
However, if the existence of the Will had not been found and brought to the attention of Alya (or any of the family) then it would be assumed that Aidan did not leave a Will and the estate will be administered under the Intestacy Rules. In this case, Aidan did not leave a spouse so his estate would go primarily to any children of his. He recently fathered a child with Eva (Susie) but none of the family know this about Susie so the assumption would be that his estate would be shared between his closest relatives. He has a sister, Kate and father Johnny. Also a half sister, Carla. In this scenario everything would go to Johnny.
If Eva comes clean about Susie, Susie will be entitled to the whole estate under the Intestacy Rules. However if the Will is not destroyed, and deemed valid, Susie will have a potential claim under the Inheritance (Provision for Family and Dependents) Act 1975 as a child of the family who was not left reasonable provision. As a minor child in all the circumstances. she could have a very strong claim. However if Susie is formally adopted by Toyah and Peter, she will not have recourse under this Act. Therefore, if Eva is going to acknowledge that Aidan is Susie’s father, she needs to act quickly before Susie loses her right to any claim once the adoption process is complete.
Carla may be able to bring a claim for a share of the business, given the monies she invested but if that money was deemed to be a “gift” to Aidan then this will no doubt be the subject of the litigation.
If the Will is ‘lost’ she may have a claim to a share of the business if she invested money in it.
At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including those who find themselves in a similar situation to those of the fictional characters of Weatherfield. Whether you are part owner of an up and coming knicker factory or a minor beneficiary about to be adopted there are avenues that can be explored to help you.
In a recent article MW Solicitors highlighted the tragic case of Robin Richards and others who suffer from Aspergers and who are cared for in a failing system which does not meet their specific needs.
As instructed by the findings of the inquest, the senior coroner for Somerset, Mr Tony Williams, has written to the Health Secretary expressing concerns about the shortage of suitable supported accommodation for vulnerable people with Asperger syndrome following Richard's death in a home that had not even been inspected by the care regulator.
Mr Williams has given the Health Secretary, Jeremy Hunt MP and the chief executive of Somerset Partnership NHS foundation trust, 56 days to reply to his report "Prevention of Future Deaths" outlining the actions which have or are proposed to be taken.
Mr Richard's family are represented by Clare Evans, a member of MW Solicitor's special Inquest team. She said:
"Robin’s family sadly came to a conclusion, long before his untimely death, that such was the almost inevitable, though avoidable, outcome in a system which does not cater for people diagnosed with Asperger’s Syndrome.
One of the main aims of the family in this inquest, was to highlight the ongoing risk of death to other Asperger’s sufferers nationally, created by this void in care provision, so that lessons could be learned from Robin’s death.
They are pleased the Coroner has communicated this message. One can only hope that the Department of Health will now take the action desperately required to prevent further Asperger’s deaths.”
Every 90 seconds somebody in the UK is admitted to hospital with a brain injury. The long term effect of a brain injury can alter how a person walks, thinks, talks and feels and can be devastating for the injured person and their loved ones.
Action for Brain Injury Week is an annual week-long awareness raising event that this year takes place between 14th and 20th May. The event is organised by Headway, a leading charity dedicated to promoting and understanding of all aspects of brain injury.
This year, the theme of Action for Brain Injury Week is You, Me and Brain Injury. The aim of the week is to highlight the fact that a brain injury doesn’t just affect the individual, but also their family, friends, work colleagues, and wider network. It is often the care and support provided by their friends and family that helps a person with a brain injury to adapt to the life-changing effect of their injury.
As lawyers, working with individuals who have suffered a brain injury, the specialist team at McMillan Williams put the injured person and their family at the heart of what we do. We work hard to ensure they receive the appropriate level of compensation to assist them and their loved ones to rebuild their lives but we also ensure they are provided with the right support and advice throughout the process.
We understand the need to secure early interim payments and private rehabilitation to supplement or take the place of the care already provided by the NHS. We aim to secure funding from the party at fault to put a programme of rehabilitation in place as early as possible. We work closely with Case Managers specialising in brain injury rehabilitation who work with the individual and family to provide a comprehensive package of support. Our Private Client Team are also able to help by appointing a Deputy if a client lacks the capacity to manage their own affairs.
We have close working relationships with private rehabilitation providers and charities such as Headway Guildford, UKABIF and The Silverlining Charity for our work with brain injury survivors and we strive to ensure our clients are able to regain their confidence and independence as far as possible and reach their optimum level of recovery, with our help and the support of their family and friends.
On Friday 18th May, the team at MW will once again be taking part in Hats for Headway Day – a fundraising event which takes place during Action for Brain Injury Week. Our team will be sporting our most outrageous, weird and wonderful headgear on social media to help raise money and awareness for the charity. Follow us on Facebook, Twitter and Linkedin or through the hashtag #HatsForHeadway.
At MW, our mission is "To make quality legal services accessible to everyone", including those who have suffered an Acquired Brian Injury. We will arrange a specialist Brain Injury Case Manager to help plan and implement a rehabilitation package which can incorporate your health, psychological, educational or occupational needs. We will work with medical, clinical and other experts to value your past and most importantly, future needs, such as personal and medical care, income, accommodation and transport.
Where possible we will secure interim payments to assist with day to day and rehabilitation needs throughout the course of your claim.
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.
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  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:
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.
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 use our Contact Us form to arrange a callback.