ILOTT v MITSON: The outcome for charities

Ilott v Mitson [2017] UKSC 17 has been described as upholding the supremacy of testamentary freedom, and as being a win for charities.  What does this mean and is it true?

The facts of Ilott v Mitson have been described here and are briefly as follows:

Ms Ilott was the daughter of Melita Jackson.  Her father died before she was born.  Aged 17, Ms Ilott moved out of home to live with a boyfriend Mrs Jackson did not like, and that led to a lifetime estrangement.  Ms Ilott went on to marry her boyfriend and they had 5 children. Three attempts were made at reconciliation between mother and daughter, but none were successful.  Mrs Jackson did not support her daughter financially, and her daughter did not expect to inherit anything from her estate.  On her death, Mrs Jackson left everything to three animal charities which she had not previously had any connection with.

Ms Ilott and her family were not well off, and relied on state benefits for approximately 75% of their income.  Ms Ilott made a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate of her late mother.  She was initially awarded £50,000, but (after a series of appeals) this was increased by the Court of  Appeal to £143,000 (for her to buy her Housing Association house) and £20,000 for other financial needs.  The charities appealed to the Supreme Court to have this decision overturned.

The Supreme Court found that, on the facts, there were three orders which could have been made:

  1. The original order of £50,000 ;
  2. The Court of Appeal order of £143,000 plus £20,000 cash;
  3. Dismissal of the claim, so that Ms Ilott received nothing.

The Judges felt that any of those orders could be justified (although it should be noted that by the time the matter came before the Supreme Court, option 3 was not available to them).  They plumped for option 1 – overturning the decision of the Court of Appeal which had given a far higher award.

The reason that this is significant is because Mrs Jackson had chosen to leave her money to charities which she had not had a close association.  Charities in these circumstances are used to facing the argument that this is essentially a windfall, and that the family of the testator deserves greater consideration.  However, the Supreme Court emphasised that leaving money to charity is something which any testator is free to do.   Whilst charities cannot have an expectation of a bequest, they do rely on legacy income for their work and this should not be readily dismissed.  It can be easy to forget that the making an award to a Claimant under the Inheritance Act automatically reduces the amounts payable to the testators chosen beneficiaries, whether these are family, friends or charities.  This decision is likely to make it easier for charities to defend bequests left to them from Claimants, particularly where the Claimant has no strong moral claim.

When making an award under the Inheritance Act, the Court has to consider whether the will makes ‘reasonable financial provision’ for the applicant, and not whether the testator acted reasonably.  In this case, the testator does not appear to have acted reasonably – but that does not mean that reasonable financial provision was not made.  Ms Ilott was not financially dependent on her mother – she had lived independently for decades, and had not expected to inherit anything.

This judgment has re-emphasised the importance of testamentary freedom.  In England and Wales (unlike many other jurisdictions) there is no form of forced heirship – people can leave their estate entirely as they wish even if that means disinheriting their family entirely for totally unfair reasons.  Whilst the Inheritance Act provides a means for a small number of people to make claims against the estate, Ilott has reiterated that the circumstances in which they can do this are very limited and the testators wishes should be given serious consideration in any such case.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Can I leave my adult children out of my Will?

Can I leave my adult children out of my Will?

The chances of doing so are now much better than they were following the final decision in the case of Ilott v Blue Cross and others which has just been to the highest court in the land, the Supreme Court.

The story line of Ilott v Mitson is like a long running soap! Or at least Dicken’s “Bleak House”.

The Supreme Court, in its first decision on a claim under the Inheritance (Provision for Family and Dependants) Act 1975, “(Inheritance Act”) has given its verdict with the claimant receiving the paltry sum of £50,000 from an estate of almost £500,000. The Inheritance Act allows certain people a right to make a claim on the basis that the will of the deceased did not make reasonable financial provision for them.

BACKGROUND TO THE ILOTT CASE

Heather Ilott was left nothing from the estate of her mother. Her mother left her estate to charities.   Heather had been estranged from her parents for many years.  By the date of her mother’s death, she had five children and she and her husband relied on state benefits. Heather made an application for an order under s2 of the Inheritance Act for reasonable financial provision from her mother’s estate.

Part 1

Proceedings were commenced in the Family Division, a judge awarded Heather £50,000 as a capitalised maintenance sum. Neither she or the charities were happy with this, and both sides appealed – Heather contended that the amount was not enough, and the charities argued that her claim should have been dismissed.

Part 2

A more senior Judge in the Family Division dismissed Ms Heather’s claim and allowed the charities’ cross appeal – so the charities received the entire estate.

Part 3

Heather appealed next to the Court of Appeal.  Her appeal was allowed.  Her case was sent back to the Family Division for a different judge to hear the case.

Part 4

A Judge in the Family Division heard the appeal in October 2013.  In a judgment dated 3 March 2014, that Judge dismissed Heather’s appeal against the original judgment.  So, Heather was back to receiving the sum of £50,000.

Part 5

Heather appealed again to the Court of Appeal as the original Judge had failed to appreciate the effect of the award on her state benefits.  On 3 July 2015, the Court of Appeal heard the case and in a judgment on 27 July 2015 they awarded her £143,000 for property acquisition (so that she could exercise her right to buy of the housing association property), and £20,000 as additional capital which would not affect her rights to means tested benefits.

Part 6

Predictably the charities were unhappy and they appealed to the Supreme Court asking them to overturn the decision of the Court of Appeal.  The case was heard on 12 December 2016 and the judgment has now been given

CONCLUSION

The Supreme Court agreed with the charities, and allowed their appeal. So, the original decision of the District Judge made in Part 1 stands.  The Supreme Court made the following points:

  1. The Court of Appeal had not given sufficient weight to the mother’s clear wishes.  She did not want her daughter to benefit from her estate.
  2. The Court of Appeal had also not given sufficient weight to the long estrangement between the parties – although the Supreme Court emphasised that awards under the Inheritance Act are neither rewards for good behaviour or punishment for bad.
  3. The level of maintenance awarded in any case is not limited to subsistence level but nor does it mean simply providing whatever the Claimant says they need.  It should be the provision of income rather than capital, but it might be most appropriate for it to be provided in the form of a lump sum from which both income and capital could be received. ‘Maintenance’ might include a car to allow someone to get to work, white goods and redecoration for a property, a life interest in a property and a holiday.
  4. For any Claimant who is not a spouse, (or former spouse) they will probably need to show a moral claim as well as the need for maintenance.
  5. State benefits are a resource of a Claimant, and the Court must consider what effect a judgment will have on state benefits.

Very few Inheritance Act claims ever reach Court – most involve disputes within a family where people do not have the appetite for airing their dirty laundry in public, or where the size of the estate simply does not warrant it.  In this case, the legal costs must be many times the value of the estate many of the barristers involved have worked for free!

So how can I avoid my will being challenged?

  1. If you do not wish to benefit your children, you should seek legal advice about the best way of achieving this
  2. It may be that if you do not get on with your children that you should say in your will that you do not wish them to benefit (ideally refer to the reasons why in a separate letter) to prevent there being any risk of the will not being admitted to probate if the reasons were scandalous.
  3. NB when a will is admitted to probate it becomes a public document so your children would be able to obtain a copy. This is another good reason for not putting the reasons in a will. It may inflame a difficult situation.
  4. Sometimes the very elderly fall out with their children due to their own mental frailty. If you see a lawyer, they will form an initial view on your capacity and may instruct a doctor to prepare a report if they are in doubt about your mental capacity.
  5. Consider carefully who you wish to benefit. If a charity is a residuary beneficiary and a claim is made, then a charity is more likely to challenge a claim than an individual.
  6. If you love your child and want to make provision for them, but think they are not good with money, then there are various measures you can employ to safeguard assets for the next generation.
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

 

ILOTT v BLUE CROSS AND OTHERS (previously known as Ilott v Mitson): THE CONCLUSION

The case we all know as Ilott v Mitson is like a long running soap opera.  Since 2007, the parties have been battling up and down the Courts over the estate of Melita Jackson, the mother of the Claimant Heather Ilott.  Today marks the conclusion to the saga as the Supreme Court, in its first decision on a claim under the Inheritance (Provision for Family and Dependants) Act 1975, gives its verdict on the case.  So, how has it got to this point:

BACKGROUND STORY

Heather Ilott was left nothing from the estate of her mother.  This was not entirely surprising given that she had been estranged from her parents for many years, having moved out of home at a young age to live with a boyfriend they did not approve of.  By the date of her mother’s death, she and her boyfriend were married, and had five children.  Her husband had health problems but worked, but she was unable to because of her caring responsibilities for the children.  The family relies on state benefits. Their 3 bedroom home is rented from a housing association, and they have financial needs.  Her mother’s estate amounted to £486,000 and was left to three animal charities.

Heather Ilott made an application for an order under s2 of the Inheritance Act for reasonable financial provision from the estate.

EPISODE 1

Proceedings were issued in the Family Division, and in August 2007 an order was made by a District Judge awarding Ms Ilott £50,000 as a capitalised maintenance sum. Neither she or the charities were happy with this, and both appealed – Ms Ilott contended that the amount was not high enough, and the charities argued that the claim should have been dismissed.

EPISODE 2

In October, the matter was heard by a Judge in the Family Division.  In a judgment dated 1 December 2009, the Judge dismissed Ms Ilott’s claim and allowed the charities’ cross appeal – so Ms Ilott was back to receiving nothing and the charities received the entire estate.

EPISODE 3

Ms Ilott appealed to the Court of Appeal who heard the matter on 8 February 2011.  On 31 March 2011, they allowed her appeal.  Consequently, they sent the matter back to the Family Division for a Judge (but not the same Judge as had appeared in Episode 2) to decide the appeal on the amount.  (At this point, the charities sought permission to appeal to the Supreme Court but were refused permission to do so – getting the Supreme Court involved at that stage would have shortened the story considerably).

EPISODE 4

A Judge in the Family Division heard the appeal in October 2013.  In a judgment dated 3 March 2014, that Judge dismissed Ms Ilott’s appeal against the original judgment of the District Judge.  The effect was that that original decision stood – and Ms Ilott was back to receiving the sum of £50,000.

EPISODE 5

Ms Ilott remained unhappy (as she had been 7 years before), and appealed again to the Court of Appeal about the amount of the award particularly because the District Judge had failed to appreciate the effect of the award on her state benefits.  On 3 July 2015, the Court of Appeal heard the case and in a judgment on 27 July 2015 they awarded her £143,000 for property acquisition (so that she could exercise her right to buy of the housing association property), and £20,000 as additional capital which would not affect her rights to means tested benefits.

EPISODE 6

It was the turn of the charities to be upset – and they appealed to the Supreme Court asking them to overturn the decision of the Court of Appeal.  The case was heard on 12 December 2016 and the judgment was published this morning.

CONCLUSION

The Supreme Court agreed with the charities, and allowed their appeal.  The effect of this is that the decision of the Court of Appeal made in Episode 5 has been overturned, and the original decision of the District Judge made in Episode 1 will stand.  The Supreme Court made the following points:

  1. The Court of Appeal had not given sufficient weight to the mother’s clear wishes.  She did not want her daughter to benefit from her estate and this should have been taken into account.
  2. The Court of Appeal had also not given sufficient weight to the long estrangement between the parties – although the Supreme Court emphasised that awards under the Inheritance Act are neither rewards for good behaviour or punishment for bad.  Whilst Ms Ilott had clear financial needs, the Court also emphasised that many charities rely on bequests for their income, and any award made in an Inheritance Act claim will impact on the beneficiary who consequently loses out.
  3. The level of maintenance awarded in any particular case is not limited to subsistence level but nor does it mean simply providing whatever the Claimant says they need.  It should be the provision of income rather than capital, but it might be most appropriate for it to be provided in the form of a lump sum from which both income and capital could be received . ‘Maintenance’ might include a car to allow someone to get to work, white goods and redecoration for a property, a life interest in a property and a holiday.
  4. For any Claimant who is not a spouse, they will probably need to show a moral claim as well as the need for maintenance.
  5. State benefits will be one of the resources of the Claimant, and the Court has to consider (with evidence) what effect a judgment will have on state benefits.

Very few Inheritance Act claims ever reach Court – most involve disputes within a family where people do not have the appetite for airing their dirty laundry in public, or where the size of the estate simply does not warrant it.  In this case, the costs must be many times the value of the estate and many of the barristers involved have worked pro bono.  In addition, this case highlights the slow moving nature of Court proceedings – appeals have to be lodged within 21 days of a decision and yet it has typically taken approximately 2 years between each of the judgments.  10 years from Episode 1 to Episode 6 is a huge amount of time, requiring a degree of stamina (by both the parties and the lawyers) which not everyone would possess (although it appears that an arrangement had been reached between the parties in the event that the appeal succeeded which would mean that Ms Ilott will keep her home).

Anthony Gold specialise in Inheritance Act claims – acting for both Claimants and Defendants (executors and beneficiaries).  For further advice on a claim, please contact a member of our contentious probate team.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Life of P – Court of Protection event success

Court of Protection department deliver event to case managers.

On 9th February over 100 members of BABICAM attended the Life of P event in Central London. BABICM represents the professional interests and concerns of case managers who work with those who have suffered an acquired brain injury or other complex condition which requires co-ordinated rehabilitation, care and support. The event named ‘Life of P’ focused on a young woman who acquired a brain injury early in her life and the various obstacles and issues that she faced.

The event focused on her life’s journey and our solicitors talked about some of the issues they see regularly in their client’s lives. Some of the presentations included David Wedgwood who kicked off the event focusing on P’s early life shaping the care plan and forecasting how to maximise income. Alexandra Knipe discussed in detail P’s home and how to decide on a suitable location. Donovan Lindsay discussed P’s sexual relations at various stages such as marriage focusing on capacity. Nicola Gunn chaired a work shop with Donovan which focused on family disputes.

The Court of Protection team are planning future events like this so if you are interested in attending please email lois.harding@anthonygold.co.uk

Selection of photographs from the event below

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Divorce and death the financial consequences

What happens if I die before my divorce is finalised?

Recently one of my clients asked me if they could leave their spouse the right to reside in their property until their divorce was finalised; is such a clause desirable or, feasible?

Answer: whilst it is possible to word a will clause that way the effect would not be as my client intended. If divorce proceedings are continuing but a decree absolute has not been pronounced the proceedings end immediately on death. This means that for inheritance purposes the marriage would still exist in law. Therefore, in the example given above the husband would have a right to live in the property indefinitely, probably for the duration of his life. This would not have been what my client wished. A way round this might be to give the spouse a reasonable period to reside in the property following the death of the first party.

It should be noted that the divorce proceedings come to an end on death, even in cases where the decree nisi has been pronounced. Legally you are not divorced until decree absolute. In practice many divorcing couples agree, on their lawyers’ advice, not to apply for the absolute until financial remedy proceedings are resolved between them.

What does this mean in practice? The surviving party to the marriage will be a widow or widower with all the usual entitlement to death benefits and pension rights. They will also be a spouse for the purposes of intestacy (if the deceased did not have a Will). The IHT exemption for gifts between husband and wives will also continue to apply.

What happens to divorce financial remedy proceedings if one party dies before they are resolved?

Technically the proceedings are stayed; effectively put on ice.    However, it might be possible for a claim to be made under the Inheritance Act see below.

A further point to note is that many people do not appreciate that divorce does not automatically terminate financial claims.  It is only when an order is made (whether by consent or not) where the parties claims for capital (and sometimes income) are terminated. Occasionally there are cases such as Wyatt v Vince [2016] EWHC1368 (FAM)  where there were no dismissal of claims in financial proceedings where one party might come back to court seeking a financial settlement many years after the divorce. In the Wyatt case Ms Wyatt applied for financial provision 19 years after her divorce. By that time Mr Vince had a fortunate of £57m. Ms Wyatt was granted permission to appeal by the Supreme Court and in due course received a modest lump sum.

Expediting decree absolute

Normally the petitioner can apply for a decree nisi to be made absolute 6 weeks after the date of a decree nisi. In a case where someone is terminally ill they may wish to consider expediting the decree absolute, especially if they wish to remarry. This necessitates an application to the court and a short hearing.

Death after financial proceedings have been concluded

If financial proceedings have been concluded and the final decree has been pronounced, then any court order which has been made will still be enforceable by the deceased’s personal representatives (or administrators if no Will). Any spousal maintenance will be lost as this normally terminates on the death of the recipient. Child maintenance will continue. However, in many cases the children will move to live with their surviving parent.

If a generous court order has been made which, for example, allows the deceased to have retained a large portion of the family assets then it may be possible for the survivor to apply to set aside the order depending on their financial circumstances. Family lawyers regard deaths shortly after an order was made as a “Barder” event after the name of the case where such events occurred. In the Barder case (Barder v Calouri [1988] AC 20) the wife committed suicide and killed the children shortly after the order had been made. The husband applied for leave to appeal out of time. He was successful.

The Inheritance (Provision for Family and Dependants) Act 1975

This Act provides that certain applicants, who were dependent on the deceased, including a bereaved spouse (or former spouse) can apply under this Act. Moreover, if the death occurs within 12 months of the divorce the court can treat the parties as if they were still married. Such claims should be made promptly within 6 months of death or probate being granted.

In the case of Reid v Reid [2004] 1FLR736 a wife was awarded £99,000 on a clean break basis.  She had disclosed the fact that she suffered from ill health.  Just 15 days after the decree absolute was made she died.  The husband sought leave to appeal out of time.  The court held that her death two months after the order was a new event and attracted “Barder” principles.  The wife’s death was not reasonably foreseeable; the husband’s needs had not been fully met by the order and the wife’s death had invalidated the parties’ perceptions of her needs.  The husband would receive a lump sum of £37,000.

The executor’s arguments based on entitlement and contributions were not appropriate were assets were very limited.

However in the case of Amei v Amei [1992] 2FLR89 the parties had reached an agreement between them which they had intended to have approved by way of a consent order.  However before they could do so the wife died.  The husband sought to set aside the agreement.  It was held that the mere fact of the wife’s death was not sufficient; the agreement had been a fair distribution of assets on the basis of the wife’s entitlement.  The only basis for setting the agreement aside would be if death had undermined the fundamental assumptions on which the order was made.

In the case of Barber v Barber [1993] 1FLR476, CA an order was made for a wife to receive more than half the sale proceeds of the family home on the assumption that, although she was ill, she had at least 5 years to live.  She died just 3 months after the order was made.  The order was set aside in part on the ground that its fundamental basis had been invalidated.  It was held that the appropriate approach would be to start again and make an order on the basis of what the court would have done had it known, at the date of the order, what it now knew.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

‘I thought someone had died intestate, but now we have found a will – what can I do?’

It can be difficult to find someone’s will after they have died – particularly where they have left their things in a mess, or not told anyone whether they have a will or not and there is no obvious place to look.  We do not have a system for compulsory registration of wills.  What happens then, if someone takes out a Grant on the basis that the deceased died intestate, but a will is later found? It might substantially change the way in which the estate should be distributed.

The first thing for the executors to do is to check, as far as possible, that the will is valid.  There might be clues on it about solicitors used by the deceased (who might still have a file).  There will probably be a date, so close friends and relatives can be asked whether or not the deceased was likely to have had capacity at the time.

If someone other than the executors are acting as personal representatives for the estate, then they need to be informed quickly that there is a potential will so that they do not distribute the estate (if they have not done it already in which case, the beneficiaries might need to be contacted).  Assuming the will is valid, they will need to revoke their Grant so that the executors can obtain a Grant of Probate and administer the estate according to the will.

This situation arose in the case of Morris v Browne (2017) where the Defendants had obtained a Grant of Letters of Administration on the basis of their statement that the deceased had died intestate.  In that case, the Judge found that in fact the Defendants were aware at the time of taking the Grant, that there was a strong chance that there was actually a will (based on a contemporaneous letter from one of them and an allegation that one had seen the will at the deceased’s funeral).  The Court was troubled that the Defendants had been willing to swear that the Deceased died intestate in the circumstances, and (wisely) the Defendants did not oppose the application for their Grant to be revoked.

The Court also made an application for an account and for the Defendants to pay the Claimant’s costs on the indemnity basis.  This was because there appears to have been maladministration of the estate – the Claimant was the primary beneficiary under the will but was also a beneficiary under the intestacy.  The Deceased’s house had been sold for £920,000 but the Claimant had received nothing, and there was no explanation as to why not.  The Judge ordered that the Defendants give a full account of what had happened to the proceeds of the estate, and that they pay all of the Claimant’s costs.

The full text of the judgment is not yet available, so it is not clear why the Claimant had not taken steps sooner to admit the will to probate (especially if the will was available at the time of the Deceased’s funeral which was in 2012), but that does not excuse the conduct of the Defendants.  If a will is found, it is important to act quickly to inform the PRs so that distribution does not take place give that the wishes of the deceased as set out in their will might be very different to the provisions under the intestacy rules.  For anyone taking out a Grant where there is an intestacy, it is important to check as thoroughly as possible that there is no will.  The oath for administrators requires PRs to swear that the person died intestate, and the responsibility of signing that should not be taken lightly.

For advice on any aspect of a dispute over an estate, please do not hesitate to contact our contentious probate team.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The meaning and impact of “lifestyle choice” on claims by adult children

I recently blogged about the case of Ilott v Mitson, to be heard by the Supreme Court in mid-December. As I said then, the judgment in this case is much awaited, because it is expected that the judges will provide some guidance and clarity on how to approach claims for maintenance by adult children of the deceased.   One of the questions which the practitioners are expecting the court to answer is: to what extent a “lifestyle choice” made by the child should impact on the provision to be made for them.

In the case of Ilott v Mitson, Ms Ilott chose a husband her mother did not approve of.  She chose to have 5 children.  She also chose to live in a remote location, despite not being able to drive.  Her choices directly contributed to her financial predicaments and led to her estrangement from her mother.  Despite that, the Court of Appeal held that the “lifestyle choices” made by Ms Ilott should not deprive her of an award.

The decision recently reached by the court in the case of Ames v Jones, another claim by an adult child, may have therefore come as a surprise.

Facts of Ames v Jones

Ms Ames is in her early 40s.  She has two teenage daughters.  She is not working and is totally financially dependent on her partner.  In their evidence they said they find it impossible to make ends meet each month.

Ms Ames made a claim for a provision to be made to her out of the estate of her deceased father.  He died leaving a Will in which he left his entire estate to his second wife.  The deceased married his second wife not long before his death, but the couple was together for over 30 years.  The widow is now in her 60s and in poor health.  Contrary to reports made by the press, the net value of the estate is under a million.  Its main asset is the matrimonial home in which the deceased and his wife lived and which the widow continues to occupy.

The decision in Ames v Jones

The first instance judge rejected Ms Ames’ claim.  Headlines such as  “a daughter refused a slice of her father’s fortune” appeared in nearly all national newspapers throughout September and October of this year.

In reaching his decision the judge took into account the fact that whilst the value of the estate may seem large, the capital is locked in a house which the widow needs.  The judge commented that it would be unreasonable to expect an ill lady in her 60s, whose income is just about sufficient, to borrow against her home which is also a source of her income.

The judge’s decision was heavily influenced by the poor quality of evidence as to Ms Ames need and his opinion of Ms Ames as an unreliable witness.  He was unable to conclude if Ms Ames and her partner were able to make ends meet or not.  However, what sparked most discussion is the conclusion that whilst Ms Ames was not working, she was able to work and it was her “lifestyle choice” not to do so.  The judge said that this in itself, was sufficient to defeat her claim.

Conclusions

Some say that the fact that in Ms Ames’ case the “lifestyle choice” had the potential of totally defeating her claim is at odds with the decision in Ms Ilott’s case.  I do not necessarily agree with that.   The two cases are different and each was decided on its own facts.  However, especially now, given the publicity and comments which the Ames case received, it will be very interesting to see what guidance, if any, the Supreme Court gives on the issue of “lifestyle choice” in its judgment following the hearing of the Ilott case this December.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Japanese knotweed has spread from my neighbour’s garden to mine, what can I do?

If your neighbour fails to treat a Japanese knotweed infestation in their garden and the Japanese knotweed starts growing in your garden, you may have a claim against your neighbour for any damage to your property caused.

What is Japanese Knotweed?

Japanese knotweed is an invasive non-native plant.  It spreads very easily and is an extremely strong plant that can cause structural damage to buildings.

Is it illegal to have Japanese knotweed growing in my garden?

No.  However, it is unlawful to allow the knotweed to spread into the wild and you can face legal action if it spreads onto any neighbouring property.

How do I treat Japanese knotweed growing in my garden?

Japanese knotweed cannot simply be dug up and thrown away.  If you do this, it will simply grow back.  It usually has to be chemically treated and properly disposed of.

The Environment Agency provides advice about how to deal with a Japanese Knotweed infestation which can be seen here.

Generally, you are best to instruct a company specialising in Japanese knotweed removal.  Such companies are able to complete eradication programmes, which last several years, and then provide a guarantee upon completion of the treatment programme.

How do I make a claim against my neighbour?

If your neighbour has allowed knotweed to spread into your garden, you should tell them about this. If they do not agree to arrange for a treatment programme to be carried out, you may be able to bring a claim in nuisance against them.

If you bring claim in nuisance, you can obtain an order making them carry out a treatment programme.  You can also ask for compensation for any damage to your property, including damage to your garden.

In a recent case, I managed to get my client’s neighbour to agree to do the following:

  • Complete a 5-year eradication programme
  • Provide a 10-year guarantee upon completion of that programme
  • Pay my client £8,000 in compensation for the damage to her garden
  • Pay my client’s legal costs.
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

What to do if a co-owner loses mental capacity

Many properties are held jointly.  Often two people are registered at the Land Registry as the legal owners.  That does not necessarily mean that they are each entitled to half the benefit of the property.  As a legal owner the person is a trustee, with responsibilities to hold the property for those who are entitled to its benefit – the beneficiaries.  That said, normally the registered owners are both trustees and the beneficiaries.

If one of the registered owners becomes unable to sign the transfer form, the property cannot be sold, as both trustees should sign the transfer form. Most properties are held informally and so there is no trust deed that gives the remaining trustee the power to remove the disabled trustee and appoint a new trustee.  As such a replacement trustee should be appointed under section 36 of the Trustee Act.

As the usual situation is that both registered owners have some entitlement to the property, it is often the case that a new trustee cannot be appointed without an application to the Court of Protection.

Before the Court of Protection can allow a new trustee to be appointed, it will need evidence that the disabled person is incapable of acting.  Obtaining that evidence can be difficult, owing to confidentiality issues or their medical condition not being clear.  In applications where the issues are not presented clearly to the Court, the process can become protracted and expensive.  It is therefore best to make sure before making an application that all the proper evidence is submitted and if possible agreed.

If there is insufficient evidence as to person’s medical condition, it may then be necessary to take an application to a different court under section 41 of the Trustee Act.  This involves a different and more complex process requiring different evidence.

If you require a brief discussion as to your options, please contact our Court of Protection team 0207 940 4000.

Inheritance act claims – What do executors have to do?

We are often instructed by the executors or administrators of an estate where a claim has been threatened by someone under the Inheritance (Provision for Family and Dependants) Act 1975.  These can be anything from children whose parent has disinherited them, to mistresses who have had secret affairs over a long period of time without the deceased’s family knowing anything about it.  The first question which the executors often ask is ‘do I have to do anything?’

It is worth considering at the outset whether the purported Claimant actually has the right to bring a claim (classes of Claimants are set out in s1 of the Act).  For example, we have previously been threatened with claims from grandchildren who have no right to bring a claim under the Act.  In those cases, a short letter pointing out the fact that no claim can be brought should conclude matters.

However, where a Claimant does have the right to bring a claim, then the executors will have to deal with this.  Hopefully the Claimant’s solicitors will follow the ACTAPs protocol (which is very similar to the other pre-action protocols) which encourages early disclosure and negotiation.  If they do not, they should at least follow the general protocol on pre-action conduct which is set out in the White Book.

Whilst there is a potential claim outstanding, executors should not distribute the estate – and any that do will be personally liable in the event that the claim is later taken and succeeds.  The limitation for an Inheritance Act claim is 6 months from the date of the Grant, but a Claimant then has 4 months to serve proceedings – so executors who are aware that there might be a claim may have to wait 10 months before distribution.  Even where the time limit has been missed, the Court has discretion to allow the claim to proceed out of time, although the executors are unlikely to be criticised where they could not have known of the claim in advance.

All purported claims must be taken seriously and investigated properly, even if the executors feel strongly that there are no merits.  Failure to do so may risk liability for the executors, and a professional negligence claim against solicitors who do not advise clearly.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*