Give and take: equity v statute in property transactions

In my last blog, I discussed the case of Mortgage Express v Laura Lampert [2016] EWCA Civ 55 in the context of the doctrine of unconscionable bargain. To re-cap, Ms Lampert successfully established that she had been taken advantage of by the purchaser of her property who acquired it at a huge undervalue, had granted her a tenancy, had then obtained a market value mortgage secured against the property, stopped paying it, resulting in Ms Lampert facing repossession. See the full factual description here.

The Court at first instance held that Ms Lampert was entitled to have the transaction set aside against the purchasers, but not against Mortgage Express who had acquired an interest in the property after completion of the sale by Ms Lampert.

The Court of Appeal had to consider the legal character of the right to set aside the transaction on the ground that it was an unconscionable bargain, how that fits into the scheme of land registration, and whether Ms Lampert can assert the right against Mortgage Express.

The Court held that there is no reason why the right to set aside a transaction on the basis of an unconscionable bargain should not be treated as “an equity” or “mere equity” (as in cases of undue influence and misrepresentation). The Court examined section 116 of the Land Registration Act 2002 which provides that, in relation to registered land, a mere equity has the effect from the time the equity arises as an interest capable of binding successors in title (i.e. the mortgagee). I emphasise the two key requirements to bear in mind in asserting the equitable right.

The interest will be elevated to an overriding interest, thereby binding the successor, if the interest belonged at the time of the disposition to a person in actual occupation of the property (Schedule 3 para 2 LRA 2002). The Court held that in principle Ms Lampert’s right to have the sale of her property set aside on the grounds of an unconscionable bargain is capable of being an overriding interest, and it must follow that it is proprietary in nature.

Unfortunately for Ms Lampert, she failed to disclose on her property information questionnaires that she intended to remain living in the property after the sale, and had been promised a tenancy by the purchasers. The contract also stated that she would give vacant possession. She was therefore precluded from relying on her actual occupation to elevate her equitable interest to an overriding interest.  The Land Registration rules make clear that you cannot later rely on a right that you fail to assert at the time of the transaction. Ms Lampert’s equitable interest created by the unconscionable bargain was not, therefore, capable of overriding the mortgage and she was only entitled to whatever equity was left after that was paid.

Before coming to that view, though, the Court of Appeal rounded on the key problem for Ms Lampert, which was this. That the purchasers of the property had obtained the Mortgage Express mortgage as two trustees of the property. Therefore, Ms Lampert’s equitable interest in the legal estate was overreached. Pursuant to 2 of the Law of Property Act 1925 a conveyance (which includes the grant of a mortgage) can overreach an equitable interest if made by at least two trustees. Ms Lampert, therefore, was unable to assert her equitable right against the mortgagee.

The case is a useful analysis of the interplay between the equitable principles of unconscionability, and the Land Registration Act regime, which is strict. The conclusion troubles me, though it is clear why the Court ruled as it did. There is a tension between the equitable principles and the statute. On the one hand, the court seeks to protect Ms Lampert against the unscrupulous purchasers by granting her an equitable right in the property that she sold. On the other, it is possible for those same unscrupulous people to have the unilateral ability to defeat that right by acting together to grant a mortgage. On this issue, the law gives with one hand and takes with the other.

* 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.*

Breach of trust: Know your limits

In Court of Appeal in CREGGY v (1) JEFFREY BARNETT (2) PETER BARNETT [2016] EWCA Civ 1004 exams issues around the operation of the Limitation Act 1980 in breach of trust claims.

The case reminds us that not all breach of trust claims avoid the 6 year limitation period and that the nature of the loss sought could be determinative.

In 2012 two brothers called Barnett started proceedings against a solicitor called Mr Creggy for breach of trust in relation to the sum of 1.2million US dollars which Mr Creggy had paid out to a third party in 1998 from a Swiss bank account. The bank account was in the name of two off-shore companies owned by the brothers. Mr Creggy was a signatory on the account and had the power to control the disbursements.

The brothers alleged that Mr Creggy was a trustee of the funds in the bank and sought an account of his use of the money. Their argument was rejected by the first instance Court, and not challenged. The Court held that Mr Creggy was not a trustee and therefore was not liable to give an account. However, it was held that Mr Craggy did owe fiduciary duties in relation to the exercise of his powers as an account signatory. Accordingly, the definition in section 68(17) of the Trustee Act 1925 applied to him as an implied or constructive trustee. In turn, Mr Creggy could look to section 21 of the Limitation Act 1980 to offer him a defence against the finding that he had misapplied 1.2 million dollars in 1998.

Exceptions to the 6 year limitation period for breach of trust claims by beneficiaries under section 21(1) apply if the trustee has:-

(a) Committed fraud in relation to the trust property, or

(b) Retained trust property or applied it for his own use or benefit.

If the trustee has simply paid out money to the wrong person, the 6-year limitation bites. Mr Creggy argued that the brothers’ claims were statute barred as they could not rely on the exceptions. However, the brothers relied on a provision in section 29(5) of the Limitation Act which states that, in relation to a debt or liquidated claim, where the liability for the claim is acknowledged by the defendant, time to bring the claim starts to run from the date of the acknowledgment.

In this case, Mr Creggy had written to one of the brothers in 2012 acknowledging the liability to pay a “debt”, which was said to start time running in respect of that brother’s claim, thereby extending the limitation period. The brother’s argument succeeded at first instance but was overturned by the Court of Appeal who found that his claim was statute barred.

The Court of Appeal (Patten LJ dissenting) found that where trust monies had been improperly paid away by a trustee, the situation was similar to a claim at common law for a fixed sum of money, even though it may not be possible to precisely quantify the loss to the beneficiary. This means that the expression “liquidated pecuniary claim” within s.29(5)(a) of the 1980 Act covers a claim for recovery of trust money wrongly paid away by a trustee.

Accordingly, trustees who have wrongly misapplied trust money can remain liable outside the 6 year limitation period in section 20 of the Act if they acknowledge the debt in accordance with section 9(5) of the Limitation Act.

In this case, Mr Craggy’s appeal was allowed, despite the Court finding that the 6-year limitation period could be extended. The problem for the brothers was that they could not rely on section 29(5) as they were not the beneficiaries of the money misapplied by Mr Craggy. The money belonged to their companies, not them as individuals. The Court at first instance found that, despite the brothers being the beneficial owners of the companies which had no debt, the argument that the companies were pure nominees for the brothers achieves nothing beyond the “simple cloak of deception”.

* 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.*

Inheritance tax and joint bank accounts

The taxation of money in joint bank accounts is dependent on who owns it. It is not uncommon for joint bank accounts to be set up just for convenience when an elderly person is struggling to manage their affairs.  In these circumstances, the money will be treated and taxed as if belonging to the person who paid the money in.

H.M. Revenue & Customs (HMRC) will normally treat accounts, where the person who paid in the money is able to draw out the whole account, as the paying party’s money.  As such all of that money will be taxable on death as set out in section 5(2) of the Inheritance Tax Act 1984 (IHTA 1984).

There is a subtle difference between the above scenario and the case where an account is set up as a joint account and hence the account passes to the surviving account holder on death.  Some banks will pay out the whole account to the surviving party. In these circumstances inheritance tax (IHT) is payable by the person who receives the money, rather than by the executors, unless the Will provides otherwise. Whilst HMRC may go against the executors if the money is not paid, they will first pursue the joint account holder.

There may be problems if it is intended that only part or half the monies in the account pass over to the non-paying account holder on setting up of the account.  People may wish to have this result, if they are to take advantage of the IHT potentially exempt transfer rules, which after seven years mean that IHT is not payable.

However, the HMRC are reluctant to accept that the gift was made unconditionally before death. Often, as in the case of Matthews v HMRC [2012] UKFTT668, HMRC will not accept that part of an account was transferred and hence is not liable to IHT.  In that case, the court held that section 5(2) of the IHTA 1984 applied because Mrs Matthews remained free to withdraw any of the monies. She had a reservation of benefit in all the monies hence the whole sum was liable to IHT. You cannot have your cake and avoid tax on it.

* 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.*

Interim orders for maintenance under the inheritance act

When a person dies, it takes some time to deal with their estate and this can cause financial hardship to those around them.  Where there is a dispute over an estate, it will inevitably take even longer to release funds.  This can be devastating to someone who was financially reliant on the deceased because they may suddenly find themselves without enough money to pay the bills.

If someone is bringing or contemplating a claim under the Inheritance Act,  there are two things which might help in this situation.

Firstly, since 2014 it has been possible to start an Inheritance Act claim before there is a Grant of Probate.  If the executors are taking their time (possibly deliberately in an attempt to head off any potential claim), then the Claimant can proceed anyway.  However, once the proceedings have started, they will continue at the usual speed and so can take some time to reach a conclusion.

Secondly, it is possible under s5 of the Inheritance Act for a Claimant to make an application for interim maintenance from the estate (for example to cover bills). The Court has the power to award such sum or sums for financial assistance as it considers to be reasonable.  (Whilst this does not appear to include the provision of property, it is not unusual for the executors to agree that someone remains in a property whilst their claim is determined particularly where they have a very strong claim).

In order to make an application for interim maintenance, and Claimant must:

  1. Have made an application for an order under the Act (in practice, the main claim and the application for interim maintenance can be made together);
  2. Have a need for immediate financial assistance from the estate.

There must also be sufficient assets in the estate to pay any interim maintenance which is ordered.  However, the personal representatives will not be liable if they pay pursuant to an order and then later discover that there is not as much money as they thought and not enough to continue paying/to pay other debts (unless at the time of making the payments the personal representatives had reason to believe that there would not have been enough).

In order to succeed in an application, the Claimant must have a strong claim and the Judge will consider the merits of the claim when deciding whether to award interim maintenance.  The Court can put conditions on any maintenance awarded (for example to specify what it must be spent on) and will usually order that it is paid on account of any future award.  However, it is very rare to find that the Claimant is ordered to repay interim maintenance in the event that the claim is ultimately lost.

* 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.*

Interim orders for maintenance under the inheritance act

When a person dies, it takes some time to deal with their estate and this can cause financial hardship to those around them.  Where there is a dispute over an estate, it will inevitably take even longer to release funds.  This can be devastating to someone who was financially reliant on the deceased because they may suddenly find themselves without enough money to pay the bills.

If someone is bringing or contemplating a claim under the Inheritance Act,  there are two things which might help in this situation.

Firstly, since 2014 it has been possible to start an Inheritance Act claim before there is a Grant of Probate.  If the executors are taking their time (possibly deliberately in an attempt to head off any potential claim), then the Claimant can proceed anyway.  However, once the proceedings have started, they will continue at the usual speed and so can take some time to reach a conclusion.

Secondly, it is possible under s5 of the Inheritance Act for a Claimant to make an application for interim maintenance from the estate (for example to cover bills). The Court has the power to award such sum or sums for financial assistance as it considers to be reasonable.  (Whilst this does not appear to include the provision of property, it is not unusual for the executors to agree that someone remains in a property whilst their claim is determined particularly where they have a very strong claim).

In order to make an application for interim maintenance, and Claimant must:

  1. Have made an application for an order under the Act (in practice, the main claim and the application for interim maintenance can be made together);
  2. Have a need for immediate financial assistance from the estate.

There must also be sufficient assets in the estate to pay any interim maintenance which is ordered.  However, the personal representatives will not be liable if they pay pursuant to an order and then later discover that there is not as much money as they thought and not enough to continue paying/to pay other debts (unless at the time of making the payments the personal representatives had reason to believe that there would not have been enough).

In order to succeed in an application, the Claimant must have a strong claim and the Judge will consider the merits of the claim when deciding whether to award interim maintenance.  The Court can put conditions on any maintenance awarded (for example to specify what it must be spent on) and will usually order that it is paid on account of any future award.  However, it is very rare to find that the Claimant is ordered to repay interim maintenance in the event that the claim is ultimately lost.

* 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 ownership of joint accounts on death

Joint accounts are a practical and cheap way of paying an elderly relative’s bills, when that person is struggling to manage their affairs.  They have the advantage of being much quicker and cheaper to set up than registering a lasting power of attorney or obtaining a deputyship order.  A further advantage is that they do not always cease on death, hence ongoing bills can be paid without substantial delay.

Against these obvious advantages, there are some serious problems that frequently arise.  These include confusion as to who owns the money in the account, how that money will be taxed for inheritance tax purposes and inconsistencies on how banks treat joint accounts on death.

Ownership of the money in the account might belong 100% to one account holder or alternatively the other, or something in between.

Accounts which are fully joint accounts pass entirely to the survivor.  Accounts where there is a clear intention that the money should be held in certain percentages will remain in those separate shares – as tenants in common.

In most accounts, the correct presumption is that the accounts were only set up in that way for administrative purposes and belonged entirely to the person who paid the money in.  This is called the presumption of a resulting trust. This complexity and uncertainty have unsurprisingly led to numerous court cases between family members and also HMRC, who will want to tax the money on the paying party’s death.

The presumption of the money belonging to whoever put it in (resulting trust), is hard to overcome. The case of re Northall (deceased) [2010] EWHC1448 (Ch) is a recent case which confirms this as a standard approach.  Other cases, will, however, turn on evidence as to what the investing party intended.

What then is sufficient to rebut the presumption of a resulting trust?  The presumption of advancement (e.g. – a parent naturally wanting their money to go to their child) is weak and shortly to be abolished by the Equality Act in 2010. In the case of Northall, even the wording of the signed mandate that the money should pass on death was not sufficient.  The court are often reluctant to rely on small print and, especially where the investor is elderly.

The case of Drakeford v Cotton and Staines [2012] EWHC1414 (Ch) is one where the court did allow the money to pass to the other joint holder.  The latter case was decided on direct evidence as to what was intended.

A further frequent problem is that if the accounts have been set up by elderly relatives then, there can be a challenge as to whether that person had capacity, or was perhaps unduly influenced to set up the account.

It is, therefore, advisable to be clear as to what is intended. This can be through a Will, or better still a lasting power of attorney or deputyship.

Taking advice avoids the future expense, uncertainty, disputes and possibly tax. Taking advice avoids future expense, uncertainty, disputes and possibly tax. How the money should be taxed is detailed in my next blog, please click here for more information.

Undoing the unconscionable

An Unconscionable Bargain is a useful equitable doctrine in tackling cases of what could broadly be described as civil fraud.

A transaction will be unconscionable if it is (1) oppressively disadvantageous to B, who, (2) when entering it, was acting under a particular form of weakness which (3) was exploited by A in a morally culpable manner (Peter Miller QC in Alec Lobb Garages Ltd v Total Oil Great Britain [1983] 1 WLR 87). There are three components to the test, identified above. Not all unfair transactions are unconscionable bargains. The transaction must satisfy the 3-part test in order to invoke the Court’s equitable jurisdiction, which could result in the transaction being set aside.

Each case is fact sensitive and cannot be approached with a broad brush. In Boustany v Pigott (1995) the Court held that it is not sufficient that the parties had unequal bargaining power or that the terms of the bargain were more favourable to one party than another. To prove that the transaction was unconscionable B must establish that A was aware that B was under a special vulnerability and knowingly took advantage of that in the transaction. In cases of civil fraud, A may no longer be on the scene, perhaps having fled with the proceeds of the transaction. B would be faced with the difficulty that A might not be available for cross examination to prove that A intended to take advantage. Thankfully for B, the Court is concerned with the overall result of the parties’ dealings, rather than solely with the specific question of A’s state of mind.  Lord Walker’s famous phrase that the result of the transactions must “shock the conscience of the Court” encapsulates the approach.

If B proves that the transaction is unconscionable it can result in it being set aside. However, in cases where the transaction involves the purchase or sale of a property, that may not be possible where a third party mortgagee has acquired an interest.

In the recent case of Mortgage Express v Laura Lampert [2016] EWCA Civ 55 the Court of Appeal considered the interplay between the equitable right to have the transaction set aside on the grounds of unconscionability, the right of the mortgagee, and how the equitable right fits in to the land registration scheme. In this blog, I consider the facts around the unconscionable bargain. My next blog, will examine the claim against the mortgagee and the impact of the land registration rules.

The facts of the case are briefly these. In 2007 Ms Lampert was in financial straits. She was unemployed and had borrowed money on the security of her leasehold flat in Maidstone; but was unable to keep up with the repayments. She was facing repossession at the behest of her mortgagee, Blemain Finances Ltd. She owed approximately £24,500 although her flat was worth £120,000. Through the internet she made contact with a company called Amonna ltd, which was run and owned by Mr Sinclair and Mr Clement. They visited the flat and told her that the flat was only worth about £30,000 and offered to buy her lease for that sum. They also told her that she could continue to live in the flat rent free for the first year and thereafter for £250 per month. She accepted the proposal. On 7 September 2007 Mr Sinclair and Mr Clements applied for a secured loan from Mortgage Express. On the application form they declared the value of the property as £120,000. Contracts were exchanged with Ms Lampert on 4 October 2007 with completion on the same day for the purchase price of £30,000. On 26 October 2007 Mr Sinclair and Mr Clements completed on their mortgage with Mortgage Express drawing down £102,000 secured by a charge against the property. By July 2008 the Mortgage Express mortgage was in arrears. Mr Clements had transferred the lease to Mr Sinclair, who had disappeared. The mortgage company began possession proceedings against Ms Lampert to enforce the security.

Ms Lampert applied to have the 2007 transaction between her and Sinclair and Clements set aside on a number of different grounds, including actual undue influence, misrepresentation, and an unconscionable bargain. Note that these can also be powerful equitable doctrines to challenge a transaction, although evidentially difficult. The undue influence and misrepresentation claims failed, but the court held that the transaction should be set aside on the basis that it was an unconscionable bargain. HHJ Simpkiss, applying the 3 stage test, found that Ms Lampert was desperate, vulnerable, naïve, and lacking in any business common sense or acumen; and that Mr Sinclair took advantage of that by making her an offer which he knew to be dishonest. The case is a useful example of the kind of property transactions that are unconscionable.

The Court at first instance held that that Ms Lampert was entitled to have the transaction against Mr Sinclair and Mr Clements set aside and there was no challenge to that. However, the Court ordered that such entitlement was not binding on Mortgage Express.

As the majority of the equity in the property was consumed by Mortgage Express’ charge, and Sinclair was essentially impecunious, Ms Lampert’s relief had little practical benefit in the circumstances. She appealed the order of HHJ Simpkiss to assert her equitable right against the mortgagee.

What is the role of an executor in inheritance act proceedings?

Those who have been left out of a will, or who have not received as much as they expected, may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate of the deceased.  What is the role of the executor in such circumstances, and what happens if the executor is also the beneficiary?

The executor, in their role as executor, is expected to adopt a neutral stance on the claim.  The executor will be a defendant to proceedings if they have to be issued, and will have to file a witness statement setting out details of the net estate, but is not expected to go much further or to actively defend the claim.  Of course, there are occasions where it might be necessary to give further evidence – for example where the claimant wants further information about assets or liabilities of the estate – but as a general rule, the executor is expected to simply abide by any order of the Court.

So long as the executor remains neutral, they will be entitled to their costs of the matter out of the estate on the indemnity basis (Alsop Wilkinson v Neary [1995] 1 All ER 431).

Where an executor is also a beneficiary, they may be providing the neutral information required in their role as executor, but choosing to provide further evidence and a defence in their role as beneficiary.  A beneficiary may well want to defend a claim under the Inheritance Act, either by questioning the evidence put forward by the Claimant or by putting forward a competing claim. They will not be taking a neutral stance, and indeed claims of this sort can be extremely emotional and very hard fought.

When the executor is acting in their role as beneficiary to defend the claim then they will not automatically be entitled to their costs from the estate.  As with most civil litigation, costs tend to follow the event and so there are risks for beneficiaries when defending.  If acting for both executor and beneficiary, it is worth keeping a note of the separate costs (the costs of the executor should be quite limited) so that they can be paid from the right pot at the end of the case.

As for representation, prima facie there is no reason that one solicitor cannot act for a sole executor and beneficiary and indeed this should keep the costs of the matter down.  However, where there are multiple executors/beneficiaries, solicitors should be very careful to ensure that there are no conflicts of interest.  A conflict might arise where one beneficiary wishes to defend and another does not, or where one wishes to bring a competing claim, and if a conflict is not identified at the outset then the solicitor may end up not being able to act in the matter at all.

Can someone with dementia make a valid will?

One of the grounds which often leads people to suggest a will is not valid is if the deceased had suffered from dementia or Alzheimer’s disease.  Both conditions are progressive, getting worse over time, and often it is easier to identify the onset of the illness with the benefit of hindsight (things which did not seem particularly noteworthy at the time can later be identified as symptoms of dementia).  However, as case law shows, the mere fact that someone was suffering from dementia does not mean that they lack capacity to make a will.  A recent example of this is the case of Lloyd v Jones [2016] EWHC 1308 (Ch).

In 2005, Mrs. Harris made a will with the assistance of her niece, who was a retired GP.  No solicitor was involved.  The will appointed the niece and her husband as executors, made a bequest of £10,000 to her daughter and left the remainder of her estate to her son and his wife.  The vast majority of the estate comprised a farm where Mrs Harris, her son and his wife had worked for many years.

In 2010, the deceased died and her daughter challenged the validity of the will on the grounds of capacity and lack of knowledge and approval (she argued that the deceased would not have been able to read the will because of her failing eyesight and that no-one had read it over to her).  In respect of capacity, she argued that her mother began to suffer a decline in her mental faculties from about 2001, and by 2004 had been admitted to hospital suffering from confusion, forgetfulness and strange delusions (including, for example, that aliens were landing in her fields and that Saddam Hussein had poisoned her water supply).  The son and his wife, and the niece and her husband argued that Mrs Harris had not really started to suffer from dementia until 2004 and that in any event, she had always intended to leave the farm to her son and the will was prepared on her specific instructions.

The Judge found that Mrs Harris had begun to suffer from dementia from around 2004, and her niece (as a former GP) would have recognised the signs and that she suffered from delusions and sometimes wandered in the night.  However, this was not thought to be significant to her mental capacity.  Delusions were only relevant if they affected the testamentary dispositions made, and here they do not – however bizarre they were, they did not have had any effect on the contents of the will.  The Judge held that Mrs Harris had probably retained capacity to make a will during 2006 and possibly as late as 2007.

In respect of the want of knowledge and approval claim, it was held that Mrs. Harris would have been able to read the will, and would not have signed had she not read it. If she had read it, she would have understood it.  It was short, simple and clear.  The claim was therefore dismissed, and the will was deemed to be valid.

This case shows that it is possible for a testator to have quite a number of symptoms of dementia, but still to retain capacity to make a will.  The condition rarely has a clear start date but progresses over time.  Steps can, of course, be taken at the date of making a will to try to ensure that they have capacity (such as, for example, taking them to an experienced solicitor to make a will and obtaining a medical report on capacity).  This may not prevent all disputes over capacity, but will certainly assist.

* 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.*

“Kto dostaje to, co i gdzie” – wyjaśniono polskie i angielskie zasady jelitowe

Śmierć członka rodziny jest jedną z najbardziej stresujących sytuacji w życiu każdego. Co robić? Jak zyc? I wreszcie – jak pogrzebać i radzić sobie z ukochaną rzeczą? Każda rodzina zadawać sobie takie pytania, często wcześniej niż sobie życzy. Sprawy mogą się skomplikować, gdy aktywa znajdują się w dwóch lub więcej krajach. Są jeszcze bardziej skomplikowane, gdy dana osoba umiera bez pozostawienia woli (tj. “Jelita”).

Zarówno prawo polskie, jak i angielskie zawierają zestaw reguł (“zasady intestacji”), które określą, kto dostaje to, co w takiej sytuacji. Zasady polskie będą miały zastosowanie do wszystkich aktywów zlokalizowanych w Polsce. Zasady angielskie będą miały zastosowanie do wszystkiego, co znajduje się w Wielkiej Brytanii.

Kiedy ktoś umiera, ale bez dzieci, w Anglii żona, mąż lub partner cywilny (dla tych samych par płciowych) odziedziczy wszystko. W Polsce małżonek uzyska połowę, a druga połowa do rodziców, braci i sióstr zmarłego lub ich dzieci (siostrzenice i bratankowie zmarłego), jeśli brat lub siostra zmarła wcześniej.

Kiedy ktoś umiera za mąż za dziećmi zgodnie z zasadami angielskiego, małżonek otrzymuje całą własność zmarłego męża lub żony, a pierwsze 250 000 funtów ich majątku. Jeśli wartość tego majątku wynosi ponad 250 000 funtów, to pozostało po zapłacie pozostałemu życiu mężowi / żonie podzielono na dwie połowy. Pierwsza połowa trafia do małżonka. Druga połowa trafia do dzieci w równych częściach. Jeśli dziecko zmarło przed swoim rodzicem, udział tego dziecka trafi do ich dzieci (wnuki zmarłego).

Zgodnie z polskimi zasadami, pozostająca przy życiu żona, mąż i dzieci, mają równe udziały, z tym że mąż / żona musi uzyskać co najmniej ¼ udziału w całym majątku. W rodzinach, które mają 2 dzieci, zarówno małżonek, jak i dziecko otrzymają 1/3 udział; W rodzinach, które mają 3 dzieci, małżonek i dzieci otrzymają 1/4 udziału; W rodzinach, które mają 4 lub więcej dzieci, małżonek otrzyma ¼, a dzieci równe udziałom w pozostałej części. Podobnie jak w Anglii, kiedy dziecko umiera przed rodzicem, ich dzieci odziedzicą swój udział.

Kiedy osoba umiera pojedynczo lub rozwiedziona, ale z dziećmi dzieci otrzymają wszystko w równych proporcjach, jak między nimi. Ponownie udział dziecka, który zmarł przed swoim rodzicem, idzie do swoich dzieci (tzn. Wnuki).

Kiedy dana osoba umiera i nie ma dzieci w obu krajach, jest to bliskość bliskich krewnych (rodziców i rodzeństwa), którzy mają prawo do dziedziczenia. Jeśli nie ma bliskich krewnych, aktywa trafiają do Korony (w Anglii) i Skarbu Państwa (Skarb PaÅ “stwa) w Polsce.

Zasady opisane powyżej często wydają się nieuczciwe, np. Dziecko, które opiekowało się swoim rodzicem przez wiele lat i prawie nic nie zostało mu zabrane? Czy można coś zrobić po śmierci ojca jelitowego? Zobacz nasz przyszły artykuł na temat roszczeń o lepsze świadczenie usług lub skontaktuj się z nami, aby uzyskać bardziej szczegółowe informacje.

“Who gets what and where” – Polish and English intestacy rules explained

Death of a family member is one of the most stressful situations in anyone’s life.  What to do?  How to live?  And finally – how to bury and deal with the beloved one’s things? Each family will be asking themselves such questions, often sooner than one would wish.  Matters can get complicated when one’s assets are located in two or more countries.   They get even more complicated when a person dies without leaving a will (i.e. “intestate”).

Both Polish and English law have a set of rules (“intestacy rules”) that will determine who gets what in such a situation.  Polish rules will apply to all assets located in Poland.  English rules will apply to everything located in the UK.

When a person dies married but with no children, in England the wife, husband or civil partner (for same sex couples) will inherit everything.  In Poland the spouse will get a half and the other half will go to parents, brothers and sisters of the deceased or their children (nieces and nephews of the deceased) if the brother or sister died earlier.

When a person dies married with children under English rules, the spouse will get all the personal property of the deceased husband or wife and the first £250,000 of their wealth. If the value of such wealth is more than £250,000, what is left after payment to the surviving husband/wife is divided into two halves.  The first half goes to the spouse. The second half goes to the children in equal shares.  If a child pre-deceased their parent, the share of that child will go to their children (grandchildren of the deceased).

Under Polish rules, the surviving wife or husband and children inherit in equal shares with a proviso that the husband/wife must get at least ¼ share of the whole estate.  So, in families that have 2 children, both spouse and children will get 1/3 share; in families that have 3 children, the spouse and children will get ¼ share; in families that have 4 or more children, the spouse will get ¼ and the children equal shares in the remainder. Just like in England, when a child dies before the parent, their children will inherit their share.

When a person dies single or divorced but with children the children will get everything in equal shares as between them.  Again a share of a child who pre-deceased their parent goes to their children (i.e. the grandchildren).

When a person dies single and with no children in both countries there is a sequence of close relatives (parents and siblings) who are entitled to inherit.  If there are no close relatives, the assets go to the Crown (in England) and the Treasury (Skarb PaÅ„stwa) in Poland.

The rules described above often seem unfair to e.g. a child who looked after their parent for years and is left with hardly anything?  Can anything be done about it after the death of the intestate parent?  See our future article on claims for better provision or contact us for more detailed advice.

* 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.*