Yes.

The Trusts of Land and Appointment of Trustees Act 1996 is an Act of Parliament which is otherwise known as “TOLATA”. This Act gives the Court powers to resolve disputes regarding the ownership of property and land.

There are a number of reasons as to why an individual may choose to issue a TOLATA claim and below are a few examples:

  1. To have your named removed from the mortgage and legal title;
  2. An application made by a family member such as a parent, sibling or grandparent who wish to receive their financial interest in the property;
  3. To force the sale of a property which you and the co-owner inherited from a deceased’s estate;
  4. When an ex-partner refuses to leave and you wish to occupy your former family home alone.

The above are certain examples as to why an individual may wish to issue a TOLATA claim but when such a claim is issued there are three main types of application under TOLATA which can be presented to Court:

  1. An application to the Court requesting an order of the sale of the property to enable one co-owner to receive their financial interest in the form of net sale proceeds;
  2. A request that the Court decides which co-owner is entitled to occupy the property;
  3. A request that the Court decides the extent and nature of ownership if the property is owned by two or more individuals.

Do I just make an application to Court?

As with any disputes, there is a process and the Court expect the parties to resolve matters, if possible, without utilising the Court’s resources. Before any claim is issued a Pre-Action Protocol Letter of Claim will need to be sent to the co-owner outlining the claim and what is sought.  Each party is under a duty to ensure that they negotiate and it is often advisable for parties to settle disputes by means of Alternative Dispute Resolution to avoid Court costs.

What happens if the co-owner refuses to cooperate?

If this comes to no avail, then the applicant will need to issue a claim under Part 8 of the Civil Procedure Rules 1998. This involves completing a Part 8 Claim Form and producing a Witness Statement setting out their claim and what order they seek from the Court. 

In determining whether to make an order under TOLATA the Court will consider a number of factors.  Some of the factors that the Court will consider would be the intentions of the parties and in particular the reason why they purchased the property and for what purpose.  The Court will also consider if there are any occupants under the age of 18 in the property and any interests in the property such as whether there is a lender. 

If you require legal advice or assistance in enforcing the sale of a property or on TOLATA, please do not hesitate to contact Maninder or a member of the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

In short and simple terms – yes.

If you are named as executor in a deceased’s Will and you choose to take up such a role, you have certain responsibilities and duties, which are imposed in law.

In a recent case David Loveday was appointed executor under the late Anita Border’s Will. The terms of the Will were clear in that after testamentary debts were paid, the residuary estate would be split equally between his partner Emma Cullen and Parminder Gibbs.

Parminder Gibbs did not receive her half of the residuary estate as bequeathed under the terms of the late Mrs Border’s Will.

This was because David Loveday used the monies for holidays, a new car and to settle his debts. Following a lengthy inheritance dispute, which went to the High Court, Mrs Gibbs demanded her rightful inheritance and to remove David Loveday as executor.

Despite defying a Court order to produce bank records showing where the inheritance had gone, he later admitted he had spent it all and pleaded guilty at Woolwich Crown Court for fraud.

This is an important case indicating the right of beneficiaries to bring legal claims if an executor is refusing to provide the rightful inheritance in accordance with the terms of the Will. It also highlights the duties of an executor which are enshrined in law.

If you require legal advice or assistance on your duties as an executor or to pursue an executor for not adhering to the terms of a Will, then please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

Not necessarily.

The Court of Appeal recently held that £2.2 million paid to Hilary Harrison-Morgan had to be repaid after she inherited it from her late ex-partner and co-habitant’s estate.

The late Dr Kahrmaan started a relationship with Hilary Harrison-Morgan and once this developed they began to cohabit and then later had twin sons together. They lived together in their London home in Belgravia. They split up in 2014 with the late Dr Kahrmaan returning to Germany.

Despite Miss Harrison-Morgan and her children living in the property a development company made an offer, the terms of which rested upon the property being sold with vacant possession.

Dr Kahrmaan died whilst such discussions were ongoing leaving all the parties involved in the lurch.

The appointed executors of the late Dr Kahrmaan’s estate were his daughters from his previous relationship. Miss Harrison-Morgan alleges she struck a deal with the executors, who had the requisite authority to enter into such a deal, that the profits of the house would be split between her and the late Dr Kahrmaan’s four children.

Once sold, the £4.4 million in profits was split in accordance with the purported agreement with £2.2 million being transferred to Miss Harrison-Morgan.

Following this, one of the executors, being Alice Kahrmaan commenced legal proceedings against Miss Harrison-Morgan on the grounds that there was an express common intention constructive Trust which already existed with the late Dr Kahrmaan’s business partner and such payment was illegal and in breach of the terms of the Trust.

When the matter went before the High Court, Miss Harrison-Morgan argued that the arrangement was made with the late Dr Kahrmaan on the basis that payment would be made to her if she complied with vacant possession, which she did.

On appeal, the Court of Appeal found in favour of the executor and ordered that the money should be returned to the pre-existing Trust intended for the four children of the deceased.

All orders were stayed until the final appeal is made with the case heading for the Supreme Court.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282/ 01908 660966 or at litigation@franklins-sols.co.uk.

In litigation there are certain privileges which entitle parties to withhold producing evidence to other parties and the Court. Such evidence can be either written or oral.

Legal advice privilege protects confidential communications between solicitors and their clients for the purpose of seeking or giving legal advice.

The Court of Appeal in the case of Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 dealt with this particular point.

In this case, there were investors, which were in a scheme marketed by a Cypriot company Anabus Holdings Ltd, and it was alleged that such a scheme was fraudulent. Proceedings were initiated by the Claimant for deceit and negligence against Dentons in 2016 after Anabus Holdings Ltd went out of business. The Claimant wished to see relevant documents, which were subject to privilege. The High Court ruled that privilege continued even though the company Anabus Holdings Ltd had dissolved. This was appealed by the Claimant.

In the Court of Appeal the Claimant argued that legal advice privilege was only for the benefit of a client and not any third parties. As such, with there being no identifiable client it was argued that legal privilege ceased to exist and therefore such documents were now able to be disclosed.

The Defendant argued that such privilege can only cease if it is waived by the client, someone who has the requisite authority or if it is overridden by statute.

Lord Justice Lewison found in favour of the Defendant. He believed that legal advice privilege remains even if the client, who has benefit of the advice has disappeared and that such privilege was ‘not merely a private right’ and therefore it did not cease on the death of a living person.

Lord Justice Lewison further added:

“I would hold that legal advice privilege, once established, remains in existence unless and until it is waived. It is established as a result of the purpose for which, and the circumstances in which, the communication was made. Whether there is no one who can now waive it; or whether the Crown could have waived it, but has not done so; does not matter. I would therefore overrule Garvin; and hold that the Master was right in her refusal to order disclosure; but for different reasons.”

This is an important decision regarding the legal principle behind legal professional privilege and the benefits that each party is entitled to. It is important to note that such privilege remains in force unless waived.

To amount to legal advice privilege, only communications between a lawyer (in-house or private practice) is protected and this does not mean that all communications are covered. It is only those individuals who are authorised to give instructions to and receive advice from the lawyer concerning the specific issue in question that are covered.

If you have any questions regarding legal privilege or the right to waive this, please contact Maninder Mann, Solicitor in our Dispute Resolution team on 01604 828282 or by email maninder.mann@franklins-sols.co.uk .

Not necessarily.

The Court of Appeal in the case Cowan v Foreman [2019] Civ 1336 provided that a claim for reasonable provision can be made out of time.

Section 4 of The Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) provides that the deadline for making a claim is usually six months from the date of the Grant of Representation.

The Court can however allow applications to be made out of time.

In this case, Mrs Mary Cowan brought a claim against the estate of her late husband, Mr Michael Cowan.

Mr Cowan died on the 9th April 2016 and although being married to Mrs Cowan since February 2016, they had been together since 1991.

At the time of Mr Cowan’s death his estate was worth in excess of £29 million pounds.

The late Mr Cowan had executed a Will leaving legacies to his children, personal possessions to his wife and the rest of the estate on discretionary Trust for a number of beneficiaries, including his wife. The remaining assets in the estate was to be left to Mrs Cowan.

Mrs Cowan raised her concerns following an email received on the structure of her late husband’s Will. These concerns were raised to the Trustees who were operating the Trust and that it was not providing her with enough funds and was not disclosing information to her.

The parties initially entered into a standstill agreement, which provides for parties in disputes to discuss the issues at hand without enforcing the six-month deadline.

The Grant of Probate was issued on the 16th December 2016 meaning Mrs Cowan, under Section 4 of The Inheritance (Provision for Family and Dependants) Act 1975 had until the 16th June 2017 to issue her claim at Court.

After Mrs Cowan was unable to agree with the Trustees that they would not oppose her in making a claim outside of the limitation period, she issued her claim on the 12th November 2018; 17 months after the statutory limitation had passed.

The decision at first instance in the High Court found against Mrs Cowan on the basis no proper reason had been given as to why there had been a delay in her bringing a claim under the Act. The High Court also provided that standstill agreements should not be used in matters where time is to be extended.

However, the Court of Appeal took a different stance.

The Court of Appeal was satisfied Mrs Cowan was able to demonstrate that reasonable financial provision had not been provided in her late husband’s Will.

Moreover, the Court of Appeal found that each case should be determined on its own merits when analysing the reason for delays in issuing claims out of the time limit.

The Court of Appeal further provided that Section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 was intended to protect Personal Representatives of the Estate and not to provide protection against stale claims.

If you require legal advice or assistance in relation to claims regarding contesting Wills or Inheritance Act claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors.

A Letter of Claim, which is often referred to as a Letter Before Action is the first and most important step that must be taken before the commencement of any Court proceedings.

Once drafted and sent, the Letter of Claim puts the Defendant on notice that the commencement of Court proceedings may be potentially brought on them for a course of action.

The Claimant, or their instructing lawyer, will set out details of the claim in the Letter of Claim and what is sought by the Claimant.

 

Pre-Action Protocols

There are certain claims which fall under and are therefore subject to Pre-Action Protocols.

Whenever a Pre-Action Protocol applies in any certain case, then the Claimant is expected to follow this and in particular ensure they comply with the Practice Direction on Pre-Action Conduct which can be found in the Civil Procedure Rules 1998.

Below is a list of the types of claims of which there are Pre-Action Protocols.

 

Why not just commence Court Proceedings instead of sending a Letter of Claim? Surely this is quicker and less risky?

It really isn’t.

The Courts do not take kindly to parties resorting to Litigation instantly and regard this as the last resort.

Parties in any dispute are encouraged, as far as possible, to resolve their disputes at the earliest stage possible by being transparent in the information and documents they possess or have along with maintaining communication.

If Court proceedings are commenced without sending a Letter of Claim then this can have severe consequences.

For example, if a Claimant was to commence Court proceedings without complying with the Pre-Action Protocol, then if the matter proceeded to trial and the question of costs was raised, then the failure to adhere to the Pre-Action Protocol may have severe costs consequences on the relevant party.

 

Surely a Letter of Claim sent won’t mean my matter is resolved?

Often a well worded Letter of Claim which sets out the claimant’s claim can, in certain circumstances result in an early resolution without the need of being embroiled in costly Litigation.

The Defendant on receipt of a well drafted Letter of Claim can quickly come to terms with what the nature of the claim is and take the matter seriously with a view of coming to a resolution.

Thus, a well drafted Letter of Claim can have far wider benefits for the Claimant than initially expected.

 

Are the contents of a Letter of Claim important?

Extremely so.

The contents of the Letter of Claim sets out what the Claimant is seeking from the Defendant.

If a matter proceeded to Court and there are inconsistencies in what is alleged in the Letter of Claim and any Court Claim Form or Witness Statement, then this can have significant effects on the case, and no doubt undermine it.

Therefore, the Letter of Claim is an extremely important document which should be well drafted.

If you require legal advice or assistance regarding the drafting a Letter of Claim, then please do not hesitate to contact Maninder Mann, Solicitor in the Dispute Resolution Team here at Franklins.