How to prevent rights being created over your land  

The simple answer is to use good signage on your land but how effective is this and what are the pitfalls? It is possible to gain rights over land, such as a right of way, by ‘long use.’ This is a complex and confusing area of law but put simply, exercising a right for at least 20 years, without interference can result in the creation of a ‘prescriptive right.’ The use has to be as of right or ‘without force, without secrecy and without permission’. So far as ‘without force’ is concerned, this means that the use cannot be contentious or allowed only under protest. Use will be contentious if the landowner has done everything within reason to contest or interrupt the use and sending a ‘cease and desist’ letter or erecting a sign will be…

Inheritance disputes between a second spouse and stepchildren

There are more than 700,000 step-families in the UK, according to the most recent figures from the Office for National Statistics. Sadly, there has been significant growth in the number of inheritance disputes between first and second families, with stepchildren having several routes to challenge their parent’s Will. ‘Most children expect to receive an inheritance from their parents and while they may worry about this from time to time, they are usually more concerned that their parent is happy and is not lonely,’ says Julie Bradwell, Associate and C.T.A.P.S. Registered Contentious Trust and Probate Specialist in the Litigation Department with Ware & Kay Solicitors. ‘However, when that parent dies, unless they left a valid Will with specific bequests to the children of their first marriage, those children may become disgruntled if they see you are due…

The latest on serving Section 21 notices

In a recent case of Khan and another v D’Aubigny the Court of Appeal considered a decision made by Wandsworth County Court in which Dr Kameel Khan and his wife Mrs Julia Khan (the Khans) were the landlords of a flat which they let to Mrs Elena D’Aubigny (the tenant) under an AST. The Khans served a S21 notice on the tenant and then applied for possession of the flat. For tenancies that started on or after 1 October 2015, a landlord cannot serve a valid section 21 notice if they have not given the tenant a copy of the current gas safety certificate and a valid energy performance certificate (EPC) together with the ‘How to Rent’ booklet before giving notice. The Khans said that their solicitor had posted copies of the documents to the tenant…

Where is your boundary: Can landowners rely on a Land Registry plan?

Landowners faced with disputes over their boundaries often point to the Land Registry plan for their land as evidence of what they own and their property boundaries. Unfortunately title plans are not definitive and will not necessarily show the precise location of the boundaries. Unless the owner of registered land has entered into a boundary agreement or had the boundary line determined by a Court or the Land Registry, the great majority of registered titles show only the ’general boundaries’; this means that the Land Registry plan gives an approximation of a property’s extent rather than an exact delineation. In the recent Court of Appeal decision of Clapham v Narga the Court confirmed that the Land Registry’s plan was ordinarily irrelevant in establishing where a boundary is located. This case was a long running dispute…

Negotiating changes to a child arrangements order

If you had to go to court to obtain a child arrangements order, it probably came as a relief once it was in place and you could settle into a routine with your child. However, family life is forever evolving and there are many reasons why you may seek changes to the existing court order. Hopefully such changes can be achieved by amicable agreement. However, sometimes proposed changes can be contentious and may require the support of a solicitor or the intervention of the family court. When can I seek changes to my order? ‘A change in your child’s circumstances may require you to seek a variation of a child arrangements order, particularly if this change means the terms of the current order can no longer be upheld’ explains Samantha Sinclair, Head of Family Law with…

What happens to a family business on divorce?

  When there is a family business, it will form part of the financial settlement in divorce proceedings.  A ‘business’ includes limited companies, partnerships and sole traders. It is in the interests of both parties to reach an agreement amicably without the stress, cost and delay of court proceedings. It is advisable to seek prompt specialist advice, from a family law practitioner and other relevant experts, including an accountant.  The first step is for the parties to try to agree about the value of the business.  In cases where the business purely provides an income with no realisable capital, the value can usually be ascertained by looking at the net assets on the balance sheet.  In cases of private companies with realisable capital, an expert can be jointly instructed to provide a valuation. There are often challenges in trying to establish…

  What are the options if you believe there is a mistake in a Will?

The importance of leaving a Will cannot be stressed enough – it allows someone to pass away safe in the knowledge that they have provided for their loved ones and their assets will be distributed according to their wishes. ‘Some people think that it is unnecessary and costly to use a solicitor to draft their Will, relying instead on off-the-shelf or do-it-yourself methods,’ says Julie Bradwell, Associate and C.T.A.P.S. Registered Contentious Trust and Probate Specialist in the Litigation Department with Ware & Kay Solicitors. ‘However, there are many potential pitfalls when it comes to drawing up a Will, and the cost of getting it wrong can be high indeed.’  Julie Bradwell explains the options if you have been surprised by the contents of a Will and believe that there may have been a mistake. Problems with…

Misconceptions in Valuing an Estate for Probate. Pitfalls for Beneficiaries and the Disinherited

It is not unusual for misunderstandings to occur about the value of a deceased’s estate, risking substantial financial loss to a beneficiary or a claimant against an estate, if not legally advised. “Joint Bank Accounts” In my experience banks often mislead people that “Joint Accounts” are not part of the deceased’s estate. The ownership of a bank account held in more than one name depends on the circumstances. An elderly widow befriended a gentleman. He suggested adding his name on her bank account to assist her with banking and she agreed. Later she died and left all her estate to her adult children.  The bank told the gentleman that as he was the survivor of their “Joint Account”, her life savings in that account were not part of her estate to pass to her children, the…

Fields of Promise: Navigating Farming Disputes and Proprietary Estoppel

Clashes over the ownership of the family farm are sadly not uncommon among farming families. Legal battles often ensue after a family member works on the farm for years, often for low pay and infrequent holidays, on the understanding that they will eventually take ownership of the farm – only to find themselves expelled from the farm following a disagreement, or that the Will makes no or inadequate provision for them. In either of these scenarios, a claim for proprietary estoppel may be a useful tool; if successful, such a claim may force the defendant to honour the promise made to the disappointed farm worker, as Julie Bradwell, Associate Solicitor at Ware & Kay incorporating Pearsons & Ward Solicitors in Malton, York & Wetherby, explains.  What is proprietary estoppel? Proprietary estoppel is a legal doctrine…

Shareholder Disputes: what happens when shareholders fall out?

Disputes between company owners are not uncommon and can range from disagreements about strategy and management through to allegations of breach of fiduciary duties and breach of trust. These disputes can have serious ramifications which may threaten the financial security of your business. The legal framework for addressing shareholder disputes in England and Wales is primarily governed by the Companies Act 2006 alongside the company’s articles of association and any Shareholder Agreement. There are three main remedies available to you as a shareholder of a company if you think that your rights as a member have been compromised, whether that is because of money being taken such as by paying unauthorised dividends or paying excessive salary or other breaches of company duties or company mismanagement. The principal remedies are: Presenting an unfair prejudice petition…