Rebecca Taylor works in the firm’s commercial property team and Cradley Heath based Deborah Beal is part of the private client team.

A recent recruit to the firm, Rebecca Taylor, is one of the founding fee earners in George Green’s Wolverhampton office, which opened in the Autumn of 2012, whereas Deborah Beal has been with the firm for a number of years, having joined as a trainee solicitor.

Senior Partner, Paul Bennett, commented, “We are delighted with the progress being made at our office in Wolverhampton and Rebecca’s contribution has been instrumental in its success.  Deborah has been with us since the start of her career and has developed into a very accomplished lawyer.  These promotions are due recognition of their achievements and I am confident that they will have bright futures as they continue their contribution to our success.”

Established in 1897, George Green has nine partners and 65 staff, and has

offices in Cradley Heath, Wolverhampton and Birmingham. 

Pictured from left to right: Deborah Beal, Paul Bennett, Rebecca Taylor.

For further information, contact Paul Bennett, Senior Partner for George Green LLP Tel: 01384 340514.  Email:

pbennett@georgegreen.co.uk

Senior executives often have access to confidential information which businesses would not want their competitors to see, so it is vital that employees’ contracts protect their business, if they are dismissed or leave. 

“Customer contacts, prices, lists, trade secrets and processes can all be put at risk by key people leaving a business,” says Julia Fitzsimmons, an associate in George Green’s employment department.  

“Having a key competitor get hold of sensitive information at a time when a business is struggling could help sound its death knell, so it is crucial that the interests of the business are fully protected.  That is why George Green has launched its contract checking service, to advise employers on the level of business protection which is afforded in each contract. 

“Many companies have included restrictive covenants in the contracts of senior employees, but if they are unreasonable, then they are effectively unenforceable. 

“However, properly drafted, so that they protect the interests of a business, rather than punishing the employee who leaves, covenants can effectively limit a former employee from dealing with clients or customers of the old employer and prevent the poaching of customers or staff.” 

According to Miss Fitzsimmons, it is also possible to include extra restrictions to stop ex-employees making use of confidential information.  She says: “These could include the use of extended notice periods and garden leave.  During this time, the individuals will still be employed by the company, but will not be required to undertake any work, therefore effectively keeping them out of the business environment until their knowledge, influence and contacts go stale. 

“As well as advising employers on the extent of protection in current contracts, we will also provide advice on how to make any necessary change to contracts and employment terms and conditions.  Even if no redundancies are presently planned, it is prudent for employers to know how well their business is protected against senior people leaving.”

The PDPA is an organisation for professional dart players, formed with the intention of looking after the interests of professional players.George Green will be providing an exclusive nationwide legal advice service to all of its members and the association itself. Darts is now considered a highly prominent and fast growing sport across the world. 

Clare Wiseman, Partner, Head of George Green’s Private Client and Matrimonial team, who led the George Green PDPA tender team said “This is an exciting opportunity for us. The members of the PDPA will have access to bespoke legal advice at a time and in a way that suits their busy schedules at very competitive rates. Given our links with other sporting individuals and organisations, we believe this new relationship with the PDPA is built on strong foundations. We hope we have a long and very successful working relationship with the PDPA.” 

Peter Manley, Chairman of the PDPA commented “I am delighted to welcome George Green on board our Professional Panel of Advisers and I look forward to working with them. I know they will offer our members a wide range of legal services that are required in our professional and personal lives.”

“With 14^th February being one of the most popular days for people to ask their partner to marry them, there may be good reasons to take the plunge” says Clare Wiseman, Matrimonial Partner and Head of the Private Client at George Green LLP. 

“Cohabitation is becoming ever more popular at the expense of marriage, which hit rock bottom in 2012, with the lowest rates since they were first calculated in 1862,” says Ms Wiseman. 

“Many people who choose to live together still mistakenly believe in the notion of ‘common law’ marriage, but there is no such concept in law.  

People who have lived together for many years have few or no rights to each other’s property or estate on the death of one partner, and different laws apply when resolving the end of a cohabitation, as opposed to breakdown of a marriage. You should take steps to protect your position.” 

“Granted there are not as many immediate tax benefits as there once were, but if you are not married and your partner dies, you could end up losing your house, paying more tax or getting nothing from your partner’s estate.  

If you have lived with your partner for many years without marrying or going through a Civil Partnership and die without a will, although there is the possibility of your partner making a claim under the Inheritance (Provision for Family & Dependants) Act 1975 if insufficient provision has been made, other relations, including very distant ones, are more likely to end up receiving the bulk of your estate. 

If you and your partner own a house jointly, you should take advice on whether it is owned as ‘joint tenants’ or ‘tenants in common’, as the latter means that it will not automatically pass by survivorship.”

“Unmarried couples do not benefit from the same tax breaks as married couples or civil partners.  So even if you have a will, you may well end up paying inheritance tax.  Married couples and civil partners can benefit from ‘spouse exemption’ in addition to their respective ‘nil rate bands’, which means essentially that no tax whatsoever would be paid on assets passing to the surviving spouse on the first death.  In the case of a husband dying with personal wealth of £450,000, which he leaves to his wife, no tax is payable.  However, if they were not married, she would have to pay £50,000 in tax.” 

“Following a change in the law in 2007, it is also now possible to make use of a transferable ‘nil-rate band’. If spouse exemption has been used on the first death, the estate of the surviving spouse is likely to be swollen and this used to result in tax charges when passed to children.  However, the transferable nil rate band now allows the children to retrospectively claim nil-rates bands of both parents – thus saving tax.” 

“Gifts between spouses are also exempt from tax, so married couples and civil partners can preserve assets, for example for the purposes of mitigating capital gains tax.  This is especially relevant if one half of a married couple has more than one property or inherits property and subsequently decides to sell it.  Unmarried couples do not have this luxury and would need to make use of their annual allowance of £10,600 and/or pay Capital Gains Tax.” 

If the most romantic period of the year cannot persuade people to get married, rather than just living together, Ms Wiseman advises them to consult their solicitor for advice on the legal aspects of co-habitation. 

“Marriage confers certain rights, benefits and protections automatically, which many people have come to believe are gained by unmarried couples over time.  This is not the case.  Any safeguarding of goods and property from others and ownership rights in the event of the cohabitation ending need to take the form of a specific legal agreement,” concludes Ms Wiseman.

It seems West Midlands’ businesses must almost inevitably be prepared for more and heavier flooding over the coming years, according to Shilpa Unarkat, an associate in the Commercial Property Team in the Cradley Heath offices of George Green. 

She says: “Those businesses which avoided the horrendous flooding on this occasion, may not be so fortunate in the future, despite the best efforts of the Environment Agency or any flood defences deployed. 

“Tenants of commercial property can be especially badly affected.  If their lease does not oblige their landlord to insure against flood risk and the landlord has not obtained insurance cover for flooding, the tenant will have to repair any damage caused by flooding (under the repairing covenant in the lease). 

“In addition rent suspension provisions in the lease may not apply for flooding.  In other cases, the rent suspension provisions could suspend rental payments while the premises cannot be used or occupied as a result of damage or destruction by insured risks. 

“However if the premises are not insured against flood risk, the tenant will have to continue paying the rent to the landlord while it is not able to make use of the premises,” explains Mrs Unarkat. 

“So as well as checking its flood cover under the buildings insurance, tenants should also consider business interruption insurance.” 

According to Mrs Unarkat, when looking for new premises commercial occupiers need to be more aware of possible flood risk.  

She says: “Environmental Searches should be undertaken as a matter of course.  The searches will identify whether the property is within 250 metres of a floodplain, as well as details of other natural hazards, and will alert the solicitor to make further enquiries, for example via Floodline or on the Environment Agency website to find out which areas are likely to flood.  Additional enquiries should be made of the vendor or landlord in respect of the insurance cover for flooding and knowledge of past incidents of flooding. 

“In future there will be little excuse for businesses to be caught out by floods.  If they cannot obtain sufficient insurance so that they can survive a flood, they have to seriously consider if they are trading from the right premises and, if possible, look to move elsewhere.”

Celebrating their 21^st year anniversary in 2012, the Midlands Air Ambulance needs £6 million a year, which is funded solely by the public and local businesses.

The Midlands Air Ambulance is responsible for funding and operating three air ambulances serving the communities of Gloucestershire, Herefordshire, Shropshire, Staffordshire, Worcestershire and the West Midlands. This constitutes the largest air ambulance operating region in the UK. 

Since 1991, the charity has responded to more than 37,000 missions averaging 3,000 per year or nearly ten each day. 

Tim Lang, Partner and Head of the Firm’s Employment Team, who was instrumental in setting up the firm’s CSR policy said “I’m really pleased that the staff chose to support the Midlands Air Ambulance for the coming 12 months. They do an essential job and save many lives across the region. Many people think they receive government or lottery funding. They don’t and they need every penny of help they can get”. 

Sofia Voutianitis, Fundraising Manager for Midlands Air Ambulance commented “In the current climate, fundraising has become difficult, so I delighted to hear that the staff at George Green LLP had voted to support and help us. We’re all looking forward to working with them in as many ways as possible”.

Claims to contest a will have become more prevalent as a consequence of many legal and social changes, such as the lengthening of life expectancy which has increased the occurrence of persons making their will amidst suspicion of their failing mental capacity. The scope for such occurrences appears to be increasing all the while. For example, at the time of writing, the Alzheimer’s Society consider there to be currently 750,000 people with dementia in the UK and predict that number to rise to over a million by 2025. 

Some diseases or disorders of the mind, like dementia, can cause a rapid deterioration in a person’s mental capacity. Such deterioration could coincide with the period between giving the initial instructions for a will and the time when the will is to be signed. This is especially so when there has been a delay between the two events. 

The Court of Appeal recently dealt with such a scenario where the testator (the person making the will) was said to have had mental capacity when giving instructions for his will but not at the time when he executed (signed) it (Perrins –v- Holland and others [2010] EWCA Civ 840). The question posed was whether or not in those circumstances the will was valid? 

Requirements for a valid will  

For a will to be valid, a number of requirements must be met, namely it must be executed in accordance with the Wills Act 1837; the testator must know and approve the contents of the will (they must understand and accept the contents of the will); and the testator must have testamentary capacity. 

There is a longstanding legal test for assessing whether a particular testator has testamentary capacity (Banks –v- Goodfellows (1870) LR 5 QB 549). A testator will be deemed to have testamentary capacity if: 

• He understands the nature of making a will and its effects.
• He understands the extent of the property of which he is disposing.
• He is able to comprehend and appreciate the claims to which he ought to give effect.
• He does not suffer from any disorder of the mind which poisons his affections, or any insane delusion which influences his will in disposing of his property. 

Exceptions to the requirement for testamentary capacity 

Despite the requirement that the testator must have had testamentary capacity for their will to be valid, the Courts have long since recognised a number exceptions where a will can be valid where the testator had testamentary capacity when giving instructions for the will but not when executing it (Parker –v- Felgate (1883) LR 8 PD 171). Those exceptions are: 

• The testator remembers all the instructions they had given and accepted that the will carried them out; or
• The testator did not remember all the instructions but, if each clause of the will had been put to them and they had been asked to approve it, they would have been able to do so; or

• The testator remembered settling the business with their solicitor, relied on him having given effect to their instructions in the will and accepted that the will did give effect to the instructions. 

For these exceptions to apply, it must be shown that the solicitor (or person preparing the will) had prepared the will in accordance with the testator’s instructions and that the will had been executed by the testator. 

The recent Court of Appeal case 

In the recent case, the testator was suffering from multiple sclerosis. He had given his instructions for his will to a firm of solicitors in April 2000 and had executed the will in September 2001. The testator was hospitalised in April 2002 and died in January 2003. 

The testator’s son commenced Court proceedings challenging the validity of the will on the grounds that the testator lacked testamentary capacity when giving instructions and executing the will and that he did not know and approve the contents of the will. 

The High Court dismissed the son’s claim even though it found as a matter of fact that the testator had testamentary capacity when giving his instructions for the will but not when he executed it. 

The Court of Appeal confirmed that the exceptions to having testamentary capacity (please see above) remained good law. Accordingly, the Court of Appeal upheld the earlier decision of the High Court in this case that the testator’s will was valid despite him having lacked testamentary capacity at the time when it was executed. 

Conclusions 

This latest decision confirms the legal exceptions to the requirement that a testator must have testamentary capacity, which were first laid down over 125 years ago. It demonstrates that the Court remains anxious to give effect to the wishes of those who have made a will, provided that it is satisfied that there is sufficient record or proof of those wishes. This reflects the tradition in English law that a testator is free to dispose of their estate post-death in whatever manner they so choose. 

The outcome of any particular dispute will be subject to its own peculiar facts. Such facts will normally be supported by evidence. Whether someone is looking to bring or defend a claim challenging the validity of a will based upon grounds of mental capacity, they are well advised to act quickly to identify and then gather all relevant evidence. Such evidence may include medical records, solicitors’ files, or witness evidence from third parties. It is not uncommon for the gathering of such evidence to take time, not least because there will normally be a requirement for some degree of co-operation from third parties, including in some cases an opposing party. 

There are procedures and protocols that govern certain types of requests for information. By adopting the relevant procedures, it can greatly assist in reducing the time and costs involved in such an evidence gathering exercise. 

Should you wish to have a free initial telephone consultation in order to discuss your particular matter relating to this area, please call us on 01384 410410 and ask to speak to James Coles or Laura Scott. Alternatively, you can email us your enquiry at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues, along with your contact details, and we will contact you for an initial free telephone consultation.

The recent case of Fry v Densham-Smith [2010] EWHC Civ 1410 has highlighted the fact that the Courts are willing to infer mutual wills even when there is no direct evidence of either a mutual wills agreement or an executed will which reflects such an agreement. 

Mutual wills are wills made by two (or more) people who agree not to revoke them without the consent of the other(s). Mutual wills are usually made between two persons, normally being close relatives or spouses. When the first person dies (provided neither of them have revoked or amended their will), the other inherits the estate of the deceased and from thereon can no longer change their own will.  

The recent Court of Appeal decision 

The original High Court decision in this case had found the existence of an oral mutual wills agreement. The High Court judge had given the parties leave to appeal to the Court of Appeal and the following is a summary of the facts of the case and the Court of Appeal judgment. 

In this case, Edwin Densham-Smith (Denny) and Laura Densham-Smith, formerly Fry (Laura) had in November 1985 married, in what was the couples second marriage. Denny had a son, Martin, from his first marriage and Laura had a son, Jonathan, from her first marriage. Following their marriage in November 1985, it was claimed that Denny and Laura had entered into an oral agreement for mutual wills. This agreement provided that on the death of either Denny or Laura the property was left to the remaining spouse and on that persons death to be passed in equal shares to Martin and Jonathan. 

Denny died in 1989 and his assets passed to Laura. Laura subsequently made three further wills, the last of which was in 2001, none of which included Martin and therefore failed to reflect the existence of a mutual wills agreement. The High Court Judge considered the evidence and cited four factors that satisfied him of an oral mutual wills agreement. These were: (1) Denny had informed his solicitor on making his will that Laura had made a new will; (2)  Martin’s persistent belief he was entitled to a half share; (3) an unsent letter by Laura in which she stated Martin would have to share; and (4) the contents of two telephone calls. As a result, the High Court found, on the death of Denny, an irrevocable trust was created that on Laura’s death was binding on her estate. This meant that Martin was entitled to a half share of Laura’s estate, with the other half going to Jonathan. 

Jonathan appealed against the decision by the High Court that an oral mutual wills agreement existed, on the basis that this was not supported by the evidence and as a consequence Martin was not entitled to a share in Laura’s estate. Jonathan sought to rely on the fact that there was no evidence of a copy, a draft or even instructions for a will pursuant to the oral agreement the High Court Judge had found to exist. 

The Court of Appeal after considering the judgment of the High Court dismissed the appeal. The Court of Appeal found that the deficiency of direct evidence did not undermine the judgment. The High Court Judge had evaluated and assembled a convincing picture and explanation of the inheritance consequences of Denny and Laura’s second marriage. On the balance of probabilities they had agreed that not only would they make wills providing for each other on the death of the first but also for Martin and Jonathan respectively. The Court of Appeal therefore upheld the judgment of the High Court on the basis that the Judge had made reasonable and proper inferences from the facts, events and circumstances about what was probably agreed to be done between Denny and Laura. 

Conclusions 

This case follows the recent case of Charles and Others v Fraser [2010] (for further details please click here) and shows that the Court is willing to uphold mutual wills even in the absence of documentary evidence. However, that is not to say a Court would not arrive at the opposite conclusion if asked to consider a different set of facts, thereby dismissing any agreement to mutual wills. By far the safest and most certain approach for testators wishing to form an agreement for mutual wills is for the terms of the agreement to be recited within the wills themselves and for a detailed record of the agreement to be made and stored with the wills. It is hoped that by adopting such an approach, expensive, unwelcome and time-consuming litigation concerning the existence of such an agreement may be avoided.  

Should you wish to have a free initial telephone consultation in order to discuss your particular matter relating to this area, please call us on 01384 410410 and ask to speak to James Coles or Laura Scott. Alternatively, you can email us your enquiry at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues, along with your contact details, and we will contact you for an initial free telephone consultation.

And with lenders keen to liquidate assets as quickly as possible in order to rebalance their books, this trend is creating real opportunities for investors keen to pick up a bargain. 

Nirmla Rabani, associate at George Green’s Cradley Heath office, said: “At the start of the economic downturn, everyone was concerned about the potential for home repossessions on a scale last seen in the early 90s but less has been said about the impact on commercial property. 

“While lenders have come under significant public pressure to help those facing residential mortgage or rent arrears, many banks have been taking a far tougher line with commercial debtors, often forcing the liquidation of a business or the sale of its assets at the first indication of potential difficulties. 

“While this is undoubtedly bad news for those businesses affected, it means that more commercial properties – particularly industrial units and pub premises – are being sold through auctions, creating a real boom in the number of auction-related instructions we’re receiving.” 

Although buying at auction can be a valuable route for investors looking to secure a quick and easy purchase with minimum costs, there are pitfalls buyers need to be aware of if they’re to avoid ending up with an asset worth much less than they anticipated. 

Nirmla continued: “Under UK law, auction purchasers are legally bound to pay 10% of the purchase price on the day, with the remainder due within 28 days. They also become liable for any damage to the building as soon as the hammer falls. Usually, a standard clause in the purchase contract specifically exempts the seller from any costs associated with the destruction or damage of the building once a bid is accepted so it’s crucial to get insurance in place at the earliest opportunity. 

“Under UK law, the principle of caveat emptor also applies, which literally translated means ‘let the buyer beware’.  Potential purchasers should therefore review the auction catalogue, obtain any information pack and visit the property themselves, or employ suitable professionals to do so on their behalf, before bidding to ensure they understand what it is they are bidding on. 

Typical issues we have come across include catalogue descriptions that neglect to mention that a property looks onto a motorway or a public footpath passes to the rear; issues with leases and tenancy agreements affecting the property; and unusual terms and conditions in the seller’s contract or title deeds, all of which can have a real impact on the value, future use and marketability of a property." 

“With so many potential obstacles to overcome, it’s imperative that buyers seek professional advice well ahead of the auction date to allow plenty of time for any issues to be addressed before bidding commences and certainly before the gavel falls!”

The Black Country Foodbank which has distribution centres in Brierley Hill and Stourbridge has received just over £6800.00 from George Green, since they were selected as the firm’s chosen charity in 2010. The Partners and Staff have been fundraising ever since, through a variety of means including dress down days, sponsored walks, cake sales and Partner Tim Lang taking part in the Wolverhampton to Aberdovey bike ride. 

The organisation, which was started in 2006, currently has eight distribution centres across the region. The aim of the Foodbank is to give three days of nutritionally balanced food to people experiencing emotional or financial crisis. 

Tim Lang, Employment Partner and champion of the George Green Charity Committee said “I am pleased to be able to present the Foodbank with this money. They do an amazing job in the local community, particularly in the current economic climate, with more and more people needing their help. I would like to thank my fellow Partners and colleagues at George Green LLP for getting behind our fundraising over the past two years.” 

Wendy Fryatt from the Foodbank said “"We'd all like to thank all the staff and partners at George Green LLP for their massive efforts, we'll be able to do so much more with the money they have raised. Without the support of local businesses like George Green LLP and the whole community we could not continue to help those who find themselves in crisis situations and without the means to feed themselves or their family."