Dame Barbara Windsor, who sadly passed away earlier this month, was diagnosed with Alzheimer’s disease in 2014 and was a prominent campaigner for research into dementia and better care from those affected by the disease in her role as an ambassador for the Alzheimer’s Society.

Living with dementia can lead to all sorts of emotional, practical and physical issues, which have an impact on the individual and those caring for and living with them. One practical thing that should always be considered following a diagnosis of this nature, is putting in place a Lasting Power of Attorney so that decisions about finances and welfare can be made on the individual’s behalf if they are unable to make such decisions for themselves. 

Lasting Powers of Attorney are prepared when a person has the mental capacity to appoint Attorneys to look after their finances and health or general welfare if they were to lose capacity in the future. A Power of Attorney is registered with the Office of the Public Guardian, the statutory body overseeing how attorneys act.  An Attorney can be a trusted friend or family member or it can be a professional that can step in to act when the person is unable to manage their own affairs.

Attorneys can support the individual with their finances, manage any care fees and ensure that they are receiving the benefits they are entitled to. A health and welfare attorney can make decisions about where that person resides, the care they receive and general welfare decisions.

Without an up-to-date Lasting Power of Attorney, situations can arise where decisions need to be made for someone who has lost capacity and a Court of Protection application for a Deputy to be appointed can follow which is a more drawn out and expensive process.

If you have not got a Lasting Power of Attorney, and would like to make the necessary provisions and plan for the future, please contact Sophie Fenn who is a Solicitor in the Private Client department in our Solihull office.

Sophie will be able to advise you on all aspects of Lasting Powers of Attorney, provide reassurance and will be able to assist you with putting the Powers of Attorney through the Office of the Public Guardian.

The lockdown and its associated restrictions  have had a substantial impact on the economy and continue to do so. More tenants are unable to afford the rent for their commercial properties in the long term. Landlords are looking to let to more reliable tenants or choosing to use their commercial properties for alternative purposes, prompting a rise in the use of break clauses.

In this article Katie Briggs, Associate Solicitor in the Property Litigation Team at Wilkes looks at Break Clauses and some of the common factors both landlords and tenants should consider before serving one.

One of the main ways to end a commercial lease early is to exercise the break option. Break Clauses in commercial leases are extremely common. However, break notices can be a complex area of law, so it is vital to ensure they are correctly drafted and served. It is also important that you are aware of any conditions to ensure that the break is exercised correctly, the most common ones being the tenant giving up occupation and ensuring rent payments are up-to-date.

Case law has demonstrated that failing to adhere to covenants in the lease could deem the exercise of the break ineffective. Examples include the tenant’s failure to paint the property in the last year of the term (Bairstow Eves (Securities) Ltd v Ripley) and the tenant’s failure to provide vacant possession after removing the landlord’s fixtures and fittings (Capitol Park Leeds PLC v Global Radio Services Limited [2020]).

It is important for the tenant to be advised of his requirements under the lease to validly exercise the break clause and to ensure these are done before the break date. Failure to do so may render the break notice invalid. It is equally important for the landlord to be aware of these requirements to ensure the tenant meets these or the landlord could dispute the validity of the break option.

The first step is to review the lease. If there is a break clause, the relevant provisions need to be carefully reviewed and understood.  Not only is this necessary to comprehend the conditions required in exercising the break but it is also necessary to determine the deadline to serve the notice, who it must be served on and how it must be served.

It is important to ensure the notice is served on the correct people, using the correct method of service and in accordance with the break clause. An incorrectly served break notice may be deemed invalid. If there are managing agents for the property, it may also be worthwhile serving a copy on them, however this is to be done in addition to serving a copy on the landlord as opposed to in place of.

It is strongly advised to take independent legal advice upon receipt of a break notice. Not only is this important to determine whether the notice is valid but it can also be important to understand the implications of the break notice, both legally and practically. It will also prove beneficial if you wish to contest the notice and allows you to obtain advice in relation to not compromising your legal position.

Landlords and tenants should note that ending the lease does not prevent claims for failure to repair (dilapidations). You can read more on the topic of dilapidations here.

Whether you are the commercial landlord or the commercial tenant and whether you wish to serve a break notice or have received a break notice, The Property Litigation Team at The Wilkes Partnership Solicitors are able to assist you on all matters relating to break notices.

You can contact Katie Briggs on 0121 710 5839 or kbriggs@wilkes.co.uk. 

2020 will certainly be a year for the history books of future generations. There have been many enlightening stories throughout the pandemic and the recent case of Ylenia Angeli is one of particular note.

Ylenia’s 97 year old mother has dementia and resides in a care home in the north of England.  Due to COVID-19 having had such a devastating impact on the care home population, care homes have been more or less closed to all visitors meaning families not being able to visit their loved ones.

Ylenia was distraught by the prospect of a further enforced separation from her mother for the second lockdown with no visiting allowed.  She decided to take ‘drastic action’ and remove her mother from the care home to go and stay with her.  The care home called the police and Ylenia was arrested (then de-arrested) and her mother returned to the care home.

Unfortunately, Ylenia only had a Lasting Power of Attorney (LPA) covering finances for her mother and not one for health and care decisions.  It appears that due to her dementia, Ylenia’s mother lacks the mental capacity to decide where to live and therefore may be subject to a Deprivation of Liberty authorisation meaning she must stay at the care home.  This doesn’t mean that she can never leave, but there are procedures to go through to move someone who lacks capacity.

A health and care LPA would certainly have helped Ylenia’s cause however the coronavirus legislation has overridden many normal procedures during the course of the pandemic and any move would have to comply with this legislation.

It is recommended that an LPA for health and care decisions as well as finances is put in place to ensure decisions can be taken by your chosen attorneys in the event you lack mental capacity.

If you have any questions about the issues raised in this article or an LPA for either finances or health and care, please contact Ann-Marie Aston at The Wilkes Partnership Solicitors on 0121 733 8000 or aaston@wilkes.co.uk

Since the start of the COVID-19 pandemic, there has been a surge in demand for Will writing, both in preparing new Wills and updating existing Wills.

In this article Jack Ackrill, Solicitor in the Contentious Probate Team at Wilkes discusses the importance of choosing the right executor in order to avoid loved ones having to deal with a dispute after we die.

It is important to be aware of and understand who can be appointed as an executor and just what that role entails so that we can make an informed decision.

The fact of the matter is, virtually anyone can be an executor; a family member, a friend or perhaps an independent professional such as an independent financial advisor, accountant or a solicitor. The most important matter to consider when making this decision is whether the appointed individual is trusted and, quite frankly, capable of dealing with your affairs competently and in accordance with your wishes.

Executors have a duty to properly administer the deceased person’s estate. This requires collecting in the estate assets and paying off the estate liabilities before distributing to the named beneficiaries in the Will. Of course, this should be done (regardless of whether or not they are a professional executor) with reasonable skill and care. Executors owe a duty to the beneficiaries of the Will to ensure that the estate is properly administered.

Disputes usually arise where relationships break down between fellow executors and/or beneficiaries. What follows is a lack of trust and allegations being made as to potential maladministration and perhaps favouritism towards other beneficiaries or third parties. The estate and its beneficiaries tend to lose out considerably in these types of disputes, especially if the matter proceeds to a fully contested trial in the High Court where legal costs can spiral out of control.

It is therefore very important that, when deciding who your executors are going to be, that you consider the nature of the role, their obligations and the scope for a potential dispute in the event of disagreement and the implications this would have on the estate.

Conversely, if you find yourself in a situation where you disagree with what an executor is doing and you are a beneficiary or fellow executor, you may find yourself with little option but to take independent legal advice to try to resolve the matter.

When administering an estate, disputes may arise where the executors:

  • are not performing their duties correctly;
  • are incapable of performing their duties,
  • are disqualified due to a criminal conviction;
  • have a conflict of interest; and
  • have acted in a way which amounts to serious misconduct in administrating the estate.

If an executor is considered by a beneficiary or a fellow executor to have failed in their duties to administer an estate, there may be option for recourse via the High Court. As above, this is a costly and time-consuming process, but may be unavoidable depending on the circumstances.

Indeed, I would strongly suggest that anyone finding themselves in such a predicament should try to obtain independent legal advice to assess their options before taking any further action.

The Contentious Probate Team at The Wilkes Partnership advises executors and beneficiaries faced with issues in relation to the conduct of an estate administration and/or removal of executors if appropriate.  If you wish to discuss any aspect of the obligations of an executor or issues regarding an estate, please get in touch with Jack Ackrill on 0121 233 4333 or via email on jpackrill@wilkes.co.uk.

The current coronavirus pandemic and continuous government restrictions have resulted in a widespread ‘work from home’ approach, limiting the need for office space and bringing an end to many commercial property leases.

Unfortunately, some commercial tenants have no option but to end their lease and vacate their premises as their business ceases trading.

The end of commercial leases has resulted in a rise of dilapidation claims. Dilapidations generally refer to disrepair to the premises relating to the tenant’s repairing obligations in the lease. These claims are often brought by the landlord against the tenant at the end of a lease. In light of the pandemic and the changes it has brought, landlords are increasingly bringing dilapidation claims and tenants are understandably concerned about their liability in relation to the amount of damages.

Whether you are a landlord or a tenant, the first course of action would be to double check the tenant’s repairing obligations under the lease. The landlord will need to ensure that any disrepair relates to these obligations. The tenant should double check their obligations and ensure they have complied with these. It would be beneficial for the tenant to check the lease terms prior to the end of the lease to ensure they have sufficient time to adhere to their covenants.

If the landlord brings a claim for dilapidations, the landlord will need to calculate the damages, which will involve instructing a surveyor to prepare a schedule to serve on the tenant. If the lease is still continuing at this time, it is important for the landlord to review the terms of the lease in relation to accessing the premises to ensure they do not breach their covenants and the tenant’s continuing right to quiet enjoyment.

The amount of damages the tenant is liable for in relation to the breach of their repair obligations will be limited under section 18 (1) of the Landlord and Tenant Act 1927. Damages are limited to take into account diminution in value and supersession.

  • Diminution in value relates to the amount by which the value of the landlord’s remaining interest is reduced by the breach. This considers the difference in the value of the premises when comparing the value of the premises in the condition required by the lease and the value of the premises in its actual condition. The amount of damages claimed cannot exceed the loss in the value of the property.
  • Supersession refers to the concept that damages should not be recovered for any improvement works or alterations a landlord intends to undertake, which would render the tenant’s repair work valueless. The tenant is responsible for proving that the landlord’s intention to undertake any work which amounts to an improvement and which goes beyond what the tenant is obliged to do would make the tenant’s repairs valueless and as such, no loss is suffered by those disrepairs.

Whether you are the commercial landlord or the commercial tenant, it is strongly advised that you obtain specialist legal advice in relation to dilapidations before the landlord brings a claim or before the tenant terminates the lease. In the current climate, the importance of doing so is amplified.

If you are a commercial landlord looking to bring a dilapidations claim or a commercial tenant who is concerned about their liability in relation to dilapidations, please contact Katie Briggs, Associate Solicitor in the Property Litigation Team at The Wilkes Partnership on 0121 233 4333 or kbriggs@wilkes.co.uk.

 

Charlotte Lines and Naomi Ramsay have joined Wilkes as newly qualified solicitors in the Corporate and Private Client Teams respectively.

Having first joined Wilkes as a trainee solicitor in 2018 Charlotte Lines joins our busy Corporate team and will advise clients on a wide range of corporate transactions including mergers and acquisitions, management buyouts, disposals, company reorganisations and share buy-backs.

Naomi joins the Private Client team having successfully completed her training contract at a local Birmingham based firm. Naomi will predominantly be working from our Solihull offices and will advise our clients across the full spectrum of private client services such as, Wills & Tax Planning, Trusts & Trust Administration, Court of Protection matters and Lasting Powers of Attorney.

Ellie Holland, Managing Partner at Wilkes said;

“2020 has been a challenging year for everyone and as a firm we are fortunate to be in a position where we are able to grow two of our core teams. We are delighted to be able to welcome Charlotte and Naomi to Wilkes and wish them every success as they develop their legal careers.”

“Both Charlotte and Naomi are talented young solicitors who have already demonstrated they are able to hit the ground running and I am sure they will prove themselves to be valuable assets to our firm.”

Last year, probate registries experienced significant delays in issuing Grants of Probate. In the past, applications for a Grant had taken up to 2 weeks, but in lieu of the delays, applications were taking 12 weeks and longer to process.

This was the result of a surge in applications prior to planned fee increases, closure of regional probate registries and changes to the internal systems. This in turn led to delays at HMRC who took over 5 weeks to issue inheritance tax receipts in taxable estates. In total, therefore, it was taking up to 3-4 months to obtain a Grant.

Earlier this year, probate registries managed to reduce their time scales and applications were taking no longer than 3 weeks to process. However, following the outbreak of COVID-19, probate registries are facing the same delays that we saw last year. This is largely due to a reduced workforce because of the furlough scheme and 80% of their staff working remotely. The time taken to obtain a Grant of Probate has once again risen and with limited telephone lines, it has become incredibly difficult to even obtain an update on an application once it has been sent.

Probate registries have tried to implement measures to tackle the delays, including taking applications online. HMRC have also started to accept digitalised signatures and will submit the inheritance tax receipt directly to the relevant probate registry. With more staff returning to work at the probate registries, it is hoped that time scales will start to come down again.

Despite these delays, we are on hand to provide assistance in applying for probate and should you have any questions in regards to applying for a Grant of Probate in a deceased’s estate, please contact Ellie Holland on eholland@wilkes.co.uk or 0121 733 8000.

The Wilkes Partnership have one of the largest Private Client teams in the Midlands and our solicitors are based across our Birmingham and Solihull Offices and can offer appointments to suit via telephone or video call.

In this article Jackie Lee, Solicitor in our Family Law Team discusses Prohibited Steps Orders (PSO’s) and how they can be put in place to limit the travel movements of a child without both parent’s consent.

Prohibited steps orders are granted by the Family Court in instances where one parent disagrees with a child or children leaving the country.

During the current situation surrounding COVID-19 the Family Court has seen a rise in PSO applications, with many being granted. Although flights might be leaving the UK it is advisable to check on the FCO website for the latest Government guidance on travel and check with the Parent with Parental Responsibility for the children that they give permission to travel. If there is a Government warning in place on a destination there is a strong likelihood that an application for a PSO would be granted.

Client Case Study

In early August Jackie Lee was approached by a Father seeking an urgent intervention to stop his two children leaving the UK to a country flagged by the FCO as a destination where “all but essential travel” was not advised. In addition, our client also cited concerns over missed schooling which was duly noted by the courts.

On Sunday 2nd August 2020, the Mother, who held custody for the children, notified the Father that they were due to travel with the children on Friday 7th August 2020. In response our client contacted us on Monday 3rd August and instructed us to apply for a Prohibited Steps Order on his behalf which was filed with the Court on Tuesday 4th August. A Prohibited Steps Order preventing travel was in place by Wednesday 5th August.

Alongside successfully blocking the children leaving the country the court order also forced the surrender of the children’s passports. A Penal notice was also attached to the order meaning that if the Mother did not comply she would risk a custodial sentence. The Court also ordered the Mother to cover the cost of the Father’s legal fees.

We are able to offer appointments via telephone or video call at a time to suit you. If you require any advice relating to a Family Law matter please contact Jackie Lee on 0121 784 4443 or via email on jwlee@wilkes.co.uk

The Office of the Public Guardian (“OPG”) have launched a new online service “Use a lasting power of attorney”. The aim behind this tool is to enable attorneys to liaise more efficiently with financial institutions and healthcare providers when making decisions in regards to a donor’s finances, property or care.

The service has already been tested by organisations like the Department for Work and Pensions and HSBC UK, who have proposed to continue using it moving forward.

The previous process was paper based and attorneys were generally required to submit copies of the donor’s Lasting Powers of Attorney (“LPAs”) to all the relevant organisations, which could take several weeks. Under the new service, attorneys will only be required to provide a secure code, which when inputted into the system, will immediately confirm their role as attorney. The new tool, will enable organisations to carry out all of their necessary checks on attorneys, hopefully in a more secure and faster manner.

For the time being only newly registered LPAs will work under this new system. Crucially, there are likely to be implications in terms of donors who may not want the LPA to come into effect immediately. The safeguards are yet to be ascertained, but it is likely that many donors will opt to delay registering their LPAs, particularly their Property and Financial Affairs LPA.

Nick Goodwin, from the OPG, has confirmed that the move to this online service was in response to “more people… taking the important step to… apply for a LPA” and the need to therefore ensure that attorneys receive the “best possible support” to make “effective and efficient decisions when managing their loved ones’ affairs”.

At The Wilkes Partnership Solicitors, we can assist you with the various stages of the LPA process, including preparing the LPAs for you and even acting as a professional attorney for you if you wish. We can also make a deputyship application to the Court of Protection for a loved one who has lost capacity and we are able to act as a professional deputy for them too if this is required.

We have offices in central Birmingham and Shirley, Solihull and are ready and available to arrange appointments to suit our clients needs.

If you would like to enquire about preparing LPAs or deputyship please contact Ann Marie-Aston on 0121 733 8000 or aaston@wilkes.co.uk.

New laws to spare divorcing couples having to apportion blame for the breakdown of their marriage took a step closer, as a Bill seeking to reduce family conflict has now gained Royal Assent.

Aaron Keene, Partner & Head of Family Law at Wilkes said: “The institution of marriage will always be upheld, but when divorce cannot be avoided the law should not exacerbate conflict and harm a child’s upbringing”.

Currently, one spouse has to make accusations about the other’s conduct, such as ‘unreasonable behaviour’ or adultery, or otherwise face years of separation before a divorce can be granted – regardless of whether a couple has made a mutual decision to separate.

The new laws will instead allow a spouse, or a couple, to apply for divorce by making a statement of irretrievable breakdown. This aims to end the needless “blame game” between couples and parents.

Crucially, a new and extended minimum timeframe of six months from the initial application stage to the granting of a divorce will also be created. This will offer couples the time to reflect and turn back, or where reconciliation is not possible agree important arrangements for the future – such as how best to look after their children.

The Bill was first introduced in June 2019 after a public consultation and was brought before parliament again following the General Election. It passed its final stage on 17 June, with cross-party backing as well as support amongst family law practitioners.

Specifically, the Divorce, Dissolution and Separation Act will:

  • Replace the current requirement to evidence either a conduct or separation ‘fact’ with the provision of a statement of irretrievable breakdown of the marriage (for the first time, couples can opt to make this a joint statement).
  • Remove the possibility of contesting the decision to divorce, as a statement will be conclusive evidence that the marriage has irretrievably broken down.
  • Introduces a new minimum period of 20 weeks from the start of proceedings to confirmation to the court that a conditional order of divorce may be made, allowing greater opportunity for couples to agree practical arrangements for the future where reconciliation is not possible and divorce is inevitable.

The changes will not come into effect until later next year to allow careful implementation of the necessary changes to court, online and paper processes.

If you would like assistance in relation to a family matter, please contact Aaron Keene on 0121 710 5947 or abkeene@wilkes.co.uk.