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Enoch Evans LLP
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Practical Legal Solutions for Private and Commercial Clients
Practical Legal Solutions for Private and Commercial Clients

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Supreme Court rules against Daughter

In 2004 Heather Ilott’s Mother died and left the majority of her estate to charities, but nothing to her daughter. Mrs Ilott then challenged her Mother’s Will and was initially awarded £50,000 by the High Court, which was then tripled on appeal. The charities more recently objected to this increase, arguing that people should be free to choose who they wish to benefit from their estate. The Supreme Court has now made its judgement and ordered that Mrs Ilott should only receive the £50,000 initially awarded.

This long awaited and landmark judgement is said to have reaffirmed the principle that everyone is free to choose who will benefit from their estate when they die. However, there are still routes, including through the Inheritance (Provision for Family and Dependents) Act 1975 to allow the Courts to depart from the terms of a person’s Will, in certain circumstances and this judgement does help clarify how far the Courts are able to go.

Head of Wills, Tax and Probate at Enoch Evans LLP, Richard Neea, comments that ‘the judgement given in this case sets an important benchmark as to the extent to which a person’s wishes can be overlooked by the Courts. However, I would still caution against people relying solely on the terms of a legally valid Will to achieve their wishes. As part of the Supreme Court’s rationale in this case they relied heavily on the reasoning and evidence surrounding how the Will was made, including the notes of the Solicitor who had prepared the Will. This judgement therefore not only helps to clarify the law, but in my mind strengthens the need for anyone making a Will to seek professional advice, so that if matters are ever challenged appropriate independent evidence can be produced.’
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Probate Fees Scrapped
The government’s proposed increase to probate fees – from the current £215 to a potential maximum of £20,000 – have been scrapped, or at least put on hold, as there will not be sufficient time for the regulations to pass through parliament before the snap general election.

Given the speed with which the government took the Statutory Instrument through the Commons on Wednesday 19 April 2017, there were real concerns that the measure was going to be pushed through with little debate or scrutiny.

As late as 20 April 2017 the Ministry of Justice appeared to maintain that the government was still planning to proceed with the probate fee proposals as originally circulated. A move which would have seen fees rise as from May this year, with the introduction of a sliding scale starting with Estates of over £50,000.00 and less than £300,000.00 paying a fee of £300.00, and at the other end of the scale Estates of over £2million paying £20,000.00

Earlier this month, a committee of MPs and peers questioned whether the changes were legal, suggesting that the new charges appeared to have the hallmarks of taxes rather than fees. That issue remains unresolved and it is still unclear to say if the scheme would be resurrected if the prime minister is re-elected with a significant majority.

In the meantime, the abandonment, even temporarily, of the planned increases will come as a huge relief for bereaved families and their legal advisors. Should the Ministry of Justice reconsider these proposals after 8 June 2017, the hope is that it will pay due regard to the strong legal opinion that any increase in probate fees on the scale envisaged in the proposals should not be introduced without fresh legislation.

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EPC - Invonvenient or Essential
Until relatively recently the requirement for Energy Performance Certificates to be obtained in various situations (including the energy ratings A-G) has been regarded as an unwanted (but necessary) inconvenience but not something to which anyone paid any particular attention. In the domestic sales market, the information contained in them was largely ignored and the prospect and availability of “Green Deals” has, to a large extent, fallen on ‘deaf ears’. In the domestic letting market their importance has increased recently with the legal requirement that a copy of the Certificate must be given to Tenants in order to avoid problems on termination of the tenancy. In the commercial property sector (discounting large industrial concerns) they have often been ignored altogether.

This is all due to change.

From 1st April 2018, any new Lease of any domestic or commercial building must have at least “E” rating on the EPC. From 1st April 2020, in the domestic market, all existing Leases made prior to 1st April 2018 must have at least an “E” rating. From 1st April 2023 in the commercial sector, all existing Leases made prior to 1st April 2018 must have at least an “E” rating. There are certain exclusions, exemptions and qualifications.

Local Authorities will be the enforcement authorities – through Trading Standards – and Notices can be served on Landlords if non-compliance is suspected.

Penalty Notices can be served and financial penalties imposed. The financial penalties can be quite severe, for example if there has only been a breach for less than 3 months, the fine will be £5,000.00 or 10% of the rateable value (up to £50,000.00) for a commercial property, and £2,000.00 for a domestic property. Breaches for longer than 3 months can lead to fines of £10,000.00 or 20% of the rateable value (up to £150,000.00) for a commercial property and £4,000.00 for a domestic property. In addition there is the significant worry that these remedies may well be actively pursued by Local Authorities, as the regime could be viewed as an important source of income to bolster their ever-dwindling resources.

The conclusion is get advice NOW to ensure your building is able to be sold or let and you do not run the risk of heavy fines for non-compliance.
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Every needs a Lasting Power of Attorney
How would your loved ones manage if you were in an accident, couldn’t manage your own financial affairs for any other reason, or you couldn’t make decisions about your own health and welfare? Many people think a Lasting Power of Attorney (LPA) is only for elderly people, but there are many reasons why everyone should have a LPA.

While you have the ability to do so, everyone over 18 should complete a LPA to cover unforeseen situations should they arise, which prevent you from looking after your own affairs. There are two types of LPA – Financial Decisions and a Health and Care Decisions, which if prepared would allow you to appoint someone you trust to manage your property and finances if you became unable to do so.

This includes; managing your bank accounts and investments, selling property, managing business interest and liaising with official organisations on your behalf, such as Department for Work and Pensions/HM Revenue and Customs. Your LPA would also allow you to appoint someone you trust to make health and care decisions for you if you can’t. For example; where you live, your day to day care, access to your information or authority on life sustaining treatment decisions.
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