Challenging A Will. Three Recent Cases

Challenging A Will. Three Recent Cases

I don’t know whether there has been a big increase recently in the number of Court cases where disappointed family members are challenging their Late Parent’s or Partner’s Wills, but it does seem like it.

Since 2015 when the case of Ilott v Mitson was decided – I wrote a Blog about that – link here –there has been a rash of similar challenges. Perhaps because the challenge in Ilott was successful, that might have encouraged family or dependents to have a punt at Court when they feel a bit short changed by being left out of an expected inheritance.

So the next one in 2016, was the case of Ames. Again I Blogged -here – that If Ilott v Mitson had turned over a perfectly valid will in favour of an estranged daughter then surely Ames would do the same, since in Ames the daughter was not estranged and had been living off her father right up to his death.

But no.

So far, so inconsistent.

Both of those cases were brought on the basis of the Inheritance (Provision for Family and Dependant) Act 1975 claiming that the deceased had failed to provide “reasonable financial maintenance” – in other words that the person making the Will and leaving out the claimant was ignoring a proper duty to make financial provision in favour of a person who was lacking financial means and was dependent upon their support.

This claim seems to me to be very weak in the Ilott case. That claimant had not received a penny from her mother in 37 years, so whilst she was in considerable financial difficulty I do not understand why the law says that mother’s money should support her after mother’s death when it could not be claimed before the death. The law says among other things, that “reasonable” financial provision must be made for adult children. I suppose, one person’s “reasonable” is another person’s “tenuous” possibly.

The claim seems to me stronger in the Ames case. There the daughter had been in receipt of money from her father right up to his death.

But the weak claim was a success, and the strong one failed.

The failure of the strong one had the merit though, that it failed because the Judge decided that it is the law of England that a person can make a will and dispose of his/her property freely and hooorah for that.

So now, three more. Is sanity and, even more importantly, consistency, prevailing?

The case of Habberfield from January 2018

The case of Thompson v Ragget from March 2018

The case of Nutt, hot off the press from April 2018

Taking them in order, what is the law telling us now about contesting Wills?

Firstly, although each of them is indeed a contest and, as they always are, based upon a perceived failure to give reasonable provision in the Will of the deceased person, only the second case is specifically claiming that the claim is one which should be allowed  because of the provisions of the 1975 Act.

The first case invokes the Act as a fall-back, but the gist of the claim in Habberfield is that it falls within the doctrine of the law invented by Lord Denning, called proprietary estoppel. Or as the layman might describe that doctrine – “Fairness”.

It’s not fair, says the claimant Lucy Habberfield, that because my father promised me that I would be able to succeed him when he retired, I have therefore worked for more than twenty years in his dairy farm. Working there through my pregnancy, working long hours, working for low pay, and working with very little time off.

And yet, her father left the farm and everything he owned, to his widow and left nothing to Lucy.

The full judgment confirms that because this is not fair, Lucy shall receive over a million pounds now from the estate.

So this was a case in which the 1975 Act did not come into the Judge’s decision. He found that a person may not expect the Courts to give effect to a Will which disregards a promise, when the person to whom the promise was made has relied upon it and spend some thirty years of hard graft on low pay because of it. Thank you, Lord Denning. Fairness.

Full report of Habberfield, click here

In the second case, Thompson v Ragget the deceased had made a Will in which he said “I have specifically made no provision for my partner Joan ……” and “I confirm Joan has her own finances and is financially comfortable, she has her own money and her own savings”.

Long story short: Joan, who was Mr Hodge’s “common-law wife” (there is no such thing) for forty two years, and at the time of his death so far from being financially comfortable, she was living in a care home with a total of £2,500.00 in the Bank.

Clearly, said the Judge, Mr Hodge was quite wrong in his statement that Joan had plenty of money. After 42 years together this was a clear case where the terms of a Will should be overturned, under the 1975 Act.

The advice which lawyers always give to someone who is making a Will and wishes to leave out a person whom one would usually expect to be included is – make sure that your Will explains that you are leaving X out of your Will on purpose and explain why.

Clearly, Mr Hodge did exactly this, but it was therefore possible to see that his stated reason was absolutely mistaken. This helped the Judge to put matters right.

Law Report of that case – click here –

Finally, the case of Nutt. The report of it is – click here –

After the above two big wins for the claimant, perhaps the applicants here were thinking, maybe all you have to do to get a Will turned over in your favour, is go to Court and say “It’s not fair”?

[Actually that can’t be right because the third claim was first made in 2005 but hey, don’t spoil a good story]

In this case Mother was a widow with three adult children. As the Judge heard, mother had clearly decided, – two of my children have their own houses, the youngest does not.

Also, the youngest did her gardening and helped her more in the house and overall spent rather more time with her than the others did. The upshot was that Mother left her money to him and not to the other two. Her Will was made in 2010.

So when she died, here was a Will which the two disappointed children did not like. They were not in need of financial provision, they had adequate assets and income so the 1975 Act was not the basis of the claim. They just weren’t happy.

The claimants asked the court to say that their mother’s earlier will of 2005 should be accepted to probate. In that Will she had left her property equally between all three children. The children liked that Will better.

They claimed in respect of the 2010 Will that
1. Mother hadn’t signed it in the presence of two witnesses or
2. If she had, then she did not have mental capacity to make a Will or
3. If she had, then she did not know what this Will actually said or
4. She had been brainwashed or unduly influenced by the youngest child.

Did they leave anything out?

At the actual hearing, it turned out that they were unable to produce anything along the lines of real evidence for any of this.

As an example in respect of ground 4 undue influence, they claimed that their younger brother was a “domineering personality” who dominated his mother.

As evidence to support that claim, they told the Court how he had told his mother once to change her coat before going out because the one she was wearing would not keep her warm enough. Well, really, was that the best they could do?

And at the end their claim was unsuccessful. As the Judge explained and in my hope may all Judges say the same “My task is not to decide whether the last Will was justified or fair. I am only required to say – “Is It Valid?””

So hooray.

What have we learned?

• That if you make a Will and its terms break promises you have made to someone would has relied to their disadvantage on that promise being kept, you can expect the Will to be set aside.
• That if your Will makes it clear that you have decided the terms of your Will upon mistaken facts, you can expect the Will to be set aside.
• That if you don’t like your Mother’s Will, but she hadn’t made any promises, nor based her decisions on mistaken beliefs, then don’t think the Judge will agree with you just because you make a fuss about it.

So in all three cases, ten out of ten to the Judges.

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com

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Another Interesting Notary Blog. Sort Of.

Another Interesting Notary Blog. Sort Of.

A few weeks ago I gave an example of the excitement which the Notarial profession can provide.

A world where such issues as “Shall We Use Blue Ink, Or Shall We Use Black” can really get the blood pounding through our veins.

No, really. – Link Here –

And the fun never stops.

Now such questions as to the necessary colour of ink might not be in the same league as the dilemmas faced by rocket scientists. [Or should that be Brain Surgeons? – Link Here – ]

But the fact remains that if something is not “right” – and whether anything is right or not is to be defined by the end-user, in Turkey, Kazakhstan or wherever – then its rejection will be the consequence. At the very least, money will have been wasted, but at most the consequences could be life-changing. A job application refused, a visa not granted, a trade mark not registered, a right to sit an exam in USA denied.

So just as with the blue ink – black ink problem in Hungary, we Notaries have to be on our toes.

Most of the time, it’s just knowledge we need. The sort that experience brings, rather than what the textbooks contain.

Examples:-

To apply to marry in Italy, if you’re American living in England, you need two witnesses to your application.

On the other hand if you are Australian, you need four! Is there some tradition of Australian bigamy in Italy?

Or we can be faced with the “Catch-22” requirements of the Chinese consulate. A colleague Notary has a client wishing to purchase an interest in land in China. Since he is married in England, he is required to produce a notarised English marriage certificate stamped at the Chinese Consulate in London.

The Chinese Consulate takes the view that his spouse must sign the application for their stamp. Not a problem in this case, but what if the couple had become estranged or hostile to each other? No spouse signature, no stamp.

A client of mine wishes to issue proceedings in China against the assets there of an English Company. Not unreasonably the Chinese Court requires evidence that the company exists in England and that the Directors are the Chinese men named in the Court proceedings. The evidence it requires is a notarised certificate of the English Company House details. With UK Foreign Office stamp and with Chinese consular stamp.

But – the London Chinese Consulate will not stamp the certificate without the application of the Company Directors to do so. Because they are Chinese and the certificate affects them. As if those persons will sign an application to assist my client who wants to sue them, yeah right.

Finally, for this blog, a continuing phenomenon which seems to be on the rise, certainly it has not gone away since my 2015 Blog – link here – whereby foreign lawyers are sending Affidavits of truth to be sworn and notarised but which contain patent untruths!

Increasingly, clients come to us with incomplete documents which their lawyers abroad have asked them to swear on the basis that they will either fill in blanks, or add exhibits, when the sworn affidavit is returned to them.

I have even seen a client who has brought in a page numbered “20” with a request that I witness his signature and notarise.

“What is it though?”, I ask – “It’s the last page of my mortgage, you just need to say you saw me sign it.”

And so I asked

“Have you even read the full text of the mortgage, you know, stuff like the amount of the debt, or the interest rate?” – “No my solicitor is sorting all that out.”

I tell you true, it’s a laugh a minute here in Notary land.

Of course, whether your documents are riddles wrapped in foreign enigmas, or a bit less complex, either way, – Bring them here and we will sort them out for you.

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com

Litigants In Person. Going To Court Without a Lawyer. Best Not, Eh?

Litigants In Person. Going To Court Without a Lawyer.

There is a saying among lawyers – “A person who acts for himself has a fool for a client”.

As an incentive to the world never to go to the Courts without a Lawyer, and perhaps invented by lawyers, the motto could be accused of being merely self-serving. After all, lawyers will charge you money for acting on your behalf.

But really, would you rewire your own house? Do your own Dentistry? If it takes seven or eight year to learn these skills, perhaps it’s a bit arrogant to “do it yourself”?

Nevertheless, there are many people who do take their complaints through the Courts and do so without any Solicitors or Barristers. And because legal aid is so hard to get, and Lawyers so expensive, it happens more and more.

See my earlier Blogs here and Here.

The result of the phenomenon of litigants appearing in court for themselves in person, can usually be expected to be that cases are delayed. The Judges typically do go out of their way to indulge and assist the unrepresented, in spite of the fact that very often their cases are based upon misunderstandings both of the law and of the procedure of the Courts.

And this indulgence is often complained about by other parties to such litigation.

Really, they say, I am paying my lawyers a lot of money to represent me in the Court case, and I am being charged for their time, and yet many extra hours are being wasted because the other side isn’t properly prepared and doesn’t understand the law or the procedure and I am having to pay for this and, the icing on the cake, is the fact that my own lawyers seem to be assisting them.

But there is a case reported – Link Here – in February which underlines that there is a limit to the indulgence the Court will show to such characters.

In Barton – v- Wright Hassell, Barton who was unrepresented by any lawyers, notified the defendants of his claim by email.

There are rules about that. And if Barton had been represented by properly qualified lawyers, they would have served the papers by post or personal delivery within the rules.

In this case, Barton had waited until the very last day that he could serve his claim, then sent it by email. The lower Court threw out his claim because it had not been properly served. But it was now too late to serve it properly. Barton Appealed.

In effect Barton said to the Appeal Court – I am not a lawyer. I can’t be expected to know all the difficult rules of the Court. The defendant have got computers, I sent them an email. They received the email. It contained all the necessary details of my claim. Let’s get on with it.

Seem reasonable?

Or is he in fact saying – because I am ignorant, and have not bothered to research and learn the rules of the Court nor pay someone who does know the rules to act for me, therefore the rules should be relaxed for me?

The Court has told Barton to “sling his hook”.

The decision is, that the Rules of the Court are the Rules. They are not rules which only solicitors and legally qualified persons have to obey but which other people do not. The Judge said “The rules on service are neither inaccessible nor obscure”. If you don’t read the rules, you lose.

As others have said, this decision – that everyone has to obey the rules -, is not in any way restrictive of a litigant in person’s rights. Their rights, like everyone’s rights, is to DO THINGS PROPERLY.

The only problem I have with this eminently sensible resolution, is that the Court’s judgment was a majority decision. Two Judges disagreed. Thankfully, they were in a minority and no one need pay any attention to them.

So well done everybody, The Law Won. Link Here

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com

Make a Will. Make a List. Think Digital.

Make a Will. Make a List. Think Digital

If you die …….. – perhaps I should start again.

WHEN you die.

Yes that has a better ring to it. Because, you will. Sorry about that.

Some folk obsess about their coming deaths, some are terrified. Philip Larkin was the expert -Link Here-

It seems to me that unlike Larkin most folk put the matter at the back of their minds and concentrate on choosing a new car.

The fact is, we are all of us in a short term period and when it’s over it’s over. During our short lives, we tend to accumulate STUFF. For thousands of years this has been going on, and accordingly there has been plenty of time for the law to grow and take account of this human state of affairs.

There is a plentiful case-law and statue basis to regulate how we can make our wills and how the STUFF we leave behind is to be valued and what tax is to be paid on it and who can be “executors” appointed to deal with all this work. There are rules about Trusts, and estate management and the giving of gifts and surviving seven years and different inheritance tax rates for gifts to spouses and on it goes, and the lawyers have done it all before.

A problem arises however when a new technology disrupts all the previous ways of doing things.

For example, first mobile phones came into existence, and then the law noticed and regulation was invented to deal with it. Thirty or so years ago I was an “early adopter” of a Motorola mobile phone with perhaps thirty minutes talk time – ten hours to charge.

I used to dread it ringing if I was on a train, – embarrassing or what?

So that’s something that has swept the world – the phones arrived first, then the law caught up to deal with it.

Now someone invents Digital Currency, that’s Bitcoin right? Up to a point, Lord Copper. The internet carries a Digital Currency index of 1372 entries. Should you buy Bitcoin? But what about Pirl? Or Crypto Bullion? What what?

This seems to be an areas of assets which most of us have never heard of and people who probably don’t understand it (and if they think they do perhaps that’s only what they think) have nevertheless invested millions of real pounds into buying and selling it.

So in the last few years, millions, billions of pounds of value, exists ONLY inside computers.

So after thousands of years of folk being born and accumulating STUFF and then dying in a regulated world where the transmission of STUFF [less tax] to the next generation is clearly choreographed, now folk are dying as the owners of NEWSTUFF.

It’s STUFF, but it can only be found inside a computer. The law has not caught up.

And now when you die, your family or whoever goes into your study and can’t find a safe or a filing cabinet with a paper file list of all your investments and of where they are, what Bank, what sort code. Instead they find your iPad. And that’s it. And they don’t know how to open it and have a look.

Now if you were still alive, you could enter the locking password, and see what secrets the iPad holds.

If you are dead and have not told anyone at all what your password is, that might be the beginning of a world of pain for your loved ones.

If you have made your Will [You have made your Will, Haven’t you?] then you will have named your choice of persons to act as your Executors. Their job is to ascertain all of your assets, and realise them and pass them across to their new owners in accordance with your Will.

On the other hand, if all they have to start with is the knowledge that on your iPad is a document called “Open this when I am Dead” – but the iPad is locked ……

It seems that it is possible for Apple or the FBI to open a locked iPad. But they won’t do it for you. There are ways to get the iPad going again, but they involve restoring the device, and thereby wiping all of its previous contents so that you start again as if it were new. Not too useful.

So at the very least, put your Will in a drawer in your house and in the same envelope put in the necessary codes to open your computer.

And if you are the Executor, once you are inside the computer, take care. The on-line “assets” of the deceased computer-owner will be held on the basis of the terms and conditions of the relevant on-line provider. You know, those boring pages full of stuff we never read before we tick the button that says ”I have read and accept these terms”.

So bear in mind that it is not necessarily a matter of logging in to those assets using the i/d and password of the deceased. That might be a criminal office. If you find my i/d and password details for my bank and use them to log in – that is a crime whilst I am alive. And likely enough, whilst I am dead also.

And if the deceased has an Amazon prime or Netflix or Spotify account, can anyone continue to use them after his/her death? If s/he has ten children can s/he leave all the Kindle electronic books collection to each of them? You can’t do that with real books.  And an iTunes music collection? It might have cost thousands of pounds for a huge collection of music, but the right to listen to any of it dies with the deceased.

It is a minefield and the law is not yet up to speed with the issues.

The best you can do I suggest, is make your Will with a Solicitor who is alive to all of these issues [see what I did there?] and make specific provision for each of your digital assets.

And don’t forget, tell them the unlock code for your device!

In the meantime –Link Here- Life’s A Gas

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747.  Please also feel free to visit our website http://www.atkinsonnotary.com

 

 

Trading Overseas? – We Can Help With Companies House Documents… From Louise, at AtkinsonNotary

Trading Overseas? – We Can Help With Companies House Documents…
From Louise, at AtkinsonNotary

Please note one of the very many services we offer is obtaining your company documents directly from Companies House and notarising them as genuine to send to a foreign jurisdiction.

Usually this is required to confirm that the company in question is of good standing and is, as at the date of notarisation, in existence. Depending on the country, once notarised the certificate may then be required to be sent for further legalisation i.e Apostille and/or foreign embassy stamps.

Please see my link here for earlier blogs explaining the legalisation process.

The usual process for us to proceed would be for you – our client – to confirm the full name of your company and if possible the company number – we can apply directly at Companies House and request that the certificate be either emailed or posted directly to us. The usual certificates we get asked to “notarise” are:

1. Certificate of Incorporation/Certificates of Incorporation on Change of Name
2. Certificates of Good Standing. These are full certificates signed by an Officer of Companies House. If WE order them, they will be posted directly to us and we can then certify them GENUINE.
3. Memorandum of Articles of Association
4. Annual Return
5. Preparing a Notarial Certificate confirming the Laws of England in relation to signing a Deed by a company according to Section 44 of the Companies Act.
6. Preparing a Notarial Certificate confirming the current Registered Directors and/or Company Secretary

Some companies during their life of trading incorporate company name changes and we can obtain as many Certificates of Incorporation of Change of Name as required to show the trail from past names to the present name.

So if you have a company which is expanding to trade internationally and need notarised company documents to submit to your intended foreign jurisdiction then we can help. If you receive instructions from overseas and are uncertain whether you fully understand what is required – we can help. Any company related documents that need notarising and/or legalising – we can help.

We have many years of experience in deciphering the requirements of foreign jurisdictions so do please get in touch if we can assist.

Just a reminder that our Notary Mr Christopher Atkinson has retired as a Solicitor and therefore does not have the usual problem of juggling busy solicitor’s a diary and also a Notarial practice to contend with. This means we can usually act without delay if matters are required to be dealt with urgently.

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com

Jail Sentences for Company Directors? Put on Your Hard Hat and Read On.

Jail Sentences for Company Directors? Put on Your Hard Hat and Read On.

In recent times Companies could be forgiven for thinking that the so-called ”compensation culture” in Britain is getting vindictive, and that they are being singled out to carry the can and provide compensation for injuries which are absolutely none of their doing.

I have blogged about Wm Morrison Supermarkets plc being held responsible to compensate for injuries suffered by an innocent customer who was brutally attacked by their petrol station cashier in a completely unprovoked attack. – Link Here –

And a second blog, – Link Here – when coincidentally Wm Morrison Supermarkets plc were yet again held liable to provide compensation for perhaps millions of customers and suppliers and contacts whose private data was published on the internet by an employee in its IT department

That person had nursed a grievance which appears to have become an obsession and deliberately released the private information specifically to hurt the Company.

The thinking seems to be that if a link however tenuous between the criminal and the company can be established, then the company must pay – is in legal speak “vicariously liable”.

In the first case, if the petrol station attendant have finished his shift and then attacked someone on the bus home, there would have been no such link. The link was because he was at work (BUT! – his work and training did not include bashing the customers – never mind).

In the second case, it is not so clear. What if that criminal had nursed his grievance, had stolen the files and loaded them onto his private computer and then released them later, perhaps a year or five after leaving work with Morrison. Probably no different outcome there since the causal link was, according to the court, the failure of the business to ensure that the data theft could not have occurred. (How exactly, one wonders? Perhaps by having computers which could only be operated by two people together, like having two people flying a plane. Is that how IT Departments must work now?)

The thinking behind it is clearly that the Court and behind it the Government thinks, that by and large people should receive compensation for being hurt, physically or financially and so someone or something has to pay.

But in those cases, the losses will be borne by the Company. Which means, by the shareholders, the private investors who own the shares. Many might be owned by pension funds, so the value of pensions is reduced, but the losses are spread between many and no single person or fund has to pay the full amount.

That is all by way of preamble and scene-setting. It relates to “Civil Law”.

But if a company turns out knowingly and deliberately to have employed criminals, of course, there can be “Criminal Law” consequences.

I think that no fair-minded person would think that any particular Director of Wm Morrison Supermarkets plc should be charged by the police with any crime in respect of the petrol station attack or in respect of the actions of the man from the IT Dept. who seems to have suffered a breakdown.

But there is no real reason to think that our Government or any previous one is “fair-minded”. And fairness is a moveable feast.

All of us in this country are invested in the financial success of UK. If UK is seen in the world to be a trustworthy place of business, with courts of justice which are unbiased and predictable in the application of justice and resolution of disputes, then the world will trade here. And there is a correlation between worldwide perception of trustworthiness and financial health.

Will you base your investment strategy upon putting your money predominantly into Venezuela and Nigeria or the Central African Republic? They are all way down the bottom of the list of Corruption Perception globally – Link here –

Any coincidence? –  They are some of the poorest countries of the world -Link here –

If you compare the two charts you will not be surprised to see that [arguably, oil wealth excepted] there is a link between a Country being considered to be a place where trade and commerce is honestly conducted being also a wealthy country. And a dishonest one, is poor.

So it would seem that if we are all invested in UK being a wealthy place, we need UK to be perceived to be an honest place. No corruption, no bribery.

So, the Government seems to be thinking, how can we reduce corruption in England in our commercial dealings? Clearly most commercial dealings are undertaken by Limited or Public Limited Companies and they all have directors steering the ship.

The trouble has been, Directors get their rewards from boosting the bottom line of the company that employs them. They don’t earn another penny, quite the opposite, for putting a stop to bribery that might win a contract.

And also, at present it is a difficult job to prosecute a director in the Criminal courts. All he has to say really is “I didn’t know this was happening, I certainly did not order it” and he won’t have to go to jail.

And the law tells Directors what to do and how to behave. So if your Company is doing business with somewhere low on the CPI list, you are dealing with a place where you might be asked for bribes for contracts. Or you might see that the price of goods there can only be achieved by child labour or even slavery.

At present, a Company Director might be tempted to say to his representatives in the foreign Country – just get the contract. Don’t tell me too much about it; I don’t want to know. Thinking, close my eyes to any illegalities, then if I don’t know about them I can’t get into trouble.

That has for years been the deciding principle in relation to the criminal status of company’s actions. Did the Company [its Directors] actually want the bad stuff to happen? It is not enough for the Criminal court to find that in order to achieve good stuff the Directors had closed their eyes to bad stuff.

News for you Mr Company Director. It is reported here— Link Here – in a blog from the multinational lawyers WilmerHale.

In summary, it won’t be long before individual directors are charged not with “intentionally committing crime” but with “failing to prevent crime”.  And of course, if crime happened, that there must have been a failure to prevent it nesspa?

The new burden of proof is already in force in relation to Bribery as I blogged in 2015 – Link Here –

The rising tide in the law is a drive to change where ultimate responsibility lies when crimes are committed in the name of a UK Company.

Needs a bit more thought in my view. When a subsidiary is revealed to have systematically paid bribes for contracts to benefit a UK holding company, demonstrably crime has not been prevented.

If the UK Company has 20 directors, clearly not one of them has prevented the crime that has not been prevented. So do they all go to jail, leaving no captain at work to drive the Company and save it from bankruptcy? Or is one Director more guilty than the others and if so why?

Lots of scope [money?] for lawyers to argue the ins and outs of that. Lots of scope for sleepless nights for Directors.

The lesson that I would suggest that all Company Directors should urgently take on board, is that it may not be long before the first Directors are sentenced to a jail term, for failing to [… take adequate steps …]  to prevent crimes being committed by others, perhaps by others many thousands of miles away, in the name of the Company.

In future a prosecutor may only have to prove that something illegal was happening and that the systems for which a Director is responsible were inadequate to prevent the illegality, and the judge can send the Director to jail. Say it again – Send You To Jail. I know.

So, new laws, and in consequence there will be directors in jail.

Is that a good thing? Will it change behaviours and help to push UK up the perceived Corruption list to help it catch Denmark as the country most widely considered trustworthy.

Let’s hope so

Sweet Honesty – A Song. –Link Here –

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747.  Please also feel free to visit our website www.atkinsonnotary.com

Theft of Houses and Land in England. Who Should Compensate the Innocent Buyer?

Theft of Houses and Land in England. Who Should Compensate the Innocent Buyer?

The ongoing story is about to reach its next chapter.

My earlier blogs are here if you want to read them again –
Links –
https://atkinsonnotarypublic.wordpress.com/2016/10/17/house-buyers-blues-this-horse-wont-stand-still/
https://atkinsonnotarypublic.wordpress.com/2017/02/13/house-theft-oops-they-did-it-again-as-you-were-on-conveyancing-fraud/
https://atkinsonnotarypublic.wordpress.com/2016/05/24/your-client-probably-a-crook/

but to summarise, there is a continuing problem in England with land being “stolen”.

Ok you can’t actually steal a house. But since the abolition of the requirement for land deeds in England over 15 years ago, you can much more easily steal the value of a house.

Typically, your horrible criminal – hereinafter called HC – goes looking for a nice house that looks as if it is unoccupied long term. Or, he finds out who is in hospital long term and goes looking to see if their house is empty.

Next step (I hope you are not writing this down, it’s not intended to be a manual) is to pay £3.00 to the Land Registry online and have a look at the “Title”. Find out the name of the owner. OK, that’s who you will pretend to be. Have a look to see whether there is a mortgage – you want a house with no mortgage to repay, with no Bank to be involved.

OK, you’ve found yourself a nice house, owner absent, mortgage free. At this stage you might want to tell a locksmith you’ve locked yourself out, and get the locks changed. Now find a Solicitor who is a bit busy. Perhaps an “on-line” conveyancer who will be willing to deal with you without a meeting.

Get an estate agent to sell it for you – you can say you are moving to Dubai or anywhere and in a hurry, so you don’t mind if it gets a lowish price as long as it’s soon.

The next bit is rather too technical for me – you need to have a bank account or better still a chain of accounts, somewhere that the buyers’ money can be put into. And on the day of completion, that money goes in and you very quickly whisk it out and if you know what you are doing, you launder it through twenty more accounts and in and out of Macau and Nigeria and Venezuela and bye byes.

There is a suggestion that these sorts of fraud might be being set up by sophisticated crime rings internationally who actually recruit the HC. So if true, HC gets a smaller part of the stolen money paid to him later. And if HC should be caught by the police, he is the small fry who has taken the risks and he probably doesn’t even know where the big money has gone.

So that is what is going on. The question remaining, is what to be done about it?

A million pounds (say, a nice round number) has gone missing. Everyone except HC thought it was going to pay for a house. But since the actual owner is still in hospital or on the moon or somewhere, their house is actually nothing to do with it.

[Please keep up at the back – no-one has bought or sold a house here!]

The parties to the aftermath are –
1. HC, who has gone with the money
2. The innocent conveyancers instructed by HC (ICS)
3. The innocent Buyers (IB) who have paid, maybe borrowed a million from a bank and given it to their own innocent conveyancer
4. The innocent conveyancers instructed by IB. (ICB)

Obviously if the IB had dealt with their own conveyancing, they would say it should be ICS to reimburse them. ICS would say, Why should we – You are not our client?

Since IB had lawyers ICB acting for them, they think ICB should have protected them better. They actually don’t really care, they just want their stolen money back.

And as my blogs have shown, three recent cases on just this scenario have now been decided three different ways. In the case of Purrunsing, ICS and ICB had to pay half each, on the basis that each or either could have identified the fraud with a little more carefulness. (Could they really though?)

In P&P Properties, the judge was more robust. There he said, the thief HC targeted an innocent Buyer and he has stolen the innocent buyer’s money. End of. Wipe your eyes, that’s life

But then, in the case of Dreamvar, link here, the present position which is presumably therefore the law today, a judge came up with a third cunning plan. In this case, it was decided that it should be the innocent buyer’s solicitors who should pay back to their client everything that had been stolen.

And that decision was purported to be based upon a somewhat ingenious [far-fetched? Grasping at straws?] interpretation of the law of Trusts – that the purchase money was paid to the ICB “on trust” so that if it was paid to a crook [i.e., even though it was the crook that IB had instructed it should have been paid to] then there was a breach of that trust.

The more cynical viewer wonders whether the law of trusts really decided that case, or more a feeling that the ICB in that case was the very large international solicitors Mischon de Reya and that “they can afford it”.

Indeed the Court expressly said that any and all claims of negligence against Mischon de Reya were dismissed. They were NOT negligent

In any interpretation, the situation is a shambles and it seems to me that solicitors and conveyancers are currently playing a game of Russian roulette every time that they act in a house sale/purchase.

The latest instalment is that the courts will hear an appeal by Mischon de Reya in February 2018 and I await the judgment and will probably blog again when it is given.

This is an important case and the Law Society Gazette has reported – link here – that the Law Society seeks leave to intervene into it, arguing that public policy dictates that if the P&P decision is not the correct one, then the Solicitors acting unknowing for the fraudulent imposter, not the ones acting for the innocent Buyer, should be the liable parties ordered to pay compensation.

No real legal basis for that view either, in my opinion. Just making the best of a bad job. The bad job being as I see it, entirely caused by doing away with title deeds. Not that my opinion is going be requested by anyone, obviously.

Here’s a song about MONEY

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