hmrc

Solicitor and member of MW's Estate and Trust Dispute Team, Jane Flaherty, discusses the Governments recently announced plans to increase probate fees.

Background

On 18th February 2016 the Government launched the Consultation - Fee Proposals for Grants of Probate canvassing public and professional opinion regarding an increase in fees when making an application for a Grant of Probate.

As a general rule, any estate which includes property requires a Grant of Probate,  and most estates with shares require a grant of probate.  The current fee is £155 where you obtain a grant through a solicitor and £215 where a personal application is made.  Where an estate is below £5000 there is no fee.

The Result of the Consultation

Despite an astounding 97.5% of respondents expressing that they were against the proposed increases, the Government has announced its intention to proceed with its plans to increase the fees at some point in May 2017. 

A date has not yet been set and any changes which come into force will effect applications in accordance with the date the application is lodged with the probate office and not by date of death. 

What are the New Charges?

The fees will be charged in accordance to the size of the estate as follows:

Value of estate (before Inheritance tax)  Proposed fee
 Up to £50,000  £0
 Over £50,000 but under £300,000  £300
 Over £3000,000 and up to £500,000  £1,000
 Over £500,000 and up to £1 million  £4,000
 Over £1 million up to £1.6 million  £8,000
 Over £1.6 million up to £2 million  £12,000
 Over £2 million  £20,000

 

The government claim that the majority of estates, those being valued at less than £50,000, will not be charged at all.  In practice, most estates valued in that threshold do not include property and therefore would not require a Grant of Probate in any event.

The reality of the changes to costs is that most estates requiring a grant will see a huge increase in the probate fees.  Beneficiaries will see costs escalate sharply between £300 and £20,000 despite there being no link between the value of the estate and the amount of work involved.

A really good analogy that has been put forward is to consider the cost of a passport.  We all pay the same price for a passport because the same amount of admin is required for each application.  Could you imagine the uproar if passport costs were based on each applicant's income?

When do The Charges Come into Force?

We have been informed that the changes will be in force in May 2017. The probate registry is set to raise £300 million pounds of revenue to support the costs of the wider Court and Tribunal services.  The increases are being labelled as ‘stealth tax’ or a ‘death tax.’

Whereas the Office of the Public Guardian announced that their fees are going to be reduced from April 2017.

The cost to register a single lasting power of attorney or enduring power of attorney will fall from £110 to £82 pounds.  The reason given for this reduction is that due to the increased amount of applications it is receiving it does not need to charge as much per application to be fully self funding.  

What are the main objections to the proposals?

  1. The fees are disproportionate to the cost to the Court in providing the probate service.

  2. The cost to the Court does not vary depending upon the size of the estate. The same amount of work is required for most matters.

  3. The cost does not take into account any inheritance tax that also has to be paid.  It is based on the gross estate.

  4. There will be no exemptions to this charge, whereas there are exemptions in place for estates passing to the surviving spouse or to charity or where the estate qualifies for business or agricultural relief. When you consider the value of property, particularly in areas such as London, some estates may be asset rich but cash poor and may have difficulty paying the probate fee.  Families that hold their property as tenants in common because they want to provide for children from a previous marriage or want to ring fence the amount of capital going towards care fees may find themselves in financial difficulty.

  5. Solicitors will not be able to fund this payment for clients and that might lead to executors having to take out bridging loans, particularly if there are insufficient funds in cash to cover the cost.

  6. The legal profession feels that this is another form of death tax

  7. People may make unwise decisions about their assets, without seeking advice, to prevent the probate fees.

  8. Unscrupulous companies may miss sell products to vulnerable clients on the basis of probate avoidance. Such companies don’t give advice in the whole to enable you to make an informed decision as to whether their products are in your best interests because they are sales people not professional advisors.

Let the Government Know What You Think

We believe that parliament should reject this unreasonable tax by the back door and start again in its consideration of increasing the probate fees.

To sign the petition please click on the link below https://petition.parliament.uk/petitions/188175

 

dna

Kristi Ashworth, Trainee Legal Executive in the Estate and Trust Dispute Team discusses how paternity tests play a role in Inheritance claims.

DNA Tests are not just for Criminal Cases

Thanks to great crime dramas, it seems that we are all familiar with DNA and have some idea of how it works.  Questions of paternity can often arise after someone dies, and frequently do when there is a child or other relative claiming to be entitled to  a share of the deceased’s Estate.  What you may not know, are the different types of DNA tests that are available to help determine parentage and other familial relationships.

If your paternity, or that of other family relations, is being disputed there are several DNA tests that can be undertaken which could assist with your claim and thus help you succeed in securing your rightful inheritance as follows:

  • Maternity DNA test
  • Grandparent DNA test
  • Sibling (full sibling or half sibling) DNA test
  • Aunt/Uncle DNA test
  • Y-STR Genetic Test (or Y-Chromosome DNA test)  - males only, to show male lineage

Painless Procedure

DNA tests are painless and can be undertaken using saliva swabs or hair samples; blood tests are not necessary.  If other family members who could participate in DNA testing refuse, it may be possible to ask the Court to make an adverse inference (that the DNA test is likely to result in your favour) as a result of that refusal or, in extreme circumstances, it can be arranged for DNA samples to be taken from the remains of the Deceased.

Scientific Advances

A Y-Chromosome test is a much more recent development in the science of DNA testing which can be used as an alternative to the more traditional options listed above if you have male heirs in the family willing to participate in a test to assist your case. It can also be performed in conjunction with one or other of the more traditional tests to support the findings. The Y-Chromosome test doesn’t show direct paternity but it shows with certainty whether two individuals share the same male lineage – which can amount to the same thing if you are sure, for example, that a grandfather or uncle couldn’t be the father.

If family members continue in their refusal to accept the result of the test(s) then an application to the Court can be made for a Declaration of Parentage under section 55A of the Family Law Act 1986 which is binding on all institutions, and thus would bind a Personal Representative of an Estate to distribute inheritance according to the findings of the Court as to your paternity.

The Pringle Baronets of Stichill

In the very interesting case of the Baronetcy of Pringle of Stichill (referral under section 4 of the Judicial Committee Act 1833)[2016] UKPC 16, the Privy Council considered the reliability of a Y-Chromosome DNA test to determine the rightful heir to the Baronetcy of Pringle of Stichill. Although decided in the context of Scottish law the Privy Council made clear throughout the judgment that the outcome would have been no different under English law.

In this case, there were two claimants, Simon Robert Pringle (“Simon”) and Norman Murray Archibald MacGregor Pringle (“Murray).  Each maintained that he was the rightful heir to the Baronetcy.  Following a Y-Chromosome test (which was conducted for unrelated reasons), the results showed that the profile of Simon’s father Steuart (and his brother) did not match that of the profiles for Murray and all of the other male heirs tested in the family.  As such, Murray claimed that Simon was not the rightful heir because Simon’s grandfather Norman (who was enrolled as the ninth baronet) was not the son of the eighth baronet. This meant that the baronetcy had, up to that point, passed down incorrectly to unrelated males since the 8th baronet. Murray claimed that his father was the rightful male heir of the first baronet (the test for enrolment as the current baronet) and, as a result, upon his father’s death it was Murray who was now the male heir of the first baronet.

Confused?

The diagram below illustrates the male lineage of the Pringle family.

 The Baronets of Pringle of Stichill

The Result

The Court accepted expert evidence presented at trial as to the accuracy of Y-Chromosome testing and ruled that the DNA test showed a “high degree of probability” that Norman H Pringle, was not the son of the eighth baronet.  On 27th June 2016 Sir Ronald Steuart Pringle and his son Sir Norman Murray Pringle were admitted onto the Official Roll of the Baronetage, as the rightful 9th and 10th Baronets of Stichill respectively.

The case confirms that the Court will accept the reliability of Y-Chromosome DNA testing (even in the absence of other forms of DNA testing) to make an order relating to an inheritance.

We Can Help

At MW, our mission is “to make quality legal services accessible to everyone” ” including those who seek to prove their entitlement to an inheritance via DNA tests.

Our specialist Estate & Trust Dispute Team are currently assisting several clients in relation to inheritance claims where parentage is being disputed. If you would like more detailed advice on whether a DNA Test and a Declaration of Parentage could help you with your inheritance or would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

confused

In the recent High Court case of Seery v Leathes Prior (A Firm) Judge Sir David Eadya judge has thrown out a professional negligence claim lodged against a law firm by a former client.


Dan Carter
Dan Carter
Partner and Head of Professional Negligence

On the 24th January 2017, the Judge said "he had ‘no alternative’ but to dismiss the claim, brought by the former client against a full-services firm".

The claim

The former client brought the claim against the firm after a settlement agreement that stemmed from a dispute with two colleagues.

Among the claims made by the Claimant was that the Solicitor with conduct of the matter could have encouraged litigation, which might have led to a more favourable outcome.  However, the judgment said that although the option would have been considered by the firm, it would have been ‘a costly, acrimonious, long-drawn-out fight’, which was exactly what the former client wanted to avoid.

Why the claim failed

The Court said there was no evidence that the former client would have received a better outcome had he been encouraged to sue.

Importantly, the former client also suggested that he had suffered from stress and was unable to take on board the legal advice he was given, in particular, that which he had previously received from his former Solicitors (which pre-dated the defendant firm).

However, the Court said the former client did not tell his Solicitor at the time that he did not understand the advice and that much of the advice was in writing and could have been re-read at any time.

He added that a Solicitor will have fulfilled his duty of care to his client if he gives an explanation in terms the client reasonably appears to him to be able to understand, and to have understood, even if the client later alleges that he did not in fact understand what was said.

Concluding, the Court said that there was nothing to be gained by exploring the case on contributory negligence by the former client, or entering further into the arguments about expert evidence, an exercise which would have been in its view too speculative to have been of much practical use anyway.  The Court added that the former client received a ‘very good service from the firm in the difficult circumstances in which he found himself’.

We Can Help

At MW, our mission is  is "To make quality legal services accessible to everyone" and we strive to ensure that clients have complete understanding of what can in some cases be complicated advice.  A client who does not understand the advice given to them will place themselves at risk in litigation in particular.

If you or anyone you know has received advice on a critical matter that they have not understood or has left them confused, call our specialist professional negligence lawyers today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

Young Detainee

Despite what some media outlets might suggest, UK detention facilities are no holiday camp for those spending time inside.

Whilst images have surfaced in the media showing inmates playing computer games and taking ‘group selfies’ that could well fool us into believing that there is enjoyment amongst those on the inside, no one has considered what it is like for those that are mistreated and harmed when their care is within the hands of the state, and what it would be like to loose the basic human rights that we are all granted.

What Happens When Detention Facilities Reach Capacity?

When detention facilities start to reach capacity, in a similar way to any institution that is designed to house human beings, the pressure on that institution, and the staff that work within it, increases. When capacity turns into over crowding, the ratio between the supervisors and the supervised becomes disproportionate, unsafe and creates an environment such that incidents occur which would normally have otherwise been prevented.
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. Whilst those that are detained may have to suffer the curtailment of certain rights, such as personal freedom and the right to vote, they are still entitled to share the benefit of and receive the protection of all other basic human rights, and in particular the rights to life and prohibition of torture. We must consider whether we are doing enough to protect the human rights of some of the most vulnerable people in our society.

The Tragedy of Restraint Techniques

The issues surrounding the mistreatment of detainees was brought into the centre of media storm in April 2004 when Gareth Myatt, at the age of 15 years, became the first child to die in a privately run Secure Training Centre (a young offender’s institution equivalent to a prison). Gareth died after being restrained by three adult officers, under a Home Office and Youth Justice Board approved restraint technique known as the ‘seated double embrace’. Gareth weighed a mere six and a half stone. The restraints system, introduced in 1998, came with a promise that the use of it would be constantly reviewed, however a medical review into the use of restraints was ordered after Gareth’s death, and the ‘seated double embrace’ technique was withdrawn.

In August 2004 Adam Rickwood became the second individual to die in a privately run Secure Training Centre. Adam hanged himself, taking his own life, after being restrained by centre staff.
The mistreatment of detainees, especially those under the age of eighteen, is not a subject that has been greatly reported on, nor is it considered to be one of the major pressing issues of today’s society, a troubled child is more easy to pass by, Oliver Twist, and not Artful Dodger, got the happy ending.

Independent Review of Restraint in Juvenile Secure Settings

Following the tragic deaths of Gareth Myatt and Adam Rickwood, reports were commissioned and opinions were sought. One such report was the Independent Review of Restraint in Juvenile Secure Settings, commissioned in 2008. This was carried out by two social workers with many years’ experience in practice and management, and they attended, quite freely, many Secured Training Centres to speak directly with the children and staff on the topic of restraint.

Minimising and Managing Physical Restraint

The Ministry of Justice, followed up on the recommendations with a new behaviour management and restraint system known as Minimising and Managing Physical Restraint (MMPR). The aim of MMPR was to provide staff with the knowledge and ability to recognise certain behaviours in young people, and to use de-escalation and diversion strategies, through the application of behaviour management techniques to minimise the use of restraint. The report also highlighted that staff must be able to clearly demonstrate why restraint was necessary.

We have also seen the introduction of the Criminal Justice and Courts Act 2015, which brings in the construction of ‘Secure Colleges,’ in place of the Secured Training Centres, where the emphasis is on greater education for the young offenders for rehabilitation purposes.

Young and Vulnerable People are Still at Risk

The introduction of the MMPR, together with the Act, arguably demonstrates that the Government  has recognised the need to overhaul the rehabilitation of young offenders. It paints a picture that there will not be a reoccurrence of the tragic events that led to the death of the two young individuals.

However, when a copy of the MMPR was requested by charity Article 39, a largely redacted version was provided. The reasoning given for the large redaction was that the techniques used on young offenders, are also used on adult prisoners, and it was argued that disclosure of the manual will allow adult prisoners to develop counter measures against the techniques.

Changing Culture Takes Time

The report stated that ‘it is recognised that the required cultural change is expected to take a sustained period of time.’ However, many would argue that there has been no significant change in the way in which the human rights of detainees are being safeguarded and that the Secure Colleges are merely a cheaper and easier to run alternative to the Secured Training Centres as they are intended to house more offenders in one location than their predecessors.

Some believe that the new systems, and not the actual restraint techniques themselves, are what have been specifically designed for children.  It certainly raises the question “have we honoured the deaths of Gareth Myatt and Adam Rickwood?”. 

Only time will tell.

The Fight for Civil Liberties Goes On

At McMillan Williams, we strive to uphold the rule of law and challenge any abuse to the human rights of those who have been detained. We believe that as a nation, we must protect each other from those who seek to harm us or prevent us from enjoying all civil liberties, and whilst Government reports  bring much needed public scrutiny and awareness of the issue, there is still a way to go to ensure that we are fully protecting those that are detained by the state.

A special consideration should apply to those most vulnerable, such as the youth members of our society.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" including vulnerable young people who find themselves detained in Secure Training Centres.

If you believe that your or a family members Human Rights have been breached and you wish to discuss the case with one of our experienced and dedicated Civil Liberties Lawyers, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

holiday

MW Employment Law specialist Andrew Norris discusses Workers rights to Holiday Entitlement and the potential implications of a change in European Law.

Your Right to Paid Holiday


Andrew Norris
Andrew Norris
Solicitor

All "workers" have the right to take paid holiday.  The term worker is wider than employees and includes those who work under a contract to personally provide their services to an employer. Those who are genuinely self-employed are not entitled to paid holiday.

A worker’s entitlement to holiday arises from two sources.

Statutory Holiday Entitlement

The first is a worker’s statutory holiday entitlement. This statutory entitlement is governed by the Working Time Directive (WTD) and the Working Time Regulations 1998 (WTR).  The WTD is European Union legislation and is implemented into UK law through the WTR.

Contractual Holiday Entitlement

The second is a worker’s contractual holiday entitlement.  It is not uncommon for a worker’s contractual entitlement to be more than their statutory entitlement.  Holiday in excess of statutory holiday is governed by workers employment contract.  

Under the WTR, those working 5 or more days each week are entitled to 5.6 weeks (or 28 days) holiday each leave year.  The entitlement is pro-rated for those who work part time.  The 5.6 weeks is comprised of four weeks paid holiday, which are provided for under the Directive, and an additional 1.6 weeks paid holiday entitlement, which are provided for by the WTR.

A worker’s statutory holiday entitlement may normally only be taken in the leave year to which it relates. The general position therefore is that a worker will need to use such holiday entitlement during that leave year or they will lose it.  There are certain exceptions to this such as where a worker is on maternity leave or sick leave (and they have been unable to take such holiday in the leave year it accrues). Where these exceptions apply, it has been determined that a worker can carry over such untaken statutory holiday for a period of 18 months after they should have taken it. 

European Court Challenge

This long standing position is currently being challenged in the European Court in the case of King v The Sash Window Workshop Limited. One of the central issues of this case which needs to be determined, is whether the statutory holiday entitlement that Mr King had accrued over many years but not taken (because he was told it would not be paid) should have been paid when his employment ended.

If the case succeeds, it could open the door for claims for unpaid statutory holiday claims going back many years.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" including employers and workers struggling to get to grips with holiday entitlement issues.

Our specialist Employment Lawyers are experts in resolving employment issues.  If you would like more information on the case, the law surrounding holidays or to discuss your employment law issues call us today on on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

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