The Small Claims Court

The small claims court is not a separate court at all. In fact it is actually the small claims track of the county court and can be used for claims having a value of £5,000 or lower.

It can be used for recovering debts owed to you, claims for bad workmanship, when goods you have paid for are not supplied or claims based on the purchase of faulty goods.

The small claims track is less formal than a full county court hearing as it was set up to be used without the need to instruct a solicitor. Mind you sometimes it is very helpful to have some input from a qualified lawyer as you might find a better way of dealing with your claim e.g. the cheque rule.

It is recommended that you exhaust all normal means of dealing with any dispute before you embark on this type of litigation so do treat going to the small claims court as a last resort not a first port of call.

Do bear in mind that the person or company you are pursuing has to be provided with a “Letter Before Action” stating the nature of your claim, giving a set period to pay before you commence any legal action.
Before you start any action have a think about how cost-effective making a claim will be. There will be a court fee to pay and if you do win your case you still might have problems getting the money due to you. It might be cheaper and a less time-consuming to ‘take the hit’ and write off smaller sums.

If you are considering making a claim you can get the requisite forms from your local county court, or online at www.moneyclaim.gov.uk There is a fair amount of guidance on how to make your claim available on the website too. Lawscape clients qualify for free informal help in relation to the merits and issues of taking or defending an action in the small claims court.

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Guardians in your Will?

Not the nicest of subjects but have you appointed a Guardian for your children in your Will?

The simple point is if your children were orphaned (perish the thought) and there is no Guardian appointed your children will come under the care of the local Social Services department’ until a court decides who should be appointed Guardian. This might take months.

In practical terms that would mean your child would be put with approved foster carers or a children’s home for as long as it takes to approve a willing family member or friend to look after the children. Unfortunately a grandparent of aunt cannot just step-in these days. Proper checks such as CRB Checks will be made before any child will be placed into the care of another person, even a close relation.

The best answer sort out your Will now and appoint a Guardian, or even two, perhaps with the second one as a reserve. This way you will have prepared for the worst and get the peace of mind of knowing you have made proper provisions for your children in your Will.

Unintended Racism and Employment Law

Following the comment by Anna Farquhar ‘You cannot help the jungle drums.’ when talking at a public meeting about NHS changes, a complaint was made to Wiltshire Council, which then launched an inquiry thought to have cost tens of thousands of pounds.

The complaint was made by a member of Wiltshire Racial Equality Council who was present at the meeting and regarded the comment as racist.

Following a six month investigation by Wiltshire Council the complaint was upheld and as a result Mrs Farquhar and other members of her independent health watchdog, the Wiltshire Involvement Network, have been banned from council meetings and premises. The council has also withdrawn funding that covered the group’s administrative costs.

What is the relevance of this to employers and employment law?

Whilst this is not an employment law issue is does illustrate how innocent comments can be regarded as racist despite many or even the vast majority of ordinary people not thinking the remark is offensive.

The deputy leader of Wiltshire Council went on TV defending the decision and arguing that a statement like “this was all Chinese whispers” might be offensive to a Chinese person.

The point is as an employer you would be foolish to substitute your own feelings of likely offense for what an Employment Tribunal might think. That is the world we live in now and you really need to get used to it if you don’t want to end up at an Employment Tribunal.

If this decision by the Wiltshire Council is the flavour of the new diversity Anti-Discrimination world employers not only have to guard about how they communicate with staff and customers but take care in monitoring and controlling this sort of thing between staff members lest they be held responsible for one employee’s behaviour offending another.

Make your will NOW

I come across many people who are making their first Will in their seventies. Better late than never!

But it really is a risk with for your husband, your wife or partner and your family. Imagine you died tomorrow and you had no Will. You would have died intestate and that means that your loved ones will pick up the pieces.

Is it really worth it for the sake of the modest cost and effort of doing it?

On so many levels it is a situation to be avoided so why not pick up the phone now and speak to someone about making your Will right now.

If you get a professional to draft your Will the cost is probably in the £100 to £250 range for a single Will and from around £150 to £400 for mirror Wills. Of course you can go down the DIY or Internet route but do take care to see what the providers say about their liability for mistakes. Basically none! So unless you can get a lawyer to check the finished Will to see you have done what you need to do you are taking a big risk with your peace of mind but more importantly with the wellbeing of your family.

So don’t let another day pass before you do this.

[highlight_red]Making your Will really is one of the more important things you should do in your lifetime.[/highlight_red]

Marriage can revoke your Will

Oh yes it can. In fact in most cases getting married revokes your Will. This is old law but good law based on a legal assumption that you would not want the will to stand if you get married due to your important change in circumstances.

In fact as the whole Will is revoked even for legacies to people completely independent of the new spouses.

This could be of particular importance to long standing cohabiting couples who may have had Wills leaving their estates to each other but after marriage they would be intestate meaning the surving spouse might get a lot less than they thought.

If you make a Will in contemplation of marriage and that is stated in the Will than the revocation does not take place. This must be in clearer terms than a general proposition that you will marry someone soon as it must at least name the person and it may be a good idea to put a time limit on it as well.

Firstly, can I say how shocked I was and sorry to see that Brenda Fenton died after making this programme. A lovely family and a credit to her and her husband.

This programme highlighted an issue about passing unequal shares to your children in your Will. Certainly for the Fentons it was a massive benefit to have a full and frank discussion about the wishes and expectations of all concerned.

The moral of the story is making a will is a very good idea indeed. The palpable sense of relief from Brenda Fenton was there to see.

The second point is that if you are thinking of leaving your estate to your children in unequal shares this need talking about. Just doing it and leaving a surprise for your children can bring about hurt and possible disputes. It didn’t for the other family but it could have done if the half-sister who had inherited less hadn’t been so gracious about it.

Make a Will and if there is anything out of the ordinary do talk to your family about it – you don’t want to leave a legacy of bitterness and disputes for your children, do you?

And finally it does highlight that you do need to do a will now – never too sonn but can be too late.

Discrimination against gay couple

The case of the gay couple who were refused a room at a Bed & Breakfast hotel was decided yesterday 19 January 2011.

Peter and Hazelmary Bull were found to breaking the law when they denied Martyn Hall and his civil partner Steven Preddy a room at their Chymorvah Private Hotel in the coastal town of Marazion in Cornwall in September 2008.

The written judgment from Judge Andrew Rutherford was handed out at Bristol County Court yesterday. The award was £1,800 each in damages, therefore it has cost the Bulls some £3,600.

This is a wake-up call for all service providers and employers too. The simple fact is that just about all discrimination in effect is unlawful.

The current law under the Equality Act requires that there should be no discrimination, direct or indirect, based on:

• Age
• Disability
• Gender
• Gender reassignment
• Pregnancy and maternity
• Marriage and Civil Partnership
• Race (defined to include colour, nationality and ethnic or national origins)
• Religion or belief
• Sexual orientation

What anyone needs to be careful about is not discriminating unlawfully. This is probably easiest to do indirectly and without any direct intention to do so. Some typical job ads from the past conatin phrases that are embedded in the memory, e.g. suit active pensioner, suit school leaver. Clearly these are wrong by today’s standards.

Nowadays, for example, you need to be wary about asking for too much experience as that might be indirect sex discrimination against women. Each case needs consideration on its own merits.

Cant take it with you on the BBC

This is a new series on BBC 1 start tonight 14 January 2011 at 9pm. It looks at a range of wills and inheritance planning issues which we as will writers experience on a regular basis.

From the clips I have seen and the write up of the first two episodes this looks like one you shouldn’t miss. After that if you would like to talk about your situation or have a will reviewed please get in touch. Contact Bill Ryan at Lawscape

Excerpt from BBC website

Sir Gerry Robinson helps two families torn over what to write in their wills.

Lesley wants to leave half the family home to charity, but husband David wants all of it to be left to his two sons by a previous marriage.

Meanwhile, army major Tom is bound for Baghdad, and urgently needs to make a will that includes his two stepdaughters. But his new wife Kiera is against the principle of inheritance and would rather leave everything they jointly own to charity.

Both couples need to face some uncomfortable home truths before they sign on the dotted line.

Sir Gerry is assisted by top lawyer Sue Medder, who sets out the legal options in each case, and writes the final wills. And Sir Gerry gets all the family involved in the debate, because keeping problems secret is no way to solve them.

Deciding who gets what in a will can be one of the toughest choices anyone can have to make. But making no decisions at all and dying without a will can cause rifts that tear families apart.

Remarriage and inheritance: how to make Wills that you both agree?

Following the showing of the BBC Programme “You Can’t Take it With You” it is worth picking up from some points made in the show.

Apart form the ability to effectively ring-fence parts of your gifts to ensure that those you what to inherit can, you will almost certainly not want your spouse to be forced into selling the marital home unless that is what is actually wanted following your death.

If you have remarried and you have children

In these circumstances you probably want your estate (i.e. your property and money) to go to your children when you die or after your new spouse dies.

In a second marriage your new spouse may not have the same view as you about inheritance and how they would like it to be handled as far as their own estate is concerned.

Simply giving everything to your new spouse may not be doing enough to secure the inheritance for your children. It is quite possible for your spouse to change their his/her Will after you have died – so beware of just making ordinary wills that pass everything to your new spouse – they may have a change of heart later down the line.

Perhaps more importantly you may drift into disinheriting your children without even realising you are doing it!

Look at this example:

Adam & Belinda Jones have 2 adult children when they split -up and then divorce. Their money and assets are then split so each gets half each which results in each having £300,000.

Belinda then marries Charlie and they buy a house together. Belinda puts in £250,000 as does Charlie. As a newly married happy couple they buy the property as joint tenants, which is the typical way married couples own property.

Of her remaining £50,000, Belinda put £30,000 into a joint savings account in both her and Charlie’s name. The remainder is put into sole bank and saving accounts in Belinda’s name.

With or without a valid Will the most Belinda’s two children can inherit is £20,000 as the jointly owned house and savings account (with a combined value of Belinda’s ‘share’ being £280,000) is already owned by Charlie. This is so important That money in the joint savings account and that share in the house doesn’t form part of any inheritance.

This second marriage inheritance issue is played out up and down the country too often and is only appreciated when the children find out that what they thought they might inherit in reality is nothing or a much smaller sum than they were led to believe

How to ensure children inherit following remarriage

What can Belinda do to make sure that her two children can inherit her money and assets?

Firstly, she must sever the joint tenancy ownership of the house to enable her and Charlie to be tenants-in-common. This means that they would own 50% each, or it could be a different proportion if that was what they wanted.

Belinda is obviously very keen to allow Charlie to remain in their marital home and not forced out.

That’s easy enough to arrange. Belinda can set up a Life Interest Trust in her Will. This will allow Charlie the legal right to remain in the marital home until he dies and then the half share in the house passes to Belinda’s children.

What can be done about the joint savings account?

Foe Belinda, the best thing might be to put any money she wanted to go to her children into a sole savings account in her own name and that can pass directly to the children or it could be put into the Life Interest Trust. The interest accrued would be paid to Charlie during his life. On his death the money would be distributed to the children

Really the key point is to appreciate and understand the issues and then by acting on it a solution can be found to satisfy all concerned.

If you would like to find out more about making your Will you can use the contact Lawscape form above or just call if you prefer.

To be valid a Will needs to have two witneses to the testator actually signing the Will.

The testator ideally should “say to the witnesses that this is my Will and I am signing it now”. It is important that the testator has the attention of the witnesses for this important aspect of the procedure.

The two witnesses should then sign the Will underneath the testator’s signature. It is the convention for each witness to add their address and occupation. There is no actual qualification for being a witness and the information is simply to allow witnesses to be traced should that ever be needed.

This process of signing by the testator and the witnesses is called the attestation.

Who can be a witness?

The only type of person who can never be a witness is a blind person. Other than that minors can be but they should be old enough to understand what they are witnessing and its relevance.

Beneficiaries and spouse or civil partners of beneficiaries are alloed to be witnesses but if it means that they cannot benefit under the Will. therefore it is a good idea to check that witnesses do not fall into this category.