Wills, Inheritance – And Disinheritance

Even a clearly set out will and testament cannot avoid legal squabbles after death.

This was made only too evident after very lengthy and protracted probate litigation was recently finally settled by the Supreme Court. When Melita Jackson died in 2004, she surely had no idea that the clear instructions and intentions set out in her will would take 13 years to finally be approved.

In reality, it was closer to 15 years. Prior to her death aged 70, Mrs Jackson had written her last will in 2002. In that, she set out in an accompanying letter that she had clearly disinherited her only daughter. Heather Jackson had left the family home in 1978 to lived with her then boyfriend, Nicholas Ilot, whom her mother strongly disapproved of. Miss Jackson eventually married the boyfriend in question, and they remain married in 2017. However, mother and daughter never got over that and other differences during their lives. Despite several failed attempts at reconciliation (with both women blaming the other) over the intervening decades, they remained at odds, with the result that Mrs Jackson disinherited Mrs Ilot. Instead, the bulk of her estate (initially valued at £486,000) was left to animal charities, namely The Blue Cross, the RSPCA and the RSPB. After her death, Mrs Ilot challenged the will, on the grounds that it was unreasonable.

The next decade saw protracted litigation in the probate courts, with Mrs Ilot, from Great Munden, Hertfordshire, alternatively being awarded money and the charities appealing. Initially awarded a small settlement, the High Court reversed this, with the settlement being reinstated by the Court of Appeal in 2011. Following that, Mrs Ilot attempted to increase the £50,000 initially awarded to her. This was struck down by the High Court, but allowed by the Court of Appeal, who awarded her £164,000 of her mother’s estate in 2015. The charities appealed – with the result that Lord Hughes, giving the leading and unanimous verdict of a seven Judge hearing at the Supreme Court in March 2017, overturned the 2015 verdict, reducing Mrs Ilot’s share to the initial £50,000.

Throughout this protracted litigation, it was advanced that Mrs Ilot had been unreasonably disinherited by her “capricious and harsh” mother. Mrs Ilot is a mother of five, has no state pension, and was living on state benefits when she initially challenged the will under the Inheritance (Provision for Family and Dependants) Act (1975). Applying the 1975 Act, the Court of Appeal had awarded her £140,00 in 2015 to buy her housing association property, and a further £20,000 structured to avoid her losing her benefits, but designed to removed her from poverty. The Court of Appeal found that Mrs Ilot would have otherwise faced a life of poverty, living on state benefits and trying to care to four children still at home. The fifth and eldest child, born in 1983, was working at this time, with Mr Ilot working occasionally as a supporting actor.

The Court of Appeal had relied on parts of the 1975 Act. Quoting from Lord Hughes’ verdict:
(2) The key features of the operation of the 1975 Act are four … Second, only a limited class of persons may make … an application; they are confined to spouses and partners (civil or de facto), former spouses and partners, children, and those who were actually being maintained by the deceased at the time of death. Third, all but spouses and civil partners who were in that relationship at the time of death can claim only what is needed for their maintenance; they cannot make a claim on the general basis that it was unfair that they did not receive any, or a larger, slice of the estate. Those three features are laid down expressly in the 1975 Act. The fourth feature is well established by case law both under this Act and its predecessor of 1938. The test of reasonable financial provision is objective; it is not simply whether the deceased behaved reasonably or otherwise in leaving the will he did, or in choosing to leave none. Although the reasonableness of his decisions may figure in the exercise, that is not the crucial test.

Indeed Lord Hughes had started his verdict quite clearly setting out the same principle of law and equity which the animal charities had also relied on:

(1) Unlike some other systems, English law recognises the freedom of individuals to dispose of their assets by will after death in whatever manner they wish … Otherwise the law knows of no rule of automatic succession or forced heirship. To this general rule, the statutory system of family provision imposes a qualification. It has provided since 1938 for the court to have power in defined circumstances to modify either the will or the intestacy rules if satisfied that they do not make reasonable financial provision for a limited class of persons.

Further to that, equity and probate law make generous allowances for those that leave part of their estate to charities, and it is a time-honoured tradition that many do leave money or property to any number or nature of charitable causes in their wills. However, wills are often subject to scrutiny and challenges, often over such charitable gifts.

Even if challenged under law, even if the provisions are deemed as harsh or unreasonable, testamentary freedom allows and entitles people to leave property and other assets to whoever they please after their death. Provided that the will is drafted in accordance with law, that no illegal or unlawful provisions are made, or that the provisions are not too onerous, unreasonable or ridiculous, law and equity will traditionally uphold a property drafted will. Duress or mental capacity can be called into question (and indeed often are), but the ability to choose how your property is disposed after your death is a fundamental right.

The Law of Succession, the law of equity, wills and probate, is often seen as arcane and convoluted; which indeed it is. It is also remarkably simple, as ultimately the Law of Succession seeks to enable a testator to dispose of their property in accordance with their wishes. In this, of course, archaic legal formats need to be observed. Given the complex nature of equity and probate, it is always strongly recommended to get a legal professional to draft a will.

In addition to a clearly drafted will, case law and legal precedent had long been favourably inclined to those to make a clear statement of their intentions for their property. Such a clear statement will never override a properly constituted will, but will act in support of a will, or can be the clincher in any disputes. Returning to Mrs Ilot, Mrs Jackson had been very clear and open about disinheriting her daughter, even so far as to filing an accompanying letter with her final will setting out the reasons why Heather Ilot was disinherited. That letter was relied upon in some of the court proceedings. Indeed, Lord Hughes quotes from the letter in his verdict:

(6) [Heather Ilot] did not get in touch with me and I heard from her husband’s parents that she had a baby boy. When I heard about this, I visited her in hospital and took flowers and brought up her [pram] and other presents. However, she made herself very unpleasant and wished to have nothing to do with me. Therefore she receives nothing from me at my death.

The 1975 Act and other statutes and cases additionally set out the concept of “reasonable financial provisions”, and the doctrine of maintenance. Maintenance is essentially providing assistance for those who might expect it (such as children), in the vast majority of cases tackling low or limited financial means. Maintenance is extremely broad, and is also deliberately limited under law. This is to allow for wills to be made in accordance with the wishes of the testator, as opposed to the wishes off the courts regarding maintenance of certain classes for people (e.g. spouses or ex spouses). Whilst wanting to avoid people existing in poverty when they could benefit from a will, the courts are also determined to uphold testamentary freedom.

It is that testamentary freedom which is a key part of wills and probate – and it is that very freedom that the Supreme Court upheld in ruling against Heather Ilot and in ending probate litigation overcast decade in making. Even if a will is deemed by some to be unreasonable and unfair – it was the final choice of the deceased to leave estate as they saw fit, and in that particular manner. That freedom of choice is all important – both legally and philosophically.

Medical Law: 20th Century Writing For 21st Century Medicine

Medicine and healthcare is driven by innovation.

It is innovation in healthcare, surgical techniques, greater recognition of diseases and illnesses, modern medicines, and a host of other modern (increasingly technologically driven) medical procedures and theories that drives healthcare and medicine forward, and enables more and more lives to be saved. Medical innovation has allowed for more people to survive and have fulfilling lives with conditions and illnesses that would have been fatal in the past.

When it comes to regulating healthcare, though – it is the opposite. Medical regulation, oversight and laws are firmly rooted in the past. It is the past settled and decided legal cases that become binding legal precedent which guide and (sometimes) limit doctors. It its laws and regulations that came into force sometimes decades earlier that govern medicine. Those cases and statutes were decided in previous times; not only was society different, but medical techniques, understanding and treatment were also often different.

The result is that medicine often struggles to advance and evolve, to keep up with modern disease and illnesses, whilst being held back by legislation and leading cases that sometimes become out of date after a decade – but are still binding on all parties.

Medical negligence law is a very good example of this.

It is very regrettable and unfortunate that medical negligence happens. Despite all the advances possible, it is only too easy, sadly, for medical errors to happen. Those errors can wreak havoc with someone’s life, and the lives of their families. Despite the very best efforts and intentions of doctors, nurses and pharmacists to “Do No Harm” – unintentionally, accidentally, sometimes that is just what they do.

Whether it is from a misdiagnosis, an incorrectly performed operation, or incorrect medication, the result of medical negligence can be to leave someone with worse injuries than before. In some cases, their original ailment might still be untreated, or even still undiagnosed. Aside from that (often extensive) physical damage and ill health, it is the mental pain and anguish that can be the worst following medical error. Rehabilitation and recovery takes time: in many cases, physiotherapy or occupational therapy are needed. Specialist treatments or medications might also be necessary. Recovering from the injuries received after medical error can be lengthy – and also expensive. Medical negligence can easily take its toll upon home and family life, and also work. There is also very much the financial aspect to consider.

Under medical negligence law, both professionally and legally, doctors and other clinicians are held accountable for their actions, patient care and the procedures they perform. As such, under tort law (part of the UK civil legal code), the injured patient can make a legal claim against a clinician following medical negligence.

Under both medical ethics doctors and clinicians have a clearly defined duty of care towards their patients. Similarly, clinicians are held to a very high standard of professional care and advice towards their patients. Where medical negligence occurs, the question to be posed is whether that duty of care was breached. Did the clinician act in such a way that was firstly substandard, and that resulted in a breach of that duty?

Under a civil and tort legal claim, factors such as causation and remoteness have to be established. Remoteness is concerned with whether the damage received by the patient was so remote from the actions of the doctor that is could not reasonably be foreseen. Legally, remoteness is fairly easy to establish, deriving as it does from the leading case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961) UKPC1 (The Wagon Mound No. 1) – which dates from 1961. It is still good law and binding legal precedent – but here an old case sets the rules for medicine in 2016.

Turning to causation – that is less straightforward. Causation is essentially when it is determined what the (legal) factor or factors of the wrong (in this case, medical negligence) was. Causation is incredibly complex, with contradictory case law dating from the last 50 years. Causation burrows down onto the very minutiae of what happened, seeking to establish the exact cause of the medical negligence, with those 50 years of case history requiring several different legal theories and tests to be applied.

In common with other personal injury law, the other requirement when establishing medical negligence is that the medical error was the fault of the doctor, and not the patient. Contributory negligence can sometimes be established, when the actions of the patient contributed to their own injury, or the medical errors. However, in the vast majority of medical negligence cases, it will be the clinician who is at fault. As such, that legal requirement if fault is often merely a legal formality.

Although the patient is often in poor health and suffering after medical negligence – the patient very much has the legal right to seek a legal remedy to their medical wrong. Additionally, in a great many medical negligence cases, the injured patient can be awarded financial compensation. Although that compensation will never replace ill health, or the mental anguish, it can go a long way financially and practically. After medical negligence, many patients are upset, angry and bewildered, desiring an explanation and apology. Patients have rights under medical law, and should not be afraid to seek a legal remedy after suffering from medical negligence, to obtain justice, and an apology and explanation.

Despite having those undoubted rights, and protections following medical negligence, the cases and statutes governing medical negligence date back 40 or so years on average. Whilst still good law, and current legal practice, in some cases they are in need of updating. A good example is the concept of informed consent. It was the case of Sidaway that first set out in simplistic terms the concept of informed consent in 1985. It was not until 2015 that Montgomery was decided, which gave informed consent a proper, dedicated legal basis.

Although medical law (such as the rules surrounding medical negligence) enshrines the rights of both patients and doctors – sadly it is not as advanced as the medicine and society it is supposed to reflect.

New Words For Intestacy & Probate – And New Meaning

Increasingly, people are not making wills, or taking steps to ensure that their possessions and assets are settled and passed on after their death. The result is pain and heartache for those left behind.

If that happens, the person is declared to be intestate. That is defined as someone dying without a will, or having an invalid will. The person’s possessions and property will be disposed of in accordance with law, and administered by a court appointed executor or administrator. Some experts and commentators predict that intestacy numbers will rise over time. Whether that proves to be accurate or not, those future cases of intestacy will be handled under new updated rules, after intestacy was altered under recent legislation.

The Inheritance & Trustees Powers Act (2014) (ITPA) came into force in October 2014, bringing with it reform to the laws surrounding intestacy, amongst other provisions. Admittedly, though, the Act did not reform intestacy rules too greatly. Previously, if the deceased left both a spouse and children, they received split between them the deceased personal property, and a Statutory Legacy of £250,000. The remainder of the deceased’s estate was divided in half, with 50% going to the surviving spouse under a trust, and 50% to the children.

Under ITPA, though, the surviving spouse still received the same Statutory Legacy, and the personal chattels – and 50% of the estate outright. The 50% remainder is now divided amongst the surviving children or descendants under a life trust.

Where ITPA fails, however, is in addressing the issue of the deceased having remarried, perhaps several times. Further, what of children from those prior marriages? As divorce becomes less of a stigma, society has seen an increasing number of divorces. It is exactly the same with people marrying again – in some cases repeatedly. Indeed, the new rules dismally fail to address the matter of cohabitation.

According to Office of National Statistics, the numbers of cohabiting couples are only on the rise. Culturally and socially, it is becoming increasingly common and accepted for people to live together in long term, stable relationships- – but remaining unmarried. Much such couples often raise children together, or have property or similar assets in their joint names – but are still unmarried.

Whatever society might think, the law still resolutely fails to recognise such couples and relationships. Currently, the legal provisions set out in  Kernott v Jones [2011] and Stack v Dowden [2007] are the only legal protections that such  unmarried couples have. Even senior judges (notably Lady Hale) admit that those protections are not sufficient. In this instance, ITPA definitely missed an opportunity to address this, and to give unmarried, long term couples some degree of legal protection and afford them legal rights.

Aside from the slight alterations in dividing up the deceased’s estate, the term popular in equity and probate of “personal chattels” also was given a new meaning. Under Section 3, personal chattels are now defined as:

 “Tangible movable property other than any such property which consists of money or securities for money, or property used at the death of the intestate solely or mainly for business purposes, or was held at the death of the intestate solely as an investment.”

Section 3 updates the archaic thinking of the Administration of Estates Act (1925), which defined personal chattels previously. Now, Section 3 encompasses more types of property, and more modern types of property. Further, the nature of ‘property’ is (deliberately?) not specified in ITPA – which admittedly s both a hindrance and a great help when determining matters of probate. Quite clearly, this gives court appointed executors greater scope when disposed of the assets of the intestate, as the definition of a ‘personal chattel’ is now wider, and covers more.

An interesting definition was made in ITPA regarding such personal chattels. Previously, gifts and possessions such as wine collections, stamp collections, and similar were considered chattels. As such, they could be gifted, Under ITPA, the slight but subtle changed is that those and similar items can only be considered chattels (and therefore be gifted) if they were not held as an investment, but rather as personal property. Now, before such property is gifted, or handed on to relatives, it has to be determined that it was no an investment. For some things, that could take some proving either way – and more probate litigation. During that time, the value of the “investment” could rise or fall, potentially unfairly for those involved in the litigation.

Such reforms were cautiously welcomed by private client lawyers. Many felt that the new provisions did not go far enough regarding reforming intestacy. The reforms are very subtle, and quite technical, and seemingly cause more issues without addressing existing concerns.

Of such is the power or words and writing. Having received Royal Assent, the Inheritance & Trustees Powers Act (2014) is now law, and binding upon probate and intestacy proceedings. Whatever reservations probate and equity might have, intestacy proceedings (and some related private matters) now have to disposed of in line with the wording of the Act. Whatever interpretation lawyers choose to give to the provisions of the Act – the wording itself is now law, and has to be followed, however questionable that might be.

PPI Scandal Costs Banks Thrice as Much as Olympic Games

The payment protection insurance scandal has been devastating to the United Kingdom’s economy. The country’s banks finally have to pay for the cost of it. A new report from The Guardian revealed that the crisis has cost the banks twice as much as the Olympic Games.

Which? Finds PPI Costs Surging for Banks

A recent report from Which?, one of the country’s consumer watchdogs, found that the PPI scandal is costing the banks more money every year. The report showed that the banks have been forced to pay customers over £25 billion. The Olympic Games in 2012 cost the country less than £9 billion.

The cost of the PPI scandal is expected to keep growing even more in the near future. Both Barclays and Lloyds have announced that they have needed to set aside even more money to pay customer claims. Customers have been filing more than 10,000 claims against the High Street banks every week. Some experts believe that at least two thirds of consumers who have been mis-sold PPI still haven’t filed a claim. More claims will probably surface when they realize it.

Banks Feeling Pain from New Claims

The PPI crisis has seriously eroded the profits of many banks. Some banks were guiltier than others and are facing larger bills. Lloyds, one of the biggest offenders in the PPI mis-selling scandal, was forced to pay about £200 million a month between September 30 and December 31 to settle many of these claims. A number of customers filed claims with a PPI claims company to help get their money back.

The banks have also been forced to pay fines for failing to resolve mis sold PPI claims in a timely manner. Lloyds has already paid over £4 million for being delinquent on many of the claims that were filed last year. The Financial Conduct Authority is creating stricter policies that the banks will need to abide by. Banks that fail to pay even larger penalties in the coming months.

Banks Shown Little Sympathy

Consumers throughout the country are furious at the banks for the financial scandals that have erupted in recent years. The PPI and LIBOR rate fixing problems have caused many to lose faith in the financial industry. A recent survey found that many people won’t trust the banks again for at least a decade.

These people have shown little sympathy for the losses the banks have incurred due to the PPI crisis. They are more concerned with getting their money back from them. Many people are protesting to the Financial Ombudsman Service insisting that the banks need to pay their claims in a timelier manner.

Is it Worth Making a PPI Claim?

The answer to above is quite simple: yes, it most certainly is! The payment protection insurance (PPI) scandal has so far seen hundreds of thousands of people reimbursed the cost of their PPI policies thanks to them having been mis sold, and with an average repayment of £2750 it is certainly worth the effort. Furthermore, there is very little effort involved as, thanks to a High Court ruling, the banks have had to set aside many billions of pounds to repay the cost of the policies, and it has never been easier to claim.

How to Estimate Your Repayment

It is worth bearing in mind that, while so far £10billion has been reimbursed it is estimated the total cost could be in excess of £25billion; this clearly indicates that there may be more claims to come than have already been seen. Anyone can get an idea of the amount they may be owed by using an online PPI calculator where you can make use of resources that, quickly and easily, give a good estimate of the amount of an individual repayment amount.

Some Numbers that May Amaze You

The Financial Ombudsman Service (FOS) issued some statistics regarding PPI in September, 2013, that make interesting reading: for example, the FOS itself has 1500 dedicated staff dealing with around 2000 new complaints concerning PPI every day, and the number of claims made in the first half of this year (2013) amounted to an increase of 26% over the last quarter of 2012. No doubt this is down in no small part to the increased public awareness of the scandal, but the figures are still quite astonishing to behold. Anyone yet to claim is strongly advised to make the first move as soon as is possible.

Further information is available on the website: HaveIGotPPI.org.uk

The Stichill Baronetcy: Modern Science For Old Inheritance Laws

For most matters of inheritance, a Will or similar is vital when passing on property and money, and anything in between, as discussed in my previous post. Even ancestral disputes can often be resolved by the production of a Will or similar legal document concerning inheritance.

However, when it comes to titles and estates – sometimes a Will is not necessary, or insufficient, as a very unusual case determined recently showed.

The Baronetcy of Stichill (near Kelso, Roxburghshire) was formally granted in 1683 to Robert Pringle and the “male heirs from his body”. The 10th Baronet, former Royal Marines commander Sir Steuart Pringle, died in 2013 at 84, leaving a son, Simon Pringle, who became the 11th Baronet. Unlike a peerage, heirs to a baronetcy do not succeed to the title automatically; evidence must be provided proving the relationship between the deceased holder and the and the heir.

A descendant of the 8th Baronet, Sir Norman Pringle, has been conducting genealogical research into the Pringle clan – and made an interesting allegation. Murray Pringle, a retired accountant from Buckinghamshire, claimed from his research that there had been a “break in the line of paternity,” arising when Sir Norman Pringle died in 1919. He left three sons, Norman, Ronald (Murray’s father) and James. In1920, the widowed Lady Florence made the required formal statutory declaration stating that Norman was the eldest son of Sir Norman and was therefore  entitled to succeed to the title. This he did, passing the Baronetcy in turn on to the late Sir Steurt.

According to lawyers for Murray Pringle, the eighth Baronet was not the father of Sir Norman, the ninth baronet. As such, the son of Ronald Pringle was the rightful heir and successor – Mr Murray Pringle. Inevitably, lawyers for for Simon Pringle dismissed the claim – and also questioned the claim of the other side to use DNA evidence to prove their case.

Eventually, DNA evidence was allowed to be used. A DNA sample obtained from Sir Steurt in 2010 indicated that he was not part of the male Pringle family line. Armed with that evidence, Murray Pringle began to advance his own claim to the Baronetcy.

The rare cases of disputed claims such as the Pringle’s are now submitted to the Judicial Committee of the Privy Council. The seven judge panel (all Justices on the Supreme Court) recently ruled, that, on the evidence before them, Murray Pringle should be 11th Baronet Stichill. It was the first time that DNA evidence has ever been used to resolve a dispute over a hereditary title.

In their verdict, the JCPC found that the DNA evidence demonstrated to “a high degree of probability” that Norman was not the son of the eighth Baronet. On that basis, it was concluded that Simon Pringle was not after all the “heir male” of the first Baronet. Murray Pringle was established to be the grandson of Sir Norman the 8th Baronet, and as such the rightful heir. Further, it was found that there were no legal grounds for excluding the DNA evidence.

The judges also expressed their sympathy for “the late Sir Steuart Pringle, a distinguished officer, who faced an unwelcome challenge in his autumnal years, and also Simon Robert Pringle, the heir presumptive, who had grown up in the belief that his father was rightfully the 10th Baronet and that he would in time succeed to the baronetcy”.

Significantly, the judges also realised just how far reaching the use of DNA testing could be for future inheritance disputes by accepting DNA evidence in the Pringle case; “in the past … the absence of scientific evidence meant that the presumption of legitimacy could rarely be rebutted and claims based on assertions that irregular procreations had occurred in the distant past were particularly difficult to establish … [By contrast, now DNA evidence can] reopen a family succession many generations into the past. Whether this is a good thing and whether legal measures are needed to protect property transactions in the past, the rights of the perceived beneficiary of a trust of property, and the long established expectations of a family, are questions for others to consider.”

The admittance of DNA testing ensures that the Pringle inheritance litigation will remain a leading case for inheritance law. Admittedly, though there are few cases where DNA might be used to conclusively prove an inheritance; more commonly, a disputed inheritance arises over the deceased’s Will. An incorrect, unwitnessed, will – or indeed no will – will readily give rise to inheritance disputes.

The best way to avoid that, and to successfully pass on wealth and property is to have a clear will. Drafted correctly and properly, and signed and filed, such a document is peace of mind. It is also important to keep any will updated as and when is necessary.  Without clear direction regarding how any property, land or money is to be passed on, or if any provisions are contrary to law, any property or wealth could very easily end up with another, unintended, recipient. Alternatively – property can be seized by the Crown if declared declared intestate.

Inheritance can be made easy with a proper Will. Some inheritance matters, though, are beyond the scope of the Law of Wills & Succession – such as the Pringle Baronetcy. For those cases – there is always DNA.

Will Drafting: Trust Funds And Avoiding Family Disputes

Recent years have seen fewer people making wills. Recent years have also seen a noticeable increase in cases involving people who have died with invalid wills, or with no will.

In both cases, the result is property, possessions and money that are tied up in litigation often for years. A further result is pain and further grief for the families concerned, and family and legal disputes. If only to avoid such pain, it is important to make a will.

Wills, probate and related legal matters fall under equity, well known in the legal world for being a complicated area of law. Wills and related documents need to follow the right formats, and to have the correct provisions under law. The rules of equity in some cases even dictate the exact words that need to be used.

Equity has its origins in Norman and Mediaeval England. As such, over the centuries it has evolved into a very complex, ponderous, and above all, formal area of law. The formalities, formula and conventions of equity must be strictly kept to to ensure that your will is valid. Despite the complexities, the rules of equity are there to protect you: those archaic rules ensure that your property is classed on to whoever you decide should inherit, and in what form.

With that in mind, when considering a will and treatment, it is vital to consult a lawyer. Even researching the principles of equity and the basics of will writing, and devising your own will are no substitute for getting an expert to write such an important document for you. A layman can easily make so many mistakes, or be unaware of so many legal matters, that their will will in most cases be declared invalid, or result in upset as provisions cannot be honoured. A lawyer will be able to ensure that your will is drafted in line with current legislation and rules, allows all bequests to be honoured, and above all remains valid.

When considering who to leave what property to, a lawyer will be able to advised you that some things you may want to do might not be possible at law, for whatever reason. However, in most cases, your lawyer will be able to come up with an alternative solution or suggestion.

As has been mentioned, equity has a ritual and language seemingly all of its own. All of which, however, makes perfect sense. One example is that the vast majority of wills will start with the phrase ‘I hereby revoke all other wills and testaments.’ Although cumbersome, what that means is that that will is the latest and most current expression of your plans for your possessions and property. That in itself is a fact worth remembering; that will will remain in place, and legally enforcible, until you draft and sign a new will.

Further, the wording used is quite important, with some words having a slightly different meaning to the equity lawyer and will drafter. Take, for example, a ‘gift.’ To the layman, that is often another term for a present. To the equity lawyer, a gift is property that passes (or will pass) to another without anything expected in return, and often with all the rights of ownership. Much property and possessions can be passed to another in a will, without the rights of ownership, or with conditions attached. It is therefore important to choose the right word – and the right manner in which to bequeath your property.

Once again, that merely serves to highlight the importance of having your will written by a professional expert. Although expensive, although time consuming in hours spent in consultations – it is a small price for peace of mind, for yourself and for your family.

Indeed, whilst consulting with a lawyer, they will be able to advised you as to several things you might be able to do with your possessions and property, for the benefit of your family – often things you were unaware of. A good example is a trust fund. Trust funds are popularly perceived as vast sums of money inherited by the rich. That is, in reality, not the case. Under equity, a trust can be made of most property, and can be structured in a variety of different ways. For example, the family home, in some cases, can be made into a trust under equity,and passed on as such. Money or possessions can be willed to various people in complete anonymity, if you so desire, or if it is necessary.

Those examples just go to show the mysterious ways of equity, and the various ways money and property can be passed on in your will. Without a will though – it is hard for your family and friends to inherit anything as you desire. That is why it is so important to consider such matters, and to consult a lawyer regarding making a will. Not only will that bring peace of mid to you – but it will make things much easier, and less painful for your family later on.

Legal Writing, Aberdeen Wind Farms and an Annoyed Billionaire

It often happens that cases depend on one thing: writing.

Cases, and fortunes, are made and lost by the stroke of a pen. How a law is interpreted, and of what meaning is given to words. What legal and moral concepts are under debate, and how to apply those concepts set out and defined in writing.

The meaning of words, be they in an Act of Parliament, an EU Directive, a UN Resolution, or a leading case authority, can be bitter or helpful to those seeking justice. Be they pauper or millionaire, business leader or brick layer, the words of a statute can have the same impact.

One such case came before the Supreme Court in 2015. It involved a very well known foreign businessman and the Scottish Government.

The case commented property that the businessman (referred to here as D) had bought in Aberdeenshire, and was then developing as a luxury golf resort and hotel complex. In 2011, Aberdeen Offshore Wind Farm Ltd (AOWF) sought assent from the Scottish Government to build and operate the European Offshore Wind Deployment Centre for Aberdeen Bay. Under the plans, up to 11 wind turbines would eventually supply up to 100MW of electricity – a mere 3.5 km away from D’s golf course, and in full view of any guests.

D’s Scottish business representatives and lawyers inevitably opposed the wind farm. However,after consideration, the wind farm was approved in 2013. D’s lawyers sought a legal remedy, and went through the Scottish courts seeking to stop the wind farm. In this they were unsuccessful. Undeterred, D’s lawyers appealed to the Supreme Court. They argued that, due to the wording of the Electricity Act (1989),  the Scottish Ministers had no right to grant the wind farm application in the first place.

In previous litigation, all the grounds and arguments advanced were dismissed. Before the Supreme Court in London, only two legal grounds remained.

Under Section 36 of the Electricity Act, D alleged that the wind farm owners and planners could not be granted an application to create a wind farm. Under Section 36, only those with a licence to “a licence to generate, transmit, or supply electricity granted under” Section 6 of the 1989 Act,  or those who have a statutory exemption under Section 5, can be eligible to be granted such a licence. Amongst other legal interpretations and reasoning, Inter alia, D’s lawyers cited a part of Schedule 9 of the Electricity Act:

 

(3) Without prejudice to sub-paragraphs (1) and (2) above, in

exercising any relevant functions each of the following, namely, a

licence holder, a person authorised by an exemption to generate or

supply electricity and the Secretary of State shall avoid, so far as

possible, causing injury to fisheries or to the stock of fish in any

waters.

D’s lawyers took that to imp!y that any proposed operator of a wind farm must have a licence to do so.

Lord Hodge, in a well argued 14 or so paragraphs systematically demolished the arguments advanced by the international businessman’s lawyers. As if one line of argument was not enough- Lord Hodge has several. Unequivocally, he dismisses the Section 36 challenge. In his interpretation of the relevant sections of the 1989 Act there are absolutely no grounds here: the wording of the Act is against the businessman.

Next, under Condition 14 of a Section 36 consent from the Scottish Government, the operators must submit a detailed and comprehensive design plan. That plan will be assessed by the Scottish Government rigourously to see that the design concept meets very very stringent standards regarding design,environmental impact, etc.

According to D’s luckless lawyer,  in this case Condition 14

(23) “is both unenforceable and also so uncertain that it is irrational… First, he submits that the

condition is invalid because there is no mechanism by which the Scottish Ministers can force the developer to construct the windfarm in accordance with the design statement. He argues that… there is no express statement that the developer must construct and operate the development in accordance with its terms. Secondly, he submits that the condition is void for uncertainty because there is no indication of what compliance with it entails.”

Lord Hodge takes a very simple approach here, with his decision beginning “The short answer to this challenge is.” After delivering this verdict in the remainder of that sentence, he then takes 15 paragraphs to find many additional reasons to support his verdict. He repeatedly finds the Condition 14 challenge also to  begroundless. Once again, using the words and the drafting of the 1989 Act (with a bit of help from other legislation and cases), he finds a different interpretation of the law than D.

Words. Very simple things – but written in an Act of Parliament they take on a life of their own, a meaning of their own, a significance of their own – and a certain power. It is those words that decide the law, that are interpreted by lawyers and judges and which essentially win and lose cases.

In this case, the Supreme Court used the wording of the statute under causation, and utterly destroyed the attempt of the foreign businessman to stop a wind farm being built next to his Scottish golf resort.

Legal Writing – For Lawyers And The Layman

When reading a legal document, or studying something prepared by your lawyer, the layman is often left bewildered and in need of gentle assistance to understand what is before them. That is due to that vital legal skill, for lawyers and paralegals alike: legal drafting and writing.

Even a simple agreement or contract, or a simple argument to a court, can be (seemingly) rendered overly complicated when put in formal legal document or court submission. It is that legal writing, though, that is absolutely invaluable to the legal practitioner – although admittedly often puzzling and overly formal to the layman.

Learning how to draft submissions for a case, lodge an appeal, write a proper Judicial Review, write the various parts of a bundle for court, and similar is very important in the legal world. In many cases, the court, tribunal or review board will see those written submissions and papers first, prior to any interaction with the lawyers, or any verbal arguments. Consequently, many will form first impressions of the case, and the merits of the arguments of each side, from those written submissions. Effectively, those written arguments form a written first impression.

Further to that, many hearings are settled and decided on paper submissions, as opposed to oral arguments in a hearing. Increasingly, especially in some civil areas of law, such paper hearings are becoming more commonplace. That trend is only set to continue with reforms such as court closures, and increasing efforts to streamline court and legal services.

Of course, no judge or tribunal or panel would ever be so unprofessional as to bias or base their verdict and opinions upon paper submissions if there was a full hearing upcoming. No judge or panel would be so unprofessional as to be swayed by the nature of the submissions and how the papers are drafted and written, and appear. A judge or panel will only ever be swayed by the merits of the legal arguments advanced. However, the same human nature is present in everyone. An organised, well presented bundle that is helpful to the court in its appearance and layout will doubtless be received and perceived kindly by a judge dealing with a great many such bundles. A poorly drafted, rambling and confused appeal submission will probably find the appeals tribunal not so favourably inclined. That is something for the lawyer or paralegal to bear in mind.

For anyone involved in drafting or writing legal documents, there are several key matters that need to be considered and addressed.

Firstly, know the format. Each type of legal document, be it a letter, submissions to a court, application for bail, application for Judicial Review, etc has their own format, and style. It is necessary to keep to that (often very strict) format. With that in mind, know and use the correct legal terms and phrases. Each area of law comes with its own unique and archaic collection of terms, set phrases, expressions and written conventions which are used freely. Once again, it is vital to use those terms in that particular document. A will had to start somewhere with the formal phrase “I hereby revoke all other wills and testaments,” or similar. An asylum appeal will usually use terms such as “actors of protection”, “the Convention” (for the 1951 UN Convention on Refugees), and “internally displaced people” very regularly. All that is fairly obvious; but there are many cases where such simple matters of legal drafting have not been adhered to. Needless to say, that does not endear the reader to the writer or the lawyers.

Whilst drafting, it is necessary to refer to legal cases, precedents, reports, news articles or statutes. The good legal writer needs to demonstrate a certain balancing act here. Sometimes, it is necessary to quite directly. At other times, it is better to summarised of paraphrase. Knowing when to do either, for best effect with the legal argument advanced, is a skill that is developed over time and in accordance with the writer’s own style. No one likes a submission or bundle that is essentially pages and pages of quotes. Similarly, no one likes submissions which do not directly refer to the source material. It is a balancing act.

Above all, with any legal document – formality is key. The rules of legal writing, the archaic conventions of the law, and the fact that it is a legal document, leave no misunderstanding that the writing and style should be formal. Clear and concise without waffle or anything extraneous – but also very formal, and politely phrased.

Legal documents and submissions need to be straight to the point, and to outline a certain line to argument, often very complex and intricate. Whilst cutting out anything superfluous, at law it is always the detail which is so important. With that in mind, though, the document needs to be formal in style and appearance for the court

It is because of that mixture of detail, argument, and inherent formality that legal drafters and writers end up with a document or court submissions which to the layman are incomprehensible. To the layman, the formality is a barrier to understanding. To the layman, it can be bard to follow the line of argument due to the nature of the presentation of the various submissions.

That is why legal documents and applications are often such a mystery to the layman, or the individual seeking justice, and need to be patiently explained by the very lawyer who took such care and time in drafting it. That is also why lawyers and paralegals have a reputation regarding playing with words, and excessive formality.