whip lash injury law changes

What new whiplash regulations could mean for your claim

What new whiplash regulations could mean for your claim

One inevitability in life always seems to ring true: change. Laws change and 2021 was the turn of whiplash regulations to be updated. With hundreds of thousands of whiplash claims made every year in the UK, it’s important for us to know how these changes to the law will affect our own claims.

That number is no exaggeration either as approximately 1,500 whiplash claims are made every single day in the UK. This costs our insurers over £2 billion per year – and that may be about to increase. That’s because the new rules are changing how much money can be claimed from a whiplash injury. However, there’s also a little bit of controversy too.

While the Whiplash Injury Regulations 2021 were introduced on 31st May 2021 to make the whole claimant system run more smoothly, there are still concerns that the system is going to cause problems for law firms and claimants alike. In this post, we’re going to give you the up-to-date details you need to know about making a whiplash claim.

Whiplash: The basics

how whiplash affects the bodyWhen your body (generally your neck) has been ‘whipped’ from its natural position during a sudden accident or event – predominantly when a car has rear-ended the vehicle you are travelling in – this is referred to as whiplash. It can also occur during a sporting event, if you were attacked on the street, if you fell down stairs or during any number of accidents and events.

While most people recover from whiplash within a few weeks, sufferers have to endure the likes of dizziness, tinnitus, headaches and many more ailments. However, a number of people may also find that their symptoms last for far longer. Sometimes it can take months or even years for someone to recover and may even leave them with some sort of chronic pain or lifestyle changes. The risk of greater injury comes from the severity of the impact, if you are older and/or if you already had neck or back problems (including whiplash).

Whiplash compensation explained

Compensation claims are there to help compensate you not only for your injury, but the time you had to take off work and any general discomfort that came from the injuries. It can also be claimed to help with any medical costs too. You’ll want to make your claim as soon as possible but don’t worry if it has taken you some time – you have three years to submit your claim. You can also submit a claim on behalf of any children who were passengers and also experienced symptoms. Adult passengers will have to make their own claim.

Payouts are made by insurance companies so you don’t necessarily to worry about causing a scene – it’s your right to make a claim. In order for your claim to have a better chance of success, you’ll want to gather as much evidence as possible. It’s always good to take photos or record the names of any witnesses who saw the incident. This may help you later.

The reason that whiplash compensation claims often have a bad rep – and have been the subject of countless comedy sketches throughout the years – is because there have been many less than reputable companies that offer to represent people when making a claim. These businesses – known as claims management companies (CMCs) – often have a bad reputation. Thankfully, regulation changes made in 2018 has helped stymie their growth. However, it’s still very important to research who is representing you.

When it comes to the amount of compensation you are due, the size of the award has always centred around the effect of the accident on the claimant. Historically, this was generally over £1,000 but under £5,000 – with five and even some six-figure exceptions. It isn’t uncommon for insurers to try and offer an out-of-court settlement. You can choose to accept and save yourself time and energy, or you can go to court with the chance of winning a higher claim.

One of the major problems when it comes to compensation claims can be if the person causing the whiplash didn’t have any insurance. In the case of car accidents, you may be able to get compensation from the MIB instead. That’s the Motor Insurers’ Bureau, by the way, and not the Men in Black!

The Whiplash Injury Regulations 2021: What you should expect

The overhaul of the whiplash system has been quite significant. It’s not just the level of payouts that have been affected as the entire way in which you make a claim has been changed too, as well as the way these cases are handled by the courts. It really opens up whiplash claims and even allows some of those who only suffered minor injuries to make their own claim without any legal representation (and the fees that come with that).

The general limit in the small claims court for road traffic accidents (RTAs) has increased to £5,000 – a 500% increase on the previous limit. Also, this specifically means a lawyer cannot be instructed to make a claim for less than £5,000 in RTA cases. Instead, claimants should use the new personal injury claim portal. The scale of the tariff has also been increased so that it now spans from £240 for an injury lasting less than three months, to a maximum of £4,215 for injuries that last for two years.

Additionally, claimants may see this tariff increased by up to 20% if their case meets a threshold of it being proven that there was a high degree of suffering for the claimant. It’s thought that these reforms will save motorists about £35-per-year on insurance premiums – thanks to over a billion pounds in savings that are being made due to changes towards the system. It’s important to note that these new limits apply to vehicle accidents, but not incidents involving children, pedestrians, cyclists or motorcyclists.

As we previously noted, the system allows for people to proceed with a case without legal support thanks to the new online portal that allows claimants to submit their own details. This can lead to savings in time, energy and can even save your the need for court appearances. However, in cases that are more complex, it is absolutely advisable that you get in touch with experienced whiplash solicitors.

Lastly, the intended effect of these changes should mean that nuisance claims management companies (CMC) will likely find it hard to attract business. With more people now able to make their own claims without representation, CMCs will no longer be able to claim fees on these cases. The tariff is not payable by the defendant either so this means that CMCs cannot claim any fees from this money.

So what’s the catch?

While the new system sounds like it is good for claimants and their bank balances, there are some other concerns that have had lawyers worried for both the process and claimants. Firstly, there is some worry about payouts. It’s thought that some may actually end up with less than they expected.

This is because some claims that could have previously been up to £7,000 under the old guidelines would be less than £5,000 under the new guidelines. However, as the system can allow for someone to avoid legal representation completely, this means money saved on legal fees as well as saved time.

The online claim submission system itself is also currently under scrutiny. With 1,500 claims a day, it’s a large load for a system to take which could create delays for claimants who desperately need the money from a claim.

Additionally, there is worry that the system is too complex for some people and that the documentation to support it is not good enough. There is a worry that this will cause some to continue giving CMCs business. However, there is an official helpline in place to talk you through any problems that you may have with the interface.

Foys’ road traffic accident specialists can help you

While many will be able to use the new whiplash claim system, some will find the claims process too awkward or may have a more serious case that necessitates the involvement of an experienced road traffic accident solicitor. If that’s the case, then simply get in touch with our specialised personal injury solicitors today.

Foys has 45 years of experience in helping many victims achieve the maximum compensation payout possible from personal injury claims. We are thorough, professional and supportive of our clients, and our goal is to win you the biggest claim possible.

To talk to our team today and get your FREE initial consultation, call us on 01302 327136 or get in touch via our online form.

mediation is the best path for divorce

5 reasons why mediation is the best way in marriage breakdowns

5 reasons why mediation is the best way in marriage breakdowns

No matter how difficult it may be, divorcing couples should consider the benefit of mediation over any other form of dispute resolution. While it’s sometimes difficult to mutually agree on decision, there are a number of reasons why it is for the best.

Perhaps unsurprisingly, there has been huge rise in divorce rates during the COVID-19 pandemic and the various lockdowns. With many couples forced to spend more time together in the enclosed spaces of their home, alongside additional worries such as childcare constraints and money issues, it was only inevitable that such an event would lead to the dissolution of many relationships.divorce case mediation

In 2019, the divorce rate was at approximately 7.5%; but, nine months into 2020, it was found that the rate was up to roughly 33.3%. Deciding to track just how much enquiries increased during the pandemic and the varying lockdowns, one UK law firm saw a 122% increase in the amount of enquiries they received between July and October 2020.

Despite these difficult and unusual circumstances, one thing remains consistent – you should always look for a peaceful resolution to your relationship. While the pandemic has increased volatility and emotional turmoil, mediation remains the best way to navigate a marriage breakdown.

What is mediation?

Irrespective of whether a person is happy or sad to be getting divorced, there’s one part of the process that no-one looks forwards to – the legal separation. It is a heartbreaking time for all parties involved and the fear of going through a divorce is compounded with the thought of signing off documentation, going through intermediaries and, eventually, the dreaded and costly appearances in court.

This is where alternative dispute resolution comes in. These are the processes that can be approached to successfully navigate a divorce without having to go through lengthy court appearances. While there are a number of alternative dispute resolution approaches, the first one to try should always be mediation.

This is where you and your partner talk in a face-to-face manner with a trained, impartial mediator who will try and aid both of you in making mutually satisfactory agreements. It can also happen with both parties in separate rooms. The mediator will talk to you both to understand your perspectives, your individual priorities, the misconceptions or problems that could arise, and offer up ideas for solutions.

It is not the mediator’s job to tell you what to do – they are simply there to facilitate an agreement and to act as someone to bridge the divide between both you and your partner. However, it’s important to note that they will not step in to act in any party’s interest. Should you wish to have someone there who will think through the consequences on your life, you can hire a consulting attorney to help.

Five of the top reasons why you should go to mediation

There are a number of reasons as to why mediation is the go-to strategy when you are looking to settle a divorce; however, there are some reasons that stand out above others. We’ve compiled the top five reasons why the next step in deciding to separate from your partner should be mediation.

1. Costs less time and money

Both the monetary and time cost of mediation is a huge selling point over other forms of divorce settlement such as collaborative divorce and litigation. It currently costs £550 to file a court petition for divorce and solicitors can cost approximately £300/hour in the courtroom. And even before you get to court, you could even be paying as much as £100/letter in the protracted communications between you and your partner’s solicitors.

Not only that, but you also have to consider the cost of post-divorce living – especially if you have children. When all is said and done, you could have already racked up thousands of pounds worth of fees before you’ve even set foot in a courtroom! However, with mediation, you’ll either pay a by-the-hour or flat rate so you needn’t have many worries about costs spiralling out-of-control.

When it comes to time, legal proceedings can last anywhere between months to years, depending on the schedule. Currently, this is being made worse due to restrictions resulting from the COVID-19 pandemic as there was already a backlog before the pandemic. Mediation, however, is relatively quick and can be tackled within just a few weeks or, at worst, months – generally anywhere between two to less than 10 sessions.

2. You have more control

There can be nothing worse than feeling as if you’re not in control of how proceedings are going. Sadly, this is the case for many couples going through the agonising process of divorce proceedings in court. However, with mediation, you’ll find that you can have more input and less need to deal with rules or judges that don’t fully understand or empathise with your situation.

A mediator is not there to tell you what to do. Mediators are merely there to guide you and understand the priorities and wants of either party, and help you out when a compromise is needed. In closing, the mediator will produce a Memorandum of Understanding as well as an Open Statement of Financial Information. The former outlines the outcomes and the agreements by both parties, while the later is to enable a financial order to go through the courts.

3. Less animosity and stress

One of the most feared repercussions of divorce is the strained relationships that can occur not just between the couple, but the children and extended families. Mitigation  severely reduces this strain versus litigation as mediators are trained in counselling and are able to acknowledge the feelings of both sides.

This approach allows for the possibility of a relationship between the couple once the divorce has been finalised. This is even more crucial if children are involved in the divorce. Not only does it set a good example, but it’s important as parenting duties will continue beyond the split and this ensures your children get the best life possible. The mediator will be there to clarify things – such as where the kids go for school holidays or on weekends – in a way that is perfectly clear to both parties.

A mediator essentially makes sure there are no crossed wires and that no one person will dominate proceedings. They will prompt you to think things through, think with more empathy, reduce any argumentation to a minimum and make commentary when necessary. There is no need for there to be a ‘winner’ and a ‘loser’, as in court cases.

4. No public record

For those that like to keep things private, mediation offers the best way to do that. Matters are kept undisclosed and are not a matter of public record. If you pick an experienced mediator, you can rest assured that they will have dealt with hundreds of case anonymously and you needn’t worry about matters ever being disclosed beyond you, your partner and the mediator.

This means that even if there are disagreements or impromptu shouting matches, no-one will be any wiser. Your mediator will be bound by the Family Mediation Council’s code of conduct and policies that ensure that all info regarding the mediation is destroyed following completion. The only information that is retained is very basic to keep in line with the Data Protection Act and other relevant legislation.

5. You still have the option of court

It should be noted that even if the mediation process were to fail, you still have the right to litigate. As established above, mediation is a confidential process and mediators cannot be called to discuss the details of the mediation process. The only exception to this are any written agreements that were signed or any financial affidavits.

Do keep in mind the cost of money, time and energy that occurs when you choose to go to court. Mediation should always be the first and, in almost all cases, last step in divorce proceedings.

Foys mediation solicitors are here to help

At Foys Solicitors, we have our own specialist team of experienced mediators who have helped hundreds of families through their divorce process. We do this in three stages which we outline to all of our clients before any proceedings begin so you are fully aware of what is to come.

Our team has full Family Mediation Council accreditation and Family Mediation Association membership, meaning they have the best skillset and training for the job to ensure that your mediation process has every chance of succeeding. You will find our mediators to be outstanding – empathetic, caring, understanding, non-judgemental and legally qualified to help guide you and your partner through this difficult process.

To learn more about our mediation services and to get your FREE initial consultation, simply call Foys today on 01302 327 136, contact your nearest local office or fill in our online enquiry form on our Contact page.

What happens to my digital assets when I die?

Leaving traditional assets to family in a will is clear enough, but what about the music, photos, social media and apps you own online?

It’s normal for somebody to consider the more traditional aspects of assets when creating a will, but what about the latest generation of assets – your digital assets, such as purchased music, games, apps and money making social media accounts or website?

When you sign up for an online account of any kind, post a photo on a social media account or download a music album you probably don’t give any consideration to the fact that you are creating digital assets. And, understandably it’s likely that you don’t give any thought to how they will be dealt with after your death.

The world is becoming increasingly digital. There are around 4.66 billion active internet users worldwide. That’s 59.5% of the global population. 4.2 billion of us are active social media users. We’ve signed up for an account on Facebook, Instagram, Twitter or another platform agreeing to the terms and conditions as we did so. You may even have read the user agreement in full and requested that it be emailed to you. Likely the last thing on your mind as you requested access to the software is what would happen to the content you created when you are no longer here.

What is a digital asset?

In the last few decades, physical items such as photo albums, bank statements, record collections and letters have been increasingly replaced by their digital counterparts. So instead of tangible items, we have emails, online banking, audio streaming and cloud photo storage.

digital music assetsThese can be considered your digital assets although the examples above are only a small representation of the different types. Now you might expect that you would be able to pass these digital assets on to your loved ones in your Will. After all, you’d be able to do this with the physical versions. However, this is where things differ when it comes to digital assets.

From a legal viewpoint, things are a bit interesting! English law agrees that the copyright relating to emails, photographs and other content belongs to the creator. So the individual, deceased or otherwise, who took the photo or typed the words is the owner. However, it has no specific definition of digital assets.

The difficulties of digital assets in relation to English Law is something the Law Commission are well aware of. They are currently looking at issues around crypto and digital assets and how current legislation can be reformed to accommodate possession of ‘intangible’ assets. But it’s a slow process. Their recommendations are not due until 2022 and will still require implementation by the government.

Furthermore, accommodation in English law would only be a starting point. Digital assets are likely to be a multi-jurisdiction issue.  For example, the platform may be owned by a company registered in one country with servers and data in another while the actual user resides in a third location. Each location is subject to the laws of its own country. Additionally, local laws may apply as they do in individual states in the USA.

Even public opinion itself is divided on what should happen to online accounts and devices after death. Some favour wholesale deletion while others see their online activity as a legacy that can be passed on or used as a memorial.

The value of a digital legacy

The Executor of a Will is responsible for dividing up the possessions of an individual according to their final wishes. When it comes to looking at a digital legacy their starting point is clear. Firstly, they need to identify the assets associated with the individual’s digital footprint. Then they need to consider which assets have a monetary value and which, while of sentimental and emotional value, do not.

what is a digital legacy?This will be easier in some cases than in others. Investment accounts, bank accounts and cryptocurrencies are clearly among those which have a monetary value. But the content of websites, online profiles and social media accounts shouldn’t be dismissed as being necessarily worthless.

The key lies in who these belong to and how they have been used. Within the realm of the online, the use of platforms are many and varied. This means that the value of social media profiles, newsletters, e-courses, e-books, websites, blogs and online content can vary considerably. This may prove to be a challenge for valuation in order for Probate to be granted.

The most obvious digital activity with a monetary value might be the various accounts associated with a business. So, for example, a shop might have a website and various social media accounts. The website could include an online shop, a blog telling customers about new products and various videos demonstrating how to make best use of their wares. These things make up part of the value of the business. In order for the business to remain viable they will need to continue to be updated. Without the relevant passwords, user names and access codes business continuity will be interrupted and this may damage the value of the business. This raises questions of transferability to either business partners or a new owner. It’s a good reason for companies to ensure that access to systems is not dependent on a single individual!

Another area where online profiles have a value is for social media influencers. This group make income by sharing content about their daily lives with their followers. Their posts are usually sponsored or have affiliate links.

How much value their accounts would retain is questionable. It may depend on how much they have been able to diversify their content. Likely those who had created online courses, books or products as part of their offering would be in the best position to continue to provide an income stream to their heirs. In many ways they would not be in a dissimilar position to the sale business referred to above.

Another variation of the new opportunities for an online career are gamers streaming their play to subscribers. Income is made from membership, sponsorship or adverts.

Licensing and ownership

The next complication for the executor is whether the deceased had ownership of their online assets or was simply licensing them. Leaving a book or music collection to a friend who shares your interests would not be an unusual request in a Will. Assuming that the items in questions existed in physical form. If they are digital then some investigation will be required.

The key issue is around what the contract, user agreement or terms and conditions stated and what provisions they made for such contingencies.  For many popular services what you are paying for is a right to access rather than ownership which means you won’t be able to pass it on.

There is also the matter of access to the content. One can see the reluctance of a platform or service providers to release personal information and also the frustration of relatives who simply want to keep family photographs and emails. Generally, data protection legislation, which is intended to keep these details safe, only applies to living individuals. If you have the passwords or access codes, the idea of logging in to access the content would be tempting. But even if you are authorised as Executor, it would not be advisable to do. This action may cause you to fall foul of the Computer Misuse Act 1990.

Deleting online accounts

Closure of accounts can also be troublesome. There are good reasons for removing accounts. It can be upsetting to receive reminders from the platform about the deceased for something like a birthday. But fraud is also an issue.

social media account ownership probateClosing down an eBay or Amazon account may seem an irrelevancy but left open the account could potentially be used without permission. Many people have card or other payment details stored on their account.

Privacy is also a concern. You may have digital content such as personal emails that you would prefer to be destroyed in event of your death rather than floating around cyberspace indefinitely and causing potential embarrassment for family.

However, social media platforms are often difficult to contact and information about closing accounts, while available, is likely to be buried within their site. There are some exceptions. Facebook allows for the appointment of a ‘legacy contact’ and for you to choose whether you want your account to be deleted or memorialised after death. Twitter does not offer memorialisation but will allow for an account to be deleted if authorised by the Executor or an immediate family member.   Google has introduced an Inactive account manager tool.

Planning your digital legacy

Digital assets may be held in varying parts of the world and therefore subject to individual platform agreements and local data protection laws. The asset value may vary considerably.  Content may not actually be the property of the deceased and where it is, there could be access problems. Consequently, estate planning for your digital assets is something you should be thinking about today. Action now will make things much easier for your loved ones, and your Executor in the future. Here are a few steps you can take now.

Make an appointment with your solicitor

There’s no doubt that the best person to discuss your digital legacy with is a legal professional. At Foys Solicitors we’ve supported many people through the process of will preparation and estate planning and each outcome has been as unique as the person themselves. While banks and insurance companies are beginning to offer tools to support digital estate planning, these are no replacement for experience. An experienced professional can tailor the right approach for you and your dependents.

List your digital assets

Start your planning by making a list. Your assets can’t be acted on if your Executor doesn’t know they exist. While they can make an inventory of a property for valuation purposes, what you hold online is less obvious than physical possessions. You might be surprised by the number of accounts that your email address is linked to.

The Digital Legacy Association has some useful resources to assist with this inventory. You should ensure that you include the following:

  • Email accounts
  • Social media accounts
  • Online media  – both storage and streaming or download services
  • Websites and blogs
  • Online shopping accounts
  • Financial sites including bank and investment accounts
  • Accounts related to your business

If accounts are shared, such as email address or bank account note this.

Review your list

Consider the assets on the list and how you would like them to be dealt with. If you have particular actions that you would like taken for an asset then check the terms and conditions for the platform or service to see if it will be possible.

Decide whether you want social media accounts to deleted and consider removing any online accounts that you no longer use or need. For local authority services or others like HMRC, the ‘Tell Us Once’ service allows most government organisations to be informed of a death without the need to contact them individually.

Keep the information up to date

Review your digital assets list regularly.  Add new accounts or assets to the list as you open them and ensure that the actions you wish to be taken for each remain current.

Speak to Foys about planning your digital legacy

Our team of legal experts are here to help you ensure that wishes are carried out when you are no longer here. We’re able to work with you on all aspects of estate planning from Will to Trust to Lasting Power of Attorney.

We offer a free initial consultation so that we can assess your needs and proceed in a way that will support your needs and provide the best solution for you and your family.

For a free initial consultation or more information on planning your digital legacy, give us a call on 01909 500511. You can also email us at enquiries@foys.co.uk or complete our Contact Form.

Preparing commercial landlords for the end of furlough

Preparing commercial landlords for the end of furlough

Commercial landlordism has taken, and will continue to take, a huge hit as a result of the COVID-19 lockdown. But instead of burying your head in the sand, you should be thinking ahead to how you’re going to manage matters in a post-furlough world.

Despite the recent extension to the furlough scheme of March 2021 offering some reprieve for businesses and, ultimately, landlords everywhere, it has only bought companies another month to plan ahead. Case numbers are going down but they are still nowhere near pre-lockdown levels.landlords emerging from furlough

While the UK government may have no choice but to further extend the furlough scheme past the end of April 2021, there’s absolutely no guarantee that this will happen. That means commercial landlords, in particular, have a short window to get their business in a prime position to survive.

Stats from the Centre for Economics and Business Research say that the lockdown is costing the UK economy £521m per day, has seen 6 million workers placed on furlough and has cost us one quarter of our total businesses. These figures should be enough to scare any landlord into pre-emptive action because, ultimately, it’s commercial landlords who are going to face the brunt of the fallout.

Why no furlough is going to be difficult for commercial landlords

While not every commercial landlord will be affected, the chances exponentially increase for companies that have the most properties. While the furlough scheme is keeping many businesses afloat while they either run reduced hours (or, in some industries, no hours at all), the stop in support is going to cause a cash flow shortage that may not be made up by customer demand.

While we’re all looking forward to the end of restrictions, a drop of full social distancing restrictions is still likely to be far off and, as such, customers aren’t going to return in droves to commercial properties anytime soon. Those running retail shops are almost assuredly going to see a drop in footfall compared to the pre-pandemic times; whereas those renting office spaces will see businesses realise that they can save money by having staff work at home. You may already have had to deal with this problem.

So weather it is driven by money or need, there’s a good chance you’re going to start seeing a lot of customers try to change or question the terms of their lease once the furlough scheme ends. It’s why good legal representation for commercial landlords is going to be so important going ahead.

What you currently can’t do as a commercial landlord

The situation is made more difficult by the fact that commercial landlords are facing restrictions on what they can and cannot do when a tenant can’t (or is refusing to) pay rent.

A number of laws have been temporarily changed to give renters more protections against legal action by landlords over non-payments. These include the Coronavirus Act 2020 – which stops landlords from pursuing forfeiture in the result of no payments by tenants – and restrictions on winding up petitions brought about by the Corporate Insolvency and Governance Act 2020.

Even if you can get a tenant to court after the required six months’ notice, a judge is likely to throw the case out if the tenant can demonstrate that their business has been impacted by COVID-19. As almost every business in the UK has been affected, this makes the court route a legal improbability for landlords right now.

In addition to all of this, there are also regulations in place on Commercial Rent Arrears Recovery (CRAR) that requires tenants to have accrued over 365 days of outstanding rental debt before any action can be taken.

There can be no doubt that many tenants are undoubtedly running businesses that are struggling. However, many commercial landlords are finding that tenants who were a problem before the pandemic when it came to payments are now bringing them even more hassle as they take advantage of these temporary measures to operate largely rent-free.

What the future holds for commercial landlords

With so many of the cards stacked against commercial landlords right now, it’s important to take a step back and look at what can be done once the furlough scheme ends.

One positive to take away from the furlough scheme’s end is that it will likely correlate with the end of the temporary restrictions on what legal action can or cannot be taken against non-compliant tenants. Without many of these protections in place, you’ll be free to tackle the worst offenders once again.

It’s also likely that you have seen or will see tenants try to change the terms of their lease or even reduce how much space they rent. With many businesses now giving their employees the choice or working from an office or working from home, it’s undoubtedly going to reduce the amount of space that tenants need.

One upside from this situation is that social distancing measures ensure that there still needs to be sufficient space between desks so this may not be such an immediate problem for commercial landlords. In fact, some businesses that utilise a large amount of employees in a small amount of space – such as call centres – may even be forced to increase the size of their rental space to continue operations.

Additionally, it’s also very likely that we’re going to start seeing bigger businesses look to operate less centralised offices and instead move to smaller, regional offices – another possible opportunity for those with such properties in their portfolio. And there is also an opportunity for renting out smaller offices or even desk space as people look to escape from the chaos and noise of home working.

Regardless of these positives, it’s likely that you’re going to see more tenants try to hold out on payments for as long as possible and you need to be prepared with the right mentality that comes from having smart legal minds at the other end of the phone that you can rely on.

Taking proactive steps

Despite all these negatives, it’s important to maintain a sense of balance throughout it all too. Many people and businesses are struggling right now. While the temptation to relentlessly pursue tenants is strong, there’s a lot to be said for a more compassionate approach as a way of building loyalty and trust with your tenants.

People are far more likely to work with you and by sympathetic to your concerns if you can show the same approach in your communications with them. A more discerning approach to how you talk to your tenants is certainly going to be key in how cooperative they will be in helping you back by paying rent when they can.

One proactive step that can be taken right now by commercial landlords is to start thinking about revising the fine print in your tenancies. We’re going to see more tenants seek out more flexible terms once their tenancies end – such as shorter leases and clauses centred around allowing tenants to back out under certain conditions. How you navigate these areas is going to have an impact on the likelihood that your tenants are going to stay with you or move onto a landlord who is giving them a more flexible deal.

It’s also important that you have protection in place once the temporary measures and furlough end. Make sure you have rent guarantee insurance in place to ensure that you can distribute actionable section 21 notices when you are able to do so again.

Foys can help you navigate these tough times

One last factor that is going to determine your company’s outcome is the strength of your legal representation. From the pursuit of late or non-payments from tenants, to the drafting of new template leases, you need solicitors with the experience, flexibility and strategic know-how to be a beacon in these dark times.

There’s no question that our experienced commercial property solicitors are exactly who you can trust and rely on. Our team assists across a wide range of commercial property matters – with a speciality in resolving issues between landlords and tenants.

We will not only offer you clear and consistent legal advice that cuts across the lines of jargon, but we can draft new leases to suit these differing times and help you end disputes with your tenants through proactive mediation and clear communication. Our goal is always to get the maximum gains possible for our clients without the need to go through expensive court proceedings.

Additionally, we can help you in matters of asset management and property refinancing which may well be an increasingly important area for commercial landlordism during these tough times ahead.

Our goal at Foys is to ensure that our clients feel safe in our hands and that they know that someone has got their back and best interests at heart when dealing with these difficult matters – and someone who they can trust to give the right advice at the right time.

We provide all of our first-time clients with a FREE initial consultation so that you can have first-hand experience of what it’s like to be part of the Foys family without paying a penny. To start experiencing quality legal advice you can trust as soon as today, just get in touch with Foys’ Commercial Property Team today by phoning us on 01302 327136 or by contacting us via our Online Form.

Will & estates during lockdown

Will writing during lockdown – what you should know

Will writing during lockdown – what you should know

During times of fear, worry and existential crises, it’s not surprising to see a rise in people enquiring about wills. However, the COVID-19 pandemic isn’t just something that affects a small group of people; it affects everyone.

Because of this, the number of people enquiring about wills has increased quite dramatically over the past year. It’s not just people in vulnerable categories or who have taken an ill turn that have been enquiring; frontline workers who are not in vulnerable categories have found themselves considering their mortality due to being in proximity to so many different people. Healthcare professionals have been particularly keen to sort out wills as a precaution due to being in proximity to high viral loads as a result of tending to COVID-19 sufferers.

importance of will during lockdown One poll found that there was a whopping 70% increase in demand for will execution in March 2020 compared to the fourth quarter of 2019. As well as dealing with the increased interest, providers of will-writing services have faced unforeseen challenges – especially in regards to legality.

In this article, we’re going to talk you through what you need to know about wills during the pandemic and how the current restrictions are likely to affect the execution of your will.

The legality of wills during lockdown

To understand why will-writing is such a problem during a time of social distancing, we need to look at the law surrounding wills. In order to be legal, wills in England and Wales must meet the criteria first set out under the Wills Act 1837, section 9. This sets out that a will must be submitted in writing (handwritten or print/typed) and the testatrix/testator (the person who has made a will/legacy), or a directed legal representative of the testatrix/testator’s choosing, must sign it.

However, things get more complicated when you consider the legal need for there to be at least two independent witnesses present to witness this signature. The will must then either be attested and signed by the witnesses or, at the very least, acknowledged while the testatrix/testator is in the same room or within sight of the will being signed. This means that the signatory and the witnesses can, technically, be in a separate rooms or can observe through a window.

As you can see, this poses quite the challenge during social distancing restrictions and even more so if the person is in hospital where there are heavy restrictions on the visitors who can be present. Even if it isn’t in the hospital, arrangements must be made to ensure that there are at least 2 meters distance between every person present.

Other further considerations to keep in mind is that these witnesses must be independent. By that we mean that they will not benefit from the will. With restrictions on the mixing of households, this creates a difficult situation. The 2 metre rule also poses problems if one of the intended witnesses is partially sighted as they may not be able to legally claim that they witnessed the signature.

Adjustments to the law under lockdown

In September 2020, the UK Government made a historic move to put in place legislation in England and Wales that allows for a will to be witnessed via video link. This was the first time in almost 200 years that the law surrounding wills had been adjusted. However, the preference is still for a witness to be in-person and such a set-up should only be used in the event that there is no other alternative.

This change was also backdated to 31 January 2020 to ensure that any will that was witnessed via video link under the duration of the pandemic will be acknowledged as legal. It should be noted that this is a temporary step that will last until the end of January 2022 or beyond, if necessary.

It’s important to note that the witness must still physically see the will – ideally on the same day – and then both witnesses must sign the will while on video link. For the sake of any possible future legal headaches, it may be a good idea to record this whole process.

From July 2020, HM Land Registry started accepting electronic signatures so as to allow for the speedier transfer of property (including mortgages, leases, etc.). However, there are also provisions in that the deed must still be written, there has to be a witness present to observe the deed being signed, and it must go through an approved electronic signature provider/platform (e.g. InfoTrack’s SignIT).

Can you create a DIY will?

It is understandable that with the lockdown in place that many are looking to circumvent any unnecessary human contact and putting together your own will is one way to do this. There is nothing in the law that says you can’t create your own will as the process is not regulated; however, be aware that this route can be fraught with problems should the document be found to have errors.

It is not uncommon to hear stories of people ending up in limbo over an estate due to the will not being properly drafted and, in a number of cases, these wills are found to be invalid. One survey found that approximately 40,000 families per year are left waiting for an estate to be processed due to DIY wills that have not been drafted correctly.

The most common mistakes tend to be related to signatures, failing to get the witness process correct and incorrect names. Witnesses are a common problem as the word ‘independent’ can be misconstrued. Not only can the witness not be a beneficiary of the will, they also cannot be a member of your family, they cannot be an immediate relation to a beneficiary (e.g. spouse, civil partner), they cannot be partially sighted or blind and they must possesses the mental capacity to have understood what they witnessed.

There are also other stipulations that need to be taken into account when it comes to a DIY will. For example, if you get married after writing your will, this will void your DIY will unless you included provisions for marriage.

This additional paperwork resulting from a poorly crafted will can end up just swallowing more money and sorting out these problems can end up costing far more money than paying the relatively small fee for even just a basic, professionally drafted will. These fees can tally up to 10% (and even beyond) of your estate’s total worth. This could lead to tens of thousands of pounds being unnecessarily wasted; as well as precious time. The worst case scenario is that your family might end up in a court case which will swallow up even more funds. As such, DIY wills have the potential to severely hinder – not help – your family.

If you’re thinking of writing a DIY will to minimise your interactions with people, it is important to weigh the above scenarios before you make your choice on how you want your will to be constructed.

Foys takes your will and COVID-19 seriously

At Foys, we know that there is a real worry amongst people seeking will services during the lockdown due to concerns surrounding the safety of such a process. We take the situation very seriously and we pledge to do everything we can to ensure that the process is as safe and secure as it can be.

We offer contactless appointments via Skype. If that isn’t possible, we can attend your property to take instructions without even entering the property. Due to adjustments put in place, we can even offer detailed instructions on how to properly gather your independent witnesses and perform this process correctly without our presence. If it’s not possible for you to have two witnesses, we are happy to attend and act as your witnesses at a safe distance. We also specialise in probates, trusts, lasting power of attorney, letters of administration and other related services.

When we say that you’re safe in our hands, we truly mean it.

If you’d like to learn more about our will-drafting services, simply get in touch using our online Contact Form or by giving your local Foys office a call today:

Retford: 01777 703 100
Worksop: 01909 500 511
Doncaster: 01302 327 136
Clowne: 01777 703 100 (Temporary Number)
Rotherham: 01709 375 561
Sheffield (Waterthorpe): 0114 251 1702
Sheffield (Chapeltown): 0114 246 7609

dash cam footage used as evidence

What you need to know about capturing footage for personal injury claims

What you need to know about capturing footage for personal injury claims

While you may think that capturing footage of an incident will be enough to ensure you win a personal injury claim, there are other considerations apart from the footage itself that need to be taken into account.

With so many of us now roaming the streets carrying all sorts of tech in our pockets, purses and even strapped to our body, there’s never been an easier time to validate the story of claimants and defendants. However, the courts are very different from the more personal court of showing footage of an incident to a nodding and sympathetic family member or friend.

Evidence has to be tested and, as such, it has to be be able to stand up to the rigour of examination from both judges and opposing parties. Footage captured on personal devices – such as smartphones or dash cams – is no different. Even though you may think that the footage should make the incident clear to a judge, there are many other things to consider that could see your footage totally dismissed from usage in a case. Knowing what these rules say in advance could not only save you money on chasing a futile claim, but could help you prepare for any potential incidents in the future.

The quality and clarity of the footage

The first consideration to be made regards the quality of the footage being presented. Not all cameras and microphones are alike. Some are very advanced and have been released not just in the past year, but even during the past few months; some are very old and provide a much more unreliable picture at a lower resolution.

dashcam personal injury evidenceThe quality of your tech could end up being a crucial aspect of a personal injury claim. Court staff and judges expect footage to be of a good quality resolution so that all of the pertinent details are evident. There should be absolutely no doubt as to what has transpired in the footage. Introducing sub-standard footage to a claim that only confuses could even end up damaging your case. Even if the incident looks clear to you, keep in mind that you were the person who experienced it and, as such, have a memory to fill in the blanks of the footage; others will not see it the same way that you do.

This is why it is important to consider upgrading your tech every few years. Older dash cam technology and older CCTV systems may not offer the clearest output or resolution when compared to more modern systems, nor will they offer the same level of data as newer systems (see below).

Additionally, while footage of the camera shaking from an apparent bump and a proceeding shouting match are all interesting titbits that can help build a more complete picture of events as they happened, this is going to be far less helpful than catching the actual incident on camera as it happened.

Complete or incomplete data?

Any footage of an accident that occurs is always far more helpful when it includes all the data relevant to the case. When dealing with a road traffic accident (RTA), it helps if it shows not only the time and date of the incident – allowing statements to be easily cross-checked – but if it also shows data such as the speed you were driving at during the time of the accident. If there is built-in GPS data, then this can help pinpoint exactly where the accident happened. While none of this information seems particularly useful, it helps any judge verify your statement and ensures that your story appears credible and factual.

In the event of a workplace accident, or an accident in a public place, similar details can also be helpful. However, you need to be sure that the footage isn’t going to ensure that your statement is left without credibility. For example, if you say that you were working understaffed and you were rushing around before you fell at work, it’s not going to look good if the footage is timestamped from when after the store had been shut. Footage can be advantageous to establishing the truth against insurers, but only if you are telling the truth in the first place.

Body cams, often used by people in security roles (such as bouncers), and headsets (such as GoPro) may also be helpful in establishing the truth of an incident – especially if there are no other witness to rely on, nor any other footage or data, other than the word of you and another party.

Is the footage secure?

Footage is generally only accepted in the courts if it can be proven that the footage has not been tampered with in the intervening time since the incident. While cloud technology can be helpful in acting as a digital ‘fingerprint’ of the footage’s legitimacy, older technology – such as tapes – will always come under scrutiny to ensure they haven’t been doctored.

This is why it’s important to have a clear and transparent process that you follow when it comes to the storage and retention of footage. If a CCTV system’s output is stored to a hard-drive, you’ll want to ensure that hard-drive is securely stored. If you use a body cam, you’ll want to ensure that you have a process for retaining footage that can be easily followed and traced. It is not unheard of that a party with access to the footage will try to have it doctored and thereby render it inadmissible.

In Australia, footage of a former police officer – who had medically retired after alleging corruption in his local force – got into a verbal altercation with a former colleague who he had criticised. This argument was captured on CCTV and did not paint the retired officer in good light. However, a video professional found several gaps and interruptions in the footage that, in their professional opinion, suggested that the video errors indicated intentional manipulation of the original footage.

This is why it is so important to have a process that you regularly follow to secure and store footage – especially if you are the claimant.

Footage must be legal

There is a common misconception – thanks to the availability of capture technology and the widespread use of social media – that you can just about record and upload anything to the internet. While this may help you win a trial by public opinion, it’s not going to help you win a trial by court.

Footage must meet stringent requirements to be permissible in court. Should the footage fail this test, then it cannot be used – no matter if it shows the incident or not. One big hurdle for the use of footage comes from the Data Protection Act (DPA). This law stipulates that we all have expectations of privacy. As such, it needs to be clearly signposted that you are operating CCTV around a property. As long as the footage is used for the purposes of protecting your home and not for other means, this is generally fine.

Additionally, dash cams, CCTV and body cameras do fall under the 2018 General Data Protection Regulation (GDPR) that relates to the storage of personal data. This may have potential ramifications regarding, for example, a personal injury claim resulting from an incident on a business premise or one that is captured while using a company car.

If you are an employer or an employee, it’s worth knowing that employees must be notified that there is CCTV in operation on business premises – as set out in the Protection of Freedoms Act 2012. If you do want to access security footage from your workplace to help with a personal injury claim, you can do so by Subject Access Request (SAR). You have a legal right to this footage. Your employer must reply within a 40 day limit.

Keep in mind that if a recording fails any of these standards, or the courts do not think it is worth their time or money to investigate the feasibility of the footage, then it may not be considered as part of the claim.

Don’t adjust your camera while driving

It can be tempting, even if you are sat motionless in a traffic queue, to adjust your camera if you think there’s activity happening around your vehicle that may be interesting. It’s the equivalent of ‘rubber necking’ – taking your eye off the road ahead to see what’s going on elsewhere, such as another road traffic accident. This is another cause of serious accidents. Having a camera onboard can be particularly tempting in these situations, especially reaching for your mobile phone and using the camera on that. If you are involved in an accident yourself, not only could you be prosecuted if your found to have been using a phone at the time, it could be used as a reason to invalidate any insurance claim you want to make because of something known as ‘contributory negligence‘.

Work with solicitors you can trust

The success of a case can hinge on footage or recordings so it’s very important that you work with personal injury claim solicitors that will do everything they can to make sure that your case, and any footage, is presented in the best possible light to ensure that you get the justice that you deserve.

With years of experience in handling successful personal injury claims from RTAs, to falls and slips, to injuries at the workplace or from faulty goods, and much more, we’ll do everything in our power to secure you a successful result for your case. Just call or email us today to get the ball rolling so that you can get what is rightfully yours.

Regardless of Covid, don't be tempted to stop spousal payments

Regardless of Covid, don't be tempted to stop spousal payments

The COVID-19 pandemic has been an emotionally and financially fraught time for everyone and, unfortunately, some relationships have also been causalities to the carnage. If you’re dealing with divorce or divorce payment problems during this time, it’s important to seek a resolution.

Everyone is feeling the impact of the pandemic and lockdowns of varying severity. However, there are certain groups who are being forgotten about amongst news of vaccines, the NHS and businesses – one of which is people who are either paying or receiving spousal payments following a divorce, or are in the midst of the divorce process.

If you’ve found your way here, there’s a good chance that you’re amongst this group. You may have lost your job or been furloughed, leaving you worried about how you are going to keep making spousal or child payments. You may be concerned that your ex-partner is about to suddenly stop making payments. Perhaps this has already happened. Or it could be that you are currently going through divorce proceedings and you have been left in limbo because of financial changes that are going to limit your ability to make or receive payments.

These precarious positions cause even more problems that can lead to a breakdown of any cordial relations between you and your ex-spouse or soon-to-be ex-partner. If you’re feeling tense about any of the above issues, it’s important that you seek out good legal advice that can not only help inform you about what to do, but can help ease these tensions and allow both parties to see each other’s perspectives in a calm manner. This is part of what we do at Foys.

But before we get to that, it’s important to walk through this situation, remind you that you are not alone in this struggle, discuss the ramifications of electing not to work with your ex-partner during this process, and establish why it is so important to avoid getting yourself in hot water with the courts.

The effects of the pandemic on divorce

Whether you were in the midst of divorce proceedings when COVID-19 hit hard, you’ve been divorced for a long time or the strain of lockdown propelled you and/or your partner to end your marriage, it’s not hard to understand why things have become much more heated between two people who were previously a couple. Worldwide rates of divorce, and sales relating to divorce-related legal proceedings, have seen major increases. In the UK, one law company found that inquiries into divorce had increased during periods of 2020 by well over 100% when compared to the same period of 2019.

It’s a staggering rise that suggests many are struggling to keep their relationship together whilst in lockdown. However, even Sweden, which tried to approach the pandemic with a non-lockdown approach, has also demonstrated similar trends. The effect of financial strain caused by the global situation cannot also be overlooked. This is something that people who are making – or are in the process of setting up – spousal payments will be all too aware of right now.

Whether a divorce has been brought about by changing financial circumstances, being around a partner too much, lockdowns causing untenable and unliveable situations for some people, or the pandemic making people think twice about what they want their post-pandemic life to look like, there’s no doubt about the correlation between the pandemic and divorces.

How divorcees and children are being affected

For people who are currently experiencing fear around making or receiving payments, the cause of this tension is also likely to be something out of their control. We know from an up-to-date YouGov poll that over a quarter of people who divorced over five years ago have reported dealing with conditions affecting their mental well-being – such as depression and anxiety. And when it comes to more recent divorcees, these mental health problems were present in nearly half of all respondents.

So even without considering the pandemic, we already know that people struggle during divorces. And now with the pandemic causing not only a loss of jobs, but people who have seen their investment portfolio hit an all-time low, substantial outgoings – such as maintenance payments – are going to seem absolutely untenable. Unfortunately, all of this has a knock-on effect on the partner who is receiving the payment too. Worry can set in when they hear that their ex-partner is in financial difficulty as this may also affect their quality of life, as well as their children’s quality of life, too.

And these aren’t the only problems. Access to children has become an even more difficult issue to navigate as some people are not allowing their previous partner to see their own kids for safety reasons. Or there is a partner who previously took the children at weekends who is now refusing to do so because they may now live with dependents who have underlying health issues that make them vulnerable to COVID-19. The whole situation is a veritable minefield.

Whether the pain of divorce resulting from the pandemic is from fresh verbal jousting or old wounds that have re-opened, it is clear is that mediation is always the best step you can take to try and solve divorce-related problems. The YouGov survey found that nearly two-thirds of all respondents agreed that had they accessed professional, legal advice at the start of divorce proceedings or when problems with an ex-partner first arose, their personal experiences would have improved.

The legal perspective

Divorce lawyers, such as the team here at Foys, are seeing a huge increase in people making all sorts of enquiries relating to divorce – both from old and soon-to-be-old marriages and civil partnerships – during the pandemic. It’s always a good idea to involve a divorce/family lawyer as soon as possible in the process due to the emotional nature of divorces.

From our perspective at Foys, we care about your mental health. Matters regarding divorce and family are never easy and our family lawyers have the speciality and experience to move at your pace. We’re that honest voice at the end of a call that you can rely on to help guide you through this difficult time. It’s important to keep emotions in check when dealing with your ex-partner or their legal representatives. We’ll always be the people who are going to look out for your interests, the interests of your children, and the interests of all parties involved.

We will always try and keep things out of the courts. This is something that can be achieved by conversing with your former spouse through a mediator in the form of a trained, professional lawyer. During the pandemic, this is even more important as the financial situation may make it impossible for one partner to make the payments they were previously making. There is no point going to court to fight for money that isn’t there.

In that instance, nobody wins from a financial or a mental and emotional perspective. However, should this process fail, you will likely need to get the courts to review the maintenance agreement and adjust any payments. However, you need to be able to prove – rather extensively – that these payments have to be reduced.

Knowing what you can and can’t do

It’s important to realise that you are on dangerous ground if you suddenly just stop child maintenance payments to your ex-spouse – especially if you do so without notifying them. If you already have a pre-existing agreement, you need to take every possible action to honour that agreement. Transparency and honesty will always reflect well should the case have to go to the courts, and this applies to both sides.

If your arrangement was made recently (i.e. within the past 12 months), then you cannot just stop these payments. If you are over this period and you do not make a payment, you do risk enforcement. However, if you are able to genuinely prove that you cannot make the payments – such as a demonstrable loss of income or employment – then the court may choose to wipe (either in part or in full) the payments that have accrued over the duration of that time.

Regarding spousal payments, if you do stop these then you need to be able to demonstrate that you are making changes to your lifestyle and that your personal expenditure is reduced. As with child maintenance payments, you leave yourself open to enforcement should you already have a pre-existing agreement. You will need to talk to your ex-spouse to agree upon a temporary reduction, or seek a court agreement.

Collaborative law is the process that the team at Foys will attempt to go through before taking matters to the courts – seeing us take on the role of an impartial mediator to the dispute.

The current court process under Covid

Should any mediation process fail, then you are bound to end up in the courts. Currently, the courts are struggling under the pressure of not just the increased amount of divorces during the pandemic, but in catching up with the disruptions to the service as a result of actions taken to reduce the spread of the virus. That means they are both behind on cases, and dealing with more cases than ever. As maintenance orders tend to take somewhere between half a year to a year to go through as it is, these time frames may end up increasing over the duration of the pandemic.

As such, the response by the courts has been to try and reduce the level of cases by only accepting applications they see as urgent. At the best of times, judges do not look kindly upon cases that they see as nothing more than a grudge; during the pandemic, they’re going to have even less time for such cases. It’s why you need to consider the possibility of avoiding the courts and finding a way to negotiate with your partner if you feel things are unnecessarily volatile.

This is because an application for judgement on financial orders when an agreement hasn’t been reached between parties currently costs £255 in England and Wales. While you may be exempt from making this payment under certain circumstances, there’s a good chance you could lose that money if your circumstances aren’t seen as strong enough.

What happens if legal advice gets ignored

Be advised that if you are making maintenance payments and you elect to simply stop paying, this will only come back to bite you in the future. You may decide to chance your luck because of the courts being snowed under and/or because you believe your ex-spouse doesn’t need the money. Aside from being irresponsible, the risk of taking such an action can come with a penalty.

You will be liable for enforcement, further court appearances/fees and you may be required to pay a further 8% interest on any money you owe to your ex-partner. If you are genuinely struggling to make these payments, it would be unwise to pile even more debt onto your name.

When your child is involved, the ramifications of missed payments can be far more consequential than just financial implications. Access to your child or children, as well as their future emotional well-being and relationship to you, could be irrevocably damaged. Simultaneously, these repercussions can also be felt when a parent takes the other parent to court over payments that the latter cannot afford. This is why mediation from a firm such as Foys is the best step you can take to solve the situation amicably with minimal emotional, mental and financial damage to all parties involved.

Divorce proceedings are in safe hands with Foys

Whether you’re in the early stages of deciding on a divorce, or you need a resolution with your ex-partner regarding spousal and/or child maintenance payments, Foys is here to provide you with all the support you need during this difficult time. Our experienced team knows that matters relating to divorce or an ex-spouse can be distressing in normal times – doubly so during a pandemic – and we simply want to provide the best outcome possible for all involved.

Foys’ specialist team are consummate professionals when it comes to tackling the intricacies of family law. Amongst our inter-disciplinary ranks are accredited resolution specialists, Law Society Children’s Panel representatives, and a collaborative family lawyer. We strongly believe that an empathy-driven approach, combined with a commanding knowledge of family law, ensures that everyone is safe in the hands of our experienced solicitors and administrative staff.

At Foys, we don’t want you to feel overwhelmed by the situation and that’s why we will walk you through the whole legal process on a step-by-step basis in a way that you can easily understand. This ensures that you have all the information at hand to make the right decisions for your situation. This process starts with a FREE initial consultation with one of our family law solicitors. Just call 01302 327136 or fill in our online enquiry form to start the process of putting that worry behind you.

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domestic abuse

Domestic abuse and coronavirus - a perfect storm?

Domestic abuse is a constant problem, but has the Coronavirus pandemic made matters worse?

Domestic violence reports during the first coronavirus lockdown increased significantly, with one charity, Refuge, reporting a 25% increase. With a new lockdown in place and the festive season fast approaching, we all need to be aware of the signs of domestic abuse and help those who may be suffering as a result of it.

When we think about domestic abuse, it’s normal for physical abuse to be uppermost in most people’s thoughts. However, in today’s increasingly technological and socially driven world, serious abuse can manifest in surprising ways.

How does domestic abuse affect a person?

Abuse has phases which cycle. First, there is tension building. During this stage, the victim may attempt to change their behaviour in the hope of stopping an abusive incident from occurring. The second stage is an abusive episode. This is then followed by a reconciliation stage. At this point, the abuser may apologise, ignore the event or put blame on the victim. A period of relative normality may follow and give the false impression that the abuse has come to an end until the tensions begin to build again.

Under usual circumstances, there are ‘breathing spaces’. These allow the individual a period of respite during which they can seek support. The abuser will be away from home for activities such as work and seeing friends. The victim will be able to leave the home for permitted activities like food shopping, collecting children from school and other domestic errands. Going to school also provides an opportunity for children to escape the situation at home and ask for help.

The suspension of activities outside the home, such as during lockdown, creates a situation with no breaks and tensions begin to rise. In a survey carried out by Women’s Aid 76.1% of respondents said that their abuser was spending more time at home as a result of lockdown. As a result, the victims are likely to feel increasingly on the edge as they try to ward off an episode by keeping their abuser happy.

This extra time at home under the eye of their abuser also makes it more difficult to seek help or make arrangements to leave without being discovered. Fear of spreading the virus reduces the possibilities of in-person support from friends and family. Meanwhile being at home with your abuser reduces the opportunities for seeking help via phone calls, text messages or online. Necessary lockdown restrictions have contributed to keeping victims in their homes and support at arm’s length.

What defines abuse?

Although domestic abuse is often violent, this definition fails to appreciate the whole picture. Women’s Aid defines domestic abuse as ‘an incident or pattern of incidents of controlling, coercive, threatening, degrading and violent behaviour’.

Abusers seek to dominate their victims both through physical and psychological methods with exacting standards of behaviour. They will also want to isolate their victim and prevent access to support which could end the abuse. So this will likely include restricting who they can spend time with and inspecting phones, computers and other devices for any activity they have not authorised.

Lockdown has limited access to family and friends for support and made remotely seeking support more challenging. Calling a helpline when your persecutor is just a few feet away is not an option. And every text message or brief phone call is an activity that may subject you to further abuse if discovered. Removing access to technology is both abusive behaviour and a way to further isolate the victim. This may take the form of deleting social media accounts, refusing to top up mobile credit or confiscating devices. Thus access to support of any kind is further reduced.

Other elements of lockdown may be used as part of the abuse. For example, blaming the victim for economic difficulties, refusing to purchase medications or food and insisting that if they leave the house they will be arrested.  Lockdown may also be used as an excuse to follow a constricting regime. At the other extreme restrictions may be disregarded altogether putting the victim at risk of infection and fear that they may trigger an episode if they attempt to take precautions.

Leaving an abusive relationship

Government guidelines made it clear that leaving your home to evade domestic abuse was permitted during lockdown. But for those seeking to leave, the reality was not so simple. The impact of the virus meant many organisations closed their doors temporarily or began working remotely limiting the kinds of support they could offer. 84.8% of services have reported having to reduce the support services they offer. Additionally, government guidelines have impacted on the number of places available at refuges.

Such reductions are unlikely to give victims the confidence they need in order to leave their situation. But it doesn’t mean that they should just continue to suffer. The Police have indicated that they would not look to leave a family homeless as a result of trying to escape domestic abuse. Louisa Rolfe, West Midlands Deputy Chief Constable and the domestic abuse lead for the National Police Chiefs’ Council has confirmed that they would seek to remove the perpetrator.

If you’re in immediate danger then calling 999 or texting 18001 101 remains the recommendation. Landline calls are traced and if the operator thinks you are in danger they will put the call through to the police. The issue of ‘pocket dialing’ has resulted in another option for mobile users. Once connected to the emergency operator there will the option, known as the Silent Solution or Make Yourself Heard, to dial 55 for connection to the police.

There is also an option for those who are deaf or cannot communicate verbally. It does require setting up in advance but is easy to do. Gain access to the emergency SMS service by texting REGISTER to 99 so that you can make use of it when you need to.

Online help for domestic abuse

Meanwhile, agencies such as Women’s Aid are looking at technological solutions. They recognise that making a phone call during lock is likely to be difficult. Hence their website features a quick cut-off button and will not appear in browser history.

Along with Refuge they also have safety tips for survival during Coronavirus. These include choosing a code word that you can use with a friend or family member if you urgently need support, talking to children about where they can take refuge and avoiding areas of the home which have items that could be used a weapon.

For those who are able to make a call, there is the National Domestic Abuse Helpline offering free, confidential support on 0808 2000 247.

A list of organisations offering specialist support to victims of domestic abuse is available at Gov.uk. This included services for people with disabilities, ethnic minorities, men and the LGBTQ community. It also flags organisations that can help with different kinds of abuse. For example, Refuge’s TechSafetyTool explains how to secure mobile devices and ensure that location services are not accessible.

What are the symptoms of abuse?

If you are concerned that someone you know is a victim of domestic abuse there are a number of signs that you can look at for. These include marks of physical abuse such as bruises, burns and bites.

There may also be indications that someone is being limited in what they are allowed to do. This can include being prevented from attending work or education, having their finances controlled resulting in a lack of money for food or bills, and their phone and computer use being monitored.

Additionally isolation from friends and family and being withdrawn are also signs to watch out for.

Refuge and Women’s Aid has useful tips on their website for how to proceed if you think abuse is taking place. Don’t expect them to open up immediately and avoid appearing judgemental. Do let them know they are not alone, say that it’s not their fault and offer to go to solicitor or talk to the police if they feel ready. However, they warn against putting yourself or the victim at risk by confronting the perpetrator.

What happens in a domestic abuse case?

Once the victim has had been able to escape from domestic abuse, the support they require will come from a number of different sources to cover areas such as housing, benefits and income, children and legal action. Foys understand the difficulty of the situation and offer confidential domestic abuse advice to help you explore your options in advance.

Domestic abuse is not a specific crime in itself but covers a number of different offenses. A police investigation will pass evidence to the CPS.

The next step then will be to obtain an injunction to prevent your abuser from having access to you. Foys can assist you with the requirements in applying for this including preparing a witness statement.

Where to live may be a concern. Seeking a refuge place may be an option and there is a likely legal requirement for local authorities to house anyone fleeing domestic abuse.

If you are married or in a civil partnership with your abuser then talking to a solicitor is important. Foys can advise and support you with protecting your property rights including anything that is owned jointly.

You may also need to protect your children in which case you will require a specialist. Foys puts the welfare of the child first and can help you to decide what type of court order would be best for your situation.

Other agencies and organisations such as Citizen’s advice, The Links GroupRefuge and Women’s Aid will be able to provide support and direction on accessing housing and benefits.

Leaving domestic abuse is not easy but neither is living with it. But the victims are not alone. Help is on offer to support those planning to escape and to assist them in finding the confidence to do so.

If you are a victim of domestic abuse and want to take legal action to help secure your safety, call and speak to one of our compassionate family legal advisers at a Foys office near you.

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Key and torn paper with text probate on wooden background

What does it mean to have a house in probate?

What does it mean to have a house in probate?

Start talking about Wills and you’re into the stuff of murder mysteries and legal thrillers. However, the truth is not nearly as glamorous and has far more paperwork.

When someone dies then their estate needs to be deal with. This means that their possessions from larger things like houses to smaller, more personal items will go to others. The legal process that allows this to happen is called probate.

Can probate be granted without a will?

Probate has to be applied for in the vast majority of cases, even if there is no will. Where the will does make a difference is around who will be responsible for valuing the estate and then carrying out the work of probate including selling property and dispersing the estate.

If there is a Will in place then the executors, the person or persons named to carry out the wishes of the deceased, will apply for probate or ask a solicitor to do so on their behalf.

However if the deceased had not made a will then probate regulations still apply. In this situation, their spouse, civil partner or children can become administrators of their estate and apply for probate.

There may be some incidences where probate is not required. For example, if the estate consists entirely of assets the deceased owned jointly with a spouse or civil partner, such as a house. Or if the estate is extremely small, less then £10,000, then probate may not be necessary. But bear in mind that banks and financial institutions will not release assets without proof that probate has been granted, and an estate of this size is unlikely to include property.

Do you have to pay taxes if you inherit a house?

No one is going to think that an inheritance sounds like a bad thing. You’re more likely to think kindly towards the deceased and make plans to enjoy what they have left you. But this might be less than you expect. Part of applying for probate includes assessing if the estate is at the threshold for inheritance tax. And if it is paying at least part of it to HMRC before probate is granted. As an executor or administrator, you can use any money the deceased held in a bank account to pay this or pay it yourself and claim it back at a later point.

Pay Inheritance Tax

The threshold Inheritance Tax is currently set at £325,000 with 40% paid on anything over this figure. This might sound like a huge amount until you take into account any property included in the estate. The average selling price for a detached house in Yorkshire is £272,754, according to Land Registry data, which is good way towards the threshold.

Recent reports also show that Yorkshire has the highest percentage rise in house asking prices in the country. At 8.1%, it even beats London who has seen more conservative rises. While a rise in price sounds good it’s worrying news for beneficiaries of Wills on two levels. There’s the Inheritance Tax issues raised above. But there’s also Capital Gains Tax to consider. A house that increases in price is subject to this upon sale. And if a house increases in value between the owner passing on and the property being sold then Capital Gains Tax will be applied. This will further reduce the amount of inheritance available.

And, of course, any income you acquire from the house after inheriting it, such as rental money, will have to be declared and Income Tax paid as appropriate.

And while it’s not a tax if you inherit a jointly owned property with a mortgage you’ll be liable for the mortgage payments.

What would happen if I died without a Will?

A popular idea is that the contents of a Will are top secret and will only be revealed at a reading thus causing maximum shock amongst those gathered. It’s actually a good idea to talk to your loved ones about your Will and the provisions you are making. This allows your executors to be clear about your wishes and how you want them to be carried out. It also allows them to understand the responsibility they are taking on and how the various processes work.

If you haven’t made a Will it might be because you think that you don’t need to. For example, you believe that your partner or children will automatically inherit your house. Or because you made one ages ago and didn’t see any need to update it. However, be aware that getting married or remarried invalidates a Will. And that partners do not stand to inherit unless the relationship has been formalised. It’s things like this that make it clear that getting advice from an expert like a solicitor does make a difference when it comes to legal matters. Estate planning is something everyone needs to consider whether you’re making a simple Will or looking at creating a trust. It will make life easier for your loved ones at a difficult time and is straight forward to do with our expert help.

Do you need to use a solicitor for probate?

Even if you decide to apply for probate on an estate by yourself you might want to get a solicitor involved once this has been granted. A solicitor will be able to help you navigate any tricky issues that might arise. Would you know how to deal with descendants who were left out of the Will and want to claim against the estate? Or what to do if the estate contained foreign assets? Or was insolvent?

A solicitor is well placed to help with these issues by applying their expertise in probate and particular issues in their geographic location. In rural areas, a business like a farm might still be generating taxable income while also being subject to Inheritance Tax. Similarly, rural properties may not be recorded at Land Registry requiring deeds to be located before the property can be sold. There’s no need to deal with a complicated or trying issue at a time of grief when you can rely on a professional.

In an ideal world, the solicitor who drew up the Will would be the one who also worked with the executors. But if this isn’t possible then choose another probate solicitor or accountant to support you.

Arrange a meeting to discuss your particular needs and talk about any concerns you have regarding the estate and how it is dealt with. It will also be an opportunity to consider how communication will take place and estimated time frames.

Pricing may also be a factor in who you choose to support you. Options are usually an hourly rate, fixed fee or percentage of the estate. Depending on how complex the estate is and what the value is may influence your choice. Foys offer fixed fee packages which you may want to investigate.

Inheriting property should be an exciting opportunity and the chance to remember the deceased with affection. It may not be a quick and easy process but the right support an awareness of the law there can be a satisfying outcome.

If you need legal advice regarding any aspects of probate, use our Online Form to contact our probate specialists.
Alternatively, contact your local Foys Solicitors office:

  • Doncaster – 01302 327 136
  • Retford – 01777 703 100
  • Worksop – 01909 500 511
  • Clowne – 01246 810 050
  • Rotherham – 01709 375 561
  • Sheffield (Waterthorpe) – 0114 251 1702
  • Sheffield (Chapeltown) – 0114 246 7609

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how to spot a scam

Protect yourself from scams

Protect yourself from scams

How do you avoid getting scammed? Would you be able to spot a fraudster? Do you know the difference between a fraud and a scam?

Being part of the community for nearly 50 years, Foys really don’t like hearings tories of our clients or the members of the lcoal community getting ripped off through the multitude of scams pervasive in soicately and online today. So we thought we’d like to share a basic guide into how to spot a scam and the things that should raise red flags and help you identify whether or not you are dealing with a scammer.

Banks and other financial institutions see a scam as the customer being duped into allowing authorised transactions to take place. They might have been fooled into handing over access information or believe that they are making moving money for legitimate reasons. However the police view fraud and scams as the same thing. And it can happen to anyone.

How many scams happen a year?

3.7 million instances of fraud were reported in the year up to March 2020. A figure that is consistent with the previous year. Bank and credit card fraud along with consumer and retail fraud accounted for the vast majority of these.

Fraud and scams also increased during lockdown with a rise of 33%. So it’s time that you began to protect yourself by understanding the different types of scam and how they work.

How can you identify a scammer?

Scammers want to get at your money and everything they do is aimed at making this happen. Ideally, they require you to help them out by giving them money directly but they are also after personal details or information. Technology and the rise of online banking have been a mixed blessing. On the one hand, you are less likely to keep money in the house as you can use cash points and make online payments. On the other hand, the scammer looks to exploit these things. Online shopping, social media and email have opened new ways for old frauds to be worked and you need to stay alert.

You probably know about phishing; that is attempts to dupe you into giving away vital information via email. But did you know about vishing and smishing? These are much the same thing but using a phone call or a text message to achieve the fraudster’s hoped-for outcome.

Scams include a mix of the following key features:

  • A sense of urgency. You need to take action immediately whether you think you’re helping the police with an investigation or being offered an investment opportunity.
  • Handing over of personal details. With these it’s possible to steal your identity.
  • A source you think you can trust. The phone call or email comes from a person or organisation you would usually trust like your bank or the police.
  • Providing access either by providing information or by making transactions yourself.
  • Offering something that sounds like an amazing opportunity – one you wouldn’t want to miss out on.

Different types of scams

Scammers are after two things; information and money. Ideally, they want you to hand over your funds to them so be aware of the ways they try to do this.

Counterfeit goods

The easiest way to part you from your money is to sell you something. But the designer goods being sold at the car boot sale will turn out to be not quite the quality or brand you took them for. Or they may be sold on online. Although the major auction sites such as eBay don’t allow fake goods to be listed this doesn’t stop it happening and spotting a fraud is more difficult online. It’s easy to get sucked in if you think that you’re getting a bargain.

Avoid being scammed by not rushing into making a purchase. Examine the product carefully and check the labels. Look at the packaging. Would a high-end item really be sold in a plastic bag?

If you’re buying online check reviews for the seller before making a decision. Online shopping became more popular during lockdown. And North Yorkshire Police have reported a rise in auction site frauds during the same period. Scammers will go where they can make money.

Always ask yourself it’s too much of a bargain? If the price is truly astoundingly low then, unless you know the trader to be reputable, walk away. And don’t forget to raise your concerns with your local Trading Standards team. While some fake goods are just a rip-off others which don’t comply with health and safety standards are actually dangerous.

A royal request

The email or letter comes out of the blue. You’ve never heard of the sender who might be a prince, a grieving widow or a religious leader but they sound feasible. And they have a lot of money that they need you to help them move out of their country. If you help them out you’ll have done a good deed for a stranger and you’ll get some of the money. It sounds great until they ask for funds from you to pay transaction fees, administrative costs or similar.

In most cases, the poor grammar and spelling plus the too-good-to-true offer will alert you to this fraud.

Money Mule

Jobs can be hard to come by and this one sounded like a great way to make some money. Your employee transfers money to you and you send it on to someone else after taking a cut. You won’t be told that it’s money laundering, although it does seem a bit odd that you receive the funds in the form of vouchers.

Always be wary when anyone even a friend asks you to move money through your account. Being involved in money laundering has serious consequences. Likewise, payment that comes in an odd form is a flag that this isn’t legitimate.

Romance scams

You’ve met your perfect match online. They got in touch with you, are really good looking and are so interested in every detail of your life. Then they ask if they can borrow some money. The reason sounds legitimate; it might even be to cover travel costs for coming to meet you.

It’s a scam. Even if you don’t give them the funds they request they can use the personal details you’ve shared to try and steal your identity. Don’t be swept off your feet without arranging a video call. Inevitably they’ll find an excuse not to because they look nothing like their photo.

Is that website legit?

Buying fake goods isn’t the only scam waiting to catch you out online. You also need to watch out for spoofing. This is where a website appears to at a different address to the one it is actually at. So you’ll think that you’re visiting the legitimate site when you’re actually at one created by scammers.  If you go ahead and log in or place an order then the scammers have you.

Avoid getting scammed by checking the site carefully. Does the website address seem a bit odd, maybe with just a reference to the brand in question? Are there lots of spelling and grammatical errors? If so, warning bells should be ringing. Check carefully for reviews before you consider buying from such a site. At best you’ll be unlikely to see your money again.

Investment scams

It’s a great opportunity for investment. But actually you’ve not had any previous contact with the company and they seem in a bit of a rush to get you signed up. Before you get carried away with the amazing returns on offer go the FCA website. They have a handy tool to check investment opportunities and avoid getting ripped off.

Clicking links

Stealing access details means that scammers can try and access your accounts. Getting you to click on a link is one of the ways they try to do this. The link may have come via an email asking you to log in to your account to deal with some issue. It might even claim that your account has been locked because of fraudulent activity! Alternatively, you may have been asked to click on a link in a social media post or to upgrade an app.

Clicking on the link could either allow malware to be downloaded or take you to a fake website. The malware will give the scammer access to your device while the fake website will harvest your login detail if you enter them.

Think before you click. Particularly if the link is in an email or text message. Access the site independently, check there are no issues with your account, change your passwords and report it.

Steps you can take as an individual to stay safe

You can’t know every scam but you can apply some basic rules to keep yourself and your money safe.

  • Be suspicious is it seems too good an offer
  • Be wary of clicking on links even it if the source seems reliable
  • Treat poor spelling and grammar on website as a warning sign
  • Don’t send money to people you don’t know – even if you’ve been ‘online friends’ for ages
  • Step back and do some research before parting with your money

Being scammed can happen to anyone. Scams are becoming increasingly sophisticated so it’s easy to get caught out. If it happens to you make sure that you report it and help to protect others.

This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues. Also, please note that although we may use the word solicitor, your case could be carried out by a legal advisor, legal executive or paralegal depending on the nature of the case.

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