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.

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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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Call the office nearest to you and speak to one of our professional specialists or fill out the form below

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

If you found this interesting, you might also like:

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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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Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below

Cycling on the right side of the law

Cycling on the right side of the law

Interest in cycling has grown during recent months if sales of bicycles are anything to go by. 13 million of us bought a bike during lockdown. There’s also government support for travelling on 2 wheels to reduce pressures on public transport and encourage healthier, greener habits.

For getting around using a bicycle offers a range of benefits not found elsewhere. It’s much cheaper than owning and driving a car. There’s no fuel to buy (although you might work up a bit of an appetite). Maintenance work on your ‘vehicle’ can be done at home with a small range of tools. And you can enjoy having your own wheels as soon as you can balance on them.

Compared to driving a car on the roads cycling seems so much less fuss for a little more leg work. It might seem that the only legal issue you need worry about is protecting yourself from personal injury. But hold on. Before you rush to the nearest bike shop take some time to familiarise yourself with your rights and responsibilities.

Getting started with cycling

There’s no requirement to have a licence for a pedal-powered bicycle. Nor do you need to register your two-wheeled carriage. So no requirement for the expense of lessons, tests and tax.

That said an understanding of the Highway Code is going to be extremely useful. Bear in mind though that the Highway Code is not a statement of law. It is composed of legal requirements, mandatory rules and useful advice. You can tell which is which as the clue is in the language. Find the word ‘must’ and you’re looking at a legal requirement. However, this doesn’t mean that you can just ignore the rest. Pay attention to the ‘should’ and ‘do’ items as failure to comply with these could still be used in legal proceedings.

If you’re cycling for the first time or it’s been awhile then consider voluntary Bikeability cycle training. Running at 3 levels it offers an opportunity to develop your cycling skills and learn how to cycle on today’s roads.

Is it legal to cycle on the pavement?

Every road user in the UK needs to drive or ride on the left. If you’re lucky there will be a cycle lane although two-wheelers are not legally obliged to use it. However, you are obliged to obey red stoplights.

Driving is one of the more hazardous activities undertaken by the population and a wobbly cyclist going slowly up a hill does not induce confidence. Cycling on the roads can feel extremely uncomfortable for both parties.

You might have considered the pavement as a safer alternative. This avoids the cars but potentially incurs the wrath of the pedestrians. But The Highway Code states that you MUST NOT cycle on the pavement. This is based on the wording of The Highways Act 1835 which prohibits ‘carriages’ from using “any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot passengers”.

The only exception to this rule is cycle tracks. These come in 2 forms. The segregated type have separate lanes for cyclists and pedestrians. With these, you need to stay in your lane. The other type has everyone sharing the same space. So, yes, you’re on essentially on the pavement away from the cars. Take it slow in this shared space and show pedestrians the same courtesy you’d like drivers to show you.

The rules are around pavement cycling apply to all ages. Children under 10 years of age might get away with as criminal liability does not apply to them.

For the rest of us, there are fixed penalty notices. The Minister for Cycling in 2014 urged police officers to use their discretion over such things. Fear of traffic and cycling on the road is not uncommon. However, it’s probably best to use the road if at all possible. Join the cars and put that Bikeability confidence to good use.

And on the subject of road use, it’s legal for cyclists to ride side-by-side. But do remember that unless you’re on a tandem or have a baby carrier or similar added a two-wheeled carriage should only be used by a single person. So you can’t give your mate a lift.

What about bicycle maintenance?

Brakes top the list here. You must have a front and rear brake which works efficiently. The law doesn’t define what efficient means in this context but do you really want to have a brake that isn’t reliable?

Next up is lights. Bikes only require two lights and you only need to use them from half an hour before sunset and the same post sunrise. During those times you’ll need a white light facing forward and a red light facing back. If you’ve added a saddle bag or any other accessories ensure that they are not obstructing your lights.

Flashing lights are ok but make sure they comply with the legally required minimum number of flashes per minute.

You can add other lights to your bike if you feel so inclined but for obvious reasons, white lights facing back and red lights facing forward are not permitted.

While you don’t have to use lights during the daytime it would be sensible to use them if cycling in conditions with reduced visibility such as fog or mist.

Don’t forget the need for a rear reflector and four amber pedal reflectors. Although it fills much of the same requirement the law does not allow wearing ankle reflectors or similar as an alternative to pedal reflectors.

Cars legally require a working horn. Bicycles don’t have to have a bell but just like a horn they work in a useful ‘be aware of my presence’ manner.

Should you wear a bike helmet?

Amazingly cyclists in the UK are not required to wear a helmet. But as with so many cycling-related things common sense suggests that it’s a good idea.  As is reflective or hi-vis clothing.

Can cyclists speed?

There’s no legal speed limit for bikes but cycling in a dangerous or careless manner is not permitted. You can be fined and the test for these offences replicates that for careless driving; it questions whether there was reasonable consideration for other road users. ‘Dangerous’ refers specifically to incidents where injury to a person or damage to property takes place. If you’re a ‘dangerous’ cyclist it’s probably time to talk to one of our solicitors with expertise in this area..

Can you cycle after drinking?

In a similar manner, there is no legal limit on the amount of alcohol you can consume before cycling. But cycling while under the influence is not advisable and you need to be in control of your bicycle.  And just because points cannot be added to your driving licence for cycling offences that doesn’t prevent you from being disqualified under the power of Criminal Courts (Sentencing) Act 2000 as being unsuitable for driving. Basically don’t cycle home if you’ve been out for a few pints.

Tips for getting started in cycling

Stay both safe and legal on your bike by doing the following:

  • Read and apply The Highway Code
  • Take a Bikeability course and improve road cycling confidence
  • Check your brakes
  • Ensure you are using lights and reflectors
  • Buy and wear a helmet
  • Cycle in a careful manner on roads and cycle tracks
  • When cycling apply your common sense as well as following the law

Stay safe but if there is a time when your bike adventures don’t go as planned – from experiencing road rage to accidents – our experienced team of solicitors is here to support you. If you are involved in a cycling incident then talk to Foys Solicitors with our expertise on personal injury and motoring offences.

Get in touch using our online form – or call 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

This post is not legal advice and should not replace professional advice tailored to your specific circumstance. It is intended to provide information of general interest about current legal issues.

Enquire About Our Services Today

Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below

probate inheritance and wills

The responsibilities of an executor

The responsibilities of an executor

If a deceased person leaves a Will, they will name someone as an executor – a person who will oversee and deliver portions of the estate to the relevant parties.

The executor is generally a person that the deceased person knew and someone who they felt could be trusted to ensure that their estate would be properly distributed. As most (but not all) have knowledge that they will be the deceased person’s executor, it is likely that they already have a general idea of the Will’s contents or even have a copy of it.

The executor will perform a lot of roles following the person’s death. Officially, an executor’s primary role is to deliver portions of the estate to the relevant parties (known as ‘beneficiaries’) after any debts or taxes that the deceased person owed have been paid off. Unofficially, however, they will do far more than this. This can include everything from being the person who registers the death to even arranging the person’s funeral.

As there is often a lot to manage as an executor, it is often helpful to secure the services of a probate solicitor. The term ‘probate’ is the legal term to describe the action of confirming and administrating the Will according to the deceased’s wishes.

As such, a probate specialist will be able to work with you to ensure that you fulfil all of your legal duties as the executor, help you understand the intricacies of probate law and complete the relevant legal documents. They will also ensure that you cannot be found to have performed your duties incorrectly and will minimise the threat of any legal action from the deceased person’s family members or creditors.

These are just some of the roles an executor is expected to fulfil as part of their duties:

  • Death registration,
  • Organising funeral arrangements,
  • Tracing the deceased’s property,
  • Valuation of the estate,
  • Settling taxes and debts,
  • Application for legal right to distribute the estate (probate),
  • Distributing notice of the deceased’s estate,
  • The sale of assets,
  • Allotting the estate in accordance with the Will,
  • Making a record of transactions

As there is a lot to manage, this is why it is best to consult with a solicitor who specialises in probate law – such as the Wills, Trusts and Probate team at Foys. As estates worth under £5,000 do not need you to apply for probate, we are going to focus on some of the above things that you need to do as an executor when dealing with an estate in England that has a value in excess of £5,000.

Death registration

As soon as a person dies, their death should be registered as soon as possible at the nearest registry office. In England, this is required within five days. To do this, the executor and/or next of kin must secure a certificate from the hospital doctor or, alternatively, permission to register the death (which is given by the coroner). From here, you should make an appointment at the closest registrar’s office to complete the registration process.

As well as this medical certificate, you will also need documents that prove the person’s identity and address (such as a birth certificate, certificate of marriage, a driving licence and/or a council tax bill). The registrar will tell you what exactly they need. Once this is done, they’ll provide you with two documents: one known as the ‘green form’, which is a Certificate for Burial or Cremation, and a BD8 form which is a Registration of Death. The former permits a burial or cremation to take place for the deceased person; the latter is a form you should fill in and return in the pre-paid envelope if the deceased was receiving state benefits or a State Pension.

In order to execute the estate, you will likely need extra death certificates to pass onto various utility companies (such as energy and water providers), banks, insurance companies, government bodies and other organisations that would need to know about the person having passed away.

The government’s service for doing this is known as the ‘Tell Us Once‘ service. This service will notify nearly all government organisations of the person’s death. As well as a death certificate, you’ll need to also provide the following to use this service:

  • The deceased’s date of birth,
  • Their National Insurance number,
  • Their driving licence number,
  • Their Vehicle registration number (if applicable),
  • Their passport number

As well as these details, you’ll also be required to give the following:

  • Any details regarding the deceased person’s benefits or entitlements (e.g. State Pension),
  • Any details regarding the provision of local council services that the deceased was in receipt of (e.g. Blue Badge for disabled people),
  • Details regarding a surviving spouse or civil partner (i.e. their name, address, telephone number and their National Insurance number or date of birth),
  • Should there be no surviving nor mentally capable spouse or civil partner to handle affairs, details regarding the deceased’s next of kin (i.e. their name and address),
  • The name, address and contact details of the executor,
  • Any details regarding any other pension schemes the deceased was involved with (e.g. public sector or armed forces’ pension schemes)

Organising funeral arrangements

As soon as you have the ‘green form’ – the Certificate for Burial or Cremation – you, the executor, will be able to make arrangements with a funeral director. Often a Will contains instructions regarding this process, such as: who should be consulted; how the ceremony should be conducted (if at all); and, if applicable, what should be done with the ashes after a cremation (e.g. scattered across a particular area or given to a specific person for safekeeping) or where the deceased should be buried.

The costs associated with a funeral or ceremony should come from the deceased’s estate; however, as money to cover the costs of a funeral or ceremony cannot be made available before the probate, the costs will have to be temporarily covered by the executor. There are services that can help cover the costs for you who will then recover the costs from the estate at a later date.

Tracing the deceased’s property

At this point, you should also be moving to track down any assets that were owned by the deceased at the time of their death. While the most valuable and important of these assets are generally stated on the Will, some may not be. These assets will include bank accounts, property and possessions. However, this should also include debts such as loans, bills and mortgages too.

There are tools to help you – such as the Land Registry. You can use this to find any additional properties that the deceased may own. Should you find any property, note that any house that is unoccupied following the death of the owner needs to be secured and the relevant insurance company must be notified of the occupant’s death.

Valuation of the estate

In order to determine the value of the estate, the executor must work with a number of different professional valuers and organisations to work out the true worth of the estate. This can become rather complicated. While houses and property are relatively easy to accurately value with the use of a Chartered Surveyor, it’s often contents that can prove problematic to value. Valuable paintings, porcelain collections and expensive jewellery can prove (if not trickier then) time-consuming. It is best to use professional valuers with specialisation in the field that the possession belongs to as this will ensure accurate valuations.

As for other items that are not valuable, you may want to see about using a company that does house clearances. This will ensure easy, safe and legal removal of household items while enabling the house to be viable for sale as soon as possible. We still have more to discuss but, as you can see, being an executor can be very difficult work – particularly as this may be a time of mourning. At Foys, our probate solicitors will help guide you through the process and can seriously lighten the load.

Settling taxes and debts

If an estate is valued above £325,000, there will likely be Inheritance Tax to pay. This is because anything above that threshold figure will be subject to tax. This tax will not be paid by the individual beneficiaries but by the estate. It is the executor’s responsibility to obtain the value of the estate, complete forms and pay the relevant tax due. Significant gifts made by the deceased in the seven years before their death should also be factored into Inheritance Tax too.

However, tax may not be due if everything above the £325,000 threshold was either left to the deceased’s spouse/civil partner or was given to a charity/community amateur sports club. This is because there is no Inheritance Tax due on any asset transfers between spouses/civil partners. The threshold can also be significantly increased if everything is given away to the deceased’s children or grandchildren. This is inclusive of stepchildren, adopted children and foster children. How much it increases by is dependent on the tax year.

Another consideration is if the deceased has left at least 10% of the estate’s net value to charitable causes, then the amount of Inheritance Tax charged on assets over the threshold will decrease from 40% to 36%. As the executor will be personally responsible for any mistakes made in the calculation and payment of Inheritance Tax, it is important to get in touch with one of our probate solicitors at Foys to ensure you are doing everything correctly.

Application for probate

The need for a solicitor who specialises in Wills and probate can be an important step – especially in cases where there is some level of complexity involving the estate. While the executor can apply for a grant of probate themselves, it is definitely worth considering using a solicitor to do this for you. At Foys, our Wills, Trusts and Probate team will be able to do this.

Distributing notice of the deceased’s estate

As it is not always clear that a deceased person has debts, the executor may want to consider placing a notice in both the local newspapers and public record publication The Gazette. This will afford any local or national creditors an opportunity to make a claim as they are not likely to be aware of the person’s death otherwise.

This is important because, as aforementioned, the executor is personally responsible for the distribution of the estate. If you did not make the necessary efforts to find any hidden creditors, then you (the executor) will be held personally responsible for the debt. This is another matter that our solicitors at Foys will be able to help you with to ensure compliance and eliminate this risk.

The sale of assets

As long as there aren’t any surviving joint owners of a house that the deceased owned, and there were no instructions in the Will to indicate what should be done with the property, the executor will be responsible for what should be done with the property. Often the executor will decide to sell the estate in order to pay off any debts (like the mortgage) and deliver the remaining funds according to what is specified by the Will.

It can be very important to have a probate solicitor on your side when selling property as, again, the executor is personally responsible for the estate. It may be beneficial to sell the house off quickly in order to get access to more immediate funds. However, if the property is sold off quickly and for less than the market value, then the executor may face legal action from beneficiaries of the Will. Conversely, the beneficiaries may want to wait for higher offers to come in which can extend the amount of time, effort and energy required to sell the house. At Foys, we can help you with this process to ensure any decision is taken on sound legal advice that offers you the best protection against any legal action.

Allotting the estate in accordance with the Will

After all of the above has been completed, it’s time to distribute what is left to the beneficiaries in accordance with the Will. This is not a quick process and you should only do this after at least half a year has passed to ensure that there are not any late creditors or others who may challenge the Will or the way it has been executed – as set out by the Inheritance (Provision for Family and Dependents) Act 1975.

A complicated part of this process is the question of pensions and life insurance claims. You need to check and see with any pension or insurance providers to see if there are certain rules around how the money that was paid into these schemes should be distributed. This money may be due to a particular person or it may be able to be rolled into the estate.

One thing to watch out for is whether or not one or more of the beneficiaries have been declared bankruptcy. If you make a payment directly to a beneficiary who is bankrupt (either wittingly or unwittingly), then you (the executor) may be hit with a debt. This is because any inheritance to a bankrupt beneficiary must be shared to their Trustee in Bankruptcy (or Official Receiver) and not directly to the beneficiary. This enables the Trustee to use the money to pay off any debts accrued by the bankrupt beneficiary.

While any bankrupt beneficiaries are required by the Insolvency Act of 1986 to disclose to their Trustee in Bankruptcy that they are to be in receipt of inheritance, they may not always do this. As such, the executor must perform their own due diligence and find out whether or not beneficiaries are bankrupt before making any payments.

If this is not done, the bankrupt beneficiary may face prosecution in the Magistrates Court, and the executor can be held personally liable to pay the amount to the Trustee in Bankruptcy. As checking to see if beneficiaries are bankrupt can be a time-consuming process, particularly if the estate has a lot of beneficiaries, then it’s another reason why our probate solicitors can seriously reduce the load. They will be able to make searches to ensure that you know whether or not beneficiaries are bankrupt or not.

Making a record of transactions

Finally, an executor is responsible for keeping a note of every transaction that has been carried out in their role as executor of the estate. This is not only a legal requirement, as set out within the Administration of Estates Act 1925, but a very important step in covering you against any legal action. What you should detail as part of the estate’s accounts include the following:

  • The estate’s assets and value at the time of the person’s death,
  • The estate’s liabilities and value at the time of the person’s death,
  • Any money to HMRC as part of Inheritance tax (the Inheritance Tax account),
  • Any value that assets gained or lost (the capital account),
  • Any money gained after the person’s death to when the assets are transferred or otherwise realised (the income account),
  • Any fees paid to the court, conveyancing services, surveyors, legal advisors, estate agents, bankruptcy search services and other relevant expenses (the administration expenses account),
  • The total money paid to each beneficiary (the distribution account)

What else can a probate solicitor help with?

We have described a route that is followed by many executors; however, there are also many instances where this path can be deviated from due to other circumstances. Take, for example, if there is disagreement over who should be the executor or if two executors were appointed and cannot reach agreement on decisions taken on behalf of the estate. Additionally, if the deceased person did not leave a Will, this can cause serious complications for any potential executor.

A probate solicitor can be essential in these scenarios and in others, including:

  • If the estate is bankrupt, thought to be bankrupt or there are questions surrounding the estate’s bankruptcy,
  • There are complex and unconventional circumstances (e.g. when the deceased person’s assets are within possession of a trust),
  • The estate continues to earn a regular income that pushes it over the Inheritance Tax threshold,
  • If the deceased lived outside the UK and/or had foreign assets or properties,
  • If a potential beneficiary was intentionally left out of the Will but tries to make a claim as if they were a beneficiary (e.g. an estranged child, an ex-partner, etc.)

There are many more instances that can complicate matters for an executor. As well as the previously mentioned benefits, these are further reasons why an experienced probate solicitor can be so important as it is likely that they have seen most, if not all, scenarios play out before and, consequently, know the correct response.

Contact the wills and probate specialists at Foys

Being an executor may seem like a thankless task but there is likely a good reason as to why you were chosen for the role and the likelihood that the deceased person put their trust in you to distribute their estate. This sense of responsibility to this friend, loved one or valued acquaintance often motivates executors to do their best. But, in order to ensure that happens, it is advisable to have legal counsel in place.

An executor can face many challenges so having a probate solicitor help can be hugely beneficial to not only their ability to carry out their responsibilities, but also ensures that there is an expert offering practical and sound legal advice who is never more than a phone call away – should a sudden problem arise.

Our qualified and dedicated Wills, Trusts and Probate team at Foys are considered amongst the best in England in dealing with all matters relating to executing Wills and managing probate. For over 40 years, we’ve helped executors settle estates all across the north of England and Midlands. Our service helps executors understand the process, what it entails, the responsibilities of an executor – all in a way that is digestible and easy to follow. For many, this advice and guidance from Foys is invaluable in settling the estate with minimal stress.

We’re happy to offer you a FREE initial consultation so that we can understand your case and explain to you how we can help – all without any financial commitment. To talk to a member of our Wills, Trust and Probate team, and get your free initial consultation, simply call 01302 327 136 or get in touch using our Online Form today. 

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motorcycle contributory negligence

What is contributory negligence and how could it affect you?

Are you fully aware as to how contributory negligence could play a part in any accident compensation claim you make?

We wouldn’t be surprised if you looked at the term ‘contributory negligence’ and never gave it another thought. However, you might think again when you understand if you are involved in an accident, whether your fault or not, a claim of contributory negligence by the other party can have a serious impact on the outcome of any claim you make.

With increasingly busy lives and more traffic on the roads than ever, a little information can go a long way where being involved in an accident is concerned. In this post, we want to explain what contributory negligence means to you, as non-lawyers. We’d also like to explain how, if you’re not careful, a claim for any accident you are involved in could have negative consequences due to your own actions.

What is contributory negligence?

When you are involved in an accident and believe that the fault lies with the other party involved, you may try and claim compensation. When it goes to court, the court will seek to establish if any action on your behalf contributed to the damages your are claiming for.

It’s important to stop here for a moment and understand what was just written:

    • A clear distinction is being made between accident and damages suffered.
    • Contributory negligence refers to the damage sustained, not the event that caused it.
    • The court will seek to uncover if any actions YOU took before during and after the accident contributed to the damages YOU suffered. 
    • In other words, did your own negligence contribute to your injuries and by how much?

A simple example of this is not wearing a seatbelt in a car. If you are involved in an accident, the seatbelt probably wasn’t to blame (unless you were trying to put it on when the accident occurred). However, the extent of the injuries you suffer as a result of not wearing one may be much worse than if you had. The court would likely look to reduce any damages awarded as your negligence in not wearing a seat belt contributed to your injuries.

How might contributory negligence apply to scenarios we encounter every day?

Now that hopefully you understand the basic idea of contributory negligence, what circumstances might you find yourself in as you go about your normal day. We should point out that every situation is different and unique, and here we are simply trying to highlight the concept of contributory negligence in terms of everyday events.

Out and about as a pedestrian

Consider a person stepping off a bus and then stepping out behind the bus to cross the road. In doing so, they are hit by a car driving in the opposite direction causing the person serious injury. 

Both pedestrian and car driver have a duty of care for each other. Even though the car collided with the pedestrian, the pedestrian’s own action – i.e. negligently stepping into the road, contributed significantly to their injuries.

This was highlighted in two cases:

First. Ehrari v Carry (Court of Appeal, 2007). An incident involving a 13 year old girl who stepped out from behind parked cars to cross the road to catch a bus outside her school. She was hit by the wing mirror of a passing truck. She was found to be 70% liable.

Second. Jackson vs Murray. Again involving somebody stepping in to the path of an oncoming vehicle after stepping out from behind a bus. In this case the person was found to be 90% contributory. However after an appeal and then further review by the Supreme Court, it was reduce to 50%.

The lesson here is as much for the drivers of vehicles as for pedestrians. 

Cycling Accidents

With so many more cyclists on the road and incidents between cyclists and motor vehicle increasing, so too are injuries. Cyclists in particular are highly vulnerable and while they may believe that a motor vehicle driver is often to blame for an accident, their own actions weigh heavily on the outcome.

How much a cyclist contributes to their own injury in the eye of the courts, varies considerably and is affected by many variables, including the condition of the bicycle, cyclist’s distractions, road and traffic conditions.

In one case in Northern Ireland, a cyclist was found to have contributed to his injuries because while cycling he had looked down at his heart rate monitor. During that period he failed to notice a car crossing in front of him and therefore failed to take evasive action. His damages were reduced by 25% as he was deemed as not paying attention.

Similar distractions affect many cyclists today as gadgets continue to increase, not least in personal entertainment. Wearing a headset is going to reduce the chances of hearing other road users and thus reducing the possibility of taking evasive action. 

In other cases, cyclists who have bit hit by vehicles after cycling through a red light, as all too often happens, have seen their damages reduced significantly, in one particular case, by 80%!.

Motorcyclist accidents

Probably the situation most people are aware of with motorcyclists in traffic, is when they filter through the traffic. It’s one of the advantages of using a motorbike or scooter. There’s also nothing wrong with this as long as the rider proceeds with due care and attention, doesn’t cross solid white lines or pass when there’s a right hand turning. Even so, accidents happen and blame will be apportioned depending on the circumstances. 

In cases involving motorcyclists, contributory negligence is almost always argued by the other party where compensation is involved. It’s not hard to see why, and it’s why motorcyclists should remember just how vulnerable they are, not just to an accident, but to having their claim for compensation cut. 

For instance, in one county court case from 2008, a car was approaching its destination on the right and indicated to turn. As the car turned, an overtaking motorcyclist hit it. This matter was complicated because the driver had made previously made several contradicting signals prior to the manoeuvre. The motorcyclists had seen this and had held back, only overtaking when he believe the driver had decide to continue straight. The driver didn’t. The court found the motorcyclist 25% to blame because the motorcyclist was aware of the erratic nature of the driver, but still overtook, even though she was in a yellow box junction.

Every case is of course different, but it just shows that motorcyclists do need to be very careful, as any compensation claim they make could be impacted, even though they are not necessarily to blame.

How can you help yourself mitigate the chances of contributory negligence?

Evidence is critical to demonstrating that your actions, as the person claiming compensation, were not a contributing factor to severity of the injuries you sustained.

One of the best ways to do this is to use a dash-cam, a body or a helmet-cam. With the cheap available of such devices, there really isn’t an excuse any more. It’s very hard for a third party to counter claims you make if you have hard video evidence.

If you are a pedestrian or involved in a work place accident, use your phone to take video or images – just so long as it doesn’t further jeopardise your situation or contribute to any injury you have sustained. 

Every case is unique

Personal injury claims, who’s to blame in an accident and the issue of contributory negligence, are all situations that are assed on the individual circumstances of the case. It’s a complex area and so it’s always best to speak to a personal injury or motor accident claims specialist, whether your are a defendant or a claimant.

Contact Foys Solicitors

Foys have years of experience handling matters both for and against claimants. The issue of contributory negligence looms high in many of these cases and so you need somebody on your side who really knows how to represent your in these cases, especially as you may not be aware that a claim for contributory negligence could be made against you.

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landlord questions

How to ask prospective tenants the right questions

How landlords can ask prospective tenants the right questions

Landlords quite naturally want to learn as much about a prospective new tenant as possible. However, you need to be careful as to what questions you ask.

As specialist property solicitors, we hope that this post can help steer a landlord’s questions tactfully in the right direction. While this post is largely aimed at residential landlords and tenants, many of the questions and certainly the approach could be used for commercial landlords too too, especially small business landlords.

It might be a bit of an understatement, but being a landlord at this time comes with its fair share of risks as a business venture. The biggest risk though is in finding the right tenant.

What are you looking for in an ideal tenant?

Most landlords are simply looking for a tenant who is going to repeat the property, look after it and pay their rent on time.

The driver for this maybe the basis upon which you, as a landlord acquired the property and what you aspirations are in this field. For instance, maybe you acquired through inheritance and, rather than sell it, want to see a return. As part of your family’s ‘estate’, perhaps even your child-hood home, you want it to be respected. Or, you may have decided that now is the right time to explore buy-to-let. In which case, you will have a mortgage to pay and so regular payments are essential.

The point is, at some level, it is personal to you and should things go wrong, the costs (to varying degrees) will be yours to bear.

To kick off your search, write down the criteria you think your prospective tenant should fulfil. These might include the following:

  1. A good tenant track record
  2. A solid job, steady employment history
  3. An income that is a good multiple of the monthly rent
  4. A good credit score
  5. A stable lifestyle
  6. Pets / no pets?
  7. Good employer references

It helps to have a good dose of realism too. Naturally, if you are too picky, you may never find the right tenant, so tradeoffs are inevitable, but it is something that should be thought through carefully and examined in detail.

What kind of questions should you not ask a prospective tenant?

If you are a naturally chatty or inquisitive person, you’ll probably want to engage your prospective tenant in a casual and friendly manner, rather than in a more formal manner kind to a job interview.

Doing so though, it’s easy to fall into the trap of asking questions that are taboo or grey areas, even though quite innocently. This may put make the prospect somewhat sensitive and suspicious. After all, at this point, you don’t really know them or what they may be hiding, especially as property fraud is a very real problem in today’s markets.

So here are some recommended areas to stay away from:

1. Avoid asking questions about a tenant’s place of birth, as these can be viewed as discriminatory.

2. Don’t ask if a tenant has kids.

3. Avoid questions that hide their real intent, such as asking about local amenity needs – e.g. churches, mosques, etc.

4. Don’t ask about criminal convictions

5. Marital status

6. Age-related questions

7. Disability needs

8. Direct questions regarding your cash situation

9. Service animals

Many of these, such as enquiring about service animals, look like legitimate questions, however, they could be viewed as discriminatory.

So, what are the right questions and how should I ask them?

It’s not what they say, it’s what they don’t say that can give you the clues you need and insights into whether they will be a good tenant.

While still be somewhat guarded, honest tenants will want to help you come to the right decision in your decision quest to find a tenant. They will want to display a level of ‘openness’ to help show you who they are. Therefore, any prospect that appears over defensive and seems reluctant to engage in conversation is probably one you should avoid.

One way to get a good insight is by getting a prospective tenant to talk about themselves and their circumstances openly. Invite them to tell you about themselves. Ideally, as a landlord and if you are managing the property yourself, you need to have a friendly working relationship with your tenant. When information is offered openly you may avoid many awkward questions. It shows a level of engagement that may be important in maintaining a good working relationship.

Overly-talkative people though could signal another danger. Although they may be naturally talkative, it can be a warning sign, as they may be trying to cover something up by trying to give you too much somewhat irrelevant information.

What conversation trigger questions could I use?

Any prospective tenant is going to expect the landlord to ask some challenging questions – it’s only natural.

Showing genuine interest and being openly honest about your intentions is always the best policy. If you don’t behave this way, it invites a similar approach by the prospective tenant. Typically, these are ‘open questions’. Questions that can’t be answered with a yes or no, tend to prompt the prospect into talking about themselves. Also, try to about questions that start with ‘why’. Why? Because it naturally suggests you are asking the person to justify themselves and tend to confer an element of negativity in the question. We’d suggest trying the following open questions:

  1. What is your ideal rental? Continue the questions about themselves.
  2. What has prompted your move? Break the ice and get them talking about themselves.
  3. How familiar are you familiar with this area? Here, you are looking to get an insight as to whether they have roots in the area, such as family and friends that may help understand if they will stick around.
  4. What has attracted you to this area? Many things about your area may give insights into the prospect’s lifestyle that may be desirable or less so.
  5. What other properties have you viewed and how many more are you likely to see before making a decision? Are these genuine renters and are they likely to just be a waste of time.
  6. How long have you been renting for? Are they a long-term renter or is this to see them through until they purchase. Are you as a landlord looking for long-term renters.
  7. How are you finding the levels of rents in the local area? This may uncover more about their suitability and ability to afford your property long term.
  8. Tell me a little about the type of work you do? Do you enjoy it? A happy employee is a stable employee, at least from their perspective. Once you know who their employer is, something you’ll need anyway for references, you can check with Company House to get an idea of size and relative stability. You can also do a Google search on the company to see if there is any negative news on it.

Here are a few more questions that are a little more direct but perfectly legitimate include:

  1. How long are you looking to rent for?
  2. Where do you work?
  3. Will your previous landlord provide a written reference?
  4. Will your employer provide a reference?
  5. Have you ever broken a rental agreement?
  6. What is your income?

Lasting relations are built on good intentions and honest actions.

Just as you are looking for the right tenant, prospective tenants are looking for the right landlord. There are too many horror stories out there about unscrupulous landlords and bad tenants.

Remember too, that the tenant needs to be comfortable too and will want to ask you questions about the tenancy and what they can expect from you, such as keeping the place a safe and pleasant place to live, especially if they have children.

So, when interviewing a prospective tenant, maintain a balanced and open approach to the meeting. Take care in answering the prospect’s questions with the same level of attention as you would like given to your own questions answered.

For all your landlord and tenancy agreement needs and concerns, feel free to call Foys and discuss how we can assist.

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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Commercial Tenant Disputes

How to resolve a commercial tenant dispute

How to resolve a commercial tenant dispute

Learning how to deal with tenancy disputes swiftly is vital for all commercial landlords, but call the Commercial Property team at Foys if you have questions.

Being a commercial landlord has a number of great benefits and the chief motivation is to earn an income while your property continues to accrue value. But when disputes happen, you need to resolve them quickly and efficiently so they won’t escalate to something that will cost you more time and money. In this guide, we aim to highlight how you can resolve a commercial tenancy dispute, but for further information and sound legal advice based on years in successfully resolving tenancy disputes, please contact our Commercial Property team at Foys Solicitors.

Common types of commercial tenancy disputes

When a dispute happens between a tenant and a landlord, it is almost always as a result of a clear or perceived breach of the tenancy agreement. A tenancy agreement is a written contract between the landlord and the tenant that details the rights of both parties in regards to the occupancy of a property. An agreement will include details as to the obligations of the landlord and of the tenant. The agreement also covers arrangements such as who has the right to occupy the accommodation during the tenancy, how much rent a landlord is expected to receive from a tenant and how long the tenancy will last.

A tenancy agreement can be breached for a variety of reasons, of which the most common are as follows:

1. Unpaid rent (rent arrears)

When a tenant fails to pay their landlord the agreed rental fee on time, it’s called rent arrears and is always a cause for concern. There may be a number of reasons as to why the tenant has not made a payment, so it is best practice to notify the tenant and give them the chance to rectify it. However, if the tenant still doesn’t pay, the next step would be to send a formal letter outlining that they are in rent arrears and that you expect payment by a certain date.

Should you not receive the payment by this date, it is best to give our team a call at your local Foys office, as the next few steps involve formal letters to the tenants and also the guarantor (if any). One of these letters will confirm your intention to take legal action if the rent isn’t paid.
If the tenant continues to ignore you, we will help you take action to reclaim possession of your property, before going to court.

2. Sublets

An increasingly pervasive problem (particularly within cities) is subletting. A sublet is when a tenant rents out a room within a property that they themselves have rented from their landlord. The sub-tenant has no legal relationship with you the owner/landlord and will pay their rent to the tenant. While not necessarily an illegal act in of itself, subletting is something that can be a breach of the tenancy if the agreement expressly forbids any sublets.

Subletting can lead to complicated issues. For example, a sub-tenant may damage the property and the tenant is ill-prepared to remedy the issue with you the landlord. Don’t put yourself in this situation, talk to one of the expert commercial property solicitors in our team so we can help you create a tenancy agreement that makes your position on subletting clear.

3. Dilapidations

In every commercial tenancy agreement, dilapidations outline which party is responsible for maintaining and repairing the property. Disputes surrounding dilapidations are common as most commercial tenants tend to make alterations which are unwanted by the landlord.

If your tenant doesn’t believe that it is their responsibility and won’t cooperate with you on this matter, talk to us as we have experience in handling disputes relating to dilapidations.

Resolving a dispute

No matter what the nature of your dispute with the tenant, it is always wise to resolve the dispute quickly and efficiently so it won’t escalate to something that will cost you more time and money. Here are four common ways which you can use to resolve the dispute.

1. Get in touch and talk it through

The most important first step is to get in touch with the tenant regarding the problem. Try to talk through the issue and see if it’s possible to reach some sort of agreement or compromise over the issue. If no such agreement can be made, draft a letter that covers the problem, what it would take for you to reach a resolution with the tenant and invite them to respond (in writing) by also stating their respective position.

The letter should be professional and must not sound aggressive or contain threats, regardless of how unreasonable you feel the tenant is being. Once the letter is sent and you have (or haven’t) received a response, you should now decide your next step and how you want to exit from the dispute.

2. Mediation or arbitration

If reaching out to your tenant has not worked, the next sensible step is to involve an independent and impartial professional who is trained and qualified in conflict resolution. This person, also known as a mediator, offers a cheaper and faster alternative to going through the courts.

Mediation can take place face-to-face or via a conference call so the mediator can facilitate conversation and resolution from both parties. If an agreement is reached, the mediator will note this agreement in writing before sending this on to both parties for signature to make it legally-binding.

Instead of mediation, some tenancy agreements may state that certain tenancy disputes should be dealt with by arbitration, involving an independent person (known as an arbitrator). The arbitrator will listen to both sides, review the evidence, decide who should be responsible for the breach and who should be liable for any costs. The decision made by the arbitrator is called an award and it is legally binding. Once the decision is reached, you cannot take the case to court to get the decision changed.

Before going down the route of independent mediation or arbitration, it is essential that you have one of our experienced commercial property solicitors working with you to ensure that your rights as a landlord are respected and the clauses in your tenancy agreement are interpreted correctly.

3. Moneyclaim.gov.uk

If the dispute concerns rent arrears and you know the fixed amount, you can apply for a court order on moneyclaim.gov.uk, a portal designed to facilitate the claim process. After submission, the court will issue a claim pack to the tenant (now known as the defendant) within two days. And after five working days, the claim pack will count as served on the defendant. Once the claim pack is counted as served, the defendant has 14 calendar days to respond, which can be extended to 28 days if they file an acknowledgement of service.

If the time elapses and the tenant continues to ignore you, you may now request a judgement in default on the moneyclaim website. If you are in this situation, get in touch with a solicitor like Foys as you must choose your options carefully before proceeding to enforce judgements. We will review the case with you before advising on the moves that aim to maximise your chance of success while minimising your costs.

4. Eviction

If you are thinking about eviction, talk to a solicitor first as eviction may or may not be suitable. To an extent, what you can do depends on the tenancy agreement too.

Foys can help to resolve your tenancy dispute

Since 1972, Foys has provided a valued service to commercial landlords across South Yorkshire, North Nottinghamshire and Derbyshire. We have a highly skilled, professional commercial property team who takes pride in their ability to understand the complex laws surrounding commercial property ownership and leasing. We use our knowledge and expertise to help our clients to make better decisions for themselves.

If you have an unresolved issue with your tenants, or if you need to draft a commercial tenancy agreement that protects your interests, speak to one of our experienced commercial property solicitors today.

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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Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below