Winter 2018 newsletter
WELCOME TO OUR LATEST NEWSLETTER
We are pleased to announce a new member of our Private Client team Lucy Plummer.
Lucy joined the firm in December 2017. Lucy has undertaken the Level 3 Certificate in Law and Practice (Probate Practice) and is a qualified Paralegal. Lucy mainly handles estate administration cases but also assists others in the department with the preparation of Wills, Lasting Powers of Attorney and Court of Protection work. Outside work, Lucy enjoys spending time with her friends and family as well as her horse and many dogs.
Office Christmas Raffle
The sum of £108.00 was raised and the chosen charity this year was the Kings Arms Youth Project in Petersfield.
No matter how well you know someone, at some stage you'll get them a present that doesn't fit, isn't right or they just don't like.
No right to return gifts
Many of us are surprised to find out that high street shops don't have to accept returns unless an item is faulty, not as described or is unfit for purpose.
The good news is that most retailers choose to provide a 'goodwill' returns policy, especially at Christmas, offering an exchange, refund or credit note for most returns.
And if your gift was bought online, over the phone or by mail order, you have additional rights to return it under the Consumer Contracts Regulations.
There are some gifts you may not be able to return, however (see 'Items you can and can't return', below).
Returning a gift not bought by you
If you receive an item as a gift, you'll need proof of purchase, and to know the date the gift was ordered if it was bought online.
The best way to do this is with a gift receipt. If you weren’t given one with your gift, you’ll need to ask for the receipt from person who bought it for you.
If it was bought online, you may need to ask the person who bought it for you to return it as there are special regulations that apply to online purchases.
However difficult it may be to tell a loved one that a gift isn’t right, just remember that there is only so much space in the back of your wardrobe to store unwanted jumpers.
Check returns policy before you buy
You can only return non-faulty goods for an exchange or refund if the retailer has a returns policy. Shops don't have to have a returns policy, but if they have one they must stick to it.
Most retailers impose time limits for returning non-faulty products, such as 28 days, but many extend their returns policies around Christmas, so you might have more time than you think.
If you pay by credit card, you also have extra protection under Section 75 of the Consumer Credit Act.
And under the Consumer Contracts Regulations, if you buy a gift online you have the right to cancel your order from the moment you place it until 14 days after you receive your goods.
Items you can and can’t return
There are some returns exceptions worth knowing about, including:
- DVDs, music and computer software Many retailers refuse returns if the seal or packaging has been broken
- Perishable items You won't usually be able to return an item if it's perishable including food and flowers
- Made to order If an item has been made to order or personalised it's very unlikely that you'll be able to return it
- Hand-knitted Christmas jumpers If it was made by a relative or friend, no matter how hideous or ill-fitting, your only option is to say thank you and graciously accept it.
What you need to return a gift
Depending on a retailer’s returns policy some will only exchange or give you a credit note, while others will give you a refund.
But all shops usually require a few key things.
- A receipt Always keep your receipt and take it with you. If you’re buying a gift for someone else, ask for a gift receipt so they can exchange it if they want to.
- The card you paid with If you paid for an item on a debit or credit card, take it with you when you return the item. This is especially important if you want a refund as it's often credited to the card you paid with.
- The original packaging Don’t underestimate the importance of taking the item’s original packaging with you. Even down to the cable ties.
Private Landlords and the New Universal Credit
The new system of universal credit and the effect this introduction will have on private landlords should not be overlooked. Universal credit is replacing a variety of benefits which are currently available including the housing benefit payment. The new payment will be made monthly in arrears and will be paid directly to the tenant. For private sector landlords who are currently receiving housing benefit payments directly from the local housing office, these payments of universal credit will now be made directly to the tenant and it will be the private sector tenant who is responsible for paying the rent.
It is important that private sector landlords press upon the tenants the importance of paying their rent directly to the landlord in future and that they are aware of the changes. In a situation where landlords previously did not have to rely on the tenants to manage their rental payments, there is a danger of arrears where tenants who may or may not be used to managing their finances in this way, now have to be responsible for making their own rental payments, in circumstances where if there is a delay in the universal credit payments commencing, rent arrears may accrue.
Private sector landlords in this circumstance should regularly keep in contact with their tenants where arrears accrue so that these do no grow unnecessarily before any action is taken.
Rent arrears for private sector landlords, particularly where there may be a buy to let mortgage which relies upon that rental payment, can quickly become a significant financial burden on those landlords if rent arrears are not tackled promptly.
Private sector tenants will either receive payments at the local housing allowance rate or at the level of the rent, whichever is lower. Therefore if the tenants housing allowance rate is lower than the current rent for the property, it is the tenants’ responsibility to find that shortfall, which again can potentially lead to difficulties.
This is something that private landlords who may be renting to those who currently receive housing benefit, should be aware of.
2017 brought exciting and positive news of a further Royal Marriage and no doubt everyone will be looking forward to celebrating this occasion.
The marriage however brings to mind two particular legal issues that could require consideration by the pair.
Firstly it is often a neglected fact that a Will is revoked by marriage. This means that if either party to the marriage has an existing Will, this will be revoked as a result of the marriage and the Rules of Intestacy would apply to their future Estate.
It is possible to ensure that a Will is not revoked by marriage by putting in appropriate wording to cover this eventuality, or by making an alteration to an existing Will to include a note to this effect.
It is also the case that depending on what is in the Party’s Wills, it may be that there are some potential Inheritance Tax savings as a result of the ability to transfer a Nil Rate Band on death. The current Nil Rate Band of £325,000 can be transferred from one spouse to another on death if assets are passing to that spouse. There are also similar abilities to transfer the Residence Nil Rate Band if appropriate Assets are left within a Will to cover the requirements of the Residence Nil Rate Band Allowance.
In the event of marriage therefore it is vitally important to consider whether or not you wish your Will to be revoked and whether or not you should be putting in place an altered Will.
The second item which of course requires consideration in an impending marriage is that of a Pre-Nuptial Agreement. A Pre-Nuptial Agreement is an understanding between Parties of what each party has at the commencement of the relationship and how these Assets should be dealt with in the event of a future separation.
This could be seen as rather a negative document to be party to but in fact it allows each party to understand their position and to openly agree how best to deal with matters and to reduce future stress and heartache in the event that a separation takes place.
Trust Registration Service
HMRC have recently introduced a new on-line registration service for Trusts which replaces the previous paper forms we were required to complete for Trusts on an annual basis. HMRC have advised that they are no longer accepting paper forms and therefore mandatory registration has been brought in when Trusts need specific criteria.
As you may be aware, trustees are required to maintain accurate and up-to-date records of all trustees and beneficiaries and comply within relevant tax reporting deadlines that are applicable to their trust.
The new on-line system is intended to speed up the process by allowing electronic records to be submitted and give an opportunity to store the up to date information as to the details of both the trustees and the beneficiaries.
It is not the case that every Trust is required to be registered, however, the rules on which ones are required are quite technical and therefore here at Mackarness & Lunt we have spent some considerable time familiarising ourselves with the requirements in order to advise our clients accordingly.
Therefore if you are a beneficiary of a Trust or indeed a trustee and want to know whether or not you should be registered with the Trust Registration Service, we can advise you on your obligations and help you meet the requirements.
If a Trust does need be registered, this is not the end of the world! Effectively, all that is required is that each beneficiary produces their full name, date of birth, full address, National Insurance number or Passport details, in order that you can then submit the details to HMRC. Whilst this is initially time consuming, we are hoping that this will streamline the administration of Trusts on an annual basis and make keeping records easier for trustees!
If would like to know more about the Trusts Registration Service and what this means for you, please do feel free to contact the Private Client Team on 01730 265111.
Impact of Social Media on Divorces
Whilst the number of people with smart phones and constantly tapping in to social media increases, so does the potential affect in various legal aspects relating to the divorce.
Email and text messages are admissive in court as evidence. One party will often adduce evidence from Facebook statuses, for example, to evidence the lifestyle that an individual may be living when in the divorce proceedings they may otherwise be pleading poverty.
If there is a dispute with regard to where the children should live or who should be having contact with the children, evidence that an individual may be out socially drinking when they are otherwise to be having contact with the children, may then put a negative slant on the approach of a judge in considering one parties parenting skills or priorities.
Files on dating sites, particularly where a divorce has not yet been finalised, can also be used by one party against another. It has been found to be the case that people may be economical with the truth on a dating website, perhaps seeking to make themselves sound as positive as possible from which may be complete contrast with any picture attempted to be painted in divorce proceedings.
However anyone going through a divorce should not be tempted to delete their social media accounts as this could be interpreted as a destruction of evidence which could potentially cause sanctions within any court proceedings or adverse inferences to be drawn. Therefore it is very important that the use of social media is considered carefully by both parties, not only in relation to how they gather evidence against the other party but also in relation to taking care as to what is being posted online.
Residential Property – The importance of Build Over Agreements
Picture this – you have just purchased your dream home and then get a letter through from the local water company informing you that they require access to a sewer located under the beautiful extension to the side of the property, erected just a few years ago!
It gets worse… The water company inform you that you are responsible for their costs in demolishing the extension or excavating the floor in order to gain access to the sewer AND no compensation payable for any damage they cause. Talk about adding insult to injury! Had a build-over agreement been in place the water company would not be able to remove the building because adequate arrangements would have been taken to protect the sewer from the weight of the building above it.
All sewers (drainage pipes) that serve more than one property are, since October 2011, considered public sewers. Water companies have the right to enter onto private land to allow them to access public sewers to carry out maintenance and repairs. If a property owner wishes to build a property or extend a property over or within 3 metres of a public sewer they need to enter into a build-over agreement with the appropriate water authority, e.g. Thames Water. This is to ensure that the building works proposed are not going to damage the sewer or cause it to collapse and also to ensure that suitable means of access by way of a manhole cover is installed or available. Very often no build-over agreements have been entered into and the water companies have a statutory right to remove any building or structure which prevents access to the sewer and they will look to the property owner to pay for the costs of this – the water company would not be liable for the damage!
When acting on your behalf to purchase property we will make the necessary enquiries of the seller and advise you whether to be concerned about any building over the drainage pipes. As necessary we will advise about how to resolve any issue with the aim of enabling your purchase to proceed and your interests to be protected.
Wills by Text – Whatever Next?
You may have read some recent news reports suggesting that we will soon be able to make Wills by text or email. Whilst this may sound wonderfully convenient, it is also fraught with problems such as fraud, undue influence, questions over mental capacity, and may be open to challenge.
So, what is actually going on? The Law Commission has recently set up a consultation to ask people what they think about modernising the law on making a Will. There is a concern that the law which was brought in when Queen Victoria was our Monarch may be failing to protect the vulnerable and putting people off making a Will. This is based on the fact that 40% of adults are dying each year without making a Will despite access to legal services being greater than ever. Therefore, there is no guarantee their assets are passed on to the people they intended to benefit. It may also mean that their loved ones have no guidance as to their funeral wishes which can be distressing.
It has been suggested that a new mental capacity test be brought in to take account of modern conditions such as dementia, and that the legal age for making a Will should be lowered from 18 to 16.
The aim of the consultation is to find a way to give greater effect to peoples wishes even if they haven’t strictly complied with the requirements of the Wills Act. They will also look at new rules to protect people from being unduly influenced by another person to make a Will in their favour. There will also be a chance to comment on making electronic Wills which could include text, email or other means of electronic communication.
Importantly at this stage, these are just discussions and the current law remains in place.
The best way to protect your assets is to make a legally binding valid paper Will with a Solicitor who specialises in this area. If you are one of the many without a Will please get in touch.
This newsletter has been prepared to highlight some key issues. It is intended to be for general guidance only and is not a substitute for specific advice. It is based upon our understanding of the legal position as at December 2017 and may be affected by subsequent changes in the law.
(SRA Number: 58323)