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Posts for July 2012
Make sure your loved ones inherit your estate - not your problems
July 24, 2012
The heartbreak of losing a loved one is always hard. Dealing with the immediate aftermath is a blur of practicalities mixed with emotion and, once the funeral is over, then begins the uphill struggle of dealing with the administration of the estate.
Where a prudent approach and good planning has been involved, this usually means going through a will with a solicitor and dividing up the goods and chattels as instructed by the deceased. Imagine how distressing it can be then, to discover that a will is going to be contested – something that more and more families find themselves having to deal with for a variety of reasons.
The family of the late TV personality Sir Jimmy Savile face just such an ordeal after a woman alleging to be his illegitimate daughter lodged a claim against his £7.8m estate, the vast majority of which he left to charity. They are now awaiting the outcome of a DNA test the claimant hopes will prove her case. The claim was made under the Inheritance (Provision for Family and Dependants) Act 1975, which says that everyone has an obligation to look after their spouse, children and other dependants.
In another court hearing, a couple’s adopted son went all the way to the Court of Appeal after missing out on an inheritance because his parents, for whom he had been sole carer, inadvertently signed each other’s wills instead of their own due to a simple administrative error. The mistake, which was only discovered after they died, meant that as far as the law was concerned, the couple had died intestate, enabling their two biological sons, to whom they were not close, to inherit the estate.
These examples show how much inheritance matters and underline the importance of accuracy and clarity when writing a will. It doesn’t matter if you belong to an extremely wealthy family or are from a more modest background, when loved ones miss out on assets they feel entitled to because of an honest mistake or family politics, it can be devastating.
Contentious probate is one of the fastest-growing areas of litigation, with more and more people willing to take legal action to try and recover money they believe is theirs. We see increasing numbers of cases where individuals and families are at war because the right level of advice wasn’t sought in the first place and details are being misinterpreted or left open to challenge from disappointed beneficiaries.
The tragedy is that it’s all too easy for legal fees to outweigh the value of an estate, and the heartache and time taken make it extremely hard for the family at the centre of the dispute, who simply want to be able to move on with their lives as best they can.
Making your will last a lifetime will require regular reviews to ensure it reflects your current situation and allows those you want to benefit to be safely and securely looked after. It’s not something you – or your family – can afford to get wrong.
Craig Williams is a partner in the litigation and dispute resolution team at Buckinghamshire law firm BP Collins LLP.
Ten reasons to register your trademark
July 16, 2012
A trademark is an identification sign which is used by a trader to distinguish his/her goods or services from the same or similar goods or services provided by other traders.
Trademarks protect the goodwill you have built-up or hope to accumulate. Trademarks provide an important and effective deterrent to infringement, and a sound basis for legal action if infringement occurs.
It is possible to register as trademarks, words, logos, 3D designs, sounds and some smells.
Here are 10 reasons why you should register your trademark.
- Price – it’s not expensive (only a few hundred pounds for a UK Registered Trademark (RTM) in one class).
- Business asset - it’s an asset to your business, which looks good for investors, banks and when you come to sell.
- Stronger - it’s much stronger than relying on “passing-off” to stop others using the same or similar name or logo.
- ® - You can legally use this symbol with your RTM. It is a criminal offence to use it without the trademark being registered.
- Individuality – it provides a good deal of assurance that your trademark is unique.
- Defence – you cannot be found guilty of infringing someone else’s RTM if you are merely using your own RTM.
- Company name/logo – can be protected with an RTM.
- Domain names – can be protected with an RTM.
- Twitter names – can be protected with an RTM.
- Product name/brand name/logo – can all be protected with an RTM.
There is more information available from the government Intellectual Property Office (IPO) www.ipo.gov.uk. It is possible to apply yourself but it may be best to use a trademark attorney as they are not expensive and will make sure you get the right protection without objections being raised by the IPO during the application process. Trademark attorneys may also be able to offer some initial free advice too.
Lewis Hands is a European Patent & Trademark Attorney at Handsome I.P. Ltd, www.handsomeip.com
Separation or divorce: why mediation may help you do the sums
July 09, 2012
Dividing up assets
When a married couple separate or divorce they often need to divide up their assets and deal with any liabilities so that they can both move forward. The law considers marriage a partnership and if a couple resort to the courts, the courts will take into account all assets the couple possess, whether together or separately. Below is a summary of the ‘section 25 factors’ which are enshrined in the Matrimonial Causes Act. In particular the court will consider:
1. The income, earning capacity, property and other financial resources which each of them has or is likely to have in the foreseeable future
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
3. The standard of living enjoyed by the family before the breakdown of the marriage
4. The age of each party to the marriage and the duration of the marriage
5. Any physical or mental disability of either of the parties the marriage
6. The contribution which each of the couple has made or is likely to make to the welfare of the family and this includes looking after the home or caring for the family
7. In extreme cases, the conduct of either spouse
8. The value of any benefit which will be lost on divorce, for instance pension rights.
It is better both financially and emotionally for couples to negotiate if at all possible either between themselves or through mediation rather than resorting to the courts, and the above factors can be taken into account in the negotiations. Together a couple can decide which factors are most important to them in order to achieve a realistic settlement rather than leaving it to the court to decide on an arrangement which may be less attractive to both parties. But the court is always a last resort.
If you are an unmarried couple do not go to court
From a legal point of view the situation for unmarried couples separating is very different in terms of division of assets.
The law focuses on property rights, rather than taking into account the above factors to help achieve a fair and realistic settlement.
For unmarried couples it is sometimes possible for an individual to argue that they made a contribution to an asset not in joint names. They can go to court to try and prove it but litigation can be very expensive, can take a long time and the outcome can be very uncertain.
For an unmarried couple mediation can be very beneficial because there they can consider whether they have they to all intents and purposes lived together as if they were married. If the answer to this is 'yes' then it is perfectly possible to negotiate a settlement together which to them seems realistic and fair, taking into account some of the above factors rather than just looking at property rights.
If a couple has children, and both parents are really putting the interests of the children first, they will want to find a fair financial outcome that everyone can live with and will want to maintain a reasonable relationship where they can continue to communicate as parents. Simply dividing up finances looking at the law and property rights may make this hard to achieve. Where there are children often one partner’s earning power is greater than the other but the law as it stands would not take this into account for an unmarried couple. Justice, it seems, is not always fair.
Frances Place is a qualified solicitor and partner in a family mediation service.
In our personal law section there is more information on separation, wills and property law
Should employees be able to claim back holiday if they’re ill while on paid leave?
July 02, 2012
I’ll remember my holiday to Goa in 2006 for many reasons. The warmth of the people and their beguiling culture; the awesome flora and fauna; TV legend Nicholas Parsons and wife, who were also staying at our hotel; riding an elephant for the first (and last) time; delicious cuisine; oh, and the worst case of ‘Delhi belly’ I’ve ever experienced.
People will tell you it’s inevitable when you visit India, no matter how careful you are about what you eat and drink. The food poisoning I suffered was horrendous (I’ll spare you the details) and meant I was laid low in my hotel room. Although I lost a few days of my two-week holiday, stoically I put it down to bad luck, inevitability and a dodgy curry I’d eaten from a beachside restaurant. At no point did I think my employer should be made to pick up the tab for my misfortune.
I’m sure employers throughout the country would have been surprised (if not dismayed) by a recent ruling by the Luxembourg-based European Court of Justice – binding on all EU member states, including the UK – which dictates that employees who become ill on holiday have the right to claim back days they’ve lost. The ruling is the result of an appeal made by a Spanish trade union against a department store group.
The court ruled that it would be “arbitrary and contrary to the purpose of entitlement to paid annual leave” not to grant employees holiday time in exchange for time they were ill. Under the EU Working Time Directive, full-time employees have the right to at least four weeks’ paid annual leave, even if it coincides with periods of sick leave.
The UK has opted out of the Working Time Directive’s setting of a 48-hour limit on the working week – but there is no exemption on sick pay and holiday. UK employers of all types and sizes should take note.
You don’t need an honours degree in workplace malingering to see that the ruling potentially leaves UK employers wide open to exploitation by dishonest employees. How can it be proved the employee was genuinely ill while on holiday? And even if they were ill, employers are once again faced with additional costs, disruption and staffing headaches that many will find more difficult to stomach than a dodgy beachside curry.
- We want to read your views. Should employees be allowed to claim back days off if they’re ill while on holiday?
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