It’s ok to swap penalty points with my family. The police will never know.

There are many myths surrounding the criminal justice system and one of the more prevalent ones is that the Police never check to see who is actually driving a vehicle. This means that some people believe that when they have been captured on film breaking the speed limit and they receive a s172 Road Traffic Act request to identify the driver, they can in fact name anyone.

Several high-powered people have done this and been found out and convicted of Attempting to Pervert the Course of Public Justice. Christopher Huhne and Vasiliki (Vicki) Pryce spring to mind. More recently Fiona Onasanya along with her brother and another were convicted and jailed.

Instead of news paper reports-which are universally unreliable-here’s the Judge’s sentencing remarks set out below in full. Read these carefully.

Festus and Fiona Onasanya, I have to sentence you for offences of perverting the course of public justice. It is a tragedy that you find yourselves here and in this predicament; but it is a tragedy that you have brought upon yourselves.
The Background Facts
This case concerns three offences of perverting the course of public justice by providing false information to the authorities about who was driving when speeding offences were committed. The underlying speeding offences took place over a period of about two months, on 17 June 2017, 24 July 2017 and 23 August 2017. The first and third speeding offence involved your Audi A4 car, Mr Onasanya; the second involved your Nissan Micra, Ms Onasanya. In each case I am satisfied that you, Mr Onasanya, filled out the form providing information about people who you knew would not be traceable by the authorities. In this way he hoped that the trail would go cold and the true driver of the speeding cars would not be brought to justice.
On 5 November 2018 you, Mr Onasanya, pleaded guilty to each of the three charges on the indictment. You, Ms Onasanya, were convicted by the jury after a retrial in relation to what happened after the speeding offence involving your car on 24 July 2017. I am told that you do not accept the correctness of the jury’s verdict; but as a solicitor you will understand that I am bound by it and must be true to it in passing sentence today. That said, and as I shall make clear, I do not accept and am not constrained by the verdict to accept all of the Prosecution’s case and allegations about your conduct. Having presided over your trial, and having reviewed the evidence again in preparation for today, I have reached my own conclusions about your involvement in the second of these three offences, which I believe to be consistent with the evidence as a whole and the verdict of the jury.
In June 2017 you, Mr Onasanya, were working as a full-time driver while also pursuing a potential singing career. Your licence was endorsed with 9 points, though 6 of those subsequently went when you successfully appealed that conviction. When you received the NIP in respect of the speeding offence that had been committed on 17 June 2017, you believed that further points would probably result in your being disqualified and you feared that you would lose your livelihood as a driver if you were disqualified. So you decided to submit false details. I also accept that you deliberately selected details that would lead the prosecuting authorities up a blind alley but would not get anyone else into trouble. However, you persisted when the authorities questioned the information you had provided.
The circumstances surrounding the capturing of the Nissan Micra on camera on 24 July 2017 were examined in minute detail at the trial. Having heard the evidence I am sure that it was you, Ms Onasanya, driving away from the DeFeo’s house when the camera was activated. I am in no doubt at all that, whatever the original time for the meeting, it took place later than originally planned and finished shortly before your car went through the camera with you driving it.
In any normal circumstances it would be incredible that you would not have realised that the NIP you received some nine days later related to a time when you were driving. But the evidence at trial showed that these were by no means normal circumstances for you. You had been elected to Parliament as the Member for Peterborough on 8 June 2017 and had first gone to Westminster on 12 June. Initially you had no staff, with your first member of staff being recruited at the end of June. You had no constituency office in Peterborough and were initially hot-desking or squatting on benches in the corridors at Westminster. Within four weeks you were appointed to the select committee for housing. You had to install additional security at home by the first week or so of July and were completely swamped by emails and post. You had no proper diary system in place. On all of the evidence, you were living a life that was extremely hectic and pretty chaotic. I also accept your evidence that others would frequently drive your car, particularly when you were in London and it was left in Cambridge or Peterborough.
In these circumstances I find your evidence that you failed to check properly what you had been doing on 24 July and that you passed the NIP to your mother’s home to be credible, supported as it is by your brother’s evidence that he was passed the NIP by your mother. What matters is that I am not sure that you passed it to your brother (directly or indirectly) with the intention of perverting the course of public justice.
Similarly, Mr Onasanya, I find it credible that you were passed the NIP for 24 July 2017 by your mother. At that stage you would rightly have considered that it would have been totally out of character for your sister not to take responsibility if she had realised that she had been driving. Though in some respects it stretches credulity almost to breaking point, I sentence you on the basis that you therefore assumed it was you who had been driving your sister’s car and that you filled out the NIP with false details that were designed to prevent the investigating authorities identifying you as the true driver without getting anyone else into trouble. In doing so you set in train the sequence of events that ultimately led both to your conviction in relation to the second NIP and to your sister’s. However, there was no conspiracy between the two of you at the outset.
Your next involvement arising out of the 24 July 2017 incident, Ms Onasanya, was when you received the letter from Mr Williams dated 14 September 2017 raising questions about the details that had been provided. I accept that you were recently out of hospital having received a confirmatory diagnosis of relapsing and remitting MS. I have seen medical evidence today that confirms the timing and the nature of that event. Your letter of reply, dated 20 September 2017, was inaccurate; but it needs to be seen in the context of your personal situation immediately after receiving your diagnosis and coming out of hospital and the evidence you gave about asking your brother what it was all about and receiving assurances from him that it was all sorted. Once again, though it is unsatisfactory and infinitely regrettable that you, a qualified solicitor and Member of Parliament, did not take your responsibilities more seriously or tackle them more effectively, I am not sure that you sent the letter of 20 September 2017 with the intention of perverting the course of justice. You may have done; but I am not sure of it and must therefore give you the benefit of the doubt for the purpose of sentencing.
However, even if you had not realised that something was seriously wrong by 20 September 2017, the Jury’s verdict and the evidence compels the conclusion that by 2 November 2017 you knew that false information had been supplied. I have no reason to doubt that Mr Williams’ note was accurate. On that basis the information you provided to him must have been knowingly untrue. Even if I take the most charitable interpretation, which is that you now realised that there was a serious mess and stupidly chose to support what had initially been done by your brother, at this stage I am compelled to conclude that you deliberately committed the offence with which you were charged and of which you stand convicted. It was a disastrous decision; but it was a decision which, on the evidence and the verdict of the jury, you took.
I can deal with the facts of Count 3, arising out of the capture of Mr Onasanya’s speeding Audi on 23 August more shortly. When you, Mr Onasanya, received the NIP, you did what you had done twice already: you deliberately provided false information with the intention of putting the authorities off the trail while not causing trouble for anyone else.
It is an aggravating feature that you both persisted in your dishonest support for the false information that Mr Onasanya had provided when returning the three NIPs with which we are concerned. At trial you, Ms Onansanya, said that you provided no answers when interviewed on 2 January 2018 because you were simply taking the opportunity to hear what the police had to say and thought there would be another opportunity to provide your version of events at a later date. Coming from you, an intelligent and articulate solicitor, that evidence was frankly incredible and I reject it. You both knew by 2 January 2018 what had been done and I am certain that you jointly decided to answer no questions in the belief that would maximise your chances of evading the difficulties that were now looming large.
Fortunately for the interests of justice, the Police were not deflected and your attempts to pervert the course of public justice have failed.
The Sentencing Principles to be Applied
There is no sentencing guideline for these offences and the facts of individual cases seldom provide substantial assistance when considering the different facts of others. It has been said on countless occasions that, where a person is convicted of perverting the course of justice it will only be the most exceptional of case that does not result in an immediate sentence of imprisonment: see, for example, AG’s Reference No 17 of 2008 [2008] EWCA Crim 1341. The reason is that giving a false account of events to investigating authorities undermines the very system of criminal justice and impedes its proper functioning. Hence even in cases of lesser seriousness, including cases of driving offences, sentences of imprisonment, albeit sometimes short in duration, can be expected for giving false information about the drivers’ identity: see, for example, AG’s reference No 35 of 2009 [2009] EWCA Crim 1375; R v Abdulwahab [2018] EWCA 1399 (Crim) at [14].
A number of authorities (of which R v Ratcliffe [2016] EWCA Crim 27 at [13] is typical) have identified that, although all cases are fact-sensitive, matters to be taken into account may include:
1.
The seriousness of the underlying offence;
2.
The nature of the deceptive conduct;
3.
The length of time during which the deception continued;
4.
Whether the conduct cast suspicion on or let to the arrest of an innocent person;
5.
The success or otherwise of the attempt to pervert the course of justice; and
6.
The defendant’s previous character and any personal mitigation.
This is not an exhaustive catechism; but it serves as a useful indicator of the approach that the Court follow, and I shall bear it in mind.
I have been referred to a raft of authorities, all of which are consistent with the principles I have just identified. Few of them are sufficiently similar to the facts of the present case to be of great assistance. I mention two, not to give them disproportionate importance but because there may be said to be features that bear some analogous comparison with some or all of the features of the present cases.
McGann [2002] EWCA Crim 1253 was a case of a person of positive and longstanding good character who threw away his career in the army and his future employability by giving false information after a speeding offence, when he had a clean licence and could easily have paid the speeding fine. There was a degree of planning and persistence which makes the facts marginally worse than the facts of the present case for Ms Onasanya; but the Court of Appeal upheld the Judge’s approach and sentence, which was to pass an immediate custodial sentence but to make it as short as possible. The Court of Appeal did so having highlighted the Appellant’s persistence but giving full weight to the disastrous effects of the conviction upon the him.
Huhne & Price has in common with the case of Ms Onasanya that the defendants were persons in positions of privilege and responsibility, Mr Huhne being an aspiring politician at the time of the offence and a Member of Parliament when the case came to Court. The paradigm sentencing remarks of Sweeney J bear reading in full. Both defendants were sent to prison for 8 months, but different factors applied to each. However, on any view, Huhne & Price was a more serious case than the present. Mr Huhne was at risk of disqualification if he was properly convicted. Sweeney J outlined the deliberate conspiracy from the outset for joint advantage and how the conspiracy eventually unravelled. It was, as Sweeney J said, a serious and flagrant offence of its type, the effect of which lasted for many years; and it was one which required the Judge to give effect to all the purposes of sentence – including deterrence.
I shall now consider the case of each of you in turn.
Mr Festus Onasanya
In the overall scale of underlying offences, which in the Courts’ experience may include and has included anything up to and including murder, your persistent speeding offences were not the most serious. They were more serious for you than they would have been if you had had a clean licence because you put yourself at risk of deserved disqualification; and there are three separate offences for which you fall to be sentenced, taking into account the facts of each separate sentence and the principle of totality. The nature of the deceptive conduct was regrettably typical in the context of such offences, but it was deliberate and serious in providing the names of others who you knew to be innocent with details that you knew could not be followed up. The period of deception ran for months (specifically from June 2017 to January 2018) and covered the three separate cases with which I am concerned. As I have said, I accept that you chose individuals and details which meant that they would not be exposed to the jeopardy of prosecution; and, thanks to the diligence of the authorities, your attempts failed.
You are not of previous good character. You have convictions for unrelated offences, which it is not necessary for me to detail save to say that you have previous experience of a significant period of imprisonment as well as motoring and other offences for which lesser penalties have been imposed.
But your character witnesses, who have provided thoughtful and thought-provoking statements on your behalf, show that you have made substantial efforts to reform your life, with a real commitment to a Christian faith that has led you to be a mentor to others. I accept that, if you were not here, you would be on the cusp of a period of fulfilment and happiness both in pursuing a musical career and in your family life. I take all that has been said by your character witnesses into account as significant personal mitigation. The evidence of your character witnesses is also consistent with the terms of the PSR, which I have read and take into account.
I will also take into account your plea of guilty, sensibly offered after a change in representation at the end of October 2018 and formalised on 5 November 2018. It took some courage to face the music in a case such as this. It entitles you to a reduction of the sentence that I would otherwise have to impose in the order of 15%.
The approach to sentencing that I intend to adopt is, first, to identify the approximate sentence that would have been appropriate in the event that each of these offences stood on its own and fell to be sentenced in isolation. These are separate offences which could be treated consecutively. However, I shall try to reach an overall sentence that reflects and would be appropriate for the totality of your criminal offending after taking into account your personal mitigation. The principle of totality means that I shall reach this overall sentence by adjusting downwards what would otherwise be the sum of consecutive sentences imposed for each in isolation. I shall then apply the appropriate discount for your plea.
Ms Fiona Onasanya
I have already outlined my approach to the facts. I sentence you on the basis that by November 2017 you realised what was going on and took the disastrous decision to stand by the false information that had previously been submitted by your brother. For you the original offence was relatively minor in the overall scheme of such offences. Accepting as I do for the purposes of sentence that you were driving your car when it was caught by the speed camera, you had a clean licence and were well able to pay any fine that would have been imposed; and a speeding offence would have been no real or lasting embarrassment to you as a Member of Parliament. Your attempted deception continued from 2 November 2017 to the time of your trial; but it did not involve the arrest of innocent people and was ultimately unsuccessful.
What takes your case out of the ordinary is your personal mitigation. I accept without reservation that this offence is totally out of character; and, as I have made clear, that it my have included an element of misplaced loyalty to your brother once you realised what had happened. You have no previous convictions. By your own efforts and personal qualities you have risen to a great height, which I am satisfied you intended to use not so much for personal advancement as for the cause of social justice which first persuaded you to go into politics. The character witnesses speak eloquently of your qualities and your exemplary character. You quickly made your mark as an able Member of Parliament and Parliamentarian and you have become a role model for many young black women who have been inspired by your attitude and achievements. I pay particular attention to the evidence of the person who was your school friend, now a barrister, who speaks of your ability to light up the room with your personality and who adds that even when at school you could sometimes be a little naïve and very trusting. The evidence of the witnesses is consistent with the evidence from the PSR, which I have read and taken into account. The fact remains that, both as a solicitor and as a Member of Parliament you are fully aware of the importance of upholding the proper administration of justice. You have not simply let yourself down; you have let down those who look to you for inspiration, your party, your profession and Parliament.
The impact of your conviction has been disastrous for you. You have been expelled from the Labour Party and it seems inevitable that you will be struck off as a solicitor. But as things stand, it is not right to say that you have lost everything: you have decided to remain as a Member of Parliament despite your expulsion. It is well beyond the remit of this court to speculate on what the future holds for you as Member of Parliament for Peterborough.
I also take into account your illness, though there is no medical evidence to suggest that your unfortunate condition would make a significant difference to your ability to sustain a period of imprisonment.
Standing back, this is at the lower end of offending of this type, for the reasons that I have outlined. It was totally out of character. The fact of conviction has had and will have a disastrous effect upon you for years to come. You do not accept the correctness of the conviction; but I have to sentence on the basis that the disaster which has befallen you is self-inflicted.
Ms Agnew has submitted that the facts of this case are so exceptional that I can properly suspend the inevitable prison sentence that I must pass. As I have made clear, I sentence on the basis that I am sure that you acted criminally on 2 November and am not sure that you did so before. That limits the scale and duration of your criminality, and it may be said that you were confronted with a situation that was not initially of your making. However, it was just such a situation as required you to act in accordance with the normal principles by which you ran your life as an individual, a Solicitor and a Member of Parliament.
I have reviewed the terms of pages 7 to 9 of the Definitive Guideline on the Imposition of Community and Custodial Sentences. It does not materially assist in showing the way that I should go. On the one hand, there is strong personal mitigation; but on the other are the consistent statements that, for offences such as this, appropriate punishment can only be achieved by immediate custody, even if the resulting sentence is short. The question is whether this is a sufficiently exceptional case.
I make plain that I will not treat you more severely because of your position as an MP and former solicitor. That said, as Ms Agnew accepted on your behalf, there cannot be one law for those in positions of power, privilege and responsibility and another for those who are not.
Sentence: Mr Onasanya
(Stand up) Adopting the approach that I outlined earlier, each of these three counts if treated individually would merit a sentence after trial and taking into account your strong personal mitigation of approximately five months imprisonment. The fact that they are three separate offences would justify the imposition of consecutive sentences. Applying the principle of totality, I consider that an overall sentence of 15 months (which would be the result of imposing three consecutive sentences of 5 months each) would result in a sentence that is longer than necessary to mark the overall criminality of your course of conduct. In my judgment, the appropriate overall sentence before reduction for your plea would be one of 12 months imprisonment. A reduction of 15% for plea would be a reduction of slightly less than 2 months, which I round up to 2 months, leaving an aggregate sentence of 10 months imprisonment. Rather than attempting to adjust individual consecutive sentences or to load all of the criminality into one of the counts, I shall impose concurrent sentences of equal length for each of the three counts.
The sentence of the Court on each of Counts 1-3 is therefore that you will go to prison for 10 months on each count, concurrent.
Unless released earlier under supervision you will serve half that sentence. Your release will not, however, bring the sentence to an end. If after your release and before the end of your sentence you commit any further offence you may be ordered to return to custody to serve the balance of the original sentence outstanding at the date of the new offence, as well as being punished for that offence.
(You may sit down.)
Sentence: Ms Onasanya
(Stand up)
I have already outlined the approach that I take to the facts of your case. You had a choice on 2 November 2017 whether to tell the truth or to attempt to pervert the course of public justice. You made the wrong choice, with disastrous consequences. As I have outlined, you have strong personal mitigation, which I take fully into account. And, given the factual basis upon which I sentence you, both the underlying offence and your commission of the this offence were towards the bottom end of the scale. However, I am quite unable to conclude that the facts of your case are so exceptional as to justify suspending the sentence that I must impose. The correct approach is to make the sentence as short as I possibly can; and that I will do.
On Count 2 of the indictment the sentence of the Court is that you will go to prison for 3 months, that being the shortest sentence that I feel able to impose consistent with my obligation to give effect to all the purposes of sentence – including deterrence.
As in the case of Mr Onasanya, you will serve half of that sentence before being released. I repeat what I said to him about what happens thereafter.
In both your cases I will adjourn the determination of costs. Each defendant may submit submissions in writing, limited to 600 words, by 4 pm on 1 February 2018. The prosecution may reply in writing, limited to 400 words, by 4 pm on 5 February. I will then make a determination on paper, unless the parties request an oral hearing.

Is it really worth the risk? The best advice is that you seek appropriate legal advice.

Michael Robinson

http://www.emmersons-solicitors.co.uk

01915676667

THINGS ARE CHANGING FOR YOUR ELDERLY RELATIVES

This week I was chatting to a friend who was most concerned about his father. He said, “He went off to park the car over thirty minutes ago and he’s still not back. He’s losing his mind he’ll be lost again.”
I asked if he genuinely thought that his father had the early stages of Dementia. It transpired that he and his mother had had one brief conversation about this and that she was beginning to think there was a problem as well. I pointed out that his father had probably been struggling for some time, that he would be trying to come to terms with things himself and that right now he would probably be in a panic trying to park the car in an unfamiliar car park.
I spoke to him for a while about the situation. I learned, during my Dementia Friends Training, how to try to help a person in this situation. The goal posts have changed somewhat and the family now need to make adjustments. I explained that he couldn’t expect his father to be the same person he was up until now. That it would be better if, instead of challenging him over the car parking issue, he could gently help him. I gave some examples from my own situation and how changing the phrases used and tone of voice had helped someone that I know as well as helping their family.
My friend agreed, he said that his mother was now often frustrated with his father and shouted at him a lot. He would go away and have a chat with her.
Many of you reading this will recognise this situation. You might be the person concerned about your own mental capacity or you may be the spouse or child of that person. There is no need for immediate panic, making adjustments along the way can be an enormous help. I am a member of Gosforth Dementia Friendly Group. We are a collection of businesses, charities, schools and churches who have come together to raise awareness about Dementia and to offer help. We run Dementia Friendly courses, they are free and last for about an hour. They are enormously helpful. If you would like this training then contact me by email.

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Sainsbury’s in Gosforth offers Slow Shopping on a Tuesday afternoon, the music is quieter, there are more staff available etc. All Saints Church in Gosforth offers a Dementia Friendly cafe and art classes.

At Emmersons Solicitors our staff are all Dementia Friends, we are here to help. Our office is on a back lane, you can be dropped off at the front door, we are wheelchair accessible and our meeting room and toilets are all at ground floor level.
So why would you need to visit us if you were concerned about Dementia?
There are a number of ways in which we can help you and your family:

  1. You should make a will or review the will that you already have. We offer a FREE WILL REVIEW service. It may be the case that you, as a couple, need to arrange your finances in such a way that not all of your assets will be used for care home fees, instead benefitting your children. It takes some skill to achieve this. You must leave sufficient monies available to ensure that anyone needing care home fees, or at home care agency fees, is well looked after whilst at the same time protecting as much money as possible.
  2. You should also be thinking of making a Lasting Power of Attorney. The idea is to appoint a relative or friend who can step into your shoes and run your affairs as if they were you. There are two types of LPA and together they allow you to obtain help from your Attorney(s) with things such as running your bank accounts, obtaining state benefits, liaising with social services, making decisions about where you will live and being involved in decisions about your medical care.

It is important that you choose your Attorney carefully. They cannot be a bankrupt, they should be physically and mentally capable of being able to help. Eg. Are they able to cope with meetings with your bank, social worker or doctor? Are they capable of filling in lengthy forms? We carry out bankruptcy searches in relation to would-be Attorneys. Whilst they may not be a bankrupt, if they do have lots of court orders against their name they may not be a suitable person to manage your affairs.
If there is any question as to a client’s ability to make a Lasting Power of Attorney then we will ask for a certificate from their doctor which will, or will not, confirm that they have the mental capacity to do so. Just because you or your relative may already have Dementia it does not necessarily mean that you can’t give instructions as to specific things.
We have spent years perfecting our systems so that we cover all of the things that may crop up for you at this stage in your life. We give advice on a whole range of matters that we know will become important to you and your family as your journey progresses.
If it is too late to make a Lasting Power of Attorney then we can apply to the Court of Protection to appoint a Deputy to manage the affairs of the relevant person. The Deputy, once appointed, will then manage things in the same way as an Attorney.
When you appoint an Attorney they must act in accordance with your wishes and in your best interests. You may not need them to run your bank accounts immediately. Sometimes they might do your banking for you if you can’t cope that week. The next week you may be able to do this for yourself. The documents are designed to be flexible.

If you need any help or advice with any of the above issues then please do not hesitate to contact me on 0191 2846989 or je@emmersons-solicitors.co.uk

COHABITEE RECEIVES QUITE A FINANCIAL SETTLEMENT!

Jacqueline Emmerson has warned before that the rights of a Cohabitee are not the same as those of a Spouse, especially upon death. However, every now and again the law favours the Cohabitee over other family members.
In the case of Banfield v Campbell, Andrew Banfield was the long term partner of Sarah Campbell who unfortunately died aged 63 on a flight to the Canary Islands. Sarah had a son James from her first marriage but her husband died when James was only 10 and Sarah was 40. Two years later she began a relationship with Andrew and he eventually moved into her home.
In 2001, after her relationship with Andrew began, she made a will leaving him £5,000 and the rest of her estate to her son.
Andrew made a claim against Sarah’s estate in accordance with the Inheritance (Provision for Family & Dependents) Act on the basis that Sarah had not made sufficient provision for him. James pointed out that he was not even sure his mother and Andrew had still been in a relationship, as far as he was concerned Andrew was more like a lodger.
Claims under this statute are not particularly common and often it is an adult child or non working partner who seeks a settlement from an estate.
Unusually in this case Andrew was not penniless, he had £10,000 spare per year and he also had savings of over £270,000. His argument was that Sarah had made provision for his housing needs during their long relationship and he now needed to be rehoused. He would need to purchase a property worth £450,000 and therefore he required a settlement large enough to allow this to happen. James stated that Andrew’s property needs would cost £220,000 and therefore he only required £100,000 by way of settlement. Either way these are huge figures when Sarah intended to benefit her son and not Andrew.
The judge determined that Andrew had not been left sufficient monies or assets by Sarah.
“The circumstances of the present case provide an example of the vulnerable position in which cohabitants find themselves if they unexpectedly survive their partner,” said the judge.
However, he went on to say that Andrew was not entitled to a lump sum absolutely. He ordered the sale of Sarah’s home, which was worth £750,000, half was to be given as a lifetime interest to enable Andrew to purchase a home for himself. Upon Andrew’s death James would then receive that share of his mother’s estate.
What a costly mess! The legal fees to take that case through the court would have been in the region of at least £20,000.
So how are you going to write your will if you are a Cohabitee?
Had Sarah and Andrew just become flat mates, should Sarah have made a new will and in that will excluded Andrew on the basis that they were no longer in a relationship?
Are you a Cohabitee living in a house owned by your partner?

Are you the owner of that property, do you have children from a previous relationship?
Ultimately life changes constantly. You should therefore review your will on a regular basis. At Emmersons solicitors we offer all of our clients a FREE review of their wills every year. It never ceases to amaze me how many of our clients do actually change their wills on a regular basis.
One of our clients popped in to have some documents signed, “How is your girlfriend?” we asked. “Oh we split up last year,” was the reply.

“Didn’t you receive our letter reminding you to review your will?”

“Oh yes but I forgot all about it.”

“So would you like your entire estate to pass to your ex girlfriend then?”

As you can imagine we were instructed to rip up that will and await new instructions.
Many of our clients come in to make a will in the company of their spouse or partner; they have children from previous relationships. Therefore it is necessary to plan their estates properly. What about a life assurance policy to cover either children or partner and a pension to benefit those still financially dependent? This is the way pension trustees tend to pay out monies in any event.
Why not plan ahead?
Ed died suddenly at the age of 44 leaving a child who lived with her mother. Ed was divorced but never had the time to sort out his financial settlement with his ex wife. So the house that they owned together passed straight to his ex wife, as a joint owner her rights came from what is known as Surviorship rather than inheritance.
After the divorce Ed bought another house for himself. He later met another woman and she moved into his home. She did not work and therefore she was financially dependent upon Ed. I knew that he did not make a will, I had reminded him to do so for years.

However, he was always really busy at work. I knew Ed quite well and I also knew that the only person he really cared about was his daughter. Let’s hope she gets on well with her mum because she will have been battling with Ed’s new partner for a share in her father’s estate.
If you don’t have a will and you are cohabiting then you should give some thought to your current circumstances. If you have a will is it fit for purpose? You can bring your will in to us and we shall give honest advice as to whether you will require a new one.

BUT SHE PROMISED THAT SHE WOULD LEAVE ME MONEY IN HER WILL!

 

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As a Probate Solicitor I pick up the pieces of the life that was. I frequently deal with estates where there were no close relatives to assist the deceased during their lifetime. In other cases there might have been one relative assisting and others have been more distant, this can be for various reasons.
I have written before about “Christine”, he or she may have been a friend or neighbour of the deceased who helped out from time to time but in effect became a carer. Some of these carers give up a lot of their time to help. They may be doing the shopping, housework, assisting with hospital visits or battling their way through the maze that is the Social Care system.
In other instances a neighbour may keep an eye on the house if someone has to go into hospital, or they may be looking after the house after the deceased has passed away. In one case that I dealt with, Madeleine had lived alone for years. She was a widow and neither she nor her husband had brothers or sisters. Her own parents had died many years ago as had those of her husband. To sum up, Madeleine was rather short of relatives.
However, she did have a good neighbour, his name was Dave. Dave had done some gardening for Madeleine over the years, he opened her curtains in the morning when she was in hospital and he turned on the lights at night. I was requested to attend to Madeleine’s estate by her nephew Bill, who lived in London. Bill was the sole beneficiary of Madeleine’s estate. Whilst the two of them got along amicably, they had not seen one another for two years prior to Madeleine’s death.
Dave said he would be happy to go on looking after the house whilst it stood empty. He also did the garden, checked the house daily and basically saved Bill quite a lot of money. He indicated to me that Madeleine had always said that she would leave him something in her will for all the help he had given her.
Guess What? There was no mention of Dave in the will. I had actually drafted the will the year before and Madeleine was quite emphatic that her only beneficiary was to be Bill. Not charities, not Bill’s children, not Madeleine’s local church, I covered all of these options.
If you were Madeleine what would you do in this case?

If you were Bill how would you deal with the situation regarding Dave?
It might be the case that Dave was actually suggesting to Madeleine that she include him in her will, she may have felt that he was in fact an absolute nuisance. It may have been that she made false promises just so that he would leave her alone. I suggested to Bill that, as Dave have saved him money in gardening fees, and had saved my fees as I didn’t have to check on the house as often, he should give Dave some of his inheritance. I therefore took a cheque round to Dave and thanked him for all of his hard work.
In another case, a paid carer was of the opinion that Ernie would definitely have left her some money. “I knew I was in that will, I was there when he made it”, she shouted at me when I advised her that Ernie had changed his will not long before his death. I was aware of the fact that the carer and Ernie had not seen each other for quite some years, in fact I was specifically called in by Ernie to remove all reference to the carer as he felt rather let down by her.
In other cases it upsets me when people are helping someone who may be frail, vulnerable and without help from their own families. You would be surprised how often this happens. These are the unsung hero’s in life. They do not seek any thanks or money. Are you being cared for by such a person? This hero is probably even helping you to remain in your own home rather than you having to move into a care home. Have you thought about that? Where are your relatives? Have you adopted the view that blood is thicker than water?
Without mentioning this to the person who is helping you why don’t you consider leaving them a token of your appreciation in your will? But don’t muddy the waters by letting your helper know that you are considering leaving them something in your will, you do not wish to create any false expectations or alter the relationship between you in any way. The same applies to family members.
You Should Avoid Making Inheritance Promises.
Otherwise you can create a situation known as Propriety Estoppel. A son recently brought a case in the High Court. He had worked on his father’s farm since the 1970’s and did so for low wages on the basis that he would inherit the farm. Unfortunately his father changed his mind and gave the farm to his other son who was a property developer. The son who had been made the promises took the matter to court and won, he was able to prove under the doctrine of Propriety Estoppel that he had acted to his own detriment for years based upon the promises that his father had made to him.
Overall, I think that my message is about doing the right thing. Look out for those who genuinely care for you and protect yourself and your family from those that seek to take advantage.

And don’t forget to review your will regularly.

Are you still in touch with your beneficiaries?
If you require any help with this issue please don’t hesitate to contact me on 0191 2846989 or je@emmersons-Solicitors.co.uk

Coercive and Controlling

For years we have been arguing that the Courts, Police, CAFCASS and others recognise that men can be the victims of domestic violence. They can also be the victims of coercive and controlling behaviour.

There are myths spoken about men. Some believe that they are responsible for the vast majority of domestic violence. It is true that a lot of the prosecutions are of men with women being the largest number of victims-but that statistic arises out of reports of domestic violence and arrests for domestic violence. Men tend not to allege domestic violence against their partner. In divorce cases we see men denied contact with their children or the contact is very strictly controlled and often the Courts go along with this on the basis that the man has agreed. Often his agreement is extracted through coercion-“if you don’t agree to this you will not see them at all. If you argue about this you will not see them at all.” At the same time the woman has alleged domestic violence or serious sexual assault-maybe even reported the man to the Police or threatened to call the Police on the basis of some trumped up allegation. Unfortunately, too often, the Police go along with this and interview the man-therefore he knows or believes that any wrong move by him in the future will have consequences. He is being controlled.

The Police, Police and Crime Commissioners and some politicians talk about domestic violence where “he” is the perpetrator and “she” is the victim. Always. Clearly there are incidents. Clearly these must be investigated. The problem is that this is not done with an open mind or based upon an understanding of how men deal with domestic violence and being coerced and controlled.

The Guidance from the Government on Controlling and Coercive behaviour is gender neutral however our experience is that the enforcement of the law is biased against men.

All we are asking for is for those involved in Family cases and in investigating and prosecuting such cases to challenge their own preconceptions and to avoid being part of the problem.

Male victims of domestic and partner abuse 30 key facts

February 2017-Produced by Mark Brooks, ManKind Initiative (Sources can be found at the end of the document)

(1) 13.6% of men in 15/16 (13.2% in 14/15) state they have been a victim of domestic abuse since they were 16 (26.3% of women in 15/16, 27.1% in 14/15). For every three victims of domestic abuse, two will be female, one will be male. These figures are the equivalent of 2.2 million male victims and 4.3 million female victims. One in four women and one in six men suffer from domestic abuse in their lifetime.

(2) 4.4% of men in 15/16 (4% in 14/15) and 7.7% of women (8.2% women) stated that they have experienced domestic abuse in 2015/16, equivalent to an estimated 716,000 male victims and 1.27 million female victims. For every three victims of domestic abuse, two will be female, one will be male.

The difference between the prevalence of domestic abuse for men and women is at its lowest since the year ending March 2005. The 3.3 percentage point difference between men and women in the year ending March 2016 compares with a peak difference of 5.1 percentage points in the year ending March 2010.

(3) 8.8% of men (equivalent to 1.4 million men) and 20.1% of women (3.3 million women) have experienced partner abuse (non sexual) since the age of 16.

(4) In 15/16, 2.8% of men (equivalent to 451,000) and 5.8% of women (equivalent to 891,000 million) experienced partner abuse (non sexual). For every three victims of partner abuse, two will be female and one will be male.

(5) There has been a significant fall in partner abuse for both men and women over the past 12 years. The percentage of men stating they experienced partner abuse in 04/05 was 4.6% (752,000) and in 15/16, it was 2.8% (451,000). For

women, the fall was from 8.6% (1.333 million) to 5.8% (891,000). There has also been a fall in domestic abuse with 6.5% of men (1 million) and 11.1% of women (1.7 million) being victims of domestic abuse in 2004/05 and 4.4% (716,000) and 7.7% for men (716,000) and women (1.27 million) in 2015/16.

(6) In 14/15, 2.7% of men (450,000) and 4.6% of women (759,000) experienced stalking. For every three victims of stalking, two will be female and one will be male. This ratio is the same when accounting for stalking by partners.

(7) In 15/16, 0.9% of men and 1.7% of women were victims of force at the hands of their partner.

(8) Generally, younger people are more likely to be a victim of partner abuse and stalking than those in older age groups. In 15/16, 3% men (5.1% women) aged 1619, and, 3% of 20-24 (5.8% women) were victims of partner abuse. 4.2% of men aged 16-19 (9.7% women) and 4.1% aged 20-24 (6.6% women) respectively were victims of stalking. The one anomaly is 45-54 year old men where 3.2% said they were a victim of partner abuse.

(9) Men who are separated or divorced are more likely to suffer partner abuse than those who are married. 10.8% of separated men (16.0% women) and 10.6% (15.3% women) of divorced men, suffered partner abuse in 15/16 while only 1.8% of married men and 2.7% of married women did so.

(10) For men in management, 2.2% said they suffered from partner abuse in 15/16 as id 3.2% in manual/routine occupations and 3.9% of men who had never worked/long-term unemployed. The female equivalent statistics were 4.2%, 7.3% and 5.4%.

(11) Men (5.3%) with a long-term illness or disability were victims of partner abuse in 15/16 compared to women (10.9%) in the same situation. For those with no longterm illness or disabilities, the figures are 2.4% (4.4% women).

(12) Of those that suffered partner abuse in 14/15, a higher proportion of men suffered from force (37%) than women (29%). For emotional and psychological abuse the proportions were 61% and 63% respectively.

(13) 12% of men and 15% of women who were victims of partner abuse suffered three or more incidents in 14/15. 1% of men had suffered 50 or more incidents as had 2% of female victims.

(14) Of those that suffered from partner abuse in 12/13, 29% of men and 23% of women suffered a physical injury, a higher proportion of men suffering severe bruising or bleeding (6%) and internal injuries or broken bones/teeth (2%) than women (4% and 1% respectively). 30% of men who suffer partner abuse have emotional and mental problems (47% women). Only 27% of men sought medical advice whilst 73% of women did.

(15) Male victims (39%) are over three times as likely than women (12%) not to tell anyone about the partner abuse they are suffering from. Only 10% of male victims will tell the police (26% women), only 23% will tell a person in an official position (43% women) and only 11% (23% women) will tell a health professional.

(16) The number of women convicted of perpetrating domestic abuse has increased seven fold since 04/05. From 806 in 04/05 to 5,641 in 15/16.

(17) The percentage of gay or bi-sexual men (6.2%) who suffered partner abuse in 2008/09 is nearly double the number for heterosexual men (3.3%). Lesbian women (12.4%) as a percentage also suffered far more partner abuse compared to heterosexual women (4.3%).

(18) In 15/16, 28 men died at the hands of their partner or ex-partner (19 men in 14/15) compared to 77 women (83 in 2014/054). For men, this was the highest since 08/09.

Offences currently recorded as homicide for victims aged 16 and over by relationship of victim to principal suspect and sex of victim, numbers, year ending March 2006 to year ending March 20161 England and Wales

05/06 06/07 ’07/08 08/09 09/10 10/11 11/12 12/13 13/14 14/15 15/16
Numbers Male victims Partner/expartner 23 29 30 32 19 20 18 16 25 19 28

Female victims Partner/expartner 90 90 80 102 94 98 89 78 86 83 77

(19) One in every five victims of forced marriage is a man (20%). (20) The average male victim calling the ManKind Initiative helpline is 43, is 5ft 9in tall and weighs 13st. The average female perpetrator is 40, is 5ft 4in tall and weighs 10st 7lb.

(21) 23 organisations offer refuge or safe house provision for male victims in the UK – a total of 110 spaces, of which 34 are dedicated to male victims only (the rest being for victims of either gender). There has been an increase as in February 2016, the figures were 18 organisations with c70 spaces, of which 24 were dedicated to male DV victims only. There are no refuge or safe houses in London.

There are no precise figures for female victims, albeit an estimate in 2010 was that there were nearly 400 specialist domestic violence organisations providing refuge accommodation for women in the UK with c4,000 spaces for over 7,000 women and children.

(22) On at least 120 occasions in 2010 a caller decided not to consider a refuge or safe house because they were too far away and would mean having to completely uproot their lives, often having to leave their children and their job behind.

(23) The NSPCC reported that 18% of boys and 25% of girls had been victims of physical violence at the hands of their girlfriend or boyfriend. 4% of boys had been victims of severe physical violence (11% of girls).

(24) In 13/14, on average high-risk victims live with domestic abuse for 2.6 years before getting help. 80% of the men who call the ManKind Initiative helpline have never spoken to anyone before about the abuse they are suffering.

(25) Men don’t leave abusive relationships for various reasons – the top reasons being: concern about the children (89%), marriage for life (81%), love (71%), the fear of never seeing their children again (68%), a belief she will change (56%), not enough money(53%), nowhere to go (52%), embarrassment (52%), not wanting to take kids away from their mother (46%), threats that she will kill herself (28%) and fears she will kill him (24%).

(26) Young women in a student survey are just as likely to be aggressive towards their partners as men, possibly even more.

(27) In 2015, 119,000 men reported to English and Welsh police forces stating they were a victim of domestic abuse. 22% of all victims who report to the police are male. In 2012, 73,524 men did.

(28) One in four victims of revenge rn are male

(29) As reported by the Scottish Government, 6.6% of male victims of partner abuse are victims at the hands of men as they are in a same-sex relationship. In terms of reporting to Scottish police, one in ten men who report as being a victim of domestic abuse state that the perpetrator is also a man. In Scotland, 20% of victims who report to the police in Scotland are male, 2% of victims are men who are victims at the hands of other men.

(30) There are c175 organisations providing services to male victims in February 2017, In 2012, the figure was c70.

30 Key Facts: Sources

ONS figures are for men and women aged 16-59 in England and Wales

The key report is: Office for National Statistics (British Crime Survey) – Focus on violent crime and sexual offences, England and Wales: year ending Mar 2016: http://bit.ly/2kqolyb The data tables can be found here: http://bit.ly/2l4azUK

(1) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb

(2) Table 4.01 on http://bit.ly/2l4azUK

(3) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.01 on http://bit.ly/2l4azUK

(4) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.02 on http://bit.ly/2l4azUK

(5) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.01 and 4.03 on http://bit.ly/2l4azUK

(6) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb

Table 4.04 on http://bit.ly/2l4azUK

(7) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.01, 4.03 and 4.07 on http://bit.ly/2l4azUK

(8) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.01 on http://bit.ly/2l4azUK

(9) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.10 on http://bit.ly/2l4azUK

(10) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.10 on http://bit.ly/2l4azUK

(11) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.10 on http://bit.ly/2l4azUK

(12) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.10 on http://bit.ly/2l4azUK

(12) ONS BCS Focus on Violent Crime and Sexual Offences 2014/15 http://bit.ly/1p8CGl0 Table 4.13 on Appendix Table: http://bit.ly/1M1diC5

(13) ONS BCS Focus on Violent Crime and Sexual Offences 2014/15 http://bit.ly/1p8CGl0 Table 4.15 on Appendix Table: http://bit.ly/1M1diC5

(14) ONS BCS Focus on Violent Crime and Sexual Offences 2014/15 http://bit.ly/1p8CGl0 Table 4.17 on Appendix Table: http://bit.ly/1M1diC5

(15) ONS BCS Focus on Violent Crime and Sexual Offences 2014/15 http://bit.ly/1p8CGl0 Table 4.28 on Appendix Table: http://bit.ly/1M1diC5

(16) Parliamentary questions (2004-2008) http://bit.ly/1zE1IdH , CPS FOI requests (2008-2015) and Parliamentary question (2016)

(17) British Crime Survey 2008/09 Table 3.07 (page 76) – http://tinyurl.com/7u7nvm4

(18) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 2.06 on http://bit.ly/2l4azUK

(19) Source: Forced Marriage Unit, Home Office: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/505827/Forced_Marr iage_Unit_statistics_2015.pdf

(20) The ManKind Initiative help-line survey 2009

(21) The ManKind Initiative (February 2017) and estimates via Women’s Aid/Refuge and government reports (2010)

(22) The ManKind Initiative

(23) Partner exploitation and violence in teenage intimate relationships 2009: https://www.nspcc.org.uk/globalassets/documents/research-reports/partner-exploitation-violenceteenage-intimate-relationships-report.pdf

(24) Safe Lives. 2015. Getting it right first time: Ending Domestic Violence. 24Th February. Available at: http://www.safelives.org.uk/sites/default/files/resources/Getting%20it%20right%20first%20time%20 -%20complete%20report.pdf and ManKind Initiative Helpline (2015)

(25) Hines and Douglas in Graham – Kevan. Pp. 14

(26) Bates, Elisabeth, A; Graham – Kevan, Dr Nicola; Archer, John. 2013. Testing Predictions From the Male Control Theory of Men’s Partner Violence. Aggressive Behaviour. Vol. 9999. Pp. 1 – 14.

(27) FOI requests to 43 police forces (Ian McNicholl, The ManKind Initiative)

(28) https://www.gov.uk/government/news/hundreds-of-victims-of-revenge-porn-seek-support-fromhelpline

(29) Scottish Crime and Justice Survey 2014/15: Partner Abuse (Figure 3.3 page 38) – http://www.gov.scot/Publications/2016/05/2505/downloads and Domestic Abuse recorded by the police in Scotland, 2015-16 (page 3) http://www.gov.scot/Publications/2016/10/2442/downloads

(30) The ManKind Initiative

Produced by Mark Brooks (February 2017) © The ManKind Initiative

Buying a Property

This year we have had a tremendous year. Many many happy clients who have bought and sold property. New homes. New beginnings.

The house purchase process involves human beings at its core. The sellers and the buyers. The lawyers acting for both sides. The lender. All human beings-not machines.

There cannot be an exchange of contracts until all necessary searches and enquiries have been undertaken. Searches can take weeks to return. Enquiries depend upon co-operation by the other side and satisfactory responses. It is not just the buyer who needs to be happy to proceed. We have to give the lender a certificate of title. Despite what some estate agents might say-this isnt just an excuse to be pedantic-but it is necessary to be satisfied as our reputation and professional indemnity insurance premium relies upon it.

We have had clients who despite being told “these searches and enquires protect you AND the lender and we act for you AND the lender”, still try to fix a date for completion  before this stage is completed. Too often there are issues-missed during previous conveyancing or which have arisen since and these must be addressed.

orchid-house-buenos-aires-1

Only when issues are finalised can we agree a date for completion and exchange contracts.

Once we have the agreed completion date we have to send off a certificate of title to the lender to release the funds. We cannot do this too early as the lender does not allow it. Only if the lender is happy will the funds be released. This does not happen at 9.00am on the dot. It can take quite a few hours-especially on a Friday (as everyone wants to complete on a Friday) for the funds to work their way through the banking system to our client account.

If there is a chain then there can be last minute issues and hitches.

Its not a perfect system. We do our very best-as do most other conveyancers-to make sure the anxiety levels are at a minimum.

The best policy is to maintain patience, to remain calm, to be empathic and to be beside the phone on completion day-ready to move.

 

 

WHAT USE IS A LASTING POWER OF ATTORNEY?

Did you know that there are about 100 different types of Dementia? Sometimes, as in the case of Vascular Dementia, this can occur almost overnight. But all is not lost.

Emmersons-Solicitors-Court-of-Protection
People can live happy lives for years with Dementia. They can still make many decisions for themselves. They can remember lots of things. But what toll does this take on their partner who is caring for them? Some of you may be aware that it is often the carer who suffers physically and mentally whilst trying to look after the patient. They can and do predecease the patient.
For both parties it can be essential to have a Lasting Power of Attorney, to manage both financial affairs and health issues. This can be used immediately if that is what the Donor decides – that is the person appointing the attorney to act on their behalf.
A Lasting Power of Attorney can be used by the Attorney once it has been registered by the Donor, or their solicitor, at the Office of the Public Guardian.
In a case I am dealing with at the moment, the Donor, lets call him Ed, finds it a struggle to reach his bank. He is in a care home, he does not have access to the internet, he can no longer drive and it is making it rather difficult to visit his bank. Yet he still has a lot of banking issues to attend to.This client has not lost mental capacity and you may think that there is no need to have a Lasting Power Of Attorney under the circumstances.
However, my client is elderly, does not understand everything about banking processes, and it is a struggle to cope with physical ailments. Having moved home all of the banks need to know about his new address, social services need to know how much my client has in assets in order to determine whether or not he is self funding. At the moment I am able to obtain some of this information but the main bank will not let me move money from one account to another in order to maximise interest rates and pay for care home fees and other bills.
If this client later loses mental capacity I wouldn’t be able to find out any information because I would not have the client’s ongoing authority to act. Once I have a Lasting Power of Attorney in place I can sort out all remaining issues.
In another case, a financial institution was taking money from my client’s bank account every month yet until I obtained a Lasting Power of Attorney they would not let me know why they were taking that money. It transpired it was for life assurance, this client has no close relatives and no partner!
Then there is the issue of dealing with social services; Imagine your elderly mother, Pippa, is rushed into hospital and it transpires that she has had a minor stroke. Luckily Pippa has not lost mental capacity. However, she feels very disorientated, she can no longer move her right arm and it becomes clear that she can no longer live in her own home. Now imagine fighting your way through the system trying to sort out Pippa’s finances, trying to establish which care home she can afford. If she has assets of over circa £25,000 she will be classed as self funding. However, some assets can be ring-fenced and should not be taken into account by social services. Pippa may well be entitled to state benefits such as Attendance Allowance or she may be entitled to NHS continuing funded care, meaning that the NHS are obliged to pay for some or all of her nursing care.
If you don’t have a registered Lasting Power of Attorney in place it could take a long time to obtain all of the information that you need. Banks are unlikely to give you any information, social services have on occasion overridden the wishes of family members who do not have LPAs in force. The NHS may not deal with you if you need to challenge their funding decision.
Then there are utility companies and the council tax department to deal with, none of whom are obliged to give you any information relating to your mother’s accounts held with them.
When circumstances change for our older clients it is often quickly. There are a lot of institutions to deal with and all of them can refuse to deal with family members who have no legal standing. If you have a Lasting Power of Attorney in place, even if your relative has not lost mental capacity, then it can make life so much easier, and a lot less stressful.
I prefer it if clients have a relative who can act for them. However, increasingly there is no one available and all of the above tasks are far too much responsibility for a friend to cope with. In which case a solicitor is probably the next port of call. It is essential that the person looking after large sums of money keeps written records and can prove that they are acting in the best interests of the client. A solicitor is very heavily regulated and solicitors accounts are audited every year.
If you or your family need assistance with any of the above issues then please don’t hesitate to contact us on 0191 2846989.

DASTARDLY DIVORCE DEEDS

I have now been undertaking divorce work as a lawyer for twenty eight years. During that time I have come across some awful situations including domestic violence against both women and men as well as all sorts of horrors that have happened to children within violent or abusive households. These types of cases regularly hit news headlines. However, they are not the only type of bad behaviour that Divorce Lawyers have to deal with.
When it comes to Matrimonial Finances people can be very underhand. The cases I outline below are quite memorable and therefore I have changed some of the details.
In one case, a client was cleaning out a cupboard when the bottom fell out. Amongst the broken wood were a series of documents that caused my client acute shock. It became obvious that their spouse had been living a double life. They owned another house with another person, they had hidden assets to the tune of hundreds of thousands of pounds and worse they had another child with the other person.
My client had felt that the marriage had not been working for some time, they felt lonely and isolated. Hardly surprising when their spouse had a whole extra family to spend time with. Not surprisingly my client sought a divorce and needed to know where they stood financially.
I issued divorce proceedings based upon adultery, issued an immediate application to sort out a Financial Settlement and on the back of that issued an application to freeze the hidden financial assets before they were moved offshore. Prior to the first hearing taking place I had all of the documents served on the spouse by a private eye, in this country they are actually known as Process Servers.
I invited the spouse to appoint a solicitor as a matter of urgency. At the first hearing the judge made an order freezing the hidden assets. That way the money could not be removed from the bank until such time as we could negotiate a proper settlement.
The other solicitor took a reasonable approach, it was clear that the marriage was at an end, finances had to be sorted out and my client needed their fair share in order to move on with their life.
Then there was the case where a couple had married over fifteen years beforehand and had children together. Sam had previously been married and had older children from that marriage. Imagine our client’s surprise when she concluded that the marriage was at an end and asked us to carry out Land Registry searches to determine how she owned a series of properties with Sam. He had told her that properties had been put into their joint names once they were married. Penny had no reason to doubt Sam, after all they were in love and had children together.
However, Sam thought it would be a great idea to transfer all of the property he owned into the names of his adult children just before he married Penny. What on earth did he think was going to happen to Penny and their children if he died whilst they were still minors? If he had died under such circumstances he would have left Penny
and their children fighting a court case with his adult children. This would have cost them all tens of thousands of pounds. What a selfish thing to do to your family.
Our task was to uncover an audit trail going back over a decade and piece everything together. Sam didn’t see why Penny should receive any assets or money for her or their children upon divorce. Thankfully the judge saw this financial deception for what it was and ordered the return of assets back to Sam and eventually Penny.
Then there was the case of Hareem whose husband bought, sold and rented out properties.The couple worked together in another business and most of the profits from that business were used to purchase the investment properties. Sanjay convinced Hareem that as she was busy looking after the first business and their children it would be easier if he saw to the properties. A reasonable solution to a busy life.
Unfortunately the marriage came to an end with both parties accusing the other of domestic violence. The first thing I did was check the ownership of over thirty properties using the online Land Registry portal that we can access at our office. Hareem was listed as a co-owner of only two of the properties. I also noted that Sanjay had transferred a number of the properties into the names of his mother and brother in the previous three months. An obvious attempt to deprive Hareem of assets.
As you can imagine the judge hearing their case was not at all happy about this situation and made an order which placed Hareem back in the financial position she was entitled to.
These cases require a lot of skill as a solicitor.They need patience and the investigative skills of a top detective. I often have to pore over accounts produced for a business, which may hide a multitude of issues, I have to go back over applications for mortgages and loans, proof of funds, audit trails for money going from one business to another, completion statements for conveyancing matters etc.
If you think that you have missed the boat financially why not contact me for advice on 0191 284 6989 or
je@emmersons-solicitors.co.uk

WHAT TO DO IF YOU OR YOUR RELATIVE MOVES INTO A CARE HOME.

Moving into a care or nursing home may be a planned event and you and your family may be lucky enough to attend to everything necessary prior to the move. However, many of you may be faced with an emergency situation. A fall or a stroke may mean a period in hospital during which time it becomes clear that you or your relative cannot return to independent living. In other cases there may be an advance in dementia meaning that you or your relative cannot cope at home any longer.
A move from home may mean moving in with a relative or moving to a care or nursing home. In any event there will be a whole host of issues requiring attention:
House Insurance – if a house is to remain empty then most insurance companies will insure on the same terms for a month or two. However, thereafter the insurance will either fail entirely or will have restrictions placed upon it. Theft or malicious damage may not be covered and there are likely to be restrictions as to leaving water on and how often the property is inspected. It is therefore essential that an insurance certificate is obtained.
Council Tax – you should inform your local authority as to when the move took place. This should be done as soon as possible as there will be restrictions on the backdating of refunds. You should also check to make sure that a claim was made for a single person’s discount if relevant. Many elderly people can perhaps cope with sorting out payment for their council tax but don’t understand that they have to complete a form to obtain full discounts. In one case recently, I was able to demonstrate to the local authority there had not been anyone able to help our client to fill in her forms correctly, and that she was incapable of doing so herself, therefore a full rebate was given.
Water rates – even though the water may be left on, rather than draining down the system, the water board will usually put a stop on the account if the premises remain empty. Thus there will be no further charges. There may also be a rebate due if the house has been empty for some time. You should also determine what is to happen to the house telephone, is it to be disconnected to save further payments?
Most of us will have numerous standing orders and direct debits attached to our bank accounts. However, I bet we couldn’t name them all and some of them should have been stopped long ago. Quite often when I am dealing with bank accounts I notice a huge list of standing orders which can often add up to hundreds of pounds a month. If you or your relative need to pay for care home fees you will be looking to save money elsewhere. Is it necessary to be paying money to the likes of The Royal Mint, RSPCA, RSPB, The National Trust, The Orphaned Bear Society, The One Legged Donkey Society, you understand my point!

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It will be necessary to ask the bank to stop all standing orders other than for essential items such as house insurance. Don’t forget to ask for a full list of all payments as some are paid only once a year and may not show up on a current statement. If you don’t have a Lasting Power of Attorney in place the bank will want to meet you to take instructions. Now might be a good time to appoint an attorney to manage your financial affairs. That way you will not have to meet the bank staff each time your relative needs to rearrange your finances.
Urgent attention must be given to payment of any care home fees. Who will manage the bills, which bank account will be used to pay the fees, who will check the statements from the care home? It may mean amalgamating a number of bank accounts to make the task easier.
Have you applied for all relevant state benefits such as Attendance Allowance? A social worker or Age UK can assist with this.
Finally, there is the issue of the family home. I have met people who live in care homes and who understandably do not wish to give up their own home. In one case a lady told me that she was working hard to get back to her own home; she had been in a nursing home for over two years. In all of that time her home had been empty and was deteriorating. Perhaps the property should be rented out? Should it be sold, if so who will deal with the sale? Who will deal with the huge task of clearing out the property?
If the property is to be sold then does the owner have sufficient mental capacity to deal with this? If not a Power of Attorney can be used. If there isn’t one in place then someone is going to have to apply to the Court of Protection to become a Deputy. Once a Deputy is appointed they can then deal with the sale.

Access to Justice

The CMA produced a report some time ago about the “need” for greater transparency in the legal market.

This is “code” for “there really ought to be more competition so that legal services are cheaper because people tell us they think legal services are expensive and we need to improve access to legal services and our previous attempts have failed in that we tried to encourage innovation and competition through new entrants (known as Alternative Business Structures) but they havent taken up the challenge because there is too much regulation.”

The Legal Services Board promotes this dream of competition and innovation and has insisted taht the various legal regulators make sure it happens.

The Solicitors Regulation Authority has gone for this with some gusto and is suggesting that Solicitors could work for non-regulated bodies so the Solicitor would be regulated but the body might not be and in that way people might be able to access legal advice at a reasonable fee.

None of these organisations address the real issue. Successive Governments have cut legal aid. They have cut the scope of legal aid (ie limited the legal issues for which it is available) and have restricted the financial criteria (ie the income and capital limits have been reduced above which a person cannot get legal aid) and have cut the fees payable to a solicitor or barrister who undertakes such work and introduced a whole series of fixed fees so not matter how much work one does on a file one is paid a fixed fee.

Legal aid gives people power to challenge big business, local authorities, Government and all the institutions of the State.

In a recent Law in Action interview the current Lord Chancellor (who has only just been appointed) got it wrong when he said that legal aid would have been available to the residents of Grenfell Tower in relation to safety issues but no-one applied for it. In fact it isn’t available for anyone in relation to housing safety issues UNLESS there is a disrepair issue which raises an issue about a serious safety matter-which didn’t apply in the Grenfell Tower situation. This explains why no-one applied for legal aid (on which point he was entirely correct).

Legal Aid has been attacked for years as a gravy train for lawyers. As an unworthy assistance to unworthy people who should fund their own cases or who should rely upon the State’s decisions because the State makes correct decisions which shouldn’t be challenged. However statistics in relation to “fit for work” cases show a different picture. People who have the benefit of legal aid can assert their rights. Legal Aid is granted by an independent body The Legal Aid Agency and there are strict rules (quite rightly). Too many people who crticise legal aid dont know how it works or how it is granted and don’t know that only certain law firms can apply for it on behalf of clients or indeed that it is not paid at an hourly rate but on a fixed fee basis.

The problem is that someone somewhere decided the legal aid spend should be controlled and limited and so cuts were made. The myth was created that legal aid had gone beyond what was originally intended for it (which is a lie), that it was easily obtained (another lie) for weak cases (another lie) and that others were held to ransome by the person with legal aid (not in my experience). This means people cannot enforce their rights and so there is limited and resticted access to Justice which means the rich can take whatever legal action they wish but the rest of Society cannot. How can this be justified?

The current BIG LIE is that the UK is awash with whiplash claims and that this must be stopped. However the data and the argument are about as real as the Wizard of Oz. the ABI has conned the Government and deliberately mis-stated the truth. Here’s the evidence in rebuttal http://www.legalfutures.co.uk/latest-news/academic-debunks-claim-uk-whiplash-capital-europe

And if someone not eligible for legal aid (anyone on more than £37,500 a year) has to pay for their own representation, a nasty shock awaits: even if the defendant is acquitted of all charges, there is now no automatic reimbursement of costs. To recoup anything, such defendants must first apply for legal aid, be rejected, and hire a lawyer privately; yet upon acquittal they can then claim back costs only at legal aid rates.

Since the CPS unusually instructed senior Treasury Counsel in his case, Mr Evans understandably felt obliged to use representation of equal quality. I understand that he has been left with a £100,000 bill for which no refund is available, despite his acquittal. If he and his fellow MPs believe that to be unjust, they might want to have a word with their parliamentary colleague who seemingly supports the principle of making defendants pay for the privilege of being found not guilty: the Justice Secretary, Chris Grayling