August 2014 Archive

Deathbed gifts

The best way to ensure that your affairs are in order when you die is to make a will. This allows you to carefully consider and clearly set out your wishes. Unfortunately the reality is that not everyone makes a will and this can be for a number of reasons such as lack of time or not considering that their death could be imminent. As a result some people will make gifts or promises on their deathbed and there are occasions where a court will uphold promises of this nature. The technical term for a deathbed gift is a donatio mortis causa.

Pension freedoms and implication for bankrupts

The decision in Raithatha - v - Williamson [2012] (“Williamson”), namely that an Income Payments Order (“IPO”) could be made in respect of a Bankrupt’s undrawn personal pension, has been given an extra twist following the changes to the rules with regards to pensions. Historically, the position regarding pensions was that prior to May 2000, a Bankrupt’s personal pension was vested in his Trustee in Bankruptcy. However, following the introduction of the Welfare Reform & Pensions Act 1999 (“WRP 99”) the position changed whereby Section 11 WRP 99 excluded all “approved pension arrangements”, namely all tax approved plans from a Bankrupt’s Estate.

First legal challenge to CIL on basis of a development’s future viability

The Conservatives’ pre-election promise to abolish the Community Infrastructure Levy (CIL) was quietly swept under the carpet by the Coalition government which has not only kept the levy but has continued to tweak it. We have now arrived at the point where approximately 25% of local authorities have either adopted a CIL charging schedule or are in the process of doing so. In the first case of its kind, a developer has challenged the basis on which Chorley Borough Council set its charging schedule by citing procedural inaccuracy and that the level of the charge would undermine the viability of the development in question. Although the challenge was unsuccessful, it does open the door for other developers to query both the way in which charging schedules are arrived at and the level at which they are set.

Matrimonial property, needs and agreements

The Law Commission launched a consultation in 2012 (which built on two previous consultations in 2009 and 2011 covering pre-nuptial agreements and reform of marital property agreements respectively) with the aim of clarifying the particularly vexed of question of how to achieve fair financial provision in the event of marriage or civil partnership breakdown. The Commission received 150 responses from a cross section of people including members of the general public, the legal profession and other interested organisations.

Refusing to mediate can be a costly mistake

The recent decision in Garritt-Critchley v Ronnan is a stark reminder of the risks involved in refusing to engage in alternative dispute resolution (“ADR”). In this case the defendant repeatedly rebutted the Claimant’s offers of mediation, resulting in a punitive costs order being made against them. Parties should bear this in mind when a dispute arises and give due consideration to the various methods of ADR so as to avoid being penalised on costs.
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