Unsent text accepted as dead man’s will

A court in Australia rules a draft text message can be accepted as an official will.

This is a topical issue in England and Wales. The Law Commission is currently considering whether the law relating to Wills should be updated, particularly as regards the capacity to make a Will; and the formalities of doing so.

Much of the present law is based on the Wills Act 1837. This sets out details of how a Will should be signed and witnessed.

Once a judge has decided that a Will is valid, he or she may already take account of other evidence to help interpret what the Will was intended to mean. However, one question being considered is whether more use could be made of digital technology in the creation of the Will.

A more flexible approach to the creation of Wills is possible but of course it is important that there are safeguards to prevent fraud and to ensure that a Will is genuinely what the individual wants; that he or she understands it; and that he or she has not been put under pressure to make the Will.

A public consultation by the Law Commission is currently underway and is open until 10th November 2017.

If you have any questions about this article then please don’t hesitate to call Janet Strong on 01793 532363.

Debt Recovery from 1st October 2017

On 1 October 2017 a new Pre-Action Protocol comes into effect for debt claims, where the Creditor is a business (including sole traders and public bodies) and the Debtor is an individual (including a sole trader).

The principle aims of this protocol, as with those covering other areas of the law, are to encourage early engagement between the parties, enable the parties to resolve matters without the need for Court proceedings, encourage the parties to act in a reasonable and proportionate manner and to assist in the efficient management of Court proceedings if those cannot be avoided.

Whereas beforehand the letter before claim may have only contained scant detail, now the letter needs to include a prescribed list of information including:-

The amount of the debt, interest and other Charges claimed.
The date of the agreement to which the debt relates, and the parties to that agreement.
If the debt is assigned, details of the original debt and creditor, when it was assigned and to whom.
If regular instalments have been offered, while being paid, an explanation of why that offer is not acceptable and why a Court claim is being considered.
Details of how the debt can be paid.

The letter will also need to include an up to date statement of account for the debt including details of any interest and administrative or other charges added plus a Reply form and a Financial Statement form as annexed to the protocol.

The letter of claim needs to be sent by post unless an alternative method has been agreed with the debtor. If the debtor does not reply to the letter of claim within 30 days, the creditor may then start Court proceedings subject to any obligations which the creditor may have to the debtor.

If a reply is received, the debtor will be allowed a reasonable period to take legal advice and in any event the creditor cannot start Court proceedings less than 30 days from receipt of the completed reply form or having provided any documents requested by the debtor whichever is the later.

Where the debtor indicates in their reply form that they require time to pay, the parties should try to reach agreement for the debt to be paid by instalments based upon the debtor’s income and expenditure. If the creditor does not agree to a debtor’s proposal for repayment of the debt they need to give the debtor reasons in writing.

If a partially completed reply form is received, the creditor should contact the debtor to discuss the reply form and obtain any further information needed to understand the debtor’s position.

Where any aspect of the debt is disputed the parties should exchange information and disclose documents sufficient to enable them to understand each other’s position and if the debtor requests any documents the creditor should provide those or else explain why they are not available within 30 days of receipt of that request.

If the parties still cannot agree about the existence, enforceability, amount or any other aspect of the debt, they should both take appropriate steps to resolve the dispute without starting Court proceedings and, in particular, should consider the use of an appropriate form of Alternative Dispute Resolution (ADR). This could be informal discussions or else more formal process such as a complaint to the Financial Ombudsman or, especially, where the debt is large, mediation.

If the parties reach agreement concerning repayment of the debt the creditor should not start Court proceedings whilst the debtor complies with that agreement. If the creditor wants to start Court proceedings at a later date in the event of default by the debtor, they must still send an updated letter of claim and comply with the protocol afresh but you do not need to send the supporting documentation if that was sent within the preceding 6 months.

If Court proceedings are brought, the Court will expect the parties to have complied with the protocol and it is likely that the Court would sanction a party that has not complied with the protocol.

If agreement cannot be reached then the creditor must give the debtor at least 14 days’ notice of its intention to start Court proceedings save where there are exceptional circumstances, for example where a limitation period is about to expire.

Clearly, one of the principle rationales behind this new protocol is to reduce the number of debt claims which come before the Courts and these requirements as set out in the protocol require the parties to ensure that they comply else face the consequences of not doing so should litigation ensue.

To name or not to name Michelle Bowyer clarifies current position

There have been sensationalist headlines in the press over the last week or so relating to having to name a third party to divorce proceedings where the petitioner is relying upon adultery as the cause of the marriage breakdown.  This is not true!  The divorce petition has been redrafted in order to make life easier for litigants in person although I would suggest that its predecessor was much more user friendly.

However, it does not require the petitioner to such proceedings to name a co-respondent.  There is, as there always has been; opportunity to name the third party but best practice remains the same:  naming a third party should be avoided.

An adultery petition requires evidence of sexual intercourse between a man and a woman in absence of an admission.  Therefore, best practice is to establish if the proposed respondent is willing to admit to the indiscretion and if he/she is not then generally, we would advise to choose another route to dissolving the marriage.

As a Resolution accredited specialist, I observe a code of conduct which promotes a conciliatory approach to resolving family legal issues and therefore, regardless of the wording in the guide to a divorce petition, I will continue to adopt this approach.  “Naming and shaming” will only inflame the situation and create more tension at a time when we should be seeking to resolve matters in pursuit of a swift and fair settlement.  It also makes the third party a party to the proceedings which can in itself cause all manner of complications if they choose not to participate.

If you require advice in relation to a divorce or any other family law matter please call and speak to a member of our family team on 01793 532363.

Launch of SuperSET – Swindon Sports and Education Trust

We had an extremely successful event on Friday launching SuperSET (Swindon Supermarine Sports and Education Trust).

The guest list included the Lord-Lieutenant of Wiltshire, Mrs Sarah Rose Troughton, Local MP’s and dignitaries, and many people directly involved with the project.

We have managed to achieve some very encouraging commitments towards the Trust’s activities and look forward to supporting the Trust to serve the local community.

Please click here read more about the event from Total Guide to Swindon

Click here to see what The Swindon Evening Advertiser wrote about the event

SuperSET launch pictures

Calne Heritage Week – 4th to 10th September

Just a reminder that this week is Calne Heritage Week (4th to 10th September).

Celebrating the people, places and events of Calne’s past, with a daily programme of free events and the opportunity to step inside some of Calne’s most intriguing buildings.

One of which is ours! We are very honoured to work in such a lovely building and will be opening our doors this Saturday between 10am and 1pm.  Nick Sewell, Partner, will be happy to greet anyone who would love to come visit!