Blackhurst Budd Sponsor Elmer’s Big Parade Blackpool

Blackhurst Budd Solicitors are proud sponsors of Elmer’s Big Parade Blackpool in support of Brian House Children’s Hospice.

The firm is sponsoring an Elmer sculpture, which will form part of an art trail featuring 30 large Elmer the Patchwork Elephant sculptures and will be live across the town from Saturday 13th April until Sunday 9th June 2024.

As well as bringing people to the town and celebrating the diversity of local communities, the event will be raising much needed funds for Brian House. Each large sculpture will be uniquely decorated by established and up and coming artists, creating a parade through the town that will be enjoyed by visitors and locals for eight weeks.

A herd of smaller Elmers will accompany the trail, decorated by local children and young people through schools and youth organisations. They will be displayed inside some of the town’s tourist, cultural and leisure locations.

Blackhurst Budd have said:

“We have supported Brian House and Trinity Hospice for many years, fantastic local charities providing much needed care and support for children and their families.

Elmer’s Big Parade is a great way to raise awareness and funds whilst bringing a unique attraction to Blackpool.”

Over £1m Raised For Cancer Research UK

Helen Soutar presenting Ian Bentley & Suzanne Leonard with a Certificate of Thanks from Cancer Research UK.

Ian Bentley & Suzanne Leonard from our Probate team were presented with a Certificate of Thanks by Helen Soutar (Legacy Partnership Manager at Cancer Research UK) at our offices last week.

We are proud to say that we have raised over £1,000,000 in Gifts in Wills through the Cancer Research UK (CRUK) Free Will Service since becoming members in 2016.

If you would like to arrange a free basic Will and support this fantastic charity please click here.

Conveyancer Retires after 55 Years

Blackhurst Budd have said a fond farewell and happy retirement to our longest serving member of staff, Anne Swarbrick, who has amassed an amazing 55 years with the firm.

She joined J K Lawson & Co on Monday 8th April 1968, which merged with several other prominent local firms and ultimately formed Blackhurst Budd in 2009. She began her career in conveyancing but also had extensive experience dealing with wills and probate.

Anne officially retired on the 28th of April and says she wants to apply for the job dressing up as a bird to scare the seagulls at Blackpool Zoo!

“It has been a fantastic experience to have worked for the same firm for so long. There have been a huge number of changes in the legal world during that time, but what has remained the same is the need to look after your clients. I have been lucky enough to have clients that have been with me since the 1960s and I have, in some cases, acted for three generations of the same family.

It is a wrench to leave and I will miss the firm, the people and the daily interactions with everyone but the time has finally come to say goodbye.”

Briony Haley, Director and Head of Property commented:

“We would like to thank Anne for her dedication and loyalty to the firm. Over the years she has helped many families in Blackpool the Fylde Coast buy and sell properties and support people with the loss of a loved one when dealing with probate matters.

Her dry sense of humor and quick wittedness will be sorely missed by all at Blackhurst Budd and no doubt by her clients too. We wish her all the very best in her well-deserved retirement.”

Enforcing financial orders

Having successfully obtained a financial order following divorce or dissolution of a civil partnership, this does not necessarily represent the end of the road. This is because further legal action may still need to be taken to enforce that order. This can sometimes be the case, even if the order was reached on mutually agreeable terms, where the reality of the financially stronger spouse or civil partner having to part with any money or assets may be causing some delay. Below we look at what can be done to remedy this problem.

How can a financial order be enforced?

In most cases, once the court has either made or approved an order as to how the matrimonial or partnership finances are to be split, the relevant payments or property transfers will be made in accordance with the terms of that order — and the parties can move on. Sadly, however, in some instances, the paying party will simply refuse to part with the money or assets which they are due to pay or transfer to their ex.

Fortunately, there are a number of ways of legally addressing a refusal to pay up, where the courts have various robust powers to ensure compliance with any financial order made. This will be the case even if an order was agreed by consent, provided it was put before a judge for the court’s approval, in this way making that consent order legally enforceable.

The potential routes available to enforce the party in default to comply with a financial order can include a charging order, an attachment of earnings order, a third party debt order, a warrant of control, or various orders relating to the sale or transfer of property.

Which option is best to enforce a financial order?

When it comes to enforcing a financial order, the best available option will depend on both the nature of the order and the sums involved. In cases where a large lump sum payment is due, the court can be asked to secure the money owed by placing a charge over any property owned by the defaulting party. This is known as a charging order. This is like having a mortgage in favour of the non-defaulting party, where an order for sale can subsequently be sought if the money is still not forthcoming. In contrast, where spousal maintenance has not been paid, an attachment of earnings order can be sought, requiring the employer of the defaulting party to deduct this money directly from their wages.

Other enforcement options can include a third party debt order, asking the court to seize money, usually held in a bank account in the name of the defaulting party, in full or partial settlement of the sums owed; a warrant of control, asking the court bailiffs to seize and auction off any goods belonging to the defaulting party; and, in the context of property adjustment orders, an order for the defaulting party still living in the property to leave and/or for the court to sign the relevant papers where the defaulting party refuses to do so.

Importantly, even though there will be a cost to taking proceedings to enforce a financial order, it is usually possible to ask the court to add these costs to the money owed so that reimbursement can also be claimed from a former spouse or civil partner.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.

Legal rights for grandparents

Sadly, where family relationships have broken down, especially when parents separate, it is not uncommon for grandparents to find themselves in a situation where they are denied any contact with their grandchildren. Below we look briefly at the law in this area, outlining the legal rights for grandparents around spending time with their grandchildren. 

Do grandparents have automatic rights over grandchildren?

Even for those grandparents who have previously had regular caring responsibilities for their grandchildren, or the emotional bond is otherwise strong, the law does not grant an automatic right to a relationship. This essentially means that if a dispute arises over contact with a child, for example, where the parents separate and one set of grandparents become estranged, a grandparent cannot assert an automatic right to spend time with a grandchild.

Grandparents also do not have an automatic right to apply to the court for what is known as a child arrangements order. This is an order typically used by separated parents to decide the issue of custody and contact, but can also be used to determine the nature and extent of any contact with wider family members. However, the good news is that it is open to grandparents to apply to the court for leave. This simply means that they first need to ask the court for permission to be heard about the issue of contact.

Provided permission is granted, the court can then go on to consider whether or not contact between a grandparent and grandchild is in the best interests of that child. There are various factors that the court will take into account when deciding the issue of contact with grandchildren, including the nature and strength of the existing relationship between a grandparent and grandchild. However, ultimately, the child’s welfare will always be of paramount importance, with reference to the following welfare checklist:

•   the ascertainable wishes and feelings of the grandchild in the light of their age and understanding at the date of the application

•   the grandchild’s physical, emotion and educational needs

•   the likely effect on the grandchild if circumstances change as a result of any order

•   the grandchild’s age, sex, background and any other relevant characteristics

•   any harm the grandchild has suffered or may be at risk of suffering

•   the capability of the grandparent(s) in meeting the grandchild’s needs. 

Needless to say, grandparents can often find the prospect of court proceedings daunting, where the grandparent-grandchild relationship will inevitably come under close scrutiny. However, with the right advice and representation, it is possible to re-establish regular contact with a grandchild. This can also often be achieved with recourse to the courts.

How can contact disputes over grandchildren be best resolved?

In circumstances where family relationships have broken down, and agreement cannot be reached around grandparents spending time with their grandchildren, mediation is often used as an alternative to court proceedings. Before applying for a child arrangements order, an applicant must first show that they have attended a mediation meeting in any event.

However, mediation is not simply a box-ticking exercise, but can be a productive way of getting the parties to talk about what is best for the child and finding some common ground. With the help of a mediator, this can give the parents and grandparents the opportunity to amicably reach an agreement about contact without recourse to the courts. 

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.

What is a Property Trust Will?

For many of us, the most valuable asset that we will own during the course of our lifetime will be the property that we live in. Understandably, therefore, this is the asset that we will want to protect, both from future care home fees, as well as from any second marriage or civil partnership, where a surviving spouse or civil partner remarries upon the death of the other. Below we look at how a Property Trust Will can help in either scenario.

Property Trust Wills and care home fees

Jointly-owned property is disregarded from any residential care needs assessment, at least for as long as any spouse or civil partner remains living in it. However, once a person passes away — and property is left to the surviving spouse or civil partner under the terms of a Will or in accordance with the rules of intestacy — the deceased’s share of the family home can be factored into any financial assessment for the surviving spouse or partner.

At present, if a person enters into full-time residential care in England and Northern Ireland, and they have any savings or assets worth more than the £23,250 threshold then, generally speaking, they will have to pay the cost of care themselves. Even though the government has announced a care-costs cap of £86,000 as from October 2023, providing financial protection from unlimited care costs if these reforms come into force, the matrimonial or partnership home may still need to be sold to pay for care home fees.

A Property Trust Will, also known as an Asset Protection Trust Will, provides an effective legal mechanism for couples to ensure that on the death of the first, their share in the property will not be factored into any financial assessment if they need to go into care in the future. This will therefore avoid the full impact of care home fees and help to safeguard any inheritance for the couple’s children as far as possible.

Property Trust Wills and second marriages

Similarly, when it comes to second marriages, if a couple make Wills leaving their assets to each other on the first death, and to their children or other family members on the second death, the surviving spouse of civil partner will still ultimately own all of the combined assets. The problem with this is that the survivor is free to change their Will at any time, potentially leaving the first party's chosen beneficiaries completely cut off.

The survivor could also remarry, which means that their Will would automatically be revoked and, again, the chosen beneficiaries of the first person to die will lose out.

A Property Trust Will can ensure that assets are received by the beneficiaries as chosen by a couple from the outset, regardless of who dies first, where this type of trust mechanism can be extremely useful where a couple have children from previous relationships.

How does a Property Trust Will work?

A trust is basically a legal arrangement which, in the case of a Property Trust Will, is typically a life interest trust included within a Last Will and Testament. This is where a surviving spouse or civil partner can continue to occupy the family home for as long as they need to, before the property passes on to the next generation. The survivor will be able to benefit from the deceased’s share of the property, without actually owning that share, with the property passing to specified beneficiaries when their interest comes to an end.

The advantage of a Property Trust Will is that if the survivor needs full-time care, only their own share of the family home can be assessed towards residential care fees. This is because they do not own the deceased’s share, but simply have a life interest to use it. Equally, they cannot bequeath that share to someone else, nor can that share form part of the marital or partnership assets if they choose to re-marry or enter into another civil partnership.

However, Property Trust Wills are a very specialised area of law, where it is essential that professional advice is sought to ensure that a couple’s wishes are met. 

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.

Buying at Auction FAQs

If you are considering purchasing a residential property at auction, this is very different to the more conventional method of buying a house via an estate agent, not least when it comes to the timescales and potential risks involved. Still, in the current economic climate, securing a property at a potentially discounted price is something regular homebuyers, as well as property investors, are becoming more and more interested in.

Below we have set out three frequently asked questions to help you make an informed decision as to whether buying a residential property at auction could be right for you.

What are the timescales involved when buying at auction?

As the entire process is designed to be extremely quick, finances already need to be in place before you bid. This is because you will usually be required to put down a 10% deposit on the day, where contracts are treated as exchanged as soon as the hammer goes down.

You will then usually have between 14 days to 6 weeks to pay the remaining balance of the purchase price. If you fail to complete by the contractual completion date, very often just 20 working days from the date of the auction, this can mean that you will lose the deposit monies paid, along with the property. You will also be in breach of contract.

What are the risks involved when buying a property at auction?

In addition to ensuring that you can pay the purchase price within a short period of time, there are various other risks involved when buying a property at auction. This is because it is not uncommon for auction bidders to overlook important legal issues that could impact the value of the property or undermine any potential plans that they may have for it.

It is therefore important to have a solicitor look over the property legal pack on your behalf prior to bidding. This should be available from the auction house, typically to download, and will include things like a copy of the property’s title, the results of land registry and local searches, and any special conditions attached to the sale, such as clauses that prevent development or certain types of use. It should also include information about any planning permission granted in relation to the property, any leases or tenancy agreements that may be in place, and information about the property’s fixtures and fittings.

Importantly, once the hammer falls on your winning bid, you are legally committed to buy the property and cannot back out if you subsequently discover any problems.

Do I need to pay for a survey before I bid on a house at auction?

The responsibility for checking that the property matches its auction catalogue description lies with the buyer. This means that you will need to view the property and, if you would like to know the condition of the property, get a survey done before the auction takes place.

Paying for a survey on a property that you are not sure you will successfully secure can seem like a costly risk, but the risks associated with not getting a survey done, and possibly buying a property with serious structural issues, means that this is strongly advised.

Needless to say, these ‘Buying at auction FAQ’s’ answer only a few of the possible questions that potential bidders may have. If you are looking to purchase a property at auction, it is always best to first seek expert advice, tailored to your specific circumstances and needs.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.

Contesting a Will

Testamentary freedom, or the ability to leave one’s worldly wealth to whomever we choose, is the cornerstone of succession law in England and Wales. However, there are certain circumstances, even where a deceased has documented their final wishes within a Last Will and Testament, that a Will can be contested. Below we look at different contentious probate disputes and the basis upon which contesting a Will can potentially succeed.

On what basis can a Will be contested?

Contentious probate cases can cover a range of possible scenarios, although one of the most common types of claim, known as an Inheritance Act claim, is where adequate provision has not been made within a deceased’s Will for either a close relative or anyone else who was financially dependent on the deceased immediately before they died.

Under the Inheritance (Provision for Family and Dependants) Act 1975, a potential claim can be made to the court to vary the distribution of the deceased’s estate by certain categories of people, so long as a claim is issued within 6 months of the date that probate is granted. The potential categories of Claimant can include the deceased’s spouse or civil partner; their former spouse or civil partner, provided they have not re-married; any cohabiting partner, provided they lived with the deceased for a period of 2 years prior to their death; and any child of the deceased, including both minors and adults, as well as adopted and step-children. A Claimant can also include any person who immediately before the deceased passed away was being maintained, either wholly or partly, by that person.

Subject to the Claimant being able to show that they were financially dependent on the deceased and that adequate provision has not been made for them on death, the 1975 Act gives the court a relatively wide discretion to make an order to vary the distribution of the deceased’s estate by way of a single lump sum, regular payments or transfer of property.

In some cases, it may also be possible to contest the validity of the Will itself. This could be on the basis of testamentary capacity, where the deceased was arguably not of sound mind when they signed their Will. Additionally, it could be argued that the deceased was coerced into making their Will, or that the Will has been forged, or even that the Will has been improperly executed, such as not being witnessed correctly. In these types of cases, unless the deceased had in place a previous and valid Will, the estate would be distributed in accordance with the rules of intestacy, as if the deceased died without making a Will at all.

How should you go about contesting a Will?

Contesting a Will can be a complex and difficult process, especially at a time when you already feel overwhelmed whilst still grieving the loss of a loved one. However, with the right legal advice and representation, your solicitor can help you to build a strong case, with sufficient evidence in support to succeed. The most important thing in the context of contentious probate claims, is seeking expert assistance as soon as possible, ideally prior to distribution of the deceased’s estate to the beneficiaries under the Last Will and Testament.

By seeking immediate expert advice over any concerns as to the validity of a Will, or if you feel that you have not been adequately provided for by the deceased, you can explore the possible options available to you and make an informed decision as to how best to proceed.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.

Firm Appoints New Director

Blackhurst Budd Solicitors have appointed Sharon Emslie as a Director.

Sharon has been Head of the Family Law department since 2019 and is a Chartered Legal Executive. She advises clients on all aspects of relationship breakdown including divorce, finance and children. Sharon is also one of a small number of Lawyers with experience in the law surrounding surrogacy, fertility and adoption.

Having worked in the legal sector since 1997, Sharon studied the ILEX pathway, becoming a qualified Chartered Legal Executive in 2012. She has dealt with a wide range of family law matters including providing advice on high net worth divorces, complex court proceedings and international relocation cases.

Sharon joins the Board of Directors at Blackhurst Budd alongside Ian Bentley, Rose Spencer and Briony Hayley.

Warren Spencer, Managing Director commented:

“We are delighted to have Sharon on the Board. Since her arrival at the firm her contribution has been fantastic, growing the family team and expanding the services we offer. I look forward working with her on the wider management of the business in the future.”

Sharon added:

“The family law team has gone from strength to strength over the last few years and is an area of law that is less effected by the economic climate than others and therefore one we want to grow further.

Clients looking for advice on fertility law and surrogacy matters often feel they need look to large city-based firms for advice, but we have the expertise here in Blackpool to service clients across Lancashire and at a lower cost.

I am thrilled to have been appointed as a Director at Blackhurst Budd and look forward to the new challenges that will bring.”

Pictured: Warren Spencer, Sharon Emslie.

Dealing with a bankrupt beneficiary

Acting as a personal representative carries with it significant responsibilities, especially when it comes to distributing the deceased’s estate to the right beneficiaries. Below we look specifically at the rules relating to bankrupt beneficiaries, together with the potential consequences of getting this wrong.

What happens if a beneficiary is bankrupt?

When dealing with the estate of someone who has died, either as a named executor of the deceased’s Will, or as an administrator where a person has died intestate, it’s important to check whether any of the beneficiaries have been declared bankrupt. This is because, where a person has been made bankrupt, any assets to which a beneficiary would otherwise be entitled should not be handed over directly to the bankrupt beneficiary, but to the trustee in bankruptcy instead.

The trustee will essentially take over the financial affairs of the bankrupt individual, including taking control of any inheritance received where, with the exception of paying that person any living expenses, these funds will be used by the trustee to pay off creditors in order of preference.

What are the consequences of distributing assets to a bankrupt beneficiary?

The executor or administrator of an estate has a legal duty to distribute the residuary estate to the right beneficiaries. This would normally be the named beneficiaries under the terms of any Last Will and Testament or, alternatively, those beneficiaries entitled to inherit under the rules of intestacy.

However, in the context of any bankrupt beneficiary, the correct person to which any funds should be given becomes the trustee in bankruptcy, not the beneficiary themselves.  As such, if an executor or administrator mistakenly distributes all or part of the deceased’s estate directly to a bankrupt beneficiary, and that beneficiary refuses or is no longer able to return the money, the trustee could bring a claim against them to recover the amount paid. In other words, where a personal representative pays the wrong person, and that money cannot be recovered from that person, the personal representative will become accountable.

A bankrupt beneficiary is under a duty to declare their inheritance to the trustee in bankruptcy, where any failure to do so constitutes a criminal offence. However, it is easy to envisage cases where a beneficiary, unexpectedly in receipt of funds that they thought would be swallowed up by their bankruptcy, may decide to conceal their sudden windfall and/or spend it before the mistake is discovered. In this scenario, the executive or administrator would unfortunately be held liable for the unrecovered sums, in addition to the trustee in bankruptcy’s legal costs in claiming this back.

How can a personal representative avoid liability around bankrupt beneficiaries?

The best way to avoid liability around bankrupt beneficiaries is to seek legal advice, costs which can be recouped by an executor or administrator from the deceased’s estate. In this way,  experienced solicitors can undertake the task of establishing whether any beneficiaries are undischarged bankrupts at the time of the deceased’s death, or if any beneficiary was made bankrupt before the estate administration was finalised. If so, any legacy should be paid directly to the trustee in bankruptcy.

Only if the amount passed to the trustee in bankruptcy exceeds the amount owed to the bankrupt’s creditors, can anything be paid to the beneficiary. However, even in these circumstances, everything should still be paid over to the trustee, tasking them with paying any remaining sum to the beneficiary.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.