By Kerry Blackhurst

The current COVID-19 situation has understandably led to many people wishing to make or update their Wills, with reports indicating a 30% surge in client enquiries nationwide.  BBS Law are very happy to assist in these times and this summary will be helpful in reminding you on what the requirements are for a valid Will and how we can help you with the formalities.

The difficulty (aside from the fact that most solicitors favour face-to-face meetings when taking instructions for preparing a Will) is that there are very strict formalities required to make a valid Will – not least the need for two witnesses to be present at the time when the Will is signed.

Whilst the Ministry of Justice, Law Society and other key parties are debating whether the formalities relating to the preparation of Wills can be relaxed, it is important for our clients to know that by adapting and innovating, we are still able to provide the service they require.

What are the Requirements for a Valid Will? 

The law relating to Wills is set out in the Wills Act 1837. A Will must be executed in accordance with the provisions of this law in order to be valid. If a Will does not comply with these requirements, it will be held to be invalid and means that the deceased’s estate will have to be administered as an intestacy. This can bring unintended and unacceptable consequences for the original beneficiaries.

The relevant requirements are that the Will should be:

  1. In writing, and signed by the testator, or by some other person in their presence and by their direction
  2. The testator intended by their signature to give effect to the will
  3. Signed by the person making the Will (the testator) in the presence of two independent witnesses (who must be present at the same time).
  4. The witnesses must each sign the Will in the presence of the testator

During the current time it would be very helpful if the requirement for testator and witnesses to be “present” could extend to a virtual presence, for example over Zoom. Unfortunately, this has not happened and the requirement remains to be that testator and witness must be physically in each other’s presence.

How Does COVID-19 Affect the Making of a Will?

The key impact is that the requirements or recommendations of social distancing, especially for elderly or vulnerable clients, make it difficult to arrange for witnesses to be present at the time of signature, as it is likely that any members of their household are beneficiaries of the Will and therefore should not also be witnesses.

The law is very clear that witnesses of a Will should be independent and should not be beneficiaries of the Will. Indeed, any gift to a Witness would be held to be invalid.

How Can BBS Law Help?

Whilst our solicitors are working from home for the time being, we are regularly speaking to our clients to take instructions over the telephone or by video conferencing (WhatsApp and Zoom are especially popular). We are therefore fully able to advise upon and draft Wills to meet our client’s needs.

For our clients in the London or North West England we offer all manner of solutions to arrange for the signature of Wills, as we are able to provide two witnesses who will undertake a home visit. We have witnessed Wills through windows, in cars and in gardens, all safely observing current requirements for social distancing, and resulting in valid Wills being executed.

For clients elsewhere, we are able to provide final versions of Wills with full instructions for the signing of the same. We can also be present over the telephone or by video call to supervise the signing of the Will by testator and Witnesses to ensure that this is completely in the correct manner.

BBS Law continues to be open for business and meeting our client’s needs, so please do not hesitate to contact Kerry Blackhurst who heads our Private Client team on 0161 832 2500 to discuss your own circumstances.

By Roger Rubin

Some key take-aways from the new Corporate Insolvency and Governance Bill 2020 which emerged yesterday, almost a month after the intention to provide some assistance was first announced.

It contains some “meat on the bones” in relation to the headlines previously promoted, as well as a few novelty points.

I highlight the following:

  1. Companies not individuals – Restrictions on presenting Winding Up petitions will cover, not merely hamper landlords of commercial tenants, but ALL creditors. The position for individuals is not yet addressed.
  2. Retrospective – The new provisions will be retrospective and will even affect Orders already made, in certain circumstances – rendering certain winding up orders already made, void.
  3. No advertisements – Any active petition cannot be advertised unless and until the court has determined key questions relating to the relationship between the debt and Covid-19. Plenty of litigation ahead as to the meaning of the creditor’s “reasonable grounds for believing” the circumstances it relies upon as to nature and scope of the liability. Another layer of cost and delay – with great uncertainty for months ahead, I suspect.
  4. Further Court tests – Even if a creditor passes that hurdle, the Court can still refuse to make an Order if the court is satisfied that the facts by reference to which that ground applies would have arisen even if coronavirus had not had a financial effect on the company”. Another hurdle, with plenty of scope for argument!
  5. Wrongful trading There are rules effectively setting aside the “wrongful trading” provisions on Directors, in certain circumstances- although this won’t affect other statutory and other duties of directors of struggling companies.
  6. Moratorium for restructuring – There is to be a new moratorium to allow for certain “restructuring”.

The provisions are detailed and all the consequences are being considered. This is the first text of the Bill, and it doesn’t necessarily follow that the Final statute will look the same.

We are keeping a very close eye on developments, so our advice and assistance, is accurate and up to the minute!

For  sensible, practical and  detailed up to date and accurate advice, delivered in a user friendly and down to earth manner feel free to contact Roger Rubin who is a Senior Consultant in our Commercial Ligitation Team.

 

By Matthew Owen

It may seem a lot longer than 10 weeks since you last went to your favourite pub, café and restaurant, but it could be months before you will be able to, or more importantly want to, frequent them again. Social distancing and staff kitted out in some form of PPE will not exactly enhance the social experience and joy of drinks and meals out.

The whole leisure industry is suffering terribly from the Lockdown and is likely to be more adversely affected than most as it is generally a discretionary customer spend and will be last out of Lockdown. Most sympathy must be reserved for the local independent operators.

Thankfully though, we  are starting to see tenative steps towards normality resuming.  This week sees some fast food operators and coffee chains re-opening for drive through customers. There seems to be, understandably, pent up demand, with long queues reported at many well know fried chicken outlets.

The Government is trying to assist the sector by introducing temporary permitted development rights pursuant to the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2015.

“These rights permit restaurants, cafés and bars/pubs to operate a food takeaway service, without requiring a change to their planning permission. This will run to 23 March 2021, and as with many Coronavirus measures may well be extended.”

The “provision of takeaway food” includes any use within Class A5 and any use for the provision of hot or cold food prepared for collection or delivery to be consumed, reheated, or cooked by consumers off the premises.

There are some simple conditions that need to be observed, including the operator must inform the local authority of which premises are being used or will be used for the provision of takeaway food at any time until the deadline. The use class will revert back to its previous lawful use after 23 March 2021 or, if earlier, when the provision of takeaway food ends.

Important Legal Points to Bear in Mind

For tenants this might be a lifeline, in being able to adapt their businesses and keep custom, showing their customers that they are “open for business”. For many it might not be financially profitable but it might just be the life support the business needs to see it through. However from a legal point of view they should:-

  • Check their leases in relation to user clause. Often takeaway will not be a permitted use and consent from the landlord should be obtained
  • Try and persuade your Landlord to issue the consent in letter form rather than the delay and cost of a formal lease variation
  • Make sure to notify the local planners in writing

We would hope that landlords issue consents as required, albeit in mixed use buildings (ie with apartments above), there may be constraints on them issuing consents, or may be reasons of good estate management as to why they would not want to consent. Of course it is far better for landlords to have a functioning tenant.

Matthew Owen is a solicitor in our Commercial Property team. You can contact Matthew here.

By Paul Stedman, Partner and Head of the BBS Employment Team

 

You can download a PDF of this article here – Updated Guidance for Employers 15 May 2020

There have recently been various developments in respect of the Government’s Coronavirus Job Retention Scheme (“CJRS”).

How is CJRS working in practice?

The Government portal for claiming grants opened on 20th April 2020.  From what we have heard, the system has been operating surprisingly well.

The Government has issued guidance on how to make claims through the portal.  Details are in this link: https://www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme

There is also a useful YouTube video explaining the system: https://www.youtube.com/user/hmrcgovuk

How long is the scheme open for?

As it stands, the CJRS in its current form is available until 31st July 2020.

The Government announced on 12th May that the Scheme will be extended further, until the end of October 2020, although it is suggested the employers may need to contribute to furlough pay from 1st August 2020.   We expect further information on how the scheme will operate after 31st July shortly.

How often can employers submit a claim?

Employers can only submit one claim during a “claim period” for each PAYE scheme it operates.

“Claim period” is not defined, but the portal allows employers to set their own claim period when submitting claims.  The end date for any claim period cannot be any more than 14 days in advance.

“It is vitally important that employers ensure that all of their furloughed workers are included on the claim when it is submitted.   It is not possible to make changes retrospectively.”

When are payments made?

Payments should be made within 6 working days of submission.

What else is new?

Furlough and holidays

Accrual

Annual leave does accrue during furlough leave.    Employers can ask furloughed workers to agree that only statutory annual leave accrues during furlough leave, although workers may be unlikely to accept this, and it could lead to complicated calculations of accrued leave entitlement when the worker returns to work.

Carry Over

Legislation has been passed that allows workers to carry over up to four weeks annual leave if they are unable to take their holiday allowance in a leave year because it was not ‘reasonably practicable’ to take annual leave ‘as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)’.

This is similar to the law regarding workers who are unable to take holiday because of illness and is likely to apply in the main to workers who are self-isolating or shielding for prolonged periods.

As most employers’ leave years run January to December, or April to March, this will hopefully not have a big impact if people are able to return to work in the not too distant future.

Can furloughed workers take holiday, and if so, what should they be paid?

We finally have clarification from the Government that YES furloughed workers can take annual leave when on furlough.  

Statutory holidays (5.6 weeks) should be paid at the normal rate, rather than the reduced furlough rate.    This means that employers need to ‘top up’ salary for days taken as holiday during furlough leave.

Employers can seek consent to pay contractual holiday, over and above 5.6 weeks, at the lower rate; although this will not apply to many workers as very few will have used their statutory allowance yet.

Can employers require workers to take holiday when on furlough?

The guidance does not give clear specific guidance on this, but the likely answer is yes, so long as the employer complies with the requirement to give double the notice of the amount of leave to be taken.   For example, an employer would need to give 2 weeks’ notice to require a worker to take 1 week’s leave.

Where an employee is shielding or self-isolating, the employee may have strong grounds to say that they are unable to take holiday on the basis that they cannot rest and relax.  We would encourage clients not to require employees who are shielding or self-isolating to take annual leave – remembering of course that the employer can require them to take annual leave when they are no longer shielding or self-isolating.

Maternity, Paternity and Adoptive Leave (etc) Pay

The snappily titled ‘Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay (Normal Weekly Earnings etc.) (Coronavirus) (Amendment) Regulations 2020’ confirm that pay for anyone taking any leave from the long list in the title will be calculated based on their normal full pay, rather than the reduced furlough rate.

Confirming/agreeing furlough status

After significant confusion, where the Regulations stated that the furloughed worker had to agree in writing that they would not carry out any work when on furlough leave, new guidance has been issued to make it clear that employers simply need to have a record that they have written to the worker confirming that they will not carry out any work for at least three weeks.  Strictly speaking, there is not therefore a requirement for the worker to confirm their acceptance in writing.  We do nonetheless advise clients to try and get email confirmation where possible.

Record Keeping

All employers must keep a record of the letters sent furloughing workers, for five years.  We expect that HMRC will be out in force undertaking audits of companies who have furloughed workers to uncover any foul play.  HMRC has not set out what penalties may be imposed for abuse of the system, but it likely that there will be.

Can workers get another job when furloughed?

The Government is keen to ensure that the country keeps running and it has made it clear that furloughed workers can carry out work for other employers, where permitted by the employer that has furloughed them.   Furloughed workers cannot however carry out work for associated or linked companies.

Workers will usually require the consent of their employer to carry out any work when furloughed.  We encourage our clients to be flexible. So long as any new work is temporary and will not interfere when the worker returns to full duties, this should not be a problem in most cases.

Can you furlough workers who transferred under TUPE after 28 February?

 Yes.  Again, the updated guidance has addressed this point.

What we still don’t know?

Notice Pay for furloughed workers

Inevitably, some furloughed workers will lose their jobs as a result of the downturn.  It is not yet clear whether employers should serve notice based on the reduced furlough rate or on the contractual full pay.

Where an employee has the statutory minimum notice period (one week for each year served), the notice pay will have to be paid at the full rate.

Where somebody has a contractual notice period that is greater than the statutory minimum, the starting position is that notice pay is paid at the rate that the individual is being paid at the point at which notice is served.  In the case of sickness absence for example, this often means that people on long term sick only get statutory sick pay during their notice period.

On that interpretation, furloughed workers who are served notice because their job is redundant, could only get notice pay at the reduced furlough rate.

However, many commentators expect that employment tribunals will find ways of ensuring that furloughed workers are not further disadvantaged and that their notice pay is paid at their full rate.

We expect developments and litigation in this area moving forward.

Life after furlough

With the gradual relaxation of lockdown employers will soon be asking their staff to return to work from furlough leave.

There are likely to be cases where people refuse to return to work and/or are unable to return to work because they are shielding.

Where people refuse to return to work due to health and safety concerns, employers may find themselves faced with whistleblowing or health and safety related claims if those workers are disciplined or forced to work against their will.

If you need advice regarding the CJRS, about bringing employees back to work, or about potential redundancies, we encourage you to contact the Employment Team on 0161 832 2500 or 0204 505 8080.

 

By Kerry Blackhurst (Head of Private Client Team)

Coronavirus has brought many issues into sharp focus, and in the midst of the pandemic you may find yourself thinking about your personal affairs and how you should now put these in order whilst you have a little more time on your hands to do so.

Most of us recognise that managing issues relating to our estate and end of life is important but we do have a tendency to leave these matters to another day because we are so busy living our lives. Whilst matters are on a “temporary” hold this may be the very best time to put in place the appropriate safeguards for the benefit of your family in the future.

As a firm we have always focused on our clients’ needs and at a time like this we want to reassure you that our Private Client Team is still fully available to assist with whatever you need including advice on:

Wills

Wills are vital to ensuring that your assets pass in accordance with your wishes. Our team can draft bespoke Wills to suit your requirements. Although we usually prefer to see our clients on a face to face basis, we are able to offer alternative solutions to accommodate current social distancing requirements.

Dying without a Will means that you die intestate. There are strict rules to dictate who inherits from an intestate estate which may produce an outcome you would not want. Those you care about, particularly vulnerable persons, unmarried couples and step-children can experience significant difficulty from an intestacy.

Even if you have a will in place already, you want to consider if now is a suitable time to update a previous Will.

Lasting Power of Attorney

A Lasting Power of Attorney (‘LPA’) is a vital document in the event you become incapacitated. An LPA is a legal document that allows you to appoint people to help you make decisions, or make decisions on your behalf. There are two different LPAs: Property & Finance and Health & Welfare.

A Property & Finance LPA allows you to appoint trusted people (your ‘Attorneys’) to deal with your property, bank accounts, investments and similar assets when you are unable to do so. Your Attorneys will also be able to manage direct debits, pensions and apply for benefits on your behalf.

A Health & Welfare LPA allows your Attorneys to make decisions about your healthcare and everyday life when you are unable to do so yourself.

LPAs must be registered by The Office of the Public Guardian (‘OPG’) in order to be effective. The OPG is still registering LPAs at this time, although it may take slightly longer that the usual 10 – 12 weeks registration period.

General Powers of Attorney

A General Power of Attorney (‘GPA’) can be effective immediately and temporarily enables an Attorney to make certain decisions on your behalf regarding your property and finances. A GPA does not have to be registered by the OPG and can only be used for as long as the person who made it has capacity.

Advance Directive 

Also known as an ‘Advance Decision’ or ‘Living Will’ this is a legally binding document that allows you to make decisions about your future care, specifically the circumstances in which you would wish to refuse clinical treatment.

Advance Directives help communicate your preferences with your loved ones and clinicians when you are no longer able to do so.

Care

If you have a family member requiring care at home or care in a residential setting, we can provide you with advice and assistance to help you understand how this can be funded, whether privately or with financial contribution from your Council or NHS. Arranging care for a loved one can be a stressful and complex issue and we can provide you with straightforward advice to help you make the right decisions.

 

For Further Information: If you require any advice, please do not hesitate to contact our Private Client Team on 0161 832 2500 or kerry@bbslaw.co.uk