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 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

 

By Daniel Berger

“BBS Law’s service to help landlords struggling with their rent recovery so that they obtain the best possible support from their lenders”

The day before the March 2020 quarter day I wrote an article about how to try and deal with mass non-payment of rent. Since then Landlords have many stories to dine out on (if you could go to a Restaurant) about which tenants have asked for the more outrageous rent concessions.

Clearly all parts of the economy have suffered under the handbrake that has been yanked on by global lockdown, and there are many tenants that deserve sympathy, others less so. We are now mid-way through the quarter and Landlords are looking to the June quarter day with trepidation.

“It is likely that even fewer tenants will pay rent on the June quarter day as the Government has given more green lights to them to stop paying rent.”

The extended measures to protect tenants beyond the three month moratorium brought in during late March include:

  • Before any winding-up petition is made based on claims that the tenant is unable to pay its debts, must first be reviewed by the Court to determine why. The law will not permit petitions to be presented, or winding-up orders made, where the tenant’s inability to pay is the result of COVID-19. Which landlord fancies spending time and money getting to the Court to explain that one !
  • Legislation will also be brought forward to prevent landlords using commercial rent arrears recovery (CRAR) unless 90 days or more of unpaid rent is owed
  • The new legislation to protect tenants will be in force until 30 June, and can be extended in line with the moratorium on commercial lease forfeiture. In all likelihood it will be extended

A link to the full Government release is here: https://www.gov.uk/government/news/new-measures-to-protect-uk-high-street-from-aggressive-rent-collection-and-closure

So here you are 7 weeks into lockdown and looking at a significant arrears schedule that is likely to get substantially worse come the end of June. Most commercial landlords will have some loans secured on the now non-income producing property, and whether capital and interest, interest-only, quarterly or monthly it is now impossible to avoid a repayment date passing without having had the rent hit the bank account. Prudent landlords may have left sufficient funds in the rent receivable to service the loans for a few months. It would be rare to find such accounts bulging though.

So you look around and see the Government policy seemingly stacked against landlords and other policies and generous financial help for tenants in terms of furlough for non-working staff, rates relief, business grants and loans on generous terms. Where can the landlord seek help. So far, we can’t find any. Landlords are being encouraged to “talk to your tenants”, “be reasonable”; Communities Secretary, Robert Jenrick, says: “We understand that landlords are facing their own very serious pressures and are concerned about their position with lenders. We are working with banks and investors to seek ways to address these issues and guide the whole sector through the pandemic.”

It seems the only help the landlords are getting is at the discretion of the lenders. When speaking to many commercial property clients we are seeing very mixed responses. Interest holidays are simply not available. Capital repayments can be suspended for 3 or even 6 months if you are with certain banks and you fit their “criteria”. We are seeing some banks giving no leeway at all, and that old phrase of “selling umbrellas when the sun is shining” seems apt.

The retail banking industry providing residential mortgages has given 2 million mortgage holidays providing some temporary relief to squeezed and worried householders. We are not seeing this on the commercial side at all.

BBS Law Ltd can help you in reviewing your banking documentation and assisting you with documenting any arrangements you come to with your lenders. We also feel we are well placed to assist you in direct negotiations with banks, helping you present your position in the most favourable of manners and being able to advise what concessions more helpful and flexible lenders are providing.

Our  commercial property, commercial and secured lending teams at BBS Law Ltd for advice on your situation and how we can help you at this most challenging of times.

Please contact Daniel Berger, Dov Black or Avi Barr if you would like further assistance.