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Wills and Running Your Own Business

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On Tuesday I did a presentation in London at The Hub Kings Cross, an open office space designed for small businesses and start-ups.

My talk focussed on why is important to have a Will in general, but paticularly why it’s so important for people that run, or have an interest in, a company.

The presentation itself is here, and feel free to ask any questions!

http://www.huntleywilde.com/wills-for-entrepreneurs/

Till Death Us Do Part…

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It may seem morbid, but planning for the future is one of the greatest gifts you can give your loved ones ~ but maybe a bottle of Champagne would go down a bit better on St Valentine’s Day!

If you die without a Will your property may not go where you want it to, and this is particularly the case if you are an unmarried couple, because anything that is not in joint names will pass into the Deceased’s Estate and pass to their closest relation. There are plans afoot to give unmarried couples/gay couples not yet in a Civil Partnership similar rights to married couples, which is essential in a time when marriage rates are at their lowest ever.

You can also put funeral plans into a Will. It is quite common to say whether you wish to be cremated or buried, or if you want your ashes scattered and where. Couples often don’t want to talk about this sort of thing, and families and partners then have to make these decisions. Putting this information in a Will helps and guides your loved ones at a time when they are sad enough already, without having to make a decision about whether you would have wanted to be cremated, or what music you would have wanted to go out to.

So future planning is essential (though a little stingy of the advert to focus on how cheap these funerals are!) and writing a Will is a lot more reasonable than you may think. Whilst I wouldn’t suggest it as a Valentine, Birthday or Christmas present to have a Will written, to ensure your loved ones are provided for, and to avoid them having to wade through all the extra paperwork an Intestate Estate will mean for them, having a Will written for yourself is one of the best gifts you can give!

For more information please visit my new website : http://www.huntleywilde.com

Cease and Desist ~ Jack Daniels buck the trend!

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http://mashable.com/2012/07/22/jack-daniels-trademark-letter/

I can’t expand on the legal points as it’s US copyright law*, but I thought this deserved a re-post as it’s a nice example of a big company protecting its copyright position without going down the viciously litigious route!

* The UK equivilent to a Cease and Desist letter is the very boringly named “letter of Claim” or “letter before action”. I prefer “Cease and Desist” as it has a nice historical ring to it!

A Personal Post

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Today, 4 years ago, our senior partner, George Huw Lewis, passed away. He was 68 and it was a great shock.

He is missed every day but it is always on this anniversary that it hits me the most. Huw was more than just a boss. He was a mentor, an inspiration and “a character.” Eccentric to the point of infuriation sometimes ~ it was his little “joke” to hide files you were working on and enjoyed watching you panic and search the office until it would “appear” on the shelf next to him and he would say, in his Richard Burton voice, “is this what you were looking for?”

He was also a sensational lawyer. He’d mostly retired from doing litigation by the time I started at the firm but according to those that saw him on his feet he was beyond anything you’d see on the most carefully scripted TV drama.

He taught me so much about this profession and also about life. He taught me to never to give up, the value of thinking creatively and that life is too short to drink bad wine, hold grudges and to just relax. His favourite song was “Singing in the Rain” and was also his way of living ~ whatever life threw at him he would take it on the chin, and do so with a smile.

My father, one of his oldest and dearest friends, has taken the practice on in Huw’s name and we continue to run the firm in the way he would have wanted it. Friendly, personal and dedicated to helping people whether the matter is big or small. ( There’s a bit about the firm on my homepage https://libbylegal.wordpress.com/g-huw-lewis/ )

He loved his horses, and whilst it’s a dreadful scan, this is my favourite picture of Huw, a massive horse, and the Queen tramping through the mud.

Rest in Peace. 

Image

 

Weird Laws of the UK and the USA

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Whilst taking a lovely walk in Oxford yesterday (despite the enormous amounts of mud) my friend was amused by the various unusual rules stipulated on one of the signs going into a park. This led to a funny conversation once we got to the pub (The Victoria Arms, as featured in Morse and Lewis) about some of the more weird and wacky laws from around the world. All of them will have a logical basis for their creation, but often it’s quite hard to work out what that could possibly be!

Many are long since repealed (such as the often cited “In the city of York, it is legal to murder a Scotsman within the ancient city walls, but only if he is carrying a bow and arrow”) but many still stand even though they are not enforced ~ but it is always still very sensible to check local laws abroad as there are broken rules that can end in a fine or even jail for things that seem quite innocent in the UK. (Such as always having headlights on whilst driving in Denmark!)

Some of my favourites are:

* In South Dakota, It is illegal to lie down and fall asleep in a cheese factory.

* The head of any dead whale found on the British coast is legally the  property of the King; the tail, on the other hand, belongs to the Queen (in  case she needs the bones for her corset, traditionally)

* In Ohio, it is against state law to get a fish drunk.

* In Kentucky, it is illegal to carry a concealed weapon more than six-feet long.

* In the UK, a man who feels compelled to urinate in public can do so only  if he aims for his rear wheel and keeps his right hand on his vehicle. (My driving instructor used to tell me this quite often…I’m not sure why!)

However…

* In the UK, a pregnant woman can legally relieve herself anywhere she wants  – even in a policeman’s helmet.

* In Florida unmarried women who parachute on Sundays can face jail!

* In the UK eating mince pies on Christmas Day is banned.

* It is illegal to die in the Houses of Parliament or to enter wearing a suit of armour.

* It is against the law to let your pet “have carnal knowledge” with a pet of the Royal household

* In the UK it is illegal to be drunk in charge of a cow, horse or steam engine.

Divorce Headaches…

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It’s been noticeable, both in my own work and in that of legal friends, that more and more people are either doing divorces themselves or seeking small amounts of advice and not formally instructing solicitors. Unless the Divorce or Civil Partnership Dissolution is very simple I consider this unwise ~ because doing it yourself may save some money on costs, but without appropriate advice people can lose money on financial settlements. Furthermore, not understanding the importance of having either a Consent Order or a Final Order from the Court (following formal Ancillary Relief proceedings) setting out the parties’ financial affairs can seriously affect one or both parties further down the line as parties can still make a claim on the other’s property until this is done.

This post, however, deals with the pitfalls of getting a divorce in the fist place…

These are the most common problems I have found:

I’ve lost my Marriage Certificate.

Copies can be obtained from the Registry Office in the District where you got married. If you got married abroad you will need to contact the Registering Body in that particular country.

I’ve lost my Decree Absolute

If your previous marriage was dissolved you will have to show your Decree Absolute.

If you know where the Divorce took place this can be done through this Court. If you have a reference number some may provide you with a copy for their standard photocopy fee – currently £5 – and may require an administrative fee to locate the file – but it is usual for a search to have to take place. This is done by filling in a form stating the names of both parties, where the marriage took place and the rough date of the Divorce.  The current fee is £40.

If you do not know where the Divorce took place you need to do a search of the Principle Register of the Family Division, which is on High Holborn (This is also the building where you apply for records of Probate and Wills for most of London. You can do this manually too, and if you’re a history geek like me it’s incredible.)

The procedure is the same but the current fee is £60.

This is the required form:

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d440-eng.pdf

I have no idea where my spouse is…

A Court will not start Proceedings without an address for the service of documents on the Respondent. In this case you need to fill in a long form explaining that you have no idea where they are, and evidence of the searches you have done. If the Respondent was last seen more than 2 years ago you have to do a Search of the Register (as above) to check whether or not the Respondent has already divorced you!

If the Court is satisfied that the whereabouts of the Respondent is they will Issue Proceedings and dispense with the need for service of the documents on the Respondent. Obviously this situation is not ideal as financial issues can not be sorted out between the parties, but does, at least, allow parties to divorce if their spouse has disappeared, and it is advisable to seek legal advise as to how this can be resolved.

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=1112

I think my spouse is dead

In this circumstance you fill in a form which acts as both an Application to Dispense with Service and also a Divorce Petition. However, if this is the case it is highly advisable to seek legal advice.

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2652

My Spouse will not sign the Acknowledgement of Service

In some situations a Respondent will not return the Acknowledgement of Service, the document required to be returned by the Court to say that they will allow the Divorce to go ahead.

In this situation, an Application needs to be made to the Court for bailiffs to personally serve the Documents on the Respondent. Once this is done the documents are deemed to be served.

Alternatively, an Application for the Petition to be “Deemed to be Served” can be made in accordance with the Family Procedure Rules. In order to get this correct legal advice is highly advisable.

 

(As always, this is base information only and should not be taken as set in stone for every case. If you are uncertain please seek legal advice and I will not be held liable for any losses in the event that this information does not apply to any specific case)

Lapdancing and Employment Rights

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Now that got your attention!

Employment Law is very dry. It is based around legislation that is equally dry and can be very confusing. According to a recent Which? survey 99% of people are unaware of  their rights surrounding redundancy and pay cuts (1) and people are, in general, unaware of their rights from everything from statutory holiday allowance, changes to pay and their rights surrounding dismissal.

One particular point which is so important, and affects these rights, is whether you are an employee or an independent contractor.

On the face of it this appears obvious ~ but in a world where working practices are ever-changing and it is becoming increasingly common for companies to use temporary workers, and bring in extra staff when workloads increase, this distinction is becoming more important.

The key reason this is important is because rights are dependent on circumstances and many employment rights do not apply to independent contractors.

One of these key rights is the right to take an employer to an Industrial Tribunal if the employee feels they have been unfairly dismissed.

This was the case for former lap dancer Nadine Quashie, who worked at the famous club “Stringfellows”.

Stringfellows sought to suggest that Nadine was an independent contractor, and based their argument on the fact that dancers had to pay their own taxes and National Insurance contributions.

http://www.guardian.co.uk/lifeandstyle/2012/jun/18/lap-dancer-nadine-quashie-stringfellows

In this case it was found that Ms Quashie was an employee and is therefore entitled to take Stringfellows to Tribunal.

This is an important case as it further defines the definition of an “employee” alongside other leading cases in this area.

The standard test used was determined in Ready Mixed Concrete v Ministry of Pensions and National Insurance 1968. The following criteria was put forward:

1. Has the potential employee agreed that s/he will provide her/his skills to the employer in exchange for wages or other remuneration?

2.  Has the potential employee agreed, expressly or impliedly, to be subject to the employer’s control?

3. If there is a contract (NB that you do not have to sign a contract to be employed; simply acting in a way consistent with being employed can bind you) are the other terms of the contract consistent with it being an employment contract?

All of these points are weighed up by the Court, but the point which often turns cases is #2, which looks at how much control the would-be employer has over the potential employee. In Ms Quashie’s case there would appear to be almost complete control over her working hours, what she has to do (including dancing naked in front of customers and being unable to say no to doing so).

This point was examined in Lane v Shire Roofing Ltd 1995 where the key question asked by the Court of Appeal was simply “whose business was it?” (In this case it was found that a builder who had been a “one man band” for many years but, in this case, was an employee because his workload was decided by the roofing company)

Further, independent contractors are liable for their own negligent acts, whereas employees are covered by the employer. (So long as they are negligent whilst carrying out their job ~ not “on a frolic of their own”, one of my favourite legal terms!)

These cases and illustrations show how important it is to know whether you are an employee or an independent contractor. When considering a position always be certain which one it is as your rights depend can on it.

 1 – http://careers.guardian.co.uk/careers-blog/do-you-know-your-employment-rights-philip-landau

What’s in a name?

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Would a rose by any other name smell as sweet? mused Shakespeare, and it is a question raised many times and in many circumstances.

In the news and on popular television (such as the One Show) there has been a surge in interest in changing names as it’s been revealed that the UK is leading the world in the number of people choosing to change their name legally.

http://www.bbc.co.uk/news/magazine-15366156

The reasons for changing identity are tenfold. For some it is for professional reasons ~ It’s commonly known that Marilyn Monroe was once the far less glamourous sounding Norma Jeane Mortenson, and that Elton John was once the far less snappy Reginald Kenneth Dwight, not to mention Stefani Joanne Angelina Germanotta adopting the far more pronouncable Lady Gaga, but did you know Cockney hero Michael Caine was once Maurice Micklewhite or Thomas Mapother IV decided that Tom Cruise would suit him better?

These professional names roll off the tongue, are more glamourous, and also get round difficulties with Equity, where actors are required to have unique stage names (Michael Keaton, for example, was once Michael Douglas, but that one had already been taken!) but also have been used to get around prejudice. A good example of this is the number of women who had to write under sexually ambiguous names, using initials such as (Lousia May Alcott, author of Little Women, writing as A.M. Barnard) or as men (Charlotte Bronte wrote one of the most celebrated novels of all time, Jane Eyre, as Currer Bell) just to get published.

People not in the media spotlight, however, still change their names. For many it is an expression of personal identity. For many it is because they have become estranged from their family and no longer see their family name as a part of their identity.

By far and away the most common reason I’ve seen is for family reasons. I have written many change of name documents for people wishing to insert a family name into their current name. I have also drafted them for people wishing to add a nickname given to them by family members, or change their name completely to that nickname, because it is the name with which they identify most.

Others change their name at marriage. When a couple marry a woman can legally change her name to her husband’s, or double barrel with her husband, without any formality. If, however, a man wishes to take his wife’s name, or to double barrel his surname with his wife’s, as is becoming far more common, he will have to go through the legal formality of a change of name deed. (Also known as a “Deed Poll”)

If a homosexual couple enter into a civil partnership and decide to both have the same name, or double barrel their surnames, they both have to do so legally.

Changing your name is not a complicated procedure, and is done by means of a Statutory Declaration, which is a very simple document setting out your previous name and your new name. This is then sworn in front of a Solicitor or Commissioner for Oaths and you can use this document to prove your change of name.

The other way is by a “Deed of Change of Name” This document is often referred to as a “Deed Poll”. “Deed Poll” is a catch-all term used to describe a contractual document that only binds one person. whilst the most common use is to change a name it is also used in land law and other forms of contract. So whilst it is correct that you change your name by Deed Poll, the specific type of Deed Poll is called a “Deed of Change of Name”.

To change a child’s name a Deed of Change of Name must be used, but by far and away the easiest way to change your name as an adult is by using a Statutory Declaration as the document is simpler and the way it is executed (signed) is simpler, and if written by a professional lawyer is guaranteed to be legally binding with no repercussions.

Writing a Deed is not a ‘reserved legal activity’ as defined by the Legal Services Act 2007. This means that anyone can set themselves up as a writer of Change of Name Deeds, and don’t have to have any form of legal qualification whatsoever.

As a result of this there are numerous companies out there that will draft a Change of Name Deed and there ae numerous cases of incorrectly drafted documents, mistakes and complaints made. The ASA banned a company called Multimedia Computing Ltd from using the words “Official website of the UK Deed Poll Service” because it was held to be misleading and holding itself out to be an official government institution. There is no such thing as a central Deed Poll office or other body, but some firms make themselves out to be just that. You may also find some websites use terms such as application, deed poll officer, authentic seal, and other phrases that are no more than marketing gimmicks

Documents written by these companies may not even be legally binding.

So it is so important that if you are thinking of changing your name to go to a company that are reputable and regulated.