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Revocation of will by subsequent formation of civil partnership: Court and Others v Despallieres [2009] EWHC 3340 (Ch).

Section 18B (1) of the Wills Act 1837 contains provisions with regard to the revocation of a prior will by the formation of a civil partnership, which mirrors those contained in section 18 of the act in relation to marriage. Section 18B(1) provides that a will is revoked by the formation of a civil partnership between the testator and another person unless, under sub-section 3, ‘it appears from a will: (a) that at the time it was made the testator was expecting to form a civil partnership with a particular person; and (b) that he intended that the will should not be revoked by the formation of the civil partnership.’

The deceased made a will in 2002 which left his estate to friends, family members and charities. By about May 2008, the he had formed a close relationship with a much younger man, the defendant. The defendant alleged that the deceased had made a will in August 2008 but family members claimed it was a forgery. However, the defendant and the deceased had formed a civil partnership in October 2008 so the disputed will would have been revoked in any event unless it complied with sub-section 3.

The will contained the following clauses:
“2. I Direct that this, my last will and testament shall not be revoked by neither subsequent marriage, civil union partnership nor adoption.
4. Give and bequeath to the defendant the entirety of my estate as a sole beneficiary.”

Mr Justice Arnold held that sub-section (3) was not complied with . The Will must show that the testator (1) expected to form a civil partnership with a particular person, and (2) intended that the will should not be revoked by that marriage.

Clause 2 of the this will did not satisfy the first requirement. It was merely a general statement that the will was intended to survive marriage, civil partnership or adoption; it did not show that the deceased expected to form a civil partnership, let alone with a particular person.

Arnold J did not accept that clause 2 was sufficient even if read together with clause 4, which made the defendant the sole beneficiary. There are two general points that emerge from the decision: remember that entering into a marriage/civil partnership will revokes a prior will unless it contains a suitable clause or is confirmed by subsequent codicil, particularly important in the case of deathbed marriages/civil partnerships; use a proper precedent when a will is genuinely made in expectation of marriage or civil partnership.

Discontinuance is the means by which a claimant can bring proceedings to an end. Given that it is tantamount to an admission or complete concession, the claimant is required to pay all parties’ costs. In most circumstances, the defendants will make at least some contribution to the claimant’s costs so it is more usual for the parties to reach a settlement setting out who will pay what costs. Frequently, this will be in the form of a Tomlin Order. In certain circumstances, the court’s permission is needed to discontinue. A claimant can discontinue all or part of a claim.

A defendant who wishes to stop defending a claim should admit liability and judgment will entered with costs.

A claimant may wish to cease an action because:

• •complete Form N279 (Notice of Discontinuance) stating, against whom you are discontinuing (you can discontinue against one party while continuing against another), which part of the claim you are discontinuing file and serve such Notice on all parties.

  Discontinuance takes effect when the Notice of Discontinuance is deemed served. The claimant is liable for the defendant’s costs up to the date on which the Notice of Discontinuance is served, unless the court orders otherwise; the rationale behind this is that the effect of discontinuance is to deprive the party against whom often serious allegations have been made of the opportunity of vindicating themselves.

  Costs are assessed on the standard basis, although the court has discretion to make another order. If a party wishes the court to make a different order (for example an indemnity costs order against the defendant or that the costs be shared between the parties) the burden is on the applicant to establish a valid reason for departing from the normal rule. Further, where the claimant wishes to show the such departure is justified, it must show demonstrate a ‘substantial change from the position which existed at the time the proceedings were commenced‘.

  Interest runs from the date of service of the Notice. If acting for the claimant, we will press the defendants for their costs figure as soon as possible after service of the notice so that negotiations to settle costs can begin.

  Both parties should attempt to settle costs as soon as possible to avoid the cost of detailed assessment proceedings. If acting for the defendant, we will include all costs in the figure we put forward to the claimant, including the costs of settling the level of costs to be paid. If the costs figure cannot be agreed, we will begin detailed assessment proceedings . You have three months from the service of the notice of discontinuance to start those proceedings. If the claimant has acted unreasonably in bringing the proceedings, you may wish to make an application for costs on an indemnity basis

The liquidator is in a fiduciary position towards the company, and acts as an officer of the court. He:

• must get in, realise and distribute the assets as provided by law
• provide the Official Receiver with information
• must act in the interests of creditors as a whole and members as a whole
• is subject to the general supervision of the liquidation committee and the court
• may summon further meetings of the creditors and the members as required or requested.

The liquidator’s powers in a compulsory winding up are conferred by statute and include provisions for the

payment of any class of debts, making compromises and arrangements with creditors, bringing proceedings for wrongful trading or avoidance of a voidable transactions, taking or defending legal proceedings, carrying on the company’s business so far as necessary for winding up, selling assets and raising money on the security of the company’s assets.

An aggrieved creditor or contributory may apply to court. However, the court will not normally interfere with a bona fide decision by a liquidator.

The liquidator must investigate the conduct of the directors in the period preceding insolvency, and report to the Department for Business, Innovation and Skills. If that investigation reveals misconduct, particularly where it has caused loss to creditors, action may be taken against the directors for fraudulent or wrongful trading. He will also determine whether any transaction entered into before insolvency is voidable as a transaction at an undervalue, a preference, or otherwise.

On the liquidator’s appointment, all the directors’ powers cease, unless the liquidation committee agrees to continue them. The court may replace a liquidator if that would be for the benefit of creditors. The liquidator may also be removed by a creditors’ meeting, or resign.

A compulsory winding up order has effect retrospective to the date of the petition. Thus, all dispositions of company property after that date are void unless the court otherwise orders; however, the court will normally validate transactions entered into in good faith and in the usual course of business provided unsecured creditors are not prejudiced and the transaction is completed before the date of the winding up order. It will not agree to payment of past debts between petition and order.

The liquidator may apply to court for directions, eg as to a creditor’s entitlement to prove his debt, inspection of the company’s books, liability of members to contribute, etc. Directors who have dirty hands - beware!

A claimant who was humiliated, embarrassed, demoralised and victimised by the extraordinary and callous behaviour of her supervisor, over a period of just two months, had proved, on the balance of probabilities, that the conduct she suffered was oppressive, unacceptable, and sufficient to establish criminal liability, such that it amounted to harassment for the purposes of the Protection from Harassment Act 1997, according to the Court of Appeal in Veakins v Kier Islington.

In addition to claims under the discrimination legislation, victims of harassment also have the possibility of bringing a claim in the civil courts under the Protection from Harassment Act 1997. That Act outlines a statutory tort of harassment.

A person’s actions towards another will amount to harassment where he pursues a course of conduct, and either he knows or he ought to know that that course of conduct amounts to harassment

‘Harassment’ is left largely undefined in the Act: the only express clues there, are that a relevant course of conduct may consist of speech alone, and that alarming someone or causing them distress will amount to harassment.

However, it has been established that the conduct has to be oppressive and unacceptable rather than just unattractive or unreasonable. Furthermore, in order to bring a civil claim, the conduct complained of must be of sufficient seriousness that it would also amount to a criminal offence (under section 2 of the Act) punishable by a custodial sentence.

Employers may be held vicariously liable for the statutory tort of harassment under the Protection from Harassment Act 1997 when it is committed by one of their employees in the course of employment. This of course means that employees may bring an action under the Act against their employer (ie not just against the perpetrator himself) regarding harassment by a fellow employee, even where the employer is in no sense itself at fault.

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The likely new increased rates for Statutory Sick Pay, Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay, due to come into effect in April 2010, have been published by HM Revenue and Customs. It is proposed that the proposed new rates from 6 April 2010, SSP will remain unchanged at £79.15 per week

• for complete pay weeks commencing on or after 4 April 2010 (the first Sunday in April), the standard rate of Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay will increase to £124.88 per week (the rate of all three is currently £123.06)
• the weekly lower earnings limit applying to National Insurance contributions, below which employees are not entitled to SSP, SMP, SAP or SPP, will increase from £95 to £97

These rates are subject to Parliamentary approval, so changes are still possible, but unlikely.

The High Court has considered whether it is unlawful age discrimination to include length of service as a criterion for redundancy selection in a collective agreement. It held that use of a matrix giving weight to long service amounted to a benefit to long-serving employees, but that it was a proportionate means of achieving a legitimate aim and was justified. The legitimate aims identified were rewarding loyalty and experience and protecting older members of the workforce at a time when it might be hard to find new employment.

We are all aware of the need to follow basic, statutory minimum disciplinary procedures. Employees often argue the procedures have not been followed or raise minor concerns. The Court of Appeal have just overruled the decision in Yorkshire Housing Ltd v Swanson. A dismissal will not automatically be unfair in the case of delay by the employer in handling the disciplinary procedure, provided that the procedure has otherwise been completed.  It appears therefore that an Employer can suspend an employee and take time over the process and will not be at fault so long as the correct process is followed.  (Selvarajan v Wilmot [2008] IRLR 824)