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Terms and Conditions

The importance of good Terms and Conditions

Written terms and conditions protect your business, and enable two parties (e.g. customer and supplier, or joint venture partners) to understand their rights, duties and responsibilities in relation to a business deal. Well drafted terms and conditions should provide complete clarity for both parties on what should happen in a given situation, and avoid uncertainty and misunderstandings which can lead to unnecessary dispute.

You should consider including the following provisions when preparing terms and conditions for your business:

• A clear definition of the products, services or digital content to be provided

• Payment terms (including the right to charge interest for late payment)

• Delivery timeframes

• Guarantees or warranties

• Setting out what happens if either party is in breach of the agreement

• The duration of the agreement and the notice required from each party to end the agreement

• The law governing the contract

Consumer rules and guidance

There is extensive legislation to protect consumers (in particular the Consumer Rights Act 2015) which:

• Implies terms into contracts with consumers, giving consumers rights and remedies in respect of their purchases of goods, services and digital content.

• Requires that consumers are given certain minimum information before a contract is formed.

• Gives consumers entering into distance contracts for most goods, services and digital content a cooling off period, in which they can cancel penalty-free.

• Requires that any terms used in a consumer contract must be “fair”.

• Prohibits misleading and aggressive sales practices by the trader generally, both in advertising and marketing and in the terms themselves.

Generally the trader cannot contract out of its obligations or exclude or (unreasonably) limit its liability for their breach. Terms and conditions which attempt to do so will be unenforceable and their use may in itself be a breach of consumer protection law

Business-to-Business rules and
guidance

A trader’s dealings with business customers are far less strictly controlled than their dealings with consumers. Legislation and common law rules imply certain terms into contracts for the sale of goods and services between businesses, however in many cases these implied terms may be varied or excluded provided that it is reasonable to do so.

The important parts of standard terms are driven by purely commercial decisions and the business’s operating

procedure, for instance, payment terms or how delivery is to be effected. In particular, if the standard terms incorporate technical specifications, care must be taken to ensure that these specifications comply with the business’s standard terms

Incorporation of terms and conditions

A business’s standard terms and conditions will only be effective if they have been properly incorporated into a contract. Ideally they should be set out or expressly referred to in a contract that both parties sign. The next best option is for a business to bring its standard terms to the attention of the other party at the earliest possible opportunity in as much pre-contract and contract documentation as possible (this will also help in the event of a battle of the forms when two businesses are negotiating the terms of a contract and each party wants to contract on the basis of its own terms). This would include setting out the standard terms on the business’s website, brochures, purchase order forms, quotation acceptances and, if a course of dealing has arisen between the parties, on invoices and delivery notes.

Finally, when introducing new standard terms, a copy should be sent to every customer or every supplier stating that the new terms will apply in the future.

For assistance in preparing terms and conditions for your business, contact Charlotte Grew: 01488 683555 or cgrew@dhc-solicitors.co.uk

What to do when someone dies

There are many matters which require consideration at this difficult time. This summary is to assist you in dealing with the first steps.

Immediate steps:

  1. Register the death at the register office – 01635 279230 (West Berkshire) or 0300 003 4569 (Wiltshire)
  2. Find out if there were any specific wishes about funeral arrangements (this may be in the Will);
  3. Organise the funeral;
  4. Notify friends, relatives and employers / employees
  5. Put notice in the newspaper.

Practical Matters:

  1. Cancel all deliveries (papers etc.);
  2. Remove valuables from his/her home;
  3. Redirect mail;
  4. Inform the building, contents and car (if appropriate) insurers;
  5. Arrange for the immediate welfare of any pets. The Deceased may have provided for their long term care in his/her Will

Collect the following information:

  1. The Will;
  2. National Insurance Number, tax office and reference number;
  3. Date and place of birth, and date and place of marriage or civil partnership.
Will, Personal attorney  in Berkshire

Notify:

  1. The executor of the Will, and if there is no Will, an administrator of the estate will need to be appointed in accordance with the probate rules;
  2. If you need any help speak to a solicitor

Contact in due course:

  1. Banks and building societies;
  2. Department for Work and Pensions if receiving any benefits;
  3. Pension providers;
  4. Solicitor and accountant
  5. Deceased’s tax office;
  6. Landlord if deceased lived in rented property;
  7. Local authority – council tax, parking permit or if a blue badge was held for disabled parking;
  8. Care providers (Social Services or private provider);
  9. Insurance companies: travel, private health care, etc;
  10. Life insurance companies;
  11. Mortgage provider;
  12. H.P. or loan companies, credit and store card providers;
  13. Utility companies – water, electricity, gas and phone;
  14. TV/Internet providers;
  15. DVLA and passport office;
  16. Clubs and associations;
  17. Dentist or other healthcare
    providers;
  18. Creditors – anyone they owed
    money to;
  19. Debtors – anyone who owed
    them money;
  20. Digital account providers –
    email, social media, Amazon,
    eBay etc.

A solicitor can assist in notifying all the relevant organisations and obtaining the information required to apply for the Grant of Probate. Don’t forget, we are here to help as much as you would like.

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Trusts explained

What is a trust?

In principle, trusts are a simple concept. They are a private legal arrangement where the ownership of someone’s assets is transferred to someone else to look after and use to benefit a third party.

The person giving the assets is usually called a “settlor” (or “testator” if it is done by Will). The people asked to look after the assets are called “trustees”, and the person benefitting is the “beneficiary”.

The distinctive feature of a trust is the separation of legal and beneficial ownership of the asset(s) involved. The trustees legally own the asset, but they must always put the interests of the beneficiary above their own. The settlor can be a trustee, but they must still act in the interests of the beneficiary, not themselves.

Trusts can take effect during the settlor’s lifetime or within their Will.

Why use a trust?

Trusts are very common in everyday life and most of us will come into contact with them at some point. Company pension schemes, for example, are usually structured as trusts, and trusts are commonly used for charitable funding.

For most people however, the type of trust they are most likely to come across personally is a trust established for managing their family’s finances.

Some common situations are:

• To provide for a husband or wife after death while protecting the interests of children in the long term;

• To protect the inheritance of young children until they are old enough to take responsibility themselves;

• To provide for vulnerable relatives who need support to look after their affairs;

• To help succession planning in family businesses.

Trusts are particularly useful when planning how money and assets should pass from one generation to another, especially when there are divorces or second marriages involved.

Are trusts secret?

Trusts are personal arrangements, and most people expect them to be kept confidential. Quite often, even beneficiaries of a trust may not be aware of it, possibly because a parent would prefer their children not to know that they are at some point going to receive benefits from it. Recognising this, there is no requirement to register a trust or to publish the names of the parties involved. However the tax authorities will generally need to be informed of the establishment of a trust and any suspicious activities should be reported and investigated, so trusts are not regarded as “secret”, but their confidentiality is generally preserved.

Trusts and Tax

Trusts are often represented as being vehicles to avoid tax. In reality, there are virtually no circumstances in which anyone would be advised to set up a trust to gain tax advantages. In setting up a trust, the settlor is giving up ownership of the asset and such a dramatic move only normally makes sense if the settlor has clear objectives for this, and tax is likely to be a secondary issue.

Any tax advantages given to trusts are tightly targeted by tax authorities to those seen as doing social good, such as charitable trusts or those benefitting a vulnerable relative. Even then the rules are policed closely. Most other trusts attract few tax advantages.

The official position in the UK is that trusts are tax-neutral, although many professionals now think that the UK system penalises some types of trust. In line with the official policy, trustees must give HM Revenue full details when a trust is established and are generally personally liable for the taxes due on the trust.

Seek Advice

Anyone considering a trust, whether during your lifetime or in your will, is advised to seek professional assistance, to ensure that all options are considered and that the trust is suitable for you and meets your requirements. The tax consequences of the trust should be discussed in full so that you are fully appraised of your position.

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Providing for someone with a learning disability

Someone signing a will - Legal advice to help you provide for someone with learning difficulties


If you leave money to a relative or friend with a learning disability, or die without making a will, it could have unintended consequences.

  • If your relative or friend cannot manage their own money, the Court of Protection may need to become involved to assist in looking after the legacy. This can be complex and time consuming, and there are fees involved.

  • The person with a learning disability may have impaired understanding of the value of money and may be vulnerable to other people taking advantage of their new found wealth.

  • If the person concerned is receiving state benefits, the receipt of a legacy is likely to affect the amount to which they are entitled. Most benefits are subject to the person holding less than a statutory maximum of capital.
  • You may think of leaving your estate to your other children to use to help your child with a learning disability, but that may not be an appropriate solution, as there is no legal obligation on them to use it in that way, and the money might be treated as their money if they were to divorce, or go bankrupt, or die, or if they needed to claim benefits themselves.

    Discretionary Trusts

    The solution is to set up a Discretionary Trust within your will. You will appoint trustees who will support the person concerned to manage money and to make decisions as to how it should be used. The trust fund can be used to provide luxuries and additions to the person’s day to day needs, as well as having the flexibility to benefit other members of the family if needed.

    Contact Us

    A Will like this should be made by a solicitor who has experience of these types of wills. A Will is vitally important, particularly in these circumstances, and you should consider all the options with your solicitor who will write a will to suit you.

    To discuss this and to obtain more information contact:
    Emily Payne at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Lease extensions

    a key in a lock - Lease extensions, extending my lease, legal advice in Hungerford, Berkshire.

    If you have owned a leasehold property for over 2 years as a private individual, generally you will have a right to extend your lease (subject to qualifying conditions). This may be required when you are thinking of selling your flat or re-mortgaging, or you may wish to do it as an investment in your property for the future.

    The new lease would be for a period of 90 years plus the original term at a peppercorn rent.

    You should look at extending your lease if it has less than 90 years to run, as it can begin to devalue the property as the lease term shortens. When the lease drops below 80 years, the premium can increase significantly. Most mortgage companies will not accept leases of less than 30 years plus the proposed mortgage term.

    THE PROCEDURE

    Qualification

    Was the lease originally granted for a term of more than 21 years?

    Have you held the lease for at least 2 years or had the benefit of the lease extention process assigned to you?

    Valuation

    A specialist valuer will prepare a valuation of the lease extension and give you a suggested premium, using a special formula set out in the legislation.

    Notice of Claim

    We will prepare a notice to inform the landlord of your intention to purchase a lease extension. This is served on the landlord and any other parties to the lease (e.g. a management company).

    Landlord’s Counter-notice

    The landlord has 2 months in which to serve a counter-notice, either accepting your proposed terms or proposing new terms, or denying your claim. During this time the landlord is likely to instruct its own valuation of the property and may require access for this. They may also ask for a 10% deposit from you.

    Negotiations

    Within 2 months of the date of the counter-notice, both parties have the opportunity to negotiate agreed terms.

    First Tier Tribunal (Property Chamber)

    If an agreement cannot be reached, an application must be made to the Property Tribunal for a determination of the premium payable.

    Completion

    Once terms are agreed, or have been determined by the Tribunal, the landlord’s solicitor will provide the new lease and this will be signed by all parties and completed. This is the point at which you must pay the premium and costs.

    Costs

    As part of the legislation, the tenant is responsible for paying the landlord’s legal fees for service of the counter notice and preparation of the new lease, and the landlord’s valuation fees. These must be reasonable and if they are not agreed, an application can be made to the Tribunal for a determination of the amount payable.

    To discuss this and to obtain more information contact:
    Julian Dickins or Deborah Wason at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Conveyancing process – flowchart for sellers

    To discuss this and to obtain more information contact:
    Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

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