Private ClientFILE March 2010
200 Years of Serving the Community - The Brethertons Story 1810 to 2010
In 2010 Brethertons LLP is looking forward to celebrating our 200th year in business.
Our firm has been practising law for two hundred years, since 1810 when Count William Ferdinand Wratislaw (1788-1853), a Bohemian nobleman, began his legal practice in Rugby, Warwickshire, aged 22 years.
Our firm’s history starts in 1810, a year when King George III was on the British throne and when Francisco de Goya painted his famous self-portrait; when composer Frederich Francois Chopin was born and it was five years before Napoleon’s defeat at The Battle of Waterloo.
Our firm’s founder, Count William Ferdinand Wratislaw, was the third son of Marc Wratislaw (1735-1796), and it is William that founded his solicitor practice in Rugby – the forerunner of today’s Brethertons LLP.
The Wratislaw family history goes back further than this, as William’s father Marc Wratislaw was a Bohemian descendent of John Wenceslau Wratislaw von Mitrowitz (Count Wratislaw). The Count had supported Prince Eugene of Savoy Carignan to rally reinforcements to fight in The Battle of Blenheim in 1704 in which the Duke of Marlborough, John Churchill, and the allied forces won and the French surrendered. The Battle was a turning point in the War of the Spanish Succession and Blenheim Palace in Oxfordshire was built by the Crown as a gift to Marlborough to mark the importance of the success of the campaign.
John Wenceslau Wratislaw’s name might sound familiar as he was a descendent of “Good King Wenceslaus” or the Duke of Bohemia (907-935), who was the son of Wratislaus the First of Bohemia – Vratislaus I (888-912) and who had been a lawyer in his early years. The lineage can be traced all the way back to Krok the Munificent (born 614AD) who founded the city of Krakow in Poland.
Most of the sons of the UK arm of the Wratislaw family have been educated at Rugby School and Oxford University, many have tutored or been past Masters at Rugby School like The Rev. Albert Joseph Wratislaw in 1809 (who lived in Clifton) and George Galbraldi Augustus Wratislaw in 1815, and many were trained as lawyers in the family firm:
Charles Edward Wratislaw (1826-1861) and Theodore Marc Wratislaw (1831-1919) went on to become solicitors and continued the legal practice, then known as Wratislaw & Thompson.
It was Theodore’s second son, Marc Eugene T.G. Wratislaw (1879-1962) who took over the family practice. The practice continued to grow and develop, as the town of Rugby has grown and developed before, during and after the war years, with Marc Eugene T.G. Wratislaw fighting in the Army and also receiving the Home Service Medal in World War I. The firm has seen a few name changes since then:
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Wratislaw & Thomson 1860-1905 - Joined by Frank Thompson
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Wratislaw & Fuller - By 1865 the firm was called Wratislaw & Fuller. Frederick Fuller later dissolved his part of the partnership and his new firm became Frederick Fuller & Sons in Rugby.
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Wratislaw Dean & Bretherton - Re-named in 1928 - Marc Eugene T. Wratislaw and Charles Dean, of Pulman & Dean from Lutterworth (a firm acquired by Brethertons). Partners also included Arthur Augustus Bretherton, Bernard Crofts and Raymond Morris.
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Wratislaw Bretherton & Crofts - By 1933 the firm was called Wratislaw Bretherton & Crofts.
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Bretherton Crofts & Turpin - By 1945 the firm was called Bretherton Crofts & Turpin, joined by Maurice Sherbrooke Turpin.
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Bretherton Turpin & Pell - Re-named in 1960 joined by Montague Noel Pell. Richard Pell who is the senior partner at Brethertons LLP today, is the son of Montague Pell. Partners included Richard Pell, Paul Smith, John Duffy, Tony Sutton, Christopher Pratt, Roderick Ross and Clifford Cooper. This firm’s name continued until 1992.
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Brethertons - The firm was re-named in April 1992.
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Brethertons - In 1995 Auld & Jardine, a Banbury firm, merged with Brethertons.
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Brethertons LLP - Changed to LLP status in 2006.
Since 1900 there have been a few name changes of the firm and Brethertons was officially created under a single name in 1992. In recent years, Brethertons has seen the most change, growing steadily and doubling in size in the past 10 years, introducing a strong corporate team providing advice and assistance to companies and directors, including a dedicated commercial property team.
In 1995, Rugby-based Brethertons merged with Banbury-based corporate commercial firm Auld & Jardine and this gave us a foothold into a second county, Oxfordshire, and further enhanced our commercial offering. Over half of the firm’s work is commercial in nature including litigation, commercial property and debt recovery.
The other half is advising individuals on private client matters including wealth planning, and family law.
The firm’s private client foundation is in the provision of quality legal advice to all sectors of the local community on issues affecting them. We have moved on from our historical roots of being the family trusted lawyer, but have still maintained complete focus on all round service delivery, whether this in times of bereavement or family discord, financial crisis accident or illness.
In Rugby and Banbury the firm has over many years had a well-respected, efficient client-friendly domestic conveyancing service
The firm adopted LLP status in 2006.
Brethertons LLP recognises the importance of our role in the communities we operate in. We are proud of our legal roots and how the firm has continued through the ages, and how we have adapted and changed as the law itself has changed. We are a firm that is passionate about our legal work for clients and our obligations to our community and we continue the charity-giving tradition started by Count Wratislaw.
Today, clients of the firm include well-known listed companies, owner-managed businesses, SMEs and individuals including, directors, accountants, IFAs, managers, those of high net worth and landowners. Our firm has won many awards for client service, innovation and legal prowess and we are seen as ‘leading the field’ in the delivery of legal services using new methods of technology and online solutions.
It is all a far cry from 1810.
How to Help your Adult Children Fly the Nest
According to the national statistics more than a million - or one in five - people aged between 18 and 24 has either moved back in with their parents or stalled plans to move out during the past year; and around 6 per cent of 25 to 34 year olds and 5 per cent of 35 to 44 year olds have also returned to the family address.
Not surprisingly, more than a third of those adults still living at home are doing so because high property prices, large deposits and with 100% mortgages being a thing of the past leaves them with little other choice.
In a bid to cut the apron strings, resourceful parents are exploring a multitude of ways to fund their children’s independence, including cash loans and dipping into inheritance funds.
Harvey Gibbs, Solicitor at Brethertons, said: “One in five parents are willing to go into the red for their children and consider taking out a personal loan to help them but there are many more options available to them.”
On Saturday 20th March at The Verve Bar in Rugby Town Centre from 10:00 till 12:00 Brethertons Solicitors, Franklin Associates, Squab Removals and Storage and Orbit Homebuy agents will be holding a seminar to explain the options available to parents to help their grown-up children onto the property ladder.
To register your attendance for this FREE event email:
carlymcphillips@brethertons.co.uk or call: 01788 579 579 and ask for Marie Holloway. Please note that spaces are limited and will be allocated on a first come first served basis.
Mind Your River Frontage
If you own river frontage and know that a third party moors a boat there, you should be aware of a recent case.
The High Court had to determine whether the owner of a boat that had been moored for many years on the Thames had acquired title to the river bed by adverse possession (squatter’s rights).
Mr Ashmore owned a sailing barge, which he kept tied to mooring rings in the bank of the river Thames near Battersea Bridge for more than 12 years. At all times he lived on the vessel and had never paid anything to the Port of London Authority. The Authority claimed that he was a trespasser on its property and attempted to register title to the previously unregistered river bed. (There is a different system for claiming title to land that is registered, which makes this in practice much harder to do). Mr Ashmore objected to the application.
Twice daily, at low tide, Mr Ashmore’s boat rested on the river bed. He claimed that he had demonstrated physical custody and control over the land and an intention to exercise custody and control over it for his own benefit – these being sufficient to justify a claim to have the title in the land registered in his name. Mr Ashmore succeeded.
One interesting point was the area of land he acquired through adverse possession. The boat would move on its moorings with the flow and ebb of the river’s tide. The Court’s ruling here was that Mr Ashmore acquired, in effect, all the area the boat could come into contact with on the river bed as it drifted on its moorings and the area of river bed between the boat and the river bank, despite the fact that the boat was not able to be in constant physical contact with the river bed.
Brethertons' say:
"There are a number of factors that are particular to this case that had a significant effect on the outcome. For a start the part of the river where the boat was moored was tidal; whether the Courts would have arrived at the same decision if the boat had only floated above the river bed the entire time is questionable. Secondly the title to the river bed was unregistered. If the river bed had been registered then Mr Ashmore would have been unlikely to succeed. Therefore a similar situation is unlikely to arise very often; however owners of river banks where third parties are likely to moor boats for prolonged periods of time should consider taking steps to ensure that they can demonstrate that they are not giving the boat owner sufficient grounds to claim title to the river bed."
Family Overturns Will That Benefits Carer
Elderly people can become suggestible and it is, regrettably, not uncommon for avaricious people to attempt to influence them for personal gain.
In a recent case in point, an elderly and wheelchair-bound lady altered her will a few months before she died so as to bequeath her £400,000 estate to the son of her carer. Her previous will had left her entire estate to her family.
The family contested the new will, claiming that the woman had fallen under the influence of her carer and was too mentally infirm to resist her.
In addition, more than £400,000 had been withdrawn from the woman’s bank account in the three years prior to her death. The evidence of undue influence was sufficient for the judge to rule that the woman’s earlier will, made in 2002, should stand. In addition, it is understood that following a police investigation into the depletion of the woman’s assets in the final few years of her life, papers have been passed to the Crown Prosecution Service.
Brethertons’ say:
“This sort of circumstance is a nightmare for the family involved. If you are concerned about the possibility of people abusing the trust of your elderly relations, contact us for assistance. It is always better to avoid problems than to deal with the aftermath.”
Dealing With Your Affairs If You Are No Longer Able
A property and affairs Lasting Power of Attorney (LPA) is a power of attorney which allows you to authorise one or more named persons to make decisions on your behalf in order to manage your property and financial affairs if you are no longer able or willing to do so yourself.
What differentiates an LPA from the old-style Enduring Power of Attorney (EPA) is that once an LPA is registered with the Office of the Public Guardian, your attorney can act before and after you lack capacity. EPAs that were in place before these were abolished (1 October 2007) continue to be valid. Under an EPA, however, if the donor (the person who made the EPA) loses the mental capacity to make decisions on their own behalf, it is then necessary to go to court in order to obtain confirmation of the right to act.
The advantage of having an LPA in place is that it enables other family members or trusted friends to take over dealing with your affairs smoothly and progressively in the event that you lose the capacity or the will to do so. When decisions have to be made for you, your attorney must always act in your best interests.
Planning Error Proves Costly
Adding facilities to one’s home may raise the prospect of a more congenial lifestyle, but care must be taken when dealing with planning applications.
In a recent case, the owner of a dwelling built in 1995 decided, in 1998, to add a garage and a dormer window. The planning application was accompanied by a new (extended) site plan. Planning permission was granted but because there was no request for a change of use of the land, the planning approval did not, in law, increase the curtilege of the property.
Everything passed without comment until some time later, when a swimming pool and tennis court were built outside the original curtilege of the land. Unfortunately for the owner, the land outside the curtilege of the property was agricultural land and no application for change of use of the land had been granted. The council issued an enforcement notice, requiring the owner to return the land to use as agricultural land.
The owner of the house argued that the 1998 plan had increased the curtilege of the property, so use of land shown on the plan as being for residential purposes did not require permission for change of use.
The matter reached the Court of Appeal. The Court considered that planning permission for a new dwelling would contain an implied permission for a change of use if required. However, an extension to a dwelling does not necessarily do so. In this case, the 1998 permission related to a development which was shown to be within the plans contained with the original planning application. The swimming pool and tennis court, however, were outside the original curtilege of the land. The 1998 permission had not extended that and had not created any permission for change of use of the land.
Family Court Protects Children From Media Intrusion
The children of celebrities have the same right to anonymity in court proceedings as any other children, following a ruling of the High Court.
The press have only been allowed into the family courts since April 2009 and can be excluded by the court when matters sensitive to a child are involved. However, the level of press interest is not by any means the same in all cases and the court recently had to decide whether or not to exclude the press when faced with a ‘media circus’ surrounding the child of a celebrity couple.
Sir Mark Potter, president of the family division, stated that ‘in considering whether to exclude the press…the focus is on the interests of the child…’ and that courts should ‘have regard to the nature and sensitivities of the evidence’. Judges should ask themselves whether the press interest represents public curiosity or legitimate public interest.
In the case in point, reporting the evidence given during the proceedings would be distressing to the child and the interest of the press only arose because of the celebrity of the parents.
It will come as a relief to many parents that at what is normally a distressing time for all, the courts will act to protect children where media intrusion would be against their best interests.
Non-Disclosure Does Affect Settlement
The Court of Appeal has taken the unusual step of considering an appeal in a matrimonial case which was settled by agreement before the appeal was heard.
In the High Court, the ex-wife of a wealthy man had failed to obtain an ‘uplift’ to her original settlement. She based her argument on the fact that at the time the settlement was being negotiated, her husband had not disclosed that he was in negotiation for a new position that would make him materially better off. Had he done so, she would not have agreed to the financial settlement. The District Judge had ruled that disclosure of the husband’s true expected future income would not have affected the settlement awarded.
The Court of Appeal decided to examine the facts of the case because it considered that the original judgment raised difficulties for practitioners. It concluded that had there been full and frank disclosure of the imminence of the new contract of employment, it was inconceivable that the wife would not have raised her sights. In the Court’s view, it was also inconceivable that, had it been disclosed, the District Judge would have rejected the information as irrelevant.
Accordingly, the District Judge was wrong to conclude that a full and frank disclosure would have made no difference to the settlement.
Brethertons’ say:
“It is a relief that the Court of Appeal has reversed the earlier decision as the principle that both sides must make a full and frank disclosure of their financial positions when making a settlement on divorce must be right in principle and had the decision of the District Judge been left to stand, it would have encouraged a culture of non-disclosure.”
Letting Agent’s Commission Terms Unfair
Unclear language in a letting agent’s standard terms and conditions has led to a contract being set aside by the High Court.
The case concerned the estate agent Foxtons, which provides a lettings service to private landlords under a standard form of agreement. The Office of Fair Trading (OFT) had applied to the Court for orders against Foxtons for what the OFT deemed to be unfair terms in agreements between the estate agents and various landlords. The terms in question related to renewal commissions.
Foxtons hoped to rely on regulations passed in 1999 relating to unfair terms in consumer contracts. These stipulate that where a term is in ‘plain intelligible language’, the assessment of fairness of a term shall not relate to the price or remuneration as against the goods or services supplied in exchange.
The Court held, however, that the relevant terms for renewal commission within the old version of Foxtons’ contract had not been drafted in plain and intelligible language and so the obligation to pay renewal commission under the relevant terms of the agreement did not escape a fairness test under the regulations.
As far as the actual fairness of the terms was concerned, the Court considered it unlikely that the typical private landlord would expect a repeat bill in year two of a letting and beyond unless the point was spelled out in some way. It was felt that Foxtons had not used a fair and adequate method of bringing the renewal commission clause to the attention of the landlords.
Under the circumstances, the renewal commission clauses of Foxtons’ old standard terms and conditions were held to be unfair.
Saving IHT the Easy Way
No one likes to pay tax unnecessarily and Inheritance Tax (IHT) can be especially problematic, as it must often be paid ‘up front’ when administering an estate.
It is quite common for people to decide to mitigate the effects of the tax by writing an insurance policy on a ‘whole of life’ basis to pay the estimated IHT. This can be very tax-efficient if done correctly. Such policies can be written by paying periodic premiums or a lump sum to an insurer. The payments made will reduce the value of the estate on which IHT is calculated.
However, by writing such a policy in trust, a significant saving may be made because, by so doing, the proceeds of the policy can be kept out of your estate for IHT purposes. For example, if you were to write a policy for £50,000 which was payable to your estate (i.e. written on an ‘own life’ basis, with the proceeds payable directly to you or your spouse), then up to £20,000 of IHT could be due on the value of the policy. If, however, the policy were paid into an appropriate trust, there would be no IHT charge as the beneficial ownership of the policy would lie outside your estate.
Pensions which contain a provision that the value of the pension can be paid as a lump sum if you die before taking the pension, or which contain death benefits, can also normally be written in trust and kept out of your estate for IHT purposes.
