LEGAL CORNER
A fixed price menu for
services......Really? By owen Hill, Consultant Solicitor
I took my car to the garage this morning. I noticed the banner at the service desk that said “fixed price servicing” but gave it no thought at
all. I went next door to the cafe and ordered breakfast. When I came to pay for the food, of course the bill was exactly the amount shown on the menu. When I went back to the garage, there was an unhappy customer that seemed to be protesting about the fact that the service of his car had revealed issues which would cost extra to fix. The customer seemed to be starting from the premise that the “fixed price servicing” meant that all and any problems with his car would be identified and resolved for not more than the price on the wall chart including an oil change and filter. I was lucky. I needed just an oil change and filter so my bill was the number on the wall. When I got to my desk a client called to tell me that he wanted me to write up a fixed price contract for the construction of a building using a “simple” industry standard type of document. He was a bit perplexed when I answered… Are you sure? Let me explain. He regarded a fixed price arrangement as removing all risk and uncertainty so that if there were issues or extra costs it would fall to the contractor. Contracts can be written like this but there would not be many contractors left in
Contesting a will By Marinella Hollies, partner
No one can have missed the recent publicity surrounding the case of Ilott v Mitson. Heather Ilott made a claim
against the estate of her late mother, Melita Jackson. Mrs Ilott won her claim and was awarded £50,000 from her mother’s estate, about 10% of its total value. Because she was on benefits, the award had the effect of stopping her benefits until she had used up the money. she therefore went back to court to request that the award be increased to such sum as would enable her to buy a property, this not having an effect on her benefits. she was refused at her first attempt but the Court of Appeal has now ruled that the award should be increased to £164,000 so that she can buy the housing association home that she and her family live in. It is a cherished principle of english law that a person should be able to leave his or her estate as they please. There are no forced heirship rules in english law. However, there is no doubt that sometimes people do not make the Wills they should and the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act) was brought in to deal with these cases. The Act sets out clearly the categories of people who
may bring a claim against an estate. This includes a child of the deceased. But according to the criteria an adult child who is able to support themselves financially would be unlikely to be successful in any claim. Over the years this hardened into the view that an adult child, unless they
business if there were not lots of exceptions and small print. I told the client about my visit to the garage and suggested that if the contractor really understood the task and was prepared to go on a fixed price basis then it was either that the task was relatively simple or that the risk and uncertainty must be built into the fixed price with a margin for error. There was a short pause for thought before the client then asked how much would it cost in legal fees to deal with this sort of arrangement and I found myself thinking in exactly the same way as the contractor. My guess as to how long it might take to do a typical contract like this was based on experience and led to me to think in terms of a range between X and Y but then I offered to take the risk out the arrangement and get to the finish line for Z. Yes he went for Z and I would not be in business if it
were not twice as much as X and still quite a bit more than Y. It seems to me that clients are entitled to expect their solicitors to have sufficient confidence in their own experience and ability to participate in some of the risk of most commercial transactions and have a vested interest in the outcome. When the papers came in, it turned out to be that the development is in the Cayman Islands so I think a site inspection will be essential.
were disabled or there were exceptional circumstances, could not bring a claim under the Inheritance Act. Has the case of Ilott v Mitson changed all that?
It has been extensively misreported that this decision has increased an adult child’s ability to make a claim under the Act, but this is in fact incorrect. An adult child has always been a category of applicants under the Act and this remains unchanged. What it might do though is encourage those adult children to bring claims, especially those in straitened financial circumstances. Where the major beneficiaries are charities then I suspect that most solicitors approached by an adult beneficiary excluded from a Will, wanting to make a claim and in straitened financial circumstances, would feel encouraged in advising the client to make a claim spurred on by the recent Ilott decision. Above all, the case of Ilott has emphasised that decisions under the Act are highly fact specific, so the outcome of one case cannot be relied upon as concrete guidance as to what will happen in another. The outcome cannot help but depend to some extent on the individual Judge’s personal views and values. It is therefore important to take good legal advice before
you consider taking the serious step of excluding a child from a Will and to have in place supporting evidence explaining the reason why the child is being excluded (painful though this may be). In addition, if the estate is going to charity then there should be some explanation as to why those charities have been chosen. Many people feel that how they leave their estate is their
own private business; what Ilott v Mitson is telling us is that this is not necessarily the case.
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