Search and find what you need faster.

Important ESG Clauses Entering Commercial Leases

Posted on: June 23rd, 2026 by zhewison

Over the last few years, environmental, social and governance (ESG) considerations have moved from being a desirable extra to a core driver in commercial real estate. A building’s ESG performance depends not only on the owner’s investment strategy and asset management, but also on how occupiers use, fit out and operate their premises. For that reason, the lease has become the principal document through which ESG responsibilities are allocated, monitored and, where necessary, enforced.

Why ESG Clauses Matter

Sustainability is now shaped by regulatory pressure, investor expectations, lender requirements and occupier demand for better-performing buildings. In practice, modern lease drafting is increasingly concerned with energy efficiency, environmental performance and the long-term management of assets. Many ESG negotiations are therefore not simply about principle, they are about allocating the cost and responsibility of achieving sustainability targets between landlord and tenant.

Energy and Environmental Data Sharing

One of the most common and important ESG provisions is the obligation to share energy and environmental data. These clauses typically require the parties to provide information about energy usage, utilities consumption, waste management and other environmental performance metrics. They are significant because they provide the foundation for wider ESG monitoring. Without reliable data, landlords and investors cannot set targets, measure progress or identify where improvements are needed across a portfolio. From the tenant’s perspective, however, these obligations can raise concerns about administrative burden, confidentiality and how operational data may ultimately be used. Even so, relatively straightforward reporting obligations can have major practical significance because they support broader compliance and sustainability strategies.

Collaboration and ESG Strategy Clauses

Historically, green lease clauses were often light-touch and one-sided, usually restricting tenant behaviour or reserving rights for landlords to carry out upgrades. Modern drafting is more collaborative. It increasingly requires landlords and tenants to cooperate on sustainability initiatives, act consistently with environmental objectives, and use reasonable endeavours to improve a building’s environmental performance. Although these provisions can be difficult to enforce if they are expressed only in general terms, they are still important because they establish a shared ESG framework within the lease. In that sense, they often act as the starting point on which more specific and measurable obligations are built.

Alterations, ESG Works and Cost Recovery

Another major area of ESG drafting concerns tenant fit-out and alterations. Clauses increasingly restrict works that would reduce an EPC rating, require the use of sustainable materials, limit the installation of energy-intensive equipment, or prevent interference with building systems designed to improve environmental performance. Alongside these restrictions, modern institutional leases often reserve rights for landlords to enter premises and carry out sustainability upgrades aimed at improving energy efficiency or wider environmental performance. These rights are important from an asset management perspective because they enable buildings to be upgraded over time without being wholly dependent on tenant consent. The commercially sensitive issue, however, is often not whether such works should be done, but who should pay for them. Service charge recovery for ESG improvements has therefore become one of the most negotiated parts of modern green leasing. Landlords commonly seek flexibility to recover the cost of energy-efficient upgrades, decarbonisation works and other environmental improvements, while tenants, particularly short-term occupiers, may resist contributing towards expenditure that appears primarily to enhance the long-term value of the landlord’s asset. This tension has led to more nuanced approaches, including payback models under which a landlord recovers the cost of improvements only to the extent that those works generate measurable savings for the tenant over time.

Takeaways

ESG clauses are significant not only because of regulatory developments, but also because they reflect changing expectations about how commercial buildings are owned, managed and occupied. Leases are now central to delivering sustainability in practice. As ESG requirements become more detailed and more closely tied to value, funding and compliance, a clear understanding of these provisions will be essential for landlords, tenants and their advisers alike.

If you are a landlord or tenant and would like advice on ESG clauses in commercial leases, please contact a member of our Commercial Real Estate team.

The Employment Rights Act Timeline

Posted on: June 22nd, 2026 by Alanah Lenten

The Employment Rights Act introduces significant changes to employment law. Employers and HR professionals will need to navigate a complex and evolving landscape over the next two years to ensure compliance. Below is a timeline outlining the key changes we know so far.

December 2025

  • The Employment Rights Bill receives Royal Assent, becoming the Employment Rights Act 2025 (“the ERA”).
  • Immediate effect:
    • Repeal of the Strikes (Minimum Service Levels) Act 2023.
  • No other wide-ranging employment rights take effect at this stage.
  • The period following Royal Assent is characterised as pre‑implementation, with employers expected to prepare rather than change operational practices immediately.

January 2026

  • Employers expected to transition from monitoring legislation to active planning for changes due from February and April 2026.
  • The government commenced a number of consultations which are expected to shape and underpin the new obligations created in the ERA.

February 2026

  • Trade union reforms take effect, including:
    • Repeal of most of the Trade Union Act 2016, simplifying industrial action and ballot notices.
    • Removal of the 12-week limit on protection from dismissal for taking industrial action.

April 2026

  • National Minimum Wage Increase comes into force.
  • Statutory Sick Pay (“SSP”):
    • Lower Earnings Limit and waiting period removed meaning SSP is payable from day-one of employment.
  • Day-one rights introduced:
    • Paternity leave.
    • Unpaid parental leave.
  • Collective redundancy:
    • Maximum protective award doubled from 90-180 days’ pay.
  • Whistleblowing protections extended to include disclosures relating to sexual harassment.
  • Bereaved Partners’ Paternity Leave:
    • Up to 52 weeks’ leave where the mother or primary adopter dies within the first year.
  • Voluntary gender equality and menopause action plans commence.
  • Holiday Pay & Leave Records:
    • Employers now have a legal duty to keep specific, adequate records evidencing compliance with holiday pay and annual leave entitlements, which must be retained for 6 years.
  • The Fair Work Agency is established, consolidating enforcement of several employment rights (with enforcement powers to expand following further commencement).

July 2026

  • Employees hired from late June 2026 onwards will fall within the cohort that gains unfair dismissal protection once the shortened qualifying period takes effect in January 2027.

August 2026:

  • Introduction of electronic and workplace balloting for statutory trade union ballots.

October 2026

  • Extension of Employment Tribunal limitation periods to six months.
  • Expanded duty on employers to take all reasonable preventative steps to protect employees from sexual harassment.
  • New employer responsibility to prevent harassment by third parties, such as clients or customers.
  • New requirement for employers to inform workers of their right to join a trade union.
  • Re‑introduction of procurement rules addressing two‑tier workforce arrangements.
  • Further tightening of the legal framework governing tips and service charges.
  • Strengthening of trade union access rights to workplaces.
  • Regulation aimed at addressing unfair practices in trade union recognition procedures.
  • Introduction of additional rights and safeguards for trade union representatives.
  • Extension of protection against detriment suffered as a result of participating in industrial action.

January 2027

  • Unfair dismissal reforms:
    • Reduction of the qualifying period for unfair dismissal claims to six months’ service.
    • Removal of the statutory cap on compensation for unfair dismissal.
  • Restrictions on dismissal and re‑engagement (“fire and rehire”), significantly limiting employers’ ability to impose contractual changes through dismissal.
  • These changes apply to dismissals occurring on or after 1 January 2027, with employees hired from mid‑2026 falling within scope once they reach six months’ service.

During 2027

  • Workforce terms and flexibility:
    • Guaranteed hours and enhanced shift notice rules for zero‑ and low‑hours workers.
    • New collective redundancy consultation threshold.
    • Further reforms to flexible working requests.
  • Equality, family rights and workplace protections:
    • Mandatory gender equality and menopause action plans.
    • Enhanced dismissal protection for pregnant employees and maternity returners.
    • Statutory bereavement leave, including following pregnancy loss.
    • Strengthened sexual harassment regime, including defined “reasonable steps” for prevention.
  • Trade unions and industrial relations:
    • Strengthened industrial relations framework, including extended blacklisting protections.
    • New rights and safeguards for trade union representatives.
    • Reforms to union recognition and consultation procedures.
    • Introduction of electronic and workplace balloting for recognition and derecognition.
  • Regulation:
    • Regulation of umbrella companies.
    • Tighter rules governing the allocation and treatment of tips.

TBC

  • The ERA also provides for additional restrictions on the use of non‑disclosure agreements (“NDAs”) in an employment context; however, these measures do not appear in the revised implementation timetable and the timing remains uncertain.

If you would like to discuss how the ERA will affect you and your business, please get in touch. 

Brent Cross v John Lewis Turnover Rent Dispute and Implications on Landlords and Tenants

Posted on: May 6th, 2026 by Ella Darnell

John Lewis is being sued in the High Court by the current and past landlords of London’s Brent Cross Shopping centre (property company Hammerson and Standard Life Investments) over whether click-and-collect sales should be included in turnover rent calculations.

This case serves as a good example of how disputes can occur where leases pre-date the internet. It also shows the importance of careful drafting of the definition of “turnover” and “gross receipts”.

What is turnover rent?

Turnover rent is a commercial lease structure where rent is calculated, wholly or partly based on a percentage of the gross sales generated by a tenant’s business at that location.

It provides a fair-sharing approach for risks, reducing overheads for retailers in tough times while allowing landlords to participate in successful trading.

What is this case about?

The dispute centres on a 1979 lease agreement which pre-dated the internet and was agreed three decades before John Lewis offered click-and-collect services. John Lewis must pay a base rent of £30,000 a year, plus a cut of “gross receipts”. This works out that the retailer must pay the landlord 0.75% of the store’s gross receipts when annual turnover from the store exceeds £4 million. If annual turnover exceeds £10 million, the payment increases to 1% of turnover.

The lease specifies that “mail, telephone or similar orders received or filled at or from the demises premises or directed thereto” contributed to gross receipts. The claimants are seeking payment of backdated rents arguing that “gross receipts” as defined in the 1972 lease, should include online sales that are collected at the Brent Cross store, as well as online stores that are fulfilled from the store. Orders that are made in store, but which are fulfilled later from one of John Lewis’s delivery depots should also be included.

The defendants are arguing that online sales and related collection charges are exempt from turnover rent calculations because the transaction is completed when the product is dispatched from its main distribution centre to the relevant store, which means by the time the product has been collected by the customer, the product has already been sold. There are suggestions that they have also argued that the original lease could not possibly cover click-and-collect sales, since the internet had not been invented then.

Practical implications for landlords and tenants

  • Expect disputes where leases pre-date e-commerce:

Older turnover-rent definitions sometimes try to capture non-in-store trading via wording such as “mail, telephone or similar orders received or filled at or from the premises”. This case shows that legacy wording may be argued to cover modern channels such as click-and-collect and ship-from-store, depending on the drafting.

  • Advisable for landlord’s to review (and, where possible, tighten) the definition of “turnover”/“gross receipts”:

If turnover rent is material to value or funding, landlords will want explicit treatment of (i) online orders collected at the store; (ii) online orders fulfilled from the store; (iii) in-store orders later fulfilled from a depot; and (iv) collection/delivery/handling fees. Click-and-collect is often included in turnover-rent definitions, but clarity is key.

  • Advisable for tenants to ring-fence digital revenue and avoid double counting:

Tenants typically push for clear exclusions (and accounting mechanics) so revenue is counted once, and so purely online sales are not treated as store turnover merely because the store is a collection point. Where the inclusion of click-and-collect and/or other omnichannel sales in turnover is accepted, tenants may seek a lower percentage or higher threshold to reflect the different economics.

  • Data, reporting and audit rights become central:

 Turnover-rent leases usually require periodic sales reports and allow landlord verification/audit. Both sides should ensure systems can produce the required splits (in-store vs online, collected vs delivered, fulfilled from store vs depot). Landlords often require transparency, which is sometimes driven by lender requirements, while tenants may have sensitivity/practicality concerns.

  • Drafting takeaways for new leases or renewals:

It would be advisable to agree Heads of Terms that expressly address omnichannel issues i.e click-and-collect, ship-from-store, returns processed in-store, gift cards/vouchers, discounts, VAT treatment, refunds/cancellations, and the timing of when a sale is treated as “made” (order, dispatch or collection).

The Brent Cross v John Lewis dispute highlights how older turnover-rent drafting can struggle to accommodate modern retail models. For both landlords and tenants, the practical lesson is to define “turnover”/“gross receipts” clearly (including how click-and-collect and fulfilment are treated) and ensure the reporting and audit mechanics match the tenant’s sales systems.

For specialist advice on turnover rent drafting, disputes and retail lease strategy, please contact Lawrence Stephens.

The End of Upwards-Only Rent Reviews: The English Devolution and Community Empowerment Act 2026 Receives Royal Assent

Posted on: May 1st, 2026 by Ella Darnell

On 29 April 2026, the English Devolution and Community Empowerment Act 2026 (the Act) received Royal Assent.

The Act includes a controversial ban on upwards-only rent reviews (UORR) in all business tenancy leases in England and Wales, with the aim to protect high street tenants and encourage economic growth.

The ban on UORR is not currently in force and requires secondary legislation to take effect, which is expected in 2027.

Key takeaways

  • Landlords will be prevented from including upwards-only rent reviews in commercial leases, where the reviewed rent cannot be ascertained when the lease is granted.
  • It will apply to all “business tenancies” whether or not the lease is contracted out of the Landlord and Tenant Act 1954.
  • The ban will apply to all new leases granted after the relevant section of the Act comes into force, unless the lease was entered into pursuant to an agreement which completed before the ban took effect.
  • Lease renewals for existing tenancies entered into after the ban comes into force will also be caught if:
  • there was no agreement for lease prior to the ban coming into force; or
  • the renewal lease is granted pursuant to a “renewal arrangement” made on or after 17 March 2026:

This will capture renewal leases where, for example, either the landlord or tenant has exercised a right in the original lease or contained in a separate agreement which requires the other party to grant or take a new lease.

  • Clauses in existing leases which require a sub-lease to include an UORR will be void.
  • Whilst the rent review process is currently predominantly led by landlords, tenants will also have a right to initiate rent reviews once the legislation is enacted.
  • Leases renewed under Part 2 of the Landlord and Tenant Act 1954 are also caught by the new provisions.
  • Parties will not be able to contract out of the ban.

What does this mean in practice?

Given the likelihood of landlords wanting to protect investment returns, the Act may result in higher initial rents and shorter lease terms.

Alternative rent review mechanisms which we may start to see include:

  • Index linked rent reviews:

An index linked rent review adjusts rents based on inflation indices like CPI or RPI. Opting for an index linked rent review mechanism which allows the revised rent to go up or down presents a prudent option for both parties, keeping rent in line with inflation.

However, given the current economic climate and inflationary trends it appears unlikely that tenants are going to experience falling rents any time soon. Index linked rents also reinforce the importance of effective cap and collar provisions, to mitigate economic volatility. The Government has only recently stated their intention to consult on caps and collars, so we await the outcome of these discussions.

  • Stepped rents:

Stepped rents or fixed uplifts will not be impacted by the ban (as the level of rent is known at the start of the term) and present another viable alternative to landlords seeking to protect their investments.

An increased use of stepped or fixed rents is likely to have significant commercial consequences, including increased landlord pressure for shorter leases and additional break rights.

The ban on UORR represents a significant shift in the commercial property market.

If you would like to discuss how the ban may impact your business or future transactions, please get in touch. 

Our Response to the Civil Justice Council Consultation on the Use of AI in Preparing Court Documents

Posted on: April 16th, 2026 by Ella Darnell

The Civil Justice Council (CJC- which advises the Lord Chancellor, the Judiciary and the CPR Committee on civil matters) has produced an interim report and consultation on the “Use of AI for Preparing Court Documents”. (To read the full report, please follow this link: https://www.judiciary.uk/wp-content/uploads/2026/02/Interim-Report-and-Consultation-Use-of-AI-for-Preparing-Court-Documents-2.pdf )

The purpose of this consultation was to consider whether rules are needed to govern the use of AI by legal representatives for the preparation of court documents. The CJC has sought views on the issues, including the proposed way forward, and we present below a summary of our response and conclusions.

Executive summary

The CJC’s consultation on the Use of AI for Preparing Court Documents marks an important moment in the evolution of civil justice. AI has the potential to improve efficiency, reduce cost, and enhance access to justice, but its use in litigation must be carefully governed to ensure that evidence remains reliable and professional responsibility is preserved.

Our response supports a targeted, proportionate framework: one that enables the legitimate and beneficial use of AI, while reinforcing human control and decision making, accountability, as well as safeguarding the integrity of the court process.

Our overarching position

We support the responsible use of AI in civil litigation, particularly where it delivers efficiency and cost savings that benefit clients, improves access to justice and assists the judicial process. However, these advantages must be balanced against well‑documented risks, including hallucinations, opacity in decision‑making, and potential erosion of evidential authenticity.

Our core conclusions are:

  • Human responsibility must remain central. Where documents are submitted to court, professional accountability should never be displaced by technology.
  • Generative AI should not be used to create or re‑shape trial witness evidence. The provenance and authenticity of factual evidence must be preserved.
  • Transparency is essential where AI materially contributes to expert opinion, to ensure fairness and effective cross‑
  • Administrative and benign uses of AI should not be over‑regulated, as this would add cost, complexity, and satellite disputes, without improving judicial

This approach is consistent with the objectives of PD57AC, existing duties under PD32, and the judiciary’s repeated emphasis on verification, accuracy, and human oversight.

Statements of case and advocacy documents

We agree that no new procedural rules are required for statements of case, skeleton arguments, or other advocacy documents merely because AI has been used in their preparation.

Legal representatives already owe stringent duties to the court in respect of accuracy, propriety, and candour. Those duties apply regardless of the drafting tools used. Requiring routine AI‑use disclosures would be disproportionate and risks creating delay and unnecessary disputes (particularly as AI functionality becomes embedded in standard drafting software).

Our position is that disclosure of AI use should only be considered where AI has been used to generate substantive evidential content, not where it has been used for routine drafting, research assistance, or administrative purposes.

Disclosure and document review

Disclosure remains one of the most expensive stages of litigation, particularly in data‑heavy disputes. AI‑assisted review and Technology Assisted Review (TAR) are now well‑established tools for managing that cost.

We do not support a general requirement to declare AI use in disclosure lists or statements. Disputes in this area typically concern the scope and quality of the search, not the mere use of technology. These issues that are already addressed through case management, the Disclosure Review Document and Disclosure Certificate.

However, we do support greater transparency around how TAR is deployed, including a requirement to declare the recall threshold used to conclude first‑tier review, so that the opposing party and the court can assess whether the technology has been applied appropriately.

Used with proper oversight, AI has an important role in making disclosure more efficient and more proportionate, and its use should be encouraged rather than discouraged.

Witness statements: preserving authenticity

We strongly support the Civil Justice Council’s differentiated approach to witness evidence.

For non‑trial witness statements, existing professional obligations are sufficient, and no additional AI‑specific declarations are necessary.

For trial witness statements governed by PD57AC, we support a clear rule requiring confirmation that AI has not been used to generate, alter, embellish, or re‑phrase the witness’s evidence. This is essential to preserve the witness’s own words and to ensure the court can rely on the evidence before it.

This requirement should sit alongside the statement of truth and apply equally to legally represented parties and litigants in person, with appropriate steps taken to ensure unrepresented parties are made aware of the obligation.

Translation

We support the use of AI by certified human translators, provided the translator takes responsibility for accuracy by signing a statement of verification. We also support the use of identified machine‑translation tools, so long as the process is transparent and other parties are able to check translations themselves if required. The key safeguard is human accountability, not blanket prohibition.

Expert evidence and AI transparency

Expert evidence raises distinct issues. Where AI is used to inform or generate expert opinion (beyond administrative tasks such as transcription), transparent disclosure is essential.

We support amending expert statements of truth to require experts to identify and explain any substantive use of AI in their analysis. This protects the integrity of the expert process, ensures a level playing field, and allows AI‑related assumptions or limitations to be explored in cross‑examination.

At the same time, legitimate AI‑assisted analysis should not be stifled where it enhances accuracy or efficiency.

Defining AI and avoiding over‑regulation

We agree that the term “artificial intelligence” is sufficiently clear for procedural rules, but it can be refined to refer to generative AI or AI capable of producing substantive content, expressly excluding administrative uses such as spelling, grammar, formatting, transcription, and accessibility.

We support a clear distinction between:

  • administrative tools; and
  • AI that generates substantive factual or opinion content, with stricter controls applied where AI affects evidence rather than legal analysis.

We do not support routine requirements to name specific AI tools used. This risks shifting focus away from professional responsibility, creates practical difficulties where parties do not have access to the same tools, and could necessitate unnecessary disclosure of prompts or workflows. Where disclosure is required, the focus should be on how AI was used and what role it played, not on product branding.

Court permissions and case management

We do not consider it necessary to introduce a new rule requiring court permission for AI use. The court already has ample powers under CPR 3.1 and CPR 32.1 to control evidence, manage cases, and address any concerns about methodology or fairness as they arise.

Conclusion

AI has the potential to make civil litigation faster, fairer, and more accessible. But its use must be principled, proportionate, and anchored in human responsibility.

Our response supports:

  • clear prohibitions where AI risks corrupting evidence;
  • targeted transparency where AI materially shapes opinion evidence; and
  • regulatory restraint where AI is used administratively or as a drafting aid.

This balanced approach protects the integrity of the justice system while allowing innovation to deliver real benefits for courts, parties, and the public.

For advice on using AI in litigation safely and effectively, please contact Dominic Holden.

 

Winding Up Petitions: What Directors Must Do Immediately (and How to Stop One)

Posted on: April 14th, 2026 by Ella Darnell

A winding up petition is one of the most serious actions a creditor can take against a company. Consequences begin as soon as the petition is filed, long before the court hearing, and directors can face personal risks if the situation is not handled correctly.

If your company has been served with a winding up petition, you usually have seven business days to act before the petition becomes public and the bank potentially freezes your company’s account.

This guide explains – clearly and practically – what happens next, what dangers to avoid, and how directors can stop or challenge the petition.

What Is a Winding Up Petition? (Simple Explanation)

A winding up petition is a legal application by a creditor asking the court to close a company down because it cannot pay its debts. It often follows steps such as a statutory demand.

Once filed at court, the petition triggers serious legal and commercial consequences whether or not the debt is genuinely owed. This is why directors must act quickly.

  1. What Happens Immediately After a Winding Up Petition Is Filed?

Transactions After the Petition May Be Void

From the moment the petition is filed, most transactions made by the company may later be declared automatically void if a winding up order is made. This includes:

  • payments to suppliers
  • transfers of assets
  • sales of property
  • repayments to lenders or directors

To carry out almost any transaction safely, a company usually needs a court validation order.

Allowing transactions without court approval may expose directors to personal liability.

  1. Bank Accounts May Be Frozen – Often Without Warning

Banks routinely freeze company bank accounts once a petition is advertised in the London Gazette, and sometimes earlier.

This can instantly prevent the company from:

  • paying employees
  • paying suppliers
  • meeting rent or tax obligations
  • continuing to trade

Once accounts are frozen, the company often stops operating immediately unless a validation order is obtained.

  1. Why a Validation Order May Be Required

A validation order is a court order confirming that a transaction, or category of transactions, is permitted despite the petition. It can:

  • authorise day‑to‑day trading
  • permit payment of wages
  • approve the sale of assets or property
  • protect directors from personal liability

Without one, the company risks completed transactions being unwound by a liquidator.

  1. The Practical Burden of Dealing With a Petition

Dealing with a petition requires evidence, court filings, and often multiple hearings. If the petition is valid, the company will need to pay:

  • the petition debt and interest; and
  • the petitioning creditor’s legal costs.

If not handled correctly, directors may face criticisms for failures in financial management.

  1. What Happens if the Court Makes a Winding Up Order?

If the court makes a winding up order, the company enters compulsory liquidation. This results in:

  • appointment of the Official Receiver (initially)
  • loss of all control by directors
  • liquidation of assets for the benefit of creditors
  • employees being automatically dismissed
  • eventual dissolution of the company

This is usually the end of the business unless a rescission or stay is obtained promptly.

  1. Why Directors Must Not Ignore the Petition

If a company does nothing:

  • the petition will still be listed for hearing
  • the court may wind the company up in its absence
  • directors may face criticism for failing to act responsibly

Any company wishing to dispute, negotiate, or ask for time to pay must file evidence and attend the hearing.

  1. The Crucial 7‑Day Deadline Before Advertisement

The creditor can advertise the petition in the London Gazette after seven business days from service.

Once advertised:

  • the bank will usually freeze accounts
  • suppliers, employees, and customers may become aware
  • contract termination or event of default clauses may be triggered
  • commercial credit will rapidly deteriorate

Preventing advertisement is often the most urgent priority.

  1. What Happens If Transactions Are Made Without Court Approval?

If transactions take place after the petition is filed without a validation order:

  • they may be automatically void
  • the liquidator can demand return of the assets
  • the recipient may have to seek retrospective validation
  • directors may face breach of duty claims

This is one of the most common sources of personal liability for directors during insolvency.

  1. Key Personal Risks for Directors

Directors of struggling companies can face significant personal exposure, including:

  • personal guarantees being enforced
  • misfeasance or breach of duty claims
  • wrongful trading, if they continue trading without a reasonable prospect of avoiding insolvency
  • fraudulent trading, where creditors are deliberately misled
  • Insolvency Act offences, such as concealing assets

Early advice often reduces or eliminates these risks. Compulsory liquidation may also expose directors who have conducted themselves improperly to investigations by the Insolvency Service, who in turn may seek to have them disqualified as acting as directors.

  1. Validation Orders: Why They Are So Important

A validation order can:

  • authorise trading
  • protect payments
  • allow the sale of assets
  • prevent personal liability
  • avoid disruption while the company disputes the debt

Because of how quickly winding up petitions escalate, validation orders are often prepared and submitted on an urgent basis.

  1. Stopping the Petition Being Advertised: Injunctions

Once the 7‑day period expires, the creditor may advertise the petition. Advertisement cannot be undone, so urgent injunctions are sometimes required.

The court may restrain advertisement where:

  • the debt is genuinely disputed
  • there is a counterclaim reducing the debt below £750
  • the debt is not legally recoverable
  • the petition amounts to an abuse of process
  1. Does Paying the Petition Debt End the Petition?

No. Paying the petition debt alone does not end the petition. It must be:

  • withdrawn by the petitioner, or
  • dismissed by the court.

Other creditors may also seek to “take over” the petition at the hearing.

  1. Challenging a Winding Up Petition

A company can oppose the petition where:

  • the debt is genuinely disputed
  • there is a substantial set‑off or counterclaim
  • technical defects affect the petition

To oppose, the company must file a witness statement at least five business days before the hearing.

In London, disputed petitions are often adjourned to be heard before an ICC Judge at the Rolls Building.

  1. If a Winding Up Order Is Made: Remaining Options

Even after a winding up order is made, remedies include:

  • Rescission – cancelling the order
  • Stay of proceedings – pausing the liquidation
  • Appeal – challenging the decision

They all require urgent action.

How We Help Directors Facing a Winding Up Petition

We regularly assist companies with:

  • emergency advice within hours of service
  • urgent injunctions to restrain advertisement
  • validation order applications
  • challenging or defending petitions at court
  • negotiating with petitioning creditors
  • reducing directors’ personal exposure

Winding up petitions move extremely quickly. Delay usually makes the situation worse.

For urgent advice, contact us immediately on lkallou@lawstep.co.uk.

Buying UK Property Using Fiat Currency from the Sale of Crypto Assets: A Practical Guide for Purchasers, Including a Time-Critical Auction Case Study

Posted on: April 13th, 2026 by Ella Darnell

What “crypto‑funded” property purchases usually mean in practice

Although UK property can be acquired with crypto assets in some circumstances, most purchases that are described as “crypto‑funded” are completed in sterling. In practice, buyers typically sell digital assets for sterling using an exchange or broker and then send the monies to their solicitor who pay the deposit and completion monies following an otherwise standard conveyancing process.

This liquidation matters as the process requires the buyer’s side to conduct enhanced KYC, and AML “source” checks prior to the purchase timetable. In essence, the seller’s experience often looks completely ordinary (they receive the agreed purchase price in sterling through the usual channels).

A six-step process to buying property using the proceeds of selling your crypto

Step 1: Convert your crypto into sterling

Most property buyers convert their crypto into sterling via an exchange; for larger amounts, conversions are often staged (e.g., in tranches) to manage volatility, pricing, and execution slippage. Some also use over-the-counter brokers for larger or more controlled conversions.

Practical tip: The conversion stage is frequently where timing pressure starts, because market moves can affect the sterling amount available for deposit/completion.

Step 2 – Transfer the funds to a bank account

Even as banks have become more familiar with crypto over time, not all are equally comfortable receiving substantial funds from crypto exchanges. Larger transfers can trigger queries about the origin of funds as part of standard AML/KYC procedures.

If you are buying with a mortgage, consumer-facing mortgage guidance indicates lenders may accept the proceeds from crypto sales, but often with extensive documentation requirements – and in some cases a preference that funds have been held in a bank account for a period (known as “seasoning”) before being treated as deposit-eligible.

Step 3: The real gating factor: your solicitor’s Source of Funds (and sometimes Source of Wealth) sign‑off

For many buyers, the decisive issue is not whether the property can be bought with crypto-derived wealth, but whether the buyer can find a solicitor able to address the enhanced Source of Funds (and, where relevant, Source of Wealth) requirements in time to complete the purchase within the required timeframe. A solicitor cannot proceed unless they are comfortable the source of funds is legitimate and properly evidenced.

Where wealth originated in crypto, delays often arise even when the funds are entirely legitimate, because often advisors do not have  the expertise to interpret blockchain ledgers, reconcile exchange statements, or make sense of different “crypto wealth” pathways (e.g., long‑term holding, trading activity, and other ecosystem events that crystallise value).

Practical takeaway: Treat Source-of-Funds work like a mission‑critical workstream. If it begins late, it can become the single point that determines whether you complete on time.

Step 4: Build a clean evidence pack (so queries do not derail exchange/completion)

To reduce any potential friction, compile a clear “audit trail” showing the pathway from the fiat source of wealth (like an inheritance, or salary) to the purchase of crypto assets, and from where those assets are held, traded or swapped, to those funds being liquidated into sterling and deposited into your bank account. Common components include:

  • “real world” source of wealth documents, like bank statements, completion documents from the sale of a property or documents evidencing money from an estate or trust,
  • exchange or broker statements confirming liquidation/conversion,
  • bank statements showing receipt of the sterling proceeds, and
  • supporting records linking holdings to liquidation (wallet evidence / transaction histories where relevant).

A short, written narrative (“how the assets were acquired, where they were held, and how/when they were sold”) can help your solicitor and bank interpret the documents quickly and reduce repeated follow‑ups.

Step 5: Address tax early (because conversions can trigger liabilities)

In the England and Wales, converting crypto into fiat currency, and even exchanging one crypto asset for another, can trigger a tax position depending on the nature of the activity and your circumstances. Leaving tax and records until late in the process can create avoidable delay close to completion.

Practical tip: Crypto friendly apps like Koinly can assist with tax and accounting affairs and are valuable to help evidence the flow of funds. 

Step 6 – Completion

Once funds are held in sterling and your solicitor is satisfied on source checks, exchange and completion can proceed in the usual way: funds are transferred, formalities are completed, and registration steps follow normal conveyancing practice.

Case study: an auction purchase under a strict “notice to complete” timetable

Below is a real‑world style example (with identifying detail removed) showing how Source‑of‑Funds issues can become existential when the purchase timetable is compressed.

The situation

An individual successfully secured a commercial property at auction intending to fund the purchase using liquidated cryptocurrency investments. A standard auction deposit (10%) was paid.

The problem

His usual solicitors refused to act as they could not fulfil the enhanced due diligence requirements needed to verify the crypto-derived funds to the standard required for a property transaction. Having failed to complete on the contractual completion date and with the final deadline looming, the buyer faced substantial losses: loss of the deposit, loss of the asset, and potential wider reputational and financial consequences associated with a failed completion.

What was done

Lawrence Stephens was instructed with three days left of the Notice to Complete period remaining. A specialist team was instructed to produce a structured Source of Funds report designed to meet conveyancing compliance expectations. The work focused on making the crypto-to-sterling pathway legible and verifiable, including:

  • reconstructing early “on‑ramp” funding (how fiat currency entered the crypto ecosystem),
  • substantiating wallet control and mapping transaction flows, and
  • reconciling exchange records with liquidation history to show how proceeds became banked sterling.

The outcome

With the provenance work documented to a standard that satisfied compliance expectations, the conveyancing process was re‑stabilised and the transaction proceeded to completion within the deadline securing the investment for our client

Why this matters

This example illustrates a key reality of crypto‑funded purchases: the primary obstacle is often not the money itself, but whether professionals involved have the capability to evidence provenance convincingly and quickly – especially where the timetable (as in auctions) does not tolerate delays.

Lawrence Stephens are experts in this area.

Quick checklist to reduce the risk of delay (especially for auctions)

Before you bid / make an offer

  • Start your evidence pack early (exchange statements, wallet records, transaction history exports).
  • Prepare a one‑page “funds narrative” explaining acquisition, holding, liquidation and bank receipts.
  • If mortgage finance is involved, speak to a broker early about crypto‑derived deposits and whether “seasoning” expectations apply in practice.

During the off‑ramp (selling crypto for sterling)

  • For larger sums, consider staged conversions to manage execution and keep records clean.
  • Keep all trade confirmations and transfer receipts in one place to respond fast to questions.

In the run‑up to completion

  • Treat “Source of Funds” queries as urgent and respond with structured documentation quickly; late responses often become the critical path.

Why expectations will likely become more formal over time (UK context)

The UK is moving toward a comprehensive crypto regulatory framework that brings more crypto asset activities within the FCA perimeter, with the full regime expected to commence in October 2027.

HM Treasury has positioned these reforms as supporting innovation while improving standards around transparency, consumer protection, and resilience—factors that typically increase the formality of documentation and compliance processes across the ecosystem.

Conclusion

For most buyers, “buying property with crypto” in the UK usually means selling crypto for sterling and completing a standard sterling transaction. The true difficulty is often proving the pathway from digital assets to banked funds to the satisfaction of solicitors (and lenders where relevant) and doing so within the transaction timetable.
The auction case study shows how quickly this can become existential when deadlines are tight – and why early preparation and specialist capability can be the difference between completing and forfeiting a deposit

Important: This article is for general information only and does not constitute legal, tax, or financial advice. Crypto transactions and property purchases can create tax and compliance obligations, please ensure that you seek professional advice for your particular circumstances.

If you would like to discuss anything with a member of the Lawrence Stephens team, please contact cryptorealestate@lawstep.co.uk. 

 

 

Government Proposal to Cap Ground Rents at £250: Implications for Landlords

Posted on: January 30th, 2026 by Ella Darnell

Overview of the Proposed Changes

This week the Labour Government announced plans to cap existing residential ground rents at £250 per year from 2028, ultimately reducing to a peppercorn after 40 years. The introduction was made in the draft Commonhold & Leasehold Reform Bill, now entering pre-legislative consideration.

It is widely considered that the market has been in the hands of landlords and investors for too long. The residential market has been threatened with major overhaul for 20+ years. Labour has made it one of their priorities to put leaseholders first.

Key Effects on Landlords

This proposed legislation will override any lease where the ground rent is higher than £250 and/or has escalating provisions (i.e., doubling or RPI).

The intentions behind the cap are to save leaseholders hundreds of pounds a year, keep money in their pockets and tackle the cost-of-living crisis.

The effect on landlords could potentially be hundreds of thousands of pounds. Unlike with the statutory lease extension process set out under the Leasehold Reform, Housing and Urban Development Act 1993, landlords will not be compensated for the loss of their ground rent income.

Annual portfolio income streams will significantly decrease. Assets, whether a small investment portfolio for somebody’s retirement or a large-scale ground rent investor’s portfolio, will likely see a decline in value. 

On the other hand, some may find value in the certainty provided by 40 years of £250 per annum compared to an index-linked increase.

We have already seen institutional landlords challenge the abolition of marriage value in the Leasehold and Freehold Reform Act 2024 under A1P1 (the right to peaceful enjoyment of possessions). We could possibly see the same happen here.

The Draft Commonhold & Leasehold Reform Bill –What Else?

This legislation, once enacted, will take huge strides toward ending leasehold tenures, which many consider to be an archaic and unfair form of homeownership. The bill sets out further historic changes:

  • a ban on new leasehold flats;
  • will move to commonhold and make commonhold the default tenure;
  • ending forfeiture (or the threat thereof) for breach of lease and/or non-payment of service charge and/or ground rent; and
  • repeal of estate rent charges;

What Next?

We continue to be in a state of  ‘watch this space’ but it’s clear the landscape is changing. Lawrence Stephens’ specialist Leasehold Enfranchisement Team will continue to monitor the progress of the Draft Commonhold & Leasehold Reform Bill.

For any specific or tailored advice, please do get in touch with the Leasehold Enfranchisement Team, Director and Head of Leasehold Enfranchisement Claire Allan and Associate Cerys Eyre.

Modernising Wills: Is This a New Era for Contentious Probate Practitioners in England and Wales?

Posted on: October 31st, 2025 by Ella Darnell

The Law Commission’s 2025 report, Modernising Wills Law, proposes transformative changes to the legal framework governing wills in England and Wales. For contentious probate practitioners, these reforms are more than theoretical – they could redefine how we approach disputes, especially in areas such as testamentary capacity and undue influence.

Whilst the Law Commission’s report sets out 31 recommendations, this article intends to comment on some of the key ones.

Testamentary Capacity: A Shift to the Mental Capacity Act 2005

One of the most significant recommendations is the replacement of the historic Banks v Goodfellow test with the more modern and widely applied test set out in the Mental Capacity Act 2005 (“MCA”). It has been recommended that with the MCA Code of Practice, reference to and an explanation of the Banks v Goodfellow test should be included in the guidance on testamentary capacity.

This recommendation is likely to bring changes in everyday practice where practitioners are used to the current test so there will naturally be a period of adjustment and education required. This may however increase the number of disputes if there are inconsistencies with the way in which assessments of capacity are carried out.

Undue Influence: A More Accessible Route for Challenges

The evidential burden is notoriously high, often requiring proof of coercion that overtakes the testator’s free will, which is seen as an almost impossible standard once the testator has passed away. Currently the burden of proof is required to be discharged by the individual who is challenging the will. The proposed reforms aim to change this. Courts would be empowered to infer undue influence from the circumstantial evidence that raises reasonable suspicion, including amongst other matters: the conduct of the individual who is suspected of exerting undue influence, whether there was a relationship of influence between this individual and the testator, and the circumstances under which the will was made. The burden will also be placed on the persons upholding the will to prove it was made freely and consciously.

Children making wills

In England and Wales, the age at which an individual is eligible to make a will is 18 years old, the same age as testamentary capacity. It has been recommended that this age should be reduced to 16 years old and that the court also has the power to authorise a child that is under 16 to make a will. It has been recommended that the test set out in the MCA for testamentary capacity should be adopted.

Concerns were raised that children may be vulnerable to undue influence, but the committee generally were of the view that whilst this is a risk it alone should not prevent the recommendation that the age should be reduced to 16 to make a will.

Revocation by Marriage: Protecting against predatory unions

The proposed abolition of automatic will revocation upon marriage is designed to protect vulnerable individuals from “predatory marriages”. However, it introduces new risks. If a testator fails to update their will post-marriage, surviving spouses and civil partners may resort to claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”), especially in blended families or second marriages. The report highlighted that currently with the revocation of a will upon marriage or civil partnership, the intestacy rules would apply and as such favouring spouses and civil partners over other beneficiaries. With the current proposal, whilst spouses and civil partners are not automatically favoured under the intestacy rules, they remain protected by being within a class of those that can bring a claim under the 1975 Act.

Rectification of a will

Unfortunately, the courts are currently limited in their powers to correct mistakes such as drafting errors in a will. The report recommends that courts should be able to correct wills where there is clearly a failure to reflect what was intended by the testator.  

Electronic wills

It has been recommended that electronic wills should be permitted. This was considered in an earlier consultation in 2017 where it was provisionally concluded electronic wills should not be permitted. However, since then and owing significantly to the COVID-19 pandemic, there has been more of an acceptance that electronic wills should be permitted. It also assists that there are significant advancements in technology over the recent years.

Formality requirements

The current law sets out certain requirements for a will to be valid. Unfortunately, however, with the strict rules regarding the signing of wills by testators and the requirements of witnesses, the recommendation is that even where all the formality requirements have not been fully met, the courts should still have the power to validate wills where the testator’s wishes are clear (in appropriate cases). This would ensure that wills are not deemed invalid due to a technical error which is the current position and estates having to be administered in accordance with intestacy rules.

Conclusion

These reforms signal a clear intent to provide the much-needed modernisation of private client law; this could be the biggest reform in over 150 years. The intention is to make will-making easier and most importantly to reflect modern life.

For contentious probate practitioners, this could mean potentially more probate disputes due to the lowering of thresholds and allowing for broader judicial discretion.

For more information on our Private Wealth and Succession Planning services, click here.

Can You Exclude an Adult Child From Your Will? Howe v Howe and the Inheritance Act 1975

Posted on: October 24th, 2025 by Ella Darnell

The case of Howe -v- Howe saw an adult child bring a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”) against her late father’s estate.

Background

Mr Roger Howe (“the Deceased”), died on 27th March 2020, he had made a will dated 4th July 2017 in which he had entirely cut out his only daughter Jenna Howe. The Deceased had made clear the reasons for excluding his daughter, he described her as “lazy” “lying” and “useless”. Instead, he left his estate to his mother, sister and two nephews.

Miss Howe initially issued a claim to have the will set aside on the basis that the signature of one of the attesting witnesses had been forged. Unfortunately for Miss Howe, this claim failed due to the death of the witness and as such she withdrew her claim and it was ordered that she would pay towards the executor’s costs, the sum of £42,000.

Miss Howe then pursed a claim under the 1975 Act for reasonable financial provision for her maintenance as she had been excluded by her father from his will, she was claiming the sum of £450,000.

Miss Howe’s position was that it was owing to her father’s poor treatment of her when she was a child/teenager which is what directly contributed towards her health issues which made her unable to work and which now gave her the need to bring a claim under the 1975 Act for reasonable financial provision for her maintenance.

Judgement

The court found that despite the lengthy estrangement, that Miss Howe’s health needs were a significant factor for making a financial provision for her from the estate. Miss Howe’s health issues prevented her from working and were because of the treatment she received from the Deceased during her upbringing.

The court also ordered the estate to pay for Miss Howe’s white goods, car, income shortfall for 10 years, provision for her health needs which included therapy and new breast implants (she had claimed that they were essential to improve her confidence), and the costs order in respect of the initial claim Miss Howe brought to set aside the will.

In total Miss Howe was awarded £125,000 which was to be held on a discretionary trust so not to interfere with her entitlement to state benefits, it would also prevent her from spending the money unwisely.

Conclusion

There has clearly been a shift in the way in which courts are dealing with claims under the 1975 Act for reasonable financial provision from estranged adult children. This is certainly a landmark case which demonstrates what is a very complex balance that courts must find in being able to respect the wishes of the deceased but also ensuring that vulnerable claimants receive what would be considered an adequate financial provision. Whilst previously a claim by an estranged adult child may have appeared to be prima facie weak, this is clearly not the case.

This is yet another example of that when preparing your will, you need to take into consideration that adult children can successfully challenge your decision to exclude them entirely from your estate if they can provide a legitimate need.

For more information on our Private Wealth and Succession Planning services, click here.

Kaur -v- Estate of Karnail Singh & Others [2023] EWHC

Posted on: October 14th, 2025 by Ella Darnell

This was an interesting case which attracted a lot of media attention. Whilst it was not an unusual case, many called the actions of the deceased an injustice which required the court to put right.

Background

Mr Karnail Singh (the “Deceased”) died on 21st August 2021. He made a will dated 25th June 2005 in which he left his entire estate to two of his 6 surviving children, both were sons.

The Deceased made no provisions for his four daughters nor his wife. The Deceased’s intention was to leave his estate to the “male line” of his family.

The Deceased married his wife Harbans Kaur in 1955, a long marriage spanning 66 years, they had 7 children together although only six survived the Deceased.

The Deceased and his wife both worked in the family clothing business although she did not have a direct stake within it and nor did she receive a salary. She remained fully dependent on the Deceased, and he met all her financial needs throughout their long marriage.

Given that the Deceased left no provision in his will for his wife, she issued a claim under the Inheritance (Provision for Family and Dependant’s) Act 1975 (the “1975 Act”), seeking an order that she should receive half of the estate, whatever the value may be. She made it clear that her intention was to be able to purchase a property for herself which was close to her daughter, and she was unable to do this given her only income was £12,000pa from state benefits and she had very modest assets.

Judgement

Mr Justice Peel found that the Deceased’s estate did not provide reasonable financial provision for the claimant and as such she was awarded 50% of the net value of the Deceased’s estate, she would also receive £20,000 forthwith on account of the final distribution due to her.

Further, the claimant’s costs were to be paid out of the gross value of the estate before any distribution was made to her, therefore her costs were treated as an administration expense.

Mr Justice Peel commented that:

“It is hard to see how any other conclusion can be reached. After a marriage of 66 years, to which she made a full and equal contribution, and during which all the assets accrued, she is left with next to nothing.”

It is worth noting that in this case there was discussion over what the value of the estate was. The claimant’s claim was 50% of the estate and this is what was awarded. The court did not specify exactly what the amount was as it was clear that even at the lower end of the values, it would still be sufficient to provide for the claimant.

Conclusion

The judgement did not necessarily come as surprise to many practitioners, however the key takeaway from this case must be that whilst testators do enjoy the freedom to leave their estate as they wish, the courts are looking at cases with the view to stand against injustice and equality.

Patel v Patel [2025], a reminder on how to avoid a dispute over funeral arrangements

Posted on: October 10th, 2025 by Ella Darnell

The case of Patel v Patel [2025] EWHC 560 (Ch) explores an issue which rarely tends to find its way before a Judge but one which is nonetheless an important issue to consider, this being what happens when executors cannot agree on funeral arrangements and who can make the final decision.

This case involved a dispute between the deceased’s son and daughter over the funeral arrangements for their late father. Both were been named as executors in the deceased’s will.

Background

The deceased was born in India but moved to England in 1954 with his wife. This is also where their children were born and raised. The deceased and his wife were devout Hindus.

The deceased’s wife died first, on 24th February 2024, and in accordance with Hindu traditions her body was cremated (she had clearly expressed in her will that she wished to be cremated), and her ashes were scattered in England.

The deceased died on 30th December 2024, he had made a will dated 22 December 1993 however his will did not provide any directions as to his funeral arrangements.  Following his death, the executors were at war, his son, the claimant in this case, maintained that his father had told him after his mother had died, that he wanted the same funeral arrangements as his wife, this being cremated and his ashes scattered in England. However, the deceased’s daughter, the defendant in this case, presented a different position to the court, she stated that her father had told her in the months leading up to his death that he wished to die in India and in the event where he died in England then he wanted his body to be taken to India and buried. 

The Law

HHJ Matthews stated that the law was clear in respect of the rights of a personal representative to the possession of the deceased’s body for the purposes of a funeral and referred to the case of  Buchanan v Milton [1999] 2 FLR 844,  where Hale J said:

“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 Ch 659 ; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 Ch 468 at 472; Dobson v North Tyneside Health Authority [1997] 1 WLR 596 at 600 obiter), even before there has been a grant of Probate. Where there is no executor that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson).”

HHJ Matthews then had to consider the way in which the Court was able to intervene, and he looked at:

  1. 116 Senior Courts Act 1981 which provides that:

“(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who but for this section would in accordance with probate rules have been entitled to the grant the court may in its discretion appoint as administrator such person as it thinks expedient.

(2)  Any grant of administration under this section may be limited in any way the court thinks fit”.

However, the claimant and the defendant had been both named as executors jointly and the decision to make in respect of the funeral agreements was one for them to make together but they were not able to agree.

  1. The courts inherent jurisdiction

HHJ Matthews considered the case of Oldham Metropolitan Borough Council v Makin [2018] Ch 543  where Sir Geoffrey Vos, stated:

“80. In my judgment, the court does have an inherent jurisdiction to direct how the body of a deceased person should be disposed of. The court will normally, as I have said, be deciding between the competing wishes of different sets of relatives, and will only need to decide who should be responsible for disposal rather than what method of disposal should be employed. I cannot see, however, why the court’s inherent jurisdiction over estates is not sufficiently extensive to allow it, in a proper case, to give directions as to the method by which a deceased’s body should be disposed of. In my view, it is. Moreover, I am, for the reasons I have given in relation to section 116, prepared to exercise that jurisdiction in this case”.

HHJ Matthews relied on this authority to use the Courts Inherent jurisdiction to provide directions on the method of disposal of the deceased’s body.

Judgement

In his judgment, HHJ Matthews found that it had been difficult to determine the wishes of the deceased, and he found both the claimant and defendant to be reliable in their evidence. “[B]oth the claimant and the first defendant were telling the truth as they believed it to be, and neither was attempting to mislead the court”.

He noted that the family were all in agreement with the views of the claimant and it was only the defendant who had a different view, and this was based on the “perception of what the deceased wished for himself, and not on what she herself wishes for him.” It was the defendant’s case that she was not advocating her personal view on this.

In reaching a conclusion, HHJ Matthews considered a number of factors including the place where the deceased was most closely connected. He found this to be England as the deceased had lived here for 70 years (the majority of his life) with his wife, and it was where he raised his family. In comparison the deceased had not been back to India in over 20 years; and only extended family remained in India. Whilst England was not his place of birth it was his chosen home. Further, his wife’s ashes had been scatted in England.

He also considered the costs involved in transporting the deceased’s body to India would be significantly more, there would be the legal and administrative costs involved for the international transportation of human remains too. There would also be the costs for those family members who would have to travel to and from India.

In terms of timeframes, there had already been a period of three months since the deceased’s death where the body had remained undisposed of, to transport it to India would cause further delays.

HHJ Matthews when taking these various factors and the evidence into account, was of the view that the “right decision is to direct that the body of the deceased be cremated and his ashes scattered here in England, in accordance with the appropriate Hindu rites. In my judgment there is no sufficient justification for directing a burial in India on the facts of this case.”

He also added that he placed greater weight on the wishes of the wider family, he said that their needs were the “needs of the living”, they would be the ones that would be attending the funeral and the ones that would be grieving, and the funeral would give them both comfort and closure. He was of the view that the deceased’s views on his funeral arrangements were not legally enforceable but rather one of several factors which he was considering. The reason why it was not enforceable and only just a factor was because the deceased had not included directions in his will as to the disposal of his body.

Costs

HHJ Matthews was then asked to consider the issue of costs. Whilst costs are generally in the court’s discretion, it is common practice for the losing party to pay the winning parties costs, therefore the claimant sought an order the defendant should be ordered to pay his costs.

When considering this issue, it was HHJ Matthews view that the dispute was because of the deceased not expressly setting out in writing what his wishes were in relation to his funeral arrangements and had he done so he had no concern that the defendant would have acted in accordance with those wishes. It was on this basis that he ordered that the costs of the parties were payable from the estate.

Conclusion

This case is another helpful reminder that when you are preparing your will it is essential you set out clearly what your wishes are in respect of your funeral arrangements to avoid a situation such as this. This avoids further unnecessary anguish between the family members and could save the estate from incurring these legal costs.

HHJ highlighted that disputes such as these cause a great deal of sadness and prevent the family from moving on with their lives and coming to terms with their grief.

For more information on our Private Wealth and Succession Planning services, click here.