Putting the family home out of reach of being lost on being sued?

[glut...@giganews.com]

This is an entirely hypothetical scenario, so no specifics available!

If a family home is in (for example) the husband's name, and his wife
gets successfully sued for something she has (or hasn't) done, is the
house at risk?

If the wife had, prior to the event which prompted the suing, sold all
her possessions, including her 'share' in shared items, such as
furniture, electronic goods, books, etc. (except, say, clothes, mobile
phone & car) to the husband for a nominal amount e.g. £1.00, would
those items also be at risk?

This is on the basis that for whatever reason any professional or
public liability insurance failed to cover such a legal claim (e.g.
wife being sued for libel).

Any clues (eg law/precedent/URLs) as to the legal basis of such a
scenario would be appreciated.

Thank you.

[steve robinson]

gluti...@yahoo.co.uk wrote:

> This is an entirely hypothetical scenario, so no specifics available!
>
> If a family home is in (for example) the husband's name, and his wife
> gets successfully sued for something she has (or hasn't) done, is the
> house at risk?

Possibly, you would need to know why, when and how the house became the
sole property of the husband.

If its the hubbies prior to marriage probably pretty safe if however
house purchased after marriage the courts may look at where the money
came from to buy the house.

>
> If the wife had, prior to the event which prompted the suing, sold all
> her possessions, including her 'share' in shared items, such as
> furniture, electronic goods, books, etc. (except, say, clothes, mobile
> phone & car) to the husband for a nominal amount e.g. £1.00, would
> those items also be at risk?

Yes if the courts believed the 'sale' was manufactured to try and
aviod meeting your liabilities by hiding assets.

>
> This is on the basis that for whatever reason any professional or
> public liability insurance failed to cover such a legal claim (e.g.
> wife being sued for libel).
>
> Any clues (eg law/precedent/URLs) as to the legal basis of such a
> scenario would be appreciated.
>
> Thank you.

If you were in such a situation you would need to seek specialist
proffesional advice.

[Francis Davey]

Le mercredi 10 avril 2013 20:55:01 UTC+1, August West a écrit :
>
> No. It's not hers, so her creditors have no call upon it.

If this happened in England, that may not follow. The question is: does she have any beneficial interest in it? It being "in his name" only tells you the legal interest. Equity follows the law, so there is a presumption that the beneficial interest is his also, but there are many circumstances where courts have found a joint (or in common) beneficial interest. Her Trustee in Bankruptcy could pursue that interest.

Impossible to know without more facts of course.

Francis

[steve robinson]

August West wrote:

>
> The entity calling itself gluti...@yahoo.co.uk wrote:
> >
> > This is an entirely hypothetical scenario, so no specifics
> > available!
> >
> > If a family home is in (for example) the husband's name, and his
> > wife gets successfully sued for something she has (or hasn't) done,
> > is the house at risk?
>

> No. It's not hers, so her creditors have no call upon it.

Its not that simple August.

>
> > If the wife had, prior to the event which prompted the suing, sold
> > all her possessions, including her 'share' in shared items, such as
> > furniture, electronic goods, books, etc. (except, say, clothes,
> > mobile phone & car) to the husband for a nominal amount e.g. £1.00,
> > would those items also be at risk?
>

> Yes; She's now bankrupt, and they were gratuitous alienations (as it's
> termed on Scotland), which can be reduced by the court on application
> from her trustee, or her creditors, which includes anyone she owes
> damages to.

[steve robinson]

August West wrote:

>
> The entity calling itself steve robinson wrote:
> >
> > August West wrote:
> >
> >>
> >> The entity calling itself gluti...@yahoo.co.uk wrote:
> >> >
> >> > This is an entirely hypothetical scenario, so no specifics
> >> > available!
> >> >
> >> > If a family home is in (for example) the husband's name, and his
> >> > wife gets successfully sued for something she has (or hasn't)
> done, >> > is the house at risk?
> >>
> >> No. It's not hers, so her creditors have no call upon it.
> >
> > Its not that simple August.
>

> Why not? A person is not reposnible for their spouse's debts.

Agreed, however the wife may have an interest in the property as
explained in previous posts.

[steve robinson]

> What you "explained" in a previous post looked to me very much like
> the evaluations one makes for division of property in a divorce
> setlement; the same rules do not apply in other circumstances.

What is taken into account though is benefical interest in the property
something you dont seem to have in Scotland.

If the wife has contributed to hosehold financially or the purchase of
the property then she may have an interest in it.



Hence the situation we have now that live in partners, who have
contributed to the household may have a claim against the property.

If they have an interest then its an asset that may be pursued wether
its worth doing so only those involved would know.
The beneficial interest value might be very small if the property is
heavily mortgaged.

[steve robinson]

August West wrote:

>
> The entity calling itself steve robinson wrote:
> >
> > August West wrote:
> >
> >>
> >> The entity calling itself steve robinson wrote:
> >> >
> >> > August West wrote:
> >> >
> >> >>
> >> >> The entity calling itself steve robinson wrote:
> >> >> >
> >> >> > August West wrote:
> >> >> >
> >> >> >>
> >> >> >> The entity calling itself gluti...@yahoo.co.uk wrote:
> >> >> >> >
> >> >> >> > This is an entirely hypothetical scenario, so no specifics
> >> >> >> > available!
> >> >> >> >
> >> >> >> > If a family home is in (for example) the husband's name,
> and >> his >> >> > wife gets successfully sued for something she has
> (or >> hasn't) >> done, >> > is the house at risk?
> >> >> >>
> >> >> >> No. It's not hers, so her creditors have no call upon it.
> >> >> >
> >> >> > Its not that simple August.
> >> >>
> >> >> Why not? A person is not reposnible for their spouse's debts.
> >> >
> >> > Agreed, however the wife may have an interest in the property as
> >> > explained in previous posts.
> >>
> >> What you "explained" in a previous post looked to me very much like
> >> the evaluations one makes for division of property in a divorce
> >> setlement; the same rules do not apply in other circumstances.
> >
> > What is taken into account though is benefical interest in the
> > property something you dont seem to have in Scotland.
>

> Indeed we don't. Here, you either own something or you do not. (Absent
> tax law, and a certain peculiar decision relating to floating
> charges).

>
> > If the wife has contributed to hosehold financially or the
> > purchase of the property then she may have an interest in it.
>

> But would any such contribution not be argued as a transfer to the
> husband, and, as it was made when she was apparently solvent, be
> beyond the reach of the trustee in bankruptcy?

Possibly dont know how sucesful it would be, having a beneficial
interest declared would alter the legal status of the properties
ownership

I suspect it would depend on the amount of money involved and wether
such action would be worth chasing

>
> > Hence the situation we have now that live in partners, who have
> > contributed to the household may have a claim against the property.
>

> But, again, that's family law, and the treatement of property there is
> rather different from commerical law (it's almost a claim of unjust
> enrichment, in some respects). In Scotland, such provision is
> specifically under S.28 of the Family Law (Scotland) Act 2006.

[Stuart A. Bronstein]

August West <aug...@kororaa.com> wrote:
> Francis Davey wrote:
>> August West:

>>>
>>> No. It's not hers, so her creditors have no call upon it.
>>

>> If this happened in England, that may not follow. The question
>> is: does she have any beneficial interest in it? It being "in
>> his name" only tells you the legal interest.
>

> Ah, yes, that's trye; in Scotland, we have no concept of
> "beneficial interest"; ownership is and absolute, and singular,
> right. Except in tax law, where it's been messily crowbared in
> by measures drafted with English property law in mind.

So trusts are not recognized?

--
Stu
http://DownToEarthLawyer.com

[Francis Davey]

Le jeudi 11 avril 2013 16:15:02 UTC+1, Stuart A. Bronstein a écrit :
>
> So trusts are not recognized?

They are, but they have a different juridical basis to English trusts. As I understand it there is some academic debate as to how they do work (eg whether there are two patrimonies or not), but I haven't really studied it.

Plural ownership of land is - I am sure and August can confirm - not routinely carried out behind a trust of land.

Francis

[Stuart A. Bronstein]

August West <aug...@kororaa.com> wrote:
> Francis Davey wrote:

>> Stuart A. Bronstein a écrit
>>>
>>> So trusts are not recognized?
>>
>> They are, but they have a different juridical basis to English
>> trusts. As I understand it there is some academic debate as to
>> how they do work (eg whether there are two patrimonies or not),
>> but I haven't really studied it.
>

> The dual patrimony theory is a fairly recent one, mainly
> developed by Prof George Gretton (and his moustache), of
> Edinburgh University, in an effort to give some thoretical
> structure and underpining to a system that, noetheless, works
> well in pratice! (The lack of distinction between Law and Equity
> also assists here.)

Apparently trusts are not recognized in other civil law
jurisdictions, which is why I asked.

Legally trusts are similar to limited companies in some ways. Is
that how they are seen (and justified) in Scotland?

>> Plural ownership of land is - I am sure and August can confirm
>> - not routinely carried out behind a trust of land.
>

> Indeed. Trusts are not as widely (ab)used in Scotland as they
> are in England. Resulting trusts, for example, are rare, and are
> a peculiar imposition from English Law, as we have always had
> the remedy of unjust enrichment, although it was not clearly
> named as that until faurly recently.

A resulting trust has more teeth than unjust enrichment. But I see
your point. Thanks.

--
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

August West <aug...@kororaa.com> wrote:

>> Hence the situation we have now that live in partners, who have
>> contributed to the household may have a claim against the
>> property.
>
> But, again, that's family law, and the treatement of property
> there is rather different from commerical law (it's almost a
> claim of unjust enrichment, in some respects). In Scotland, such
> provision is specifically under S.28 of the Family Law
> (Scotland) Act 2006.

Why should it be different in commercial law and family law? If one
spouse has rights in property (even if inchoate), why should her
creditors not be able to benefit from that? Allowing her to make
gifts to her spouse that leave her without anything in her name would
be a fairly easy way to defraud creditors.

--
Stu
http://DownToEarthLawyer.com

[Francis Davey]

Le jeudi 11 avril 2013 17:45:02 UTC+1, Stuart A. Bronstein a écrit :
>
> Legally trusts are similar to limited companies in some ways. Is
>
> that how they are seen (and justified) in Scotland?
>

Hmmm, in English law trusts are really very different from limited companies in almost any way conceivable. Eg, trusts have no legal personality of their own, limited companies do; trusts cannot last forever (unless they are charitable), limited companies can.... well I could go on.

>
> A resulting trust has more teeth than unjust enrichment. But I see
>
> your point. Thanks.

They do indeed, in English law at least. In rem remedies and compound interest to give two examples, but in Scotland it may be different.

Francis

[glut...@giganews.com]

I don't know, you innocently leave a posting lying around, and the
next thing you know it's sprouting all sorts of issues... (I'm
assuming the discussion of Trusts, above, are not strictly relevant to
my enquiry!)

Thank you, to you, August, and Francis for taking such an interest in
this matter! I've been reading with considerable interest.

As far as I can gather, under English law, there's a factor
"beneficial interest", which is someone's right to a portion of the
financial proceeds from something: understandable in the eventuality
of a divorce, but which principle Steve seems to reckon could be used
by a third party to force the liquidation of a shared asset in order
to obtain some satisfaction of a legally-enforceable debt.

'Unjust enrichment', as far as I can tell, appears to be when one
person without permission or agreement obtains more than their due
from another. I haven't been able to find any reference to a
situation where someone's possessions are willingly sold to another
for below what they may fetch on the market (e.g. Ebay), but (and I'm
not trying to be obtuse here) remain, legally-speaking, the assets of
the erstwhile owner...

If, alternatively, the wife sold her husband all her property for the
market value, would that count as 'unjust enrichment'?

Without wishing to muddy the waters, this has put me in mind of those
instances where a failed business is sold for £1, presumably
irrespective of the wishes of creditors...

[Francis Davey]

Le jeudi 11 avril 2013 18:35:01 UTC+1, gluti...@yahoo.co.uk a écrit :
>
> As far as I can gather, under English law, there's a factor
>
> "beneficial interest", which is someone's right to a portion of the
>
> financial proceeds from something: understandable in the eventuality

Short explanation. In English law someone (a trustee) can own property for the benefit of someone else (the beneficiary). That relationship is known as a trust. We invented them prior to the 16th century.

The way we implemented them was to have the concept of two kinds of ownership "legal" and "equitable" or "beneficial". Many things are just owned (legally and equitably) but it is entirely possible for something to be owned by one person legally and another person equitably or beneficially (the two words are interchangeable).

A trust can work like that. X can be the legal owner with Y the beneficial owner. We say "X holds the property on trust for Y". Y has an "interest" in the property.

[This is different from (say) X *owing* money to Y. If Y sues X then *eventually* Y may be able to force X to sell the property or Y may get some value, but Y does not own anything that belongs to X at that stage. All Y owns is a right to bring a claim against X which is not the same thing.]

Now trusts are much abused by English law because they are sooooo useful. In 1925 we changed the way joint ownership of land works. Now if more than one person owns any land there is *automatically* a trust. So if X and Y buy a property together then:

[1] X and Y are legal owners.

[2] That ownership is registered on the land registry.

[3] X and Y are trustees of a trust (of land) for...

[4] themselves as beneficiaries.

But of course there is no reason why the two ownerships should go hand in hand. Example, maybe X and Y are a married couple. X and Y pool their resources and buy a house. But because X is "the man" his name goes on the land registry and Y is left off (this really happened a lot). Now X is trustee for X and Y as joint beneficial tenants (here "tenant" is an earlier use of the term, meaning someone who holds land).

Problem: (1) if you go to the land registry you can only see X's name. You cannot detect the beneficial ownership of Y. (2) It may not be at all obvious what the beneficial interests are supposed to be. In theory: you make a trust deed. But often that does not happen.

Now in a marriage situation where Y does not have any beneficial interest in the house, eg where X bought the house with his own money and X and Y are the sort of couple that don't pool their financial resources and where there is no intention for the property to be owned jointly, then what happens?

If Y becomes bankrupt almost all of her *property* becomes owned by her trustee in bankruptcy. If Y doesn't own property in the house, the T in B does not get it.

Now in a divorce Y may be able to sue X for property (or money) but the T in B does not get that right - it is one of the things that doesn't form part of the bankrupt's estate - so the T in B would want to argue Y had a beneficial interest in the house (this comes up in numerous cases).

>
> of a divorce, but which principle Steve seems to reckon could be used

... but not because the T in B can't divorce the husband.

>
> by a third party to force the liquidation of a shared asset in order
>
> to obtain some satisfaction of a legally-enforceable debt.

No.

>
>
>
> 'Unjust enrichment', as far as I can tell, appears to be when one
>
> person without permission or agreement obtains more than their due
>
> from another. I haven't been able to find any reference to a
>
> situation where someone's possessions are willingly sold to another
>
> for below what they may fetch on the market (e.g. Ebay), but (and I'm
>
> not trying to be obtuse here) remain, legally-speaking, the assets of
>
> the erstwhile owner...
>
>
>
> If, alternatively, the wife sold her husband all her property for the
>
> market value, would that count as 'unjust enrichment'?

No. That's no how UE works. The idea is not that you sell too cheaply but that someone A is enriched from B "unjustly" which really means without any legal basis. Eg

- if B pays A money by mistake (thinking they owe it to them)
- if B pays A money under a contract which totally fails (eg one that was really unlawful)

and so on.

B then has a right to force A to pay the money back, but B doesn't own any of A's property. A might have a defence (eg I didn't realise and because I thought it was mine I spent it when I wouldn't otherwise have done - known as "change of position"). So unjust enrichment works differently.

So it doesn't apply to just deliberate sales at an undervalue.

But insolvency law is wise to your tricks and has various mechanism of its own to unravel transactions to get money back into an estate, one of which is for transactions at an undervalue.

Francis

[Stuart A. Bronstein]

August West <aug...@kororaa.com> wrote:

>> Allowing her to make gifts to her spouse that leave her without
>> anything in her name would be a fairly easy way to defraud
>> creditors.
>

> Indded it would be. And if it was done when whe was already
> insolvent, or in prospect of becomign so, the transfer can
> already be atacked without resort to examining past history of
> payment and support between spouses.

Yes, that would definitely be a better (i.e. easier) approach when
possible, even where the concept of marital property could also be
used.

--
Stu
http://DownToEarthLawyer.com

[Fredxx]

On 11/04/2013 18:35, gluti...@yahoo.co.uk wrote:
>
> If, alternatively, the wife sold her husband all her property for
> the market value, would that count as 'unjust enrichment'?
>

All the time you are married to your wife, any assets could be treated
nominally jointly.

It would take a divorce, and a financial settlement for her then to be
able to sell all her property to you at a market rate agreed by
respected valuations.

[steve robinson]

No because the wife had recieved a fair market price
(this often happens in bankruptcy where others who have an interest in
the asset in this argument property can pay a fair market value of the
percentage owned

>
> Without wishing to muddy the waters, this has put me in mind of those
> instances where a failed business is sold for £1, presumably
> irrespective of the wishes of creditors...

usally because the business has a strong foundation ad winding it up
wouldnt actually benefit the creditors Often happens when a business
has been pulled under because of cashflow problems caused by a customer
going into liquidation but still has a strong order book

[Chris R]

>
>
> "Francis Davey" wrote in message
> news:e568f2a3-9ac9-4b42...@googlegroups.com...

Francis, do you think the ever increasing encroachment of trusts means that
we no longer have true joint ownership in the traditional sense of undivided
and indivisible commonality? If, say, one of the parties to a joint bank
account withdraws the entire balance, can the other party (and therefore his
creditors) always complain?

I have a situation in which husband and wife jointly own a property and a
substantial bank account. Both are the result of 50 years work and
investment by both parties, but overall H would have made the larger
contribution. H is now incapacitated and although there is a power of
attorney to enable sale of the house, it cannot be used to make substantial
gifts. Is there any reason, however, why W as joint owner cannot simply
withdraw the balance on the joint account and direct the solicitors to pay
the proceeds of sale of the house to her? Who is to say that they must be
split 50-50, or in any other proportions?

Instinct says that these assets should be split 50-50 unless some other
proportion can be proven, but if asked the same question in respect of a
joint current account from which the mortgage and household bills were paid,
I think my reaction would be different and I would say that of course W was
free to continue to operate the account she thought fit, including for her
own benefit.
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[Chris R]

>
>
> "August West" wrote in message news:877gk8u...@news2.kororaa.com...

>
>
> The entity calling itself Francis Davey wrote:
> >
> > But insolvency law is wise to your tricks and has various mechanism of
> > its own to unravel transactions to get money back into an estate, one
> > of which is for transactions at an undervalue.
>

> What's the term for this in English law? In Scots law it's "gratuitous
> alienation" (governed for personal insolvency by comon law, and s.34
> Bankruptcy (Scotland) Act 1985).
>
It's, er, "transactions at an undervalue"!
--
Chris R

[steve robinson]

Chris R wrote:

>
> >
> >
> > "Francis Davey" wrote in message
> > news:e568f2a3-9ac9-4b42...@googlegroups.com...
> >
> > Le jeudi 11 avril 2013 18:35:01 UTC+1, gluti...@yahoo.co.uk a écrit
> > :
> > >
> > > As far as I can gather, under English law, there's a factor
> > >
> > > "beneficial interest", which is someone's right to a portion of
> > > the
> > >
> > > financial proceeds from something: understandable in the
> > > eventuality
> >
> > Short explanation. In English law someone (a trustee) can own
> > property for the benefit of someone else (the beneficiary). That
> > relationship is known as a trust. We invented them prior to the
> > 16th century.
> >
> > The way we implemented them was to have the concept of two kinds of
> > ownership "legal" and "equitable" or "beneficial". Many things are
> > just owned (legally and equitably) but it is entirely possible for
> > something to be owned by one person legally and another person
> > equitably or beneficially (the two words are interchangeable).
> >
> > A trust can work like that. X can be the legal owner with Y the
> > beneficial owner. We say "X holds the property on trust for Y". Y
> > has an "interest" in the property.
> >

> > [This is different from (say) X owing money to Y. If Y sues X then
> > eventually Y may be able to force X to sell the property or Y may

> > get some value, but Y does not own anything that belongs to X at
> > that stage. All Y owns is a right to bring a claim against X which
> > is not the same thing.]
> >
> > Now trusts are much abused by English law because they are sooooo
> > useful. In 1925 we changed the way joint ownership of land works.

> > Now if more than one person owns any land there is automatically a

> > trust. So if X and Y buy a property together then:
> >
> > [1] X and Y are legal owners.
> >
> > [2] That ownership is registered on the land registry.
> >
> > [3] X and Y are trustees of a trust (of land) for...
> >
> > [4] themselves as beneficiaries.
> >
> > But of course there is no reason why the two ownerships should go
> > hand in hand. Example, maybe X and Y are a married couple. X and Y
> > pool their resources and buy a house. But because X is "the man"
> > his name goes on the land registry and Y is left off (this really
> > happened a lot). Now X is trustee for X and Y as joint beneficial
> > tenants (here "tenant" is an earlier use of the term, meaning
> > someone who holds land).
> >
> > Problem: (1) if you go to the land registry you can only see X's
> > name. You cannot detect the beneficial ownership of Y. (2) It may
> > not be at all obvious what the beneficial interests are supposed to
> > be. In theory: you make a trust deed. But often that does not
> > happen.
> >
> > Now in a marriage situation where Y does not have any beneficial
> > interest in the house, eg where X bought the house with his own
> > money and X and Y are the sort of couple that don't pool their
> > financial resources and where there is no intention for the
> > property to be owned jointly, then what happens?
> >

> > If Y becomes bankrupt almost all of her property becomes owned by

O what a tangled web we weave ..................

[Mark Goodge]

On Thu, 11 Apr 2013 18:35:01 +0100, gluti...@yahoo.co.uk put finger to
keyboard and typed:

>
>Without wishing to muddy the waters, this has put me in mind of those
>instances where a failed business is sold for £1, presumably
>irrespective of the wishes of creditors...

If a business is bought as a going concern, then any debts it owes will
continue to exist after the change in ownership. So the price paid for the
business is of no real interest to the creditors. That money doesn't go to
the business (and hence the creditors) anyway; it goes to the selling
owner(s).

Mark
--
Please take a short survey on salary perceptions: http://meyu.eu/am
My blog: http://mark.goodge.co.uk

[Stuart A. Bronstein]

"Chris R" <inv...@invalid.munge.co.uk> wrote:

> I have a situation in which husband and wife jointly own a
> property and a substantial bank account. Both are the result of
> 50 years work and investment by both parties, but overall H
> would have made the larger contribution. H is now incapacitated
> and although there is a power of attorney to enable sale of the
> house, it cannot be used to make substantial gifts. Is there any
> reason, however, why W as joint owner cannot simply withdraw the
> balance on the joint account and direct the solicitors to pay
> the proceeds of sale of the house to her? Who is to say that
> they must be split 50-50, or in any other proportions?

According to Francis, each spouse holds title to the property in
trust for both spouses. Because of that I would think that W could
not simply sell the house and take for her own use the proceeds
that should be applied to H's benefit.

> Instinct says that these assets should be split 50-50 unless
> some other proportion can be proven, but if asked the same
> question in respect of a joint current account from which the
> mortgage and household bills were paid, I think my reaction
> would be different and I would say that of course W was free to
> continue to operate the account she thought fit, including for
> her own benefit.

As long as she used those funds reasonably, to maintain (as they
say) the lifestyle to which she had become accustomed, I would
agree with you. But if she were to use those funds extravagantly
rather than reasonable under the circumstances, I suspect that H or
his heirs would have the right to ask for repayment.

--
Stu
http://DownToEarthLawyer.com

[Chris R]

>
>
> "Stuart A. Bronstein" wrote in message
> news:XnsA19F8B148B9B8s...@130.133.4.11...

>
> "Chris R" <inv...@invalid.munge.co.uk> wrote:
>
> > I have a situation in which husband and wife jointly own a
> > property and a substantial bank account. Both are the result of
> > 50 years work and investment by both parties, but overall H
> > would have made the larger contribution. H is now incapacitated
> > and although there is a power of attorney to enable sale of the
> > house, it cannot be used to make substantial gifts. Is there any
> > reason, however, why W as joint owner cannot simply withdraw the
> > balance on the joint account and direct the solicitors to pay
> > the proceeds of sale of the house to her? Who is to say that
> > they must be split 50-50, or in any other proportions?
>
> According to Francis, each spouse holds title to the property in
> trust for both spouses. Because of that I would think that W could
> not simply sell the house and take for her own use the proceeds
> that should be applied to H's benefit.

In trust yes, but in trust for themselves in equal shares, no. At least,
that's what I think the traditional understanding would have been before the
trend for seeing trusts everywhere.

>
> > Instinct says that these assets should be split 50-50 unless
> > some other proportion can be proven, but if asked the same
> > question in respect of a joint current account from which the
> > mortgage and household bills were paid, I think my reaction
> > would be different and I would say that of course W was free to
> > continue to operate the account she thought fit, including for
> > her own benefit.
>
> As long as she used those funds reasonably, to maintain (as they
> say) the lifestyle to which she had become accustomed, I would
> agree with you. But if she were to use those funds extravagantly
> rather than reasonable under the circumstances, I suspect that H or
> his heirs would have the right to ask for repayment.
>

Perhaps I'll ask my wife to repay all the spending she has done from the
joint account in excess of mine over the last 12 years. The balance on a
joint account at any time is an arbitrary figure, if both parties pay in and
draw out at will. They can't have a duty to account to each other for their
respective shares. It's in the nature of a joint account. We each take money
from the joint account and invest it in our own names, for instance, and at
present the balance largely represents a large withdrawal from a savings
account that was in her name. Absent a divorce, I don't think we can sue
each other if either of us blows the lot on wine, men and song.

Unless thee is some principle to the effect that the shares somehow
crystallise when either party loses capacity - or perhaps that each
withdrawal constitutes a gift by the other spouse which requires at least
tacit consent, I don't see how one joint owner can be prevented from
enjoying up to the whole of the asset.

[Stuart A. Bronstein]

"Chris R" <inv...@invalid.munge.co.uk> wrote:

>> As long as she used those funds reasonably, to maintain (as
>> they say) the lifestyle to which she had become accustomed, I
>> would agree with you. But if she were to use those funds
>> extravagantly rather than reasonable under the circumstances, I
>> suspect that H or his heirs would have the right to ask for
>> repayment.
>>
> Perhaps I'll ask my wife to repay all the spending she has done
> from the joint account in excess of mine over the last 12 years.

And then how long after that would she still be your wife?

My point was that if one spouse isn't able to protect his interest
(perhaps but not necessarily due to illness), the other spouse, as
a fiduciary, should act in a way to reasonably protect his interest
rather than just protect her own.

In your case you are competent and can take appropriate action if
your wife starts doing things that you think are unreasonable. Of
course if you want to stay married to her nevertheless, you will be
deemed to have consented to her actions and/or made a gift to her,
But in OP's case, as far as I recall, the other spouse didn't have
that capacity.

> The balance on a joint account at any time is an arbitrary
> figure, if both parties pay in and draw out at will. They can't
> have a duty to account to each other for their respective
> shares. It's in the nature of a joint account. We each take
> money from the joint account and invest it in our own names, for
> instance, and at present the balance largely represents a large
> withdrawal from a savings account that was in her name. Absent a
> divorce, I don't think we can sue each other if either of us
> blows the lot on wine, men and song.

I'll agree with that. But in case of one's incapacity, I'd think
the situations would change.

> Unless thee is some principle to the effect that the shares
> somehow crystallise when either party loses capacity - or
> perhaps that each withdrawal constitutes a gift by the other
> spouse which requires at least tacit consent, I don't see how
> one joint owner can be prevented from enjoying up to the whole
> of the asset.

On the incapacity of one the other apparently becomes a trustee for
the other, with the fiduciary duties that go along with that.

Of course, that's just my conclusion based on what I've seen here.
I haven't found any case law on the subject, if there is any.

--
Stu
http://DownToEarthLawyer.com

[glut...@giganews.com]

On Thu, 11 Apr 2013 19:05:02 +0100, Francis Davey <fjm...@gmail.com>
wrote:

>But insolvency law is wise to your tricks

Ummm... I don't have any 'tricks'. You slight me there, sir...

My query supposed that if it was possible to avoid losing the family
home and possessions merely by dint of claiming it all belonged to
one's spouse, everyone (married and) facing being sued would simply do
that.

I was assuming there was no 'trick', but curious to understand the
legal mechanism(s) involved.

[Broadland Wanderer]

On Wednesday, April 10, 2013 6:30:02 PM UTC+1, gluti...@yahoo.co.uk wrote:
> This is an entirely hypothetical scenario, so no specifics available!

Hmm

> Any clues (eg law/precedent/URLs) as to the legal basis of such a
>
> scenario would be appreciated.

Looks remarkably like homework.......

[Sara]

In article <791f8c2d-8bdc-4093...@googlegroups.com>,

Cut'n'paste from the charter, note final line:

The purpose of the group is to enable contributors who have genuine
legal problems to ask for practical advice from other people (lawyers or
laymen) who have had to deal with similar problems in the past.
A secondary purpose will be to discuss
a) topical issues that are relevant to UK[1] law or to lawyers, law
enforcement or legislators;
b) the UK legal systems and suggested changes in the legal system or the
laws of the land;
c) international law, if it is relevant to the United Kingdom;
d) ethics and morality, in the context of discussions about UK law;
e) academic legal issues, to enable law students or laymen to seek help
with hypothetical legal questions.

--
Sara

cats cats cats cats cats

[Francis Davey]

Le vendredi 12 avril 2013 02:45:02 UTC+1, gluti...@yahoo.co.uk a écrit :
>
> Ummm... I don't have any 'tricks'. You slight me there, sir...

Yes, sorry, me being overly colloquial. I hope you understood what I was trying to say.

>
>
>
> My query supposed that if it was possible to avoid losing the family
>
> home and possessions merely by dint of claiming it all belonged to
>
> one's spouse, everyone (married and) facing being sued would simply do
>
> that.

Right. And you are quite right.

>
>
>
> I was assuming there was no 'trick', but curious to understand the
>
> legal mechanism(s) involved.

There's a whole suite of tools for the insolvency practitioner here:

http://www.legislation.gov.uk/ukpga/1986/45/part/IX/chapter/V/crossheading/adjustment-of-prior-transactions-etc

(Scotland has similar ones but under different sections usually).

Francis

[Francis Davey]

Le samedi 13 avril 2013 00:05:02 UTC+1, August West a écrit :
>
>
> Different acts, entirely, for Scotland - for personal it's in the
>
> Bankruptcy (Scotland) Act 1985, s.43 "Gratuitous alienations", and for
>
> cosporate it's the Bankruptcy and Diligence etc. (Scotland) Act 2007
>
> s.56B. (The later is known to practitioners as the "BAD Act", and for
>
> good reason.)
>

So sections 242 and 243 of the Insolvency Act 1986 have been repealed? The statute law database was always a bit weak on the IA 1986 but I thought it had gotten better.

Francis