Free Advice Column - 19/11/2008
19 Nov 2008
Double loss
Q. I took out a joint endowment policy together with my wife, who suffered from a heart condition, in 2000. The bank knew she was on medication, but when she died in 2005 they said she wasn't insured. The ombudsman said the bank had been negligent, but accepted that it wouldn't have insured my wife if it had known the full facts. The bank has been extremely unhelpful, while myself and our three children are in real financial difficulty.
A. It's difficult to advise without having all the details, but your case does emphasise the necessity for disclosure of anything that might affect the insurance company's willingness to sell cover. Giving strictly honest answers to all the questions on the form may not be enough to satisfy the definition of “utmost good faith”: you must volunteer any fact that might affect the insurer's response, even one not covered in the questions. You may still be able to take the bank to court, but your prospects seem poor in view of the ombudsman's ruling.
Sister's will
Q. The sister of a woman who died recently wants to know what happened to everything she owned. But the executor of the woman's will won't discuss the matter. Is it possible to see the contents of her will and that of her late husband?
A. A will only becomes a document of public record (ie anyone can see it) if it goes to probate. Sums under £5,000 in banks and building societies will usually be paid out without production of a grant of probate. But assuming a house or larger sums were involved, and probate has been granted at this stage, the sister should be able to obtain a copy of the will from the District Probate office or from the postal searches and copies department in York. If the couple's assets were held jointly it's possible they will have passed automatically from husband to wife when the husband died. In that case a grant of probate won't have been required and the husband's will won't be available for inspection.
She's out of your life
Q. Can my son's ex-wife claim any part of the money or property I plan to leave him? I am just about to make a will.
A. As long as they're now divorced and the court has made a “clean-break” order dividing the couple's assets, the ex-wife won't have any claim on anything you might wish to leave him. Only if you were to die before their divorce and financial affairs were finalised would she be able to make a claim on your son's legacy. However it is possible for a divorce to be finalised without financial matters being dealt with. So you should check with your son that a final order has been made ruling out his ex-wife's right to make any further claims against his capital.
Q. I took out a joint endowment policy together with my wife, who suffered from a heart condition, in 2000. The bank knew she was on medication, but when she died in 2005 they said she wasn't insured. The ombudsman said the bank had been negligent, but accepted that it wouldn't have insured my wife if it had known the full facts. The bank has been extremely unhelpful, while myself and our three children are in real financial difficulty.
A. It's difficult to advise without having all the details, but your case does emphasise the necessity for disclosure of anything that might affect the insurance company's willingness to sell cover. Giving strictly honest answers to all the questions on the form may not be enough to satisfy the definition of “utmost good faith”: you must volunteer any fact that might affect the insurer's response, even one not covered in the questions. You may still be able to take the bank to court, but your prospects seem poor in view of the ombudsman's ruling.
Leaning out
Q. Nearly five years ago contractors working for the council took up the old concrete slabs on the pavement outside my house and replaced them with tarmac. A few years later my garden wall, which is 3ft high, began leaning into the street and cracks appeared in the mortar. It's been suggested that the wall's foundations have been undermined by the construction of the new footpath. However the council's insurers say this is not possible and that the council is not to blame.
A. Depending on the age of your property it's possible that your garden wall won't have much in the way of foundations and that the work on the pavement has affected it. However it will probably be difficult to prove this, especially since the pavement was replaced so long ago. It could equally have been affected by subsidence or traffic vibration. If you want to pursue this you will have to bring in a surveyor to draw up a report, but this will cost you money and I suspect the report will be inconclusive.
Sister's will
Q. The sister of a woman who died recently wants to know what happened to everything she owned. But the executor of the woman's will won't discuss the matter. Is it possible to see the contents of her will and that of her late husband?
A. A will only becomes a document of public record (ie anyone can see it) if it goes to probate. Sums under £5,000 in banks and building societies will usually be paid out without production of a grant of probate. But assuming a house or larger sums were involved, and probate has been granted at this stage, the sister should be able to obtain a copy of the will from the District Probate office or from the postal searches and copies department in York. If the couple's assets were held jointly it's possible they will have passed automatically from husband to wife when the husband died. In that case a grant of probate won't have been required and the husband's will won't be available for inspection.
Jumping the gun
Q. I signed a lease to rent a shop for four years, putting down a £10,000 deposit. My solicitor gave me the go-ahead to move in and start trading, but two weeks later the bank refused permission for the owner to sub-let, and I had to give the keys back. There was a provision in the lease about this, but in the meantime I am out of work and out of pocket and I still haven't had my money back.
A. I'm not sure any money should have changed hands, or that you should have been given the all clear to start trading, until all the details of the lease had been sorted out. You have a potential claim for compensation from your solicitor if he told you that you were in a position to start trading, but without seeing the lease it's difficult to advise. The amount of your claim will obviously depend on whether your solicitor is successful in recovering your £10,000.
She's out of your life
Q. Can my son's ex-wife claim any part of the money or property I plan to leave him? I am just about to make a will.
A. As long as they're now divorced and the court has made a “clean-break” order dividing the couple's assets, the ex-wife won't have any claim on anything you might wish to leave him. Only if you were to die before their divorce and financial affairs were finalised would she be able to make a claim on your son's legacy. However it is possible for a divorce to be finalised without financial matters being dealt with. So you should check with your son that a final order has been made ruling out his ex-wife's right to make any further claims against his capital.
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