Insights Archives

A Guide to a Coroner’s Inquest

Posted on 24 March 20251 April 2025 by Sarah O'Sullivan

If you or your family are facing a coroner’s inquest, you don’t have to navigate the process alone. At Tees, we understand how important it is for families to have a thorough investigation into their loved one’s death. Our experienced team is here to offer compassionate guidance, support, and legal representation.

What is a coroner’s inquest?

A coroner’s inquest is a formal investigation into a death. It is held in specific circumstances, including when:

The cause of death is unknown.
The death was violent or unnatural.
The deceased was in custody, state detention, or detained under the Mental Health Act.
the death occurred as a result of a medical procedure/treatment.

Inquests are not designed to assign blame or responsibility but rather to determine the identity of the deceased, as well as when, where, and how they died.

What is an Article 2 inquest?

An Article 2 inquest is a more in-depth investigation held when the state may have failed to protect someone’s life. These inquests often involve deaths in custody, psychiatric hospitals, or other situations where the state played a role.

Prevention of future death reports

Following an inquest, a coroner can issue a Prevention of Future Death Report (PFD) if they identify risks that could lead to further deaths. These reports are sent to relevant organisations or individuals, recommending changes to prevent similar incidents.

Understanding the role of a coroner

A coroner is an independent judicial officer with legal qualifications and significant experience. Their role is to investigate sudden, unexplained, or unnatural deaths. Coroners can request post-mortems, gather evidence, and conduct inquests to establish the facts of a death.

Post-mortems: What to expect

A post-mortem, also known as an autopsy, is conducted by a pathologist to determine the cause of death. While the coroner decides if a post-mortem is necessary, they must consider the family’s views and any cultural or religious beliefs. Families can request a copy of the post-mortem report, though it may only be released after the inquest.

When will the inquest take place?

Inquests are typically held within 6-9 months of a death. During this period, the coroner will:

Gather evidence, including medical records and witness statements.
Contact the family to explain the process.
Potentially hold a pre-inquest review to organise evidence and identify issues.
Issue an interim death certificate to allow families to manage practical matters.

What happens during the inquest?

The inquest is a public hearing where evidence is presented to establish the facts of the death. Key participants include:

Witnesses, including doctors, police officers, or medical experts.
Family members, who may provide personal testimony.
Legal representatives, especially in cases involving state bodies.

The coroner may also call for independent expert opinions to ensure a complete understanding of the circumstances.

Conclusion of the inquest

At the end of an inquest, the coroner or jury will deliver a conclusion that falls under one of several categories, including:

Natural causes
Suicide
Accident or misadventure
Unlawful or lawful killing
Industrial disease
Stillbirth

In some cases, a narrative conclusion is given, providing a detailed account of the circumstances surrounding the death.

Legal representation at an inquest

Having legal representation can be invaluable, particularly if there are concerns about the care a loved one received. Our experienced solicitors can help ensure that the right questions are asked, and all relevant evidence is considered.

State bodies are often represented by legal professionals, so having your own solicitor can help provide a balanced and thorough investigation.

Contact us for support

If you are facing a coroner’s inquest and would like to discuss your options, our dedicated team at Tees is here to help. Contact us for a no-obligation conversation about how we can support you through this challenging time.

Can a Lasting Power of Attorney be abused?

Posted on 24 March 202515 April 2025 by Sophie Soraf

Frances Macdonald, Senior Associate at Tees, outlines key steps you can take—supported by your solicitor—to reduce the risk of abuse when setting up a Lasting Power of Attorney (LPA).

Is a Lasting Power of Attorney safe?

Retired senior judge of the Court of Protection, Denzil Lush, caused concern during a BBC Today programme interview when he suggested that creating a Lasting Power of Attorney (LPA) could leave individuals vulnerable to exploitation. His comments were based on cases where attorneys had misused their powers, sometimes leading to significant financial loss for the donor—including loss of savings or even their home.

Despite these high-profile concerns, LPAs remain a crucial legal tool, especially as we plan for the future. With over 2.5 million LPAs registered in the UK and 600,000 new applications made in 2016 alone, instances of abuse remain relatively rare—fewer than 1% of registered LPAs involve reported abuse.

What is a Lasting Power of Attorney?

An LPA is a legal document that allows you to appoint one or more trusted individuals—known as attorneys—to manage your financial affairs or make decisions about your health and welfare, if you lose the ability to do so yourself (known as losing mental capacity).

Many people create LPAs well before they anticipate needing them, often while still in good health. This is important because you must have full mental capacity when you create the document. If you lose capacity without an LPA in place, your family must apply to the Court of Protection for a Deputyship—an expensive, time-consuming process with ongoing annual fees.

Why create an LPA?

Without an LPA, your loved ones won’t automatically have the legal authority to manage your affairs. Having an LPA in place can:

Reduce stress and cost for your family
Ensure your preferences are followed
Avoid lengthy court applications

How to prevent abuse of a Lasting Power of Attorney

LPAs are powerful documents. That’s why it’s essential to set them up with professional legal guidance to include appropriate safeguards and reduce the risk of misuse.

Frances Macdonald, Senior Associate at Tees, explains:

“We strongly recommend that you never sign any documents—especially those prepared by friends or relatives—without fully understanding them. It’s best to seek legal advice before proceeding, even if the request comes from someone you trust.”

Tees regularly advises clients on incorporating safety features into their LPAs, including:

Requiring attorneys to maintain financial records
Instructing attorneys to seek professional advice on significant decisions
Including conditions or restrictions in the LPA document

Choosing the right Attorney

Selecting the right attorney is perhaps the most important decision you’ll make when creating your LPA. Consider:

Trustworthiness – Do you trust this person to act in your best interests?
Capability – Are they organised and financially responsible?
Willingness – Are they happy and prepared to take on this role?
Closeness – Do they understand your personal values and wishes?

Tees can guide you through this process to ensure your chosen attorney is the right fit for you.

Keep your LPA under review

An LPA is not a “set and forget” document. Frances Macdonald recommends reviewing your LPA every five years—or sooner if your circumstances or relationships change significantly.

“We encourage clients to review their LPAs regularly. This ensures the document still reflects their wishes, especially as family dynamics, health, or financial circumstances evolve.”

Regular reviews can help avoid issues down the line and provide continued peace of mind.

Additional safeguards you can add

You can include further protections in your LPA, such as:

Appointing up to four attorneys and specifying whether they act jointly or independently
Assigning attorneys responsibility for different areas (e.g. one for finances, another for healthcare)
Requiring annual reviews of your attorney’s accounts
Storing your original LPA with a solicitor who will only release certified copies upon evidence of lost capacity

At Tees, we offer a secure document storage service and can act as an impartial gatekeeper, helping to prevent premature or unauthorised use of your LPA.

Can you cancel or change an LPA?

Yes. If you still have mental capacity, you can cancel your LPA at any time by signing a Deed of Revocation. If there are concerns about an attorney’s conduct, the Office of the Public Guardian (OPG) can investigate and take appropriate action—including referring the matter to the police or applying to the Court of Protection to revoke the LPA.

Get expert advice on LPAs

Setting up an LPA with the right guidance ensures your best interests are protected and reduces the risk of future disputes or abuse. If you have any questions about making or using a Lasting Power of Attorney, please contact our experienced team at Tees.

Cerebral palsy: Medical negligence claims

Posted on 22 March 20251 April 2025 by Sarah O'Sullivan

Cerebral palsy is a neurological condition caused by brain damage, often resulting from complications before, during, or shortly after birth. It can affect movement, coordination, and overall development. While there is no cure, appropriate treatment and support can significantly improve a child’s quality of life.

Is there a cure for cerebral palsy?

There is no cure for cerebral palsy. However, individualised care plans, including therapies, medications, and assistive devices, can help manage symptoms and enhance mobility and motor function. Although cerebral palsy is not progressive, its symptoms may evolve over time.

In severe cases, cerebral palsy can be life-threatening and may reduce life expectancy, particularly when complications arise. People with severe symptoms often require round-the-clock care.

Types and symptoms of cerebral palsy

The NHS identifies four main types of cerebral palsy, each with distinct symptoms:

Spastic cerebral palsy: Stiff muscles and restricted mobility.
Dyskinetic cerebral palsy: Involuntary, uncontrolled movements.
Ataxic cerebral palsy: Poor balance, coordination issues, and tremors.
Mixed cerebral palsy: A combination of the above types.

Common symptoms include mobility issues, muscle stiffness, coordination difficulties, epilepsy, cognitive impairments, and speech difficulties. The severity varies significantly from person to person.

Causes of cerebral palsy

Cerebral palsy results from brain damage, which can occur:

During pregnancy: Due to infections, genetic abnormalities, or oxygen deprivation.
During labour and delivery: From oxygen deprivation (hypoxia or anoxia), birth trauma, or medical negligence.
Shortly after birth: Caused by brain infections, head injuries, or neonatal strokes.

While some cases are unavoidable, medical negligence can sometimes lead to cerebral palsy. Failing to monitor and respond to signs of distress during labour, misuse of delivery instruments, or delayed emergency procedures can contribute to preventable brain injuries.

Risk factors for cerebral palsy

Certain factors increase the risk of cerebral palsy, including:

Premature birth (before 37 weeks)
Low birth weight
Multiple births (twins, triplets, etc.)
Maternal infections or medical conditions
Blood type incompatibility
Placental issues

Healthcare providers should identify and manage these risks to minimize the chances of brain injury.

Diagnosing cerebral palsy

Doctors often diagnose cerebral palsy within the first two years of a child’s life, although mild cases may take longer to identify. Key developmental milestones, like head control, rolling over, crawling, and grasping objects, are closely monitored. If delays occur, further assessments, including brain imaging, may be recommended.

Making a medical negligence claim for cerebral palsy

If you believe your child’s cerebral palsy resulted from negligent medical care, you may be eligible for compensation. Our experienced birth injury solicitors can review medical records, consult independent experts, and determine whether negligence occurred.

Time limits for claims:

Claims can be made on behalf of a child until they turn 18.
After turning 18, individuals have three years to file a claim.
For those with severe cognitive impairments, these time limits may not apply.

We understand the emotional and financial impact cerebral palsy can have on families. Our compassionate team is here to guide you through the claims process and seek the compensation you deserve to support your child’s needs.

Contact us today for a free consultation and to discuss your potential cerebral palsy negligence claim.

Pet-nuptial agreements – plan ahead to save heartache

Posted on 18 March 20257 April 2025 by Sarah O'Sullivan

Only one in 14 couples with pets in the UK currently have a pet-nuptial agreement in place and one charity, the Blue Cross, takes in around 4 pets every week because of divorce or separation. Planning ahead about how to take care of pets, in the event of a split, can help save some heartache.

Pets play a central role in families and many people have a significant emotional attachment to them. It is no surprise that 51% of UK adults own a pet of any type, with there being an estimated 10.6 million pet dogs and 10.8 million pet cats across the UK. Pets are becoming increasingly relevant in discussions with lawyers and mediators in divorce and separation negotiations, alongside considerations about children and finances. Animals and our relationship with them are by their very nature, emotional, and without an agreement in place, conflict over pets can add a distressing element to what may be an already volatile situation. A pet-nuptial agreement can help avoid a dispute at what might be an emotional time.

Pets as assets

It can often come as a shock to separating couples to find out that in the UK, the law regarding pets during a break-up or divorce, is the same as the law for personal property, such as a television or a car. In contrast to when the court decide arrangements for children, the family courts have no requirement to consider the welfare of the pet.

A court, if asked to decide on who should get the pet, would typically focus on:

who paid for the pet in the first place
who has funded its care (food, vet bills etc)
which of the parties are financially stable enough on their own to support a pet
if there are outstanding and particularly expensive veterinary costs, these can be included in the financial settlement
which partner has the most suitable home for the pet.

However, in December 2024, there was a welcome shift in judicial decision making with regards to pet ownership on separation with the case of FI v DO [2024] EWFC 384 (B) which involved dispute as to who would retain the family’s pet dog, a Golden Retriever, amongst other assets. The Judge in this matter went beyond financial considerations which had historically framed decisions surrounding pet ownership to date and included factors such as the living arrangements for the dog post-separation, who the dog would consider its primary caregiver and the best environment for the dog’s well-being.

Whilst this decision does not go as far as to rebut the position that a pet is a chattel, it does provide scope for the court to consider the pet’s needs and how any change in its ownership may affect not only the people around it, but the pet itself.

What is a pet-nuptial agreement?

While a traditional pre-nuptial agreement may solely focus on division of real assets and property, a pet-nuptial agreement (or a pet-nuptial clause in your pre-nuptial agreement) will focus specifically on the care and living arrangements for your pet.

A pet-nuptial agreement is a pre-arranged plan that puts your pet’s needs at the heart of the matter. It allows you to both agree beforehand where your pet will live, if you and your partner break up.

It’s important when creating your pet-nuptial agreement that your pet’s wellbeing is the main focus of the agreement. Of course, you and your partner can resolve any disputes regarding your pet without talking to lawyers, if you can both come to an arrangement that you can agree on. However, a pet-nuptial agreement takes away the uncertainty of a potential future conflict. As well as being very important for your own peace of mind with regard to your pet’s future, it’s also important for your pet. Pets that are handed into charities, such as the Blue Cross, often suffer from emotional trauma.

The advantages of a pet nuptial agreement include:

Clarity and prevention of dispute: having pre-agreed arrangements for your pet can help avoid future conflict by clearly outlining how your pet will be treated
Emotional protection: our pets are often seen as family members and having an agreement in place can reduce the emotional burden (on both the separating couple and the pet) of making these decisions in the heat of the moment
Financial planning: similarly to a pre-nuptial agreement, a pet-nuptial agreement can provide peace of mind in terms of what costs, such as veterinary bills, insurance and other expenses, are to be met when separating

Is a pet-nuptial agreement legally binding?

Whilst not currently legally binding in the UK, following a landmark decision in the Supreme Court, courts are likely to uphold a pre-nuptial agreement that meets certain criteria. Speak to one of our specialist legal advisers for more information on this.

What will you be agreeing to?

By taking custody of your pet within the pet-nuptial agreement, you are agreeing to follow the laws and welfare needs set out in the 2006 Animal Welfare Act these include:

the need for a suitable living environment
the need for a suitable diet
the need to be able to exhibit normal behaviour patterns
the need to be housed with, or apart, from other animals as needed
the need to be protected from pain, suffering, injury and, disease.

Being a pet owner is a big responsibility, and it is important that, within a pet-nuptial agreement, consideration is given to who will be best placed to meet the needs of the pet considering the above.

Pets with financial value

Some pets do have a financial value as well as an emotional value. There are many breeds of pedigree animals which cost a lot of money to buy. Also, some pedigree animals are involved in breeding which means they have a financial value in terms of their future litters. You may even have a pet that generates money from advertisements or social media – or is even starring in the movies! While it’s unlikely your cat is a YouTube star with its own following, if there is any financial value associated with your pet, it’s even more vital that you consider putting a pet-nuptial agreement in place.

Whilst the Pet Abduction Act 2024 that recently came into force has recognised dogs and cats as sentient beings capable of experiencing distress and other emotional trauma, it is important to note that this legislation does not make it an offence if the pet has lived in the same household as a couple before they separated. Therefore, it would not be possible for your ex-partner to “steal” your pet (if they had lived with them) and for you to seek recourse under this legislation, making a pet-nuptial agreement even more important.

How does divorce affect your pet?

Separation can be an emotional and confusing time for your pets, as well as for the owners, for many reasons. The uncertainty that follows a divorce or separation can upset your pet’s routine. You may move the pet’s home and if so, it’s important you give your pet time to adjust to its new surroundings.

Should a pet be shared?

Animal charities such as the Blue Cross or The Kennel Club advise that sharing a pet is not a good idea, as it can be upsetting and negatively affect their well-being. The same goes for when splitting up animals who were together before separation, as this means they lose their companion. It’s suggested that the best route is for one primary caregiver to look after all the pets who are close to each other.

Consideration should be given to whether the separating partner who will not retain ownership of the pet should be allowed to spend time with them on certain occasions. This might be considered easier for certain types of pets, such as dogs, more so than others.

Separating couples who are experiencing difficulty communicating may want to consider the use of a “parenting app” to discuss arrangements for how their pet spends time. There are several free and fee-paying apps available and, whilst typically used to facilitate discussions regarding arrangements for children, can rightly be used for pets. Such apps allow shared calendars to track who is responsible for the pet at any time, as well as the ability to share updates when the pet is not in the other partners care.

How to make a pet-nuptial agreement

If you and your partner are looking to create a pet-nuptial agreement, contact us and we will create a bespoke agreement for you both. In preparation for making your pet-nup agreement, you and your partner should:

have already discussed the topic of pet ownership upon potential separation
have an idea of who is going to be the primary carer
know how the costs of looking after the pet will be shared
have thought about the amount of time the partner who is not keeping the pet, gets to spend with the pet, should they want to.

Once agreed, we will create your bespoke arrangement and send both parties a copy for you to keep safe – and hopefully never need to use. Pets are more than just personal property and having an agreement in place helps ensure they are treated that way on separation.

Employment settlement agreements: Key considerations

Posted on 18 March 20259 April 2025 by Sarah O'Sullivan

Employment settlement agreements are legally binding contracts between an employer and an employee that include the terms of an agreed departure or resolution of a dispute. These agreements, previously known as compromise agreements, allow employees to waive certain employment rights in exchange for compensation or other benefits. Understanding your rights and obligations before signing one is crucial.

Key features of settlement agreement

Voluntary Participation: Both the employer and employee must enter into the agreement willingly and the employee should not be coerced or placed under undue pressure
Independent Legal Advice: Employees must seek independent legal advice to ensure they understand the terms
Written Agreement: To be legally enforceable, the agreement must be in writing
Settlement of Specific Claims: The document must clearly state which claims are being settled to prevent future disputes

How long do you have to consider a settlement offer?

A common concern for employers and employees is how long to offer for time to consider an offer before making a decision. The guidance from ACAS (the Advisory, Conciliation and Arbitration Service) suggests a 10-day period to review a written settlement agreement.

However, recent case law has provided clarification on verbal offers and deadlines.

In Gallagher v McKinnon’s Auto and Tyres Ltd [2024] EAT 174, the Employment Appeal Tribunal (EAT) ruled that an employer giving an employee a 48-hour deadline to accept a verbal settlement offer did not amount to undue pressure or improper behaviour. The Tribunal clarified that the ACAS-recommended 10-day timeline applies to written offers, not verbal ones. While employees should be given reasonable time to consider offers, a shorter deadline for verbal agreements is not automatically considered coercive or unfair.

Why employers and employees use settlement agreements

Employers may offer a settlement agreement to:

Avoid lengthy and costly tribunal claims
Protect business interests by including confidentiality clauses
Ensure a clean break with no further claims

Employees may benefit from a settlement agreement by:

Receiving financial compensation beyond statutory redundancy pay
Avoiding the uncertainty of a tribunal claim
Negotiating better exit terms (e.g., a reference letter or extended notice period)

Seek expert legal advice before signing

While settlement agreements can be beneficial to both parties, they must be compliant with, amongst other things, section 203 of the Employment Rights Act to validly settle statutory claims (such as unfair dismissal and unlawful discrimination) it’s essential for employers to prepare these in a way that complies with applicable legal obligations and for employees to be able to fully understand what rights are being waived. Seeking independent legal advice ensures that the agreement is fair and that you are not accepting an offer under undue pressure.

If you are dealing with exit terms and a settlement agreement, Tees Law is here to help. Our experienced employment law specialists can prepare, review and advise on such agreements and the best course of action.

Bowel cancer and medical negligence: Understanding your legal rights

Posted on 18 March 20251 April 2025 by Sarah O'Sullivan

What is Bowel Cancer?

Cancer that affects the large bowel is typically called bowel cancer. You may also hear it being called colorectal cancer, colon cancer or rectum cancer, depending on where it is found.

Most bowel cancers develop from polyps which are non-cancerous growths that might develop into cancer. Cancer cells may stay in the bowel or they might spread to other parts of the body, such as the liver or lungs.

Symptoms of Bowel Cancer

Symptoms of bowel cancer can often be mistaken for symptoms of other conditions.

Common symptoms include:

Bleeding from your bottom
Blood in your stool
A change in your pooing habits including going more or less often, or having diarrhoea or constipation
Unexplained weight loss
Tiredness/fatigue
A pain or a lump in your stomach

Causes and risk factors

Risk factors can include age, with nine out of ten of new cases (94%) diagnosed in people over the age of 50. However, more than 2,600 new cases are diagnosed in people under the age of 50 every year.

Other risk facts include obesity, eating processed meat, alcohol, smoking and eating too little fibre.

Diagnosis of bowel cancer

Bowel cancer is the fourth most common cancer in the UK. Almost 44,000 people are diagnosed with bowel cancer every year in the UK.

1 in 17 men and 1 in 20 women will be diagnosed with bowel cancer during their lifetime.

According to Bowel Cancer UK 54% of bowel cancer cases in the UK are preventable.

Importance of timely detection

More than 9 in 10 people will survive bowel cancer if diagnosed at the earliest stage (stage 1) whereas around 1 in 10 people will survive bowel cancer if diagnosed at the latest stage (stage 4).

This means a timely diagnosis of bowel cancer is crucial – it directly impacts the chances of successful treatment, survival rates and overall prognosis.

There is a bowel cancer screening programme in the UK for people without symptoms. If you do have symptoms, go to see your GP. They may give you an at-home test, known as symptomatic FIT.

Challenges in early diagnosis

Bowel cancer is often misdiagnosed as a less serious illness or recognised at a point where it cannot be cured.

Screening is one of the best ways to detect bowel cancer at an early stage before symptoms appear. Yet the recommended screening programmes are not offered due to lack of staff within endoscopy and pathology services that diagnose bowel cancer. People are also waiting too long for crucial bowel cancer tests as there is a lack of capacity to meet demand.

Diagnostic procedures and tests

If your GP suspects your symptoms may be bowel cancer they may undertake the following tests:

A test that looks for tiny traces of blood in a sample of poo (FIT)
An examination of your back passage (rectum) and back passage opening (anus)
An examination of your stomach (abdomen)
Blood tests

Depending on the results of your examination your GP might refer you to a specialist for further tests.

The main test for bowel cancer is a colonoscopy. This is a where a thin, flexible tube with a camera is used to look inside your bowel. During the colonoscopy, a small sample of the lining of your bowel may be taken for testing – called a biopsy.

Tests may also include scans to look at your bowel. These might be a CT colonography or a CT scan of your stomach and pelvis.

If you have a biopsy that shows you have bowel cancer, you may have to have more tests to work out where and how big the cancer is, including:

Tests on your bowel cancer cells
CT scans
PET-CT scans
MRS scan of your pelvis or liver
Ultrasound scan of your stomach or rectum

Medical negligence in bowel cancer cases

Common examples of medical negligence in bowel cancer cases can include:

Delayed diagnosis

This could occur if:

There is a failure to refer urgent cases quickly enough
Symptoms consistent with bowel cancer are ignored
The correct tests are not requested when symptoms indicate possible bowel cancer
Test or scan results are misinterpreted
Test results or abnormal findings are not followed up or communicated

A delayed diagnosis can mean that the disease spreads to other parts of your body, making it more difficult to treat; you require different or more treatment; and / or that your prognosis is poorer.

Bowel cancer misdiagnosis leading to the wrong treatment

This could occur if a patient is incorrectly diagnosed with another condition (e.g. Irritable Bowel Syndrome, haemorrhoids or piles) and is given the wrong treatment, such as a course of antibiotics rather than cancer treatment.

Avoidable complications during treatment or care, such as:

Delays in beginning chemotherapy
Failure to adequately discuss the risks associated with a particular chemotherapy drug, leading to complications

Eligibility for making a claim for bowel cancer misdiagnosis

Medical negligence occurs when a patient suffers harm or injury as a result of substandard care in a healthcare setting.

Medial negligence claims have strict time limits. If your case relates to a delayed bowel cancer diagnosis or bowel cancer misdiagnosis, this is 3 years from when you were informed of the correct diagnosis. If your case relates to errors relating to treatment, this is likely to be 3 years from the date of the error.

Steps involved in the claims process

Medical negligence claims are technical and complex – this is why you should seek advice from a specialist medical negligence lawyer. It will be almost impossible to navigate the process on your own.

If you would like to understand more, read here: “Bringing a medical negligence claim”

Compensation

Claiming compensation can help provide the care and support that you need.

The amount of compensation you can obtain can vary widely depending on the specific circumstances of your case.

As well as receiving compensation for the physical and psychological consequences of any negligence, you will be able to recover specific financial losses incurred as a result of the negligence. This could include loss of earnings, care, medical treatment and other miscellaneous costs resulting from the negligence.

Seeking support for a medical negligence claim is a significant and often challenging step. This is why we are here to listen to you and talk through what happened, and to help and guide you every step of the way.

Death of a sole director and shareholder: Key risks and solutions

Posted on 17 March 20251 April 2025 by admin

Private companies with a sole director shareholder (sole owner) should be aware of the risks associated with being the sole owner, particularly in the event of death. The administrative burden when a sole owner dies can be very complex and time consuming and is best avoided.

This article sets out the potential problems that can arise on the death of a sole owner, and action that a company can take to avoid such problems occurring and minimise disruption to the company.

Problem 1: Inability to appoint additional Director/s

Potential Solution: Update Articles of Association

Directors manage the company’s day-to-day affairs, such as paying employees, suppliers and other creditors and approving transactions. It is therefore important to ensure that upon the death of the sole director, a new director is appointed as soon as possible to aid business continuity. Usually, a new director is appointed by board resolution or members’ resolution. However, at Tees, we often find that a company’s articles of association do not outline how the company can appoint a new director in this scenario. This is particularly evident for companies with old-style Table A articles or bespoke articles. This means that the company may suffer as there is no one to coordinate the day-to-day management of the company.

For companies that have adopted the model articles for private limited companies, these assist by way of model article 17(2) which states that, ‘…the personal representatives of the last shareholder to have died have the right, by notice in writing, to appoint a person to be a director.’ This wording enables a new director to be appointed reasonably efficiently. It is, therefore, important that a company’s articles of association set out how new directors can be appointed, and Tees’ Corporate and Commercial team can assist with the review and amendment of a company’s articles of association to allow for this.

Problem 2: Shareholder does not have a valid Will

Potential Solution: Review existing Will or draw up new Will

If a sole owner dies, they remain the legal owner of the shares in the company. It is important that shareholders have a valid Will in place which appoints executors and sets out what they want to happen to their shares upon their death. The executors become the deceased’s personal representatives when the grant of probate is issued, and the legal title to the shares will vest in them via the process of transmission. However, importantly, even if the personal representatives agree to be recorded in the register of members, if there is no director to accept transmission of the shares to the personal representatives, they cannot be added to the register of members. This then prevents the personal representatives from voting to appoint the new director. This is another reason why it is important that the articles of association assist in these circumstances.

In contrast, where the sole owner had no valid Will, and therefore no executors, there will be no one to organise the deceased’s estate without a grant of representation, which can be very time consuming to obtain. It can take at least 12 weeks from submitting the application to obtain the letters of administration and in our experience, in can take a lot longer than an application for probate, as the probate office tend to take longer to process applications related to intestacy.

Therefore, in addition to having appropriate articles of association, it is beneficial for a sole owner to have a valid Will in place to determine what happens to their shares following their death. The Tees Private Client team can assist with drawing up an appropriately-detailed Will which ties in with the provisions of the company’s articles of association – see further information here: Making a Will and Trusts | Expert Legal Advice – Tees Law.

Problem 3: The sole owner has died without a valid Will or appropriate provisions in the articles of association

Problem 4: The sole owner has died with a valid Will, but the time taken to obtain the grant of probate is causing detriment to the company

Potential Solution: Apply to court for rectification of the register of members

If a new director cannot be appointed following the death of a sole owner, the administrators can apply to the court under section 125 of the Companies Act 2006 for rectification of the register of members. However, this is not ideal, as court applications can be costly and time-consuming, and there is no guarantee that the court will order in favour of the rectification applied for.

There are some case examples where the deceased sole owner had a valid Will, but the delay in obtaining the grant of probate caused detriment to the company. In these cases, an application to the court under section 125 was made and the court allowed the executors to be added to the register of members (as legal owner of shares in the company) even without the grant of probate, as the risks to the company in having no director caused greater urgency in allowing the transmission of the shares. However, this is not a guaranteed outcome.

In any event, applications to the court should be a last resort and can usually be avoided by actioning solutions 1 and 2 above.

Practical Points

Company sole owners should ensure good business continuity in the event of death or absence (perhaps through illness) by:

Providing access to banking/payroll to a trusted member of the company;
Providing access to any necessary logins/passwords;
Ensuring the statutory registers of the company are accessible;
Ensuring that a trusted member of the company has knowledge of or access to all contracts with suppliers and customers;
Ensuring that all other aspects of the business, such as policies, processes, contacts, etc, are accessible to others;
Having an up to date Will; and
Ensuring the company’s articles allow the personal representatives to appoint a director.

Get in Contact

The Tees Corporate and Commercial team is experienced in assisting with business continuity measures, including drafting articles of association, advising on business structure and governance, and liaising closely with our Private Client team to ensure business succession planning via shareholders’ Wills.

Charities – setting up a “Company Limited by Guarantee” explained

Posted on 17 March 20257 April 2025 by Sarah O'Sullivan

When setting up or restructuring as a charity or not for profit organisation (NFP) you will need to consider which legal structure is right for you. There are a number of different legal structures for charities and the main ones are listed below:

Charitable company
Charitable incorporated organisation (CIO)
Charitable trust
Unincorporated charitable association

The most commonly adopted legal structure for charities and NFP’s is the charitable company structure, formally referred to as a private company limited by guarantee, adopted by the likes of Macmillan, Cancer Research UK and the British Heat Foundation. Essentially, a charitable company acts as the legal wrapper around a charity and this articles provides key insight and guides you through the steps to take in order to set up a company limited by guarantee. Whilst this is a relatively straightforward process there are pitfalls to be aware of, where you may need legal advice.

Firstly, what is a private limited company?

A private limited company is a legal entity, owned by its ‘members’ whose liability is limited to the money they initially invest in the business.

What are the key features of a company “limited by guarantee”?

A company limited by guarantee does not have shareholders or a share capital, instead ownership and control rests with its members who are guarantors up to a ‘guaranteed amount’. As there are no shareholders there is also no need to transfer shares every time a membership is transferred. This type of structure is facilitative of not for profit status because typically profits are not distributed to its members, instead profits are reinvested back into the business for its charitable purpose.

The ‘guaranteed amount’ is the agreed amount of money the guarantors (or subscribers) promise to pay the company if it is unable to pay its debts. The guarantors must pay the company the full amount of their guarantee and this payment covers the guarantors for situations such as the company being closed down. The guaranteed amount is not linked to how much the company is worth – you choose how much they pay!

What are the key benefits?

The key benefits of adopting a company limited by guarantee structure are as follows:

The company can enter into contracts, employ staff and own assets (amongst other things) in its own name.
The members can set low limits on their personal liability.
The company is responsible for its own finances: This means members are not responsible for company debts.
The company has to act in line with its own internal rules which are set out in its ‘articles of association’.

How to set up a company limited by guarantee?

You can apply to set up a company limited by guarantee:

(a) Online at Companies House;

(b) Online through an Incorporation Agency; or

Apply online through Companies House

It usually takes between 24 – 48 hours for your application to be processed. The application fee is £50.

Using this method:

Your company can only use the model articles which may not be appropriate for your needs.
Your company may have a maximum of 5 officers (directors and secretaries). You can appoint more in the future, if required.
You cannot apply online if:

o A parent company will control the new company.

o The new company will be taking over another charity.

o Any of the subscribing members will be a ‘corporate body’ (i.e. another limited company or a limited liability partnership).

If you have used this method of incorporation we can help you make any changes required to the model articles to meet the needs of the charity including its aims and its objectives.

Apply online through an Incorporation Agency

You can apply to set up a company limited by guarantee online via an Incorporation Agency. The fee depends on the agency and most will offer a same day service.

Applying this way offers more flexibility when setting up because:

You can choose bespoke articles which have been tailored to your specific requirements, to include the aims and objectives of the charity.
You can appoint any number of officers (directors and secretaries).
Both individuals and corporate bodies may be subscribing members.

Apply by post to Companies House

You can submit an application by post – the fee is £71 and can take up to 14 days depending on timescales. This method offers full flexibility to incorporate a charitable company in the manner you require but most people require a more prompt incorporation.

Steps to take when setting up a company limited by guarantee

Steps to take when setting up your company include:

Make sure setting up a company limited by guarantee is right for you, and ensure the articles of association are appropriate for the type of company, its aims and its objectives.
Choose a suitable company name, taking care if similar and existing charities have similar names and avoid names consisting of sensitive or restricted words.
Decide on a registered office address for the company but bear in mind this information will be available to the public.
Decide on the Standard Industrial Classification (SIC) code that applies.
Individual directors and company secretaries must be over 16 years and lawfully able to be appointed, this means you cannot appoint an undischarged bankrupt or someone who has been otherwise disqualified and they must willingly consent to be appointed as your company director.

What happens after a company limited by guarantee is set up?

Once the company is incorporated, the company name, address and company registration number should be clearly displayed on all official company paperwork, (including your website if you have one).
You must display a sign showing your company name at your registered company address and wherever your charitable company operates but if you are running it from home you do not need to display a sign.
Companies House will send an authentication code to the registered office after incorporation which will allow you to register for online filing.

Important things to note

A charitable company only obtains ‘charitable status’ once it is registered with the Charity Commission.
A charitable company is dual registered at Companies House and the Charity Commission, and therefore you must comply with dual filing requirements.
Each year the company must file annual accounts and a confirmation statement at Companies House, failure to comply with these filings can result in a fine or the company being struck off the register.
The responsibilities and duties of a director are important and failure to comply with statutory duties can result in a fine and/or imprisonment. You can find more information online at gov.uk.

Legal advice for setting up a company

If you are considering setting up a charitable company, a corporate lawyer can help you through the process. A solicitor can provide advice on the company’s legal structure, prepare bespoke articles of association, and ensure your application is submitted properly. If you need other legal support in setting up your company, please do not hesitate to contact our Corporate and Commercial Team.

What to do if you’ve been appointed as a Trustee

Posted on 14 March 202524 April 2025 by Sarah O'Sullivan

Have you been named as a trustee? It’s completely normal to have questions about what the role involves. Our experienced trusts solicitors have answered some of the most common questions to help you understand your responsibilities and protect yourself in the role.

Do I have to accept the Role of Trustee?

No. You cannot be forced to accept the position of trustee. If you do not wish to act, you can simply decline the appointment.

Can I step down as a Trustee later?

Yes. You can resign from the role at any time. However, in the case of an ongoing trust, you may be expected to help with the appointment of a replacement trustee.

Are Trustees paid?

Generally, no. Lay (non-professional) trustees are not usually paid for their time. However, professional trustees—such as solicitors or accountants—may be entitled to remuneration, either under the trust deed or under general legal principles.

Can Trustees claim expenses?

Yes. Trustees can recover reasonable expenses that are properly incurred in the course of carrying out their duties. These expenses are paid out of the trust fund.

Am I personally liable as a Trustee?

Potentially, yes. Trustees can be held personally liable for a “breach of trust”. However, trustees are generally entitled to be indemnified from the trust fund—provided the trust has sufficient assets and the trustee acted properly.

To protect yourself:

Always act in the best interests of the beneficiaries;
Take reasonable steps to safeguard trust assets;
Seek professional advice when necessary.

It’s important to act fairly and impartially, even when this may be difficult. Your relationship with the settlor and your understanding of the beneficiaries are likely reasons you were chosen for this responsibility.

Am I liable for other Trustees’ mistakes?

Not directly. Trustees are not usually liable for the actions of their co-trustees. However, if you fail to prevent a co-trustee from breaching the trust—or turn a blind eye—you could still be held responsible.

Courts can sometimes excuse trustees from liability if they acted honestly, reasonably, and in good faith.

Am I liable for financial losses to the Trust?

Not usually. Most modern trust deeds include a clause stating that trustees are not liable for losses to the trust fund unless those losses result from their own negligence or fraud.

Need advice about being a Trustee?

If you’ve recently been appointed as a trustee and want to understand your duties—or you’re concerned about your responsibilities—our specialist trust solicitors are here to help. Contact us today for clear, practical legal advice tailored to your situation.

Exchange and completion: Essential guide for home buyers and sellers

Posted on 7 March 202525 March 2025 by Sarah O'Sullivan

Buying or selling a house can be an exciting process but we understand there is a great deal of terminology involved which can be difficult to get to grips with.

Two such terms are ‘exchange of contracts’ and ‘completion’. Here is an explanation of precisely what these terms mean and answers to some commonly asked questions:

When buying a house, do you exchange or complete first?

Completion, as the name suggests, is the final stage of the conveyancing process. It is the day on which the purchase price is paid to the seller, and the buyer can collect the keys to their new property.

The exchange of contracts happens before completion.

What does ‘exchange of contracts’ mean?

The exchange of contracts is the point at which the sale or purchase becomes legally binding between the parties. It commits the buyer to purchase the property and the seller to sell it for the agreed price on the agreed completion date.

Can a buyer pull out between exchange and completion?

After an exchange of contracts, if a buyer pulls out of the purchase and fails to complete on the agreed completion day, the buyer will be in breach of contract. The contract will contain provisions for the buyer to forfeit, i.e., lose, their deposit to the seller, and other provisions for compensation for losses.

Before the exchange of contracts, either party may withdraw from the transaction without any legal consequences because no contract has been made between the buyer and the seller. There are a number of reasons why a party might withdraw. The conveyancing process in England and Wales allows buyers the opportunity to make a full investigation of the property before making a legal commitment to buy it.

Do I need to be present during the exchange of contracts?

The exchange of contracts is an entirely remote process. Your solicitor will have asked you to sign and return a copy of the contract in advance. This signed copy is held on file until the exchange of contracts takes place. You will need to be contactable either by phone or email on the day of exchange as your solicitor will request your express authority to proceed with exchange of contracts on your behalf, this makes sure you have not changed your mind and is an opportunity for any last-minute queries to be dealt with prior to committing you to the sale/purchase.

How does my solicitor prepare for the exchange of contracts?

If you are selling a property, your solicitor will prepare to exchange contracts by making arrangements for you to sign and return a copy of the contract.

If you are buying a property, your solicitor will need to have completed the following steps before proceeding with exchange of contracts:

Made arrangements for the buyer to sign and return the contract
Received deposit funds from the buyer (usually 10% of the purchase price)
Complete land registry checks to ensure nothing has changed on the title since it was provided by the seller

Whether you are selling or buying or both, your solicitor will contact you to request your express authority to proceed with exchange of contracts that day, we always want to make sure you have not changed your mind and are able to book your removals company before committing you to a contract.

How does my solicitor exchange contracts?

Exchange of contracts involves a telephone call with the solicitor representing the other party. The solicitors will read through the details of the contract to ensure the terms in each contract are exactly the same.

When the solicitors are satisfied that both contracts are identical, they will agree to date the contract which brings the contract into existence.

I’m in a chain; can we exchange contracts whenever we are ready?

If you are selling your current home and moving into a new one, you are part of a chain of transactions and exchange of contracts must align with all other parties in the chain, who must also agree the all-important completion date.

This can take some coordination and estate agents are well placed to bring the chain to an agreement that suits everyone involved.

Once the dates are agreed and all parties ready to exchange, the solicitors will ‘release’ the contract to the solicitor above them. The next solicitor in the chain does the same and this process is repeated until the top of the chain is reached and the top contract is exchanged. Confirmation is then communicated back down through the chain by each solicitor until the solicitor at the bottom is reached.

What happens between exchange and completion?

Between exchange and completion, the final administrative tasks are completed, such as requesting estate agent invoices and mortgage funds in readiness for completion.

What is a normal gap between exchange and completion?

Most lenders require 5 working days’ notice to arrange payment of mortgage funds, this usually determines the gap between exchange and completion however sometimes parties agree on a longer gap. Most clients are comfortable with a week before completion as it allows time to make final preparations for completion day such as notifying utility companies and arranging to forward post.

A shorter gap can also be agreed in certain circumstances. Your solicitor will check how much time is required between exchange and completion and ensure sufficient time will be allowed before proceeding with exchange of contracts.

It is also possible to exchange and complete on the same day if needed, this is known as ‘simultaneous exchange and completion’. This requires planning in advance and is usually only possible if there is no wider chain involved.

What does my solicitor do on completion day?

If you are selling a property, your solicitor waits to receive the purchase funds from the buyer’s solicitor. Once received, they will contact you to confirm this and check whether you are ready for the estate agent to release the keys to the buyer. The solicitor will also arrange to repay any outstanding mortgage on the property.

If you are buying a property, your solicitor will send the purchase monies to the seller’s solicitor and await confirmation of receipt. Once confirmed, they will contact you to confirm you can collect the keys from the estate agent. In the background, they will then arrange to submit your stamp duty return to HMRC and payment of the stamp duty owed. They will then attend to registration of your ownership of the property at HM Land Registry.

Can I do building work between exchange and completion?

Between exchange and completion the property still belongs to the seller. It is possible to do building work between exchange and completion but it must be agreed with the seller in advance via a ‘Key Undertaking’. This is an agreement to allow you access to the property to carry out specific pre-agreed works. It is usually agreed that you must return the keys to the estate agent at the end of each day.

Can things go wrong between exchange and completion?

It is very rare that things go wrong between exchange and completion but it can happen and certain things are beyond your solicitor’s control. For example, banking systems can go down which can affect the transfer of completion funds between solicitors. A key undertaking is sometimes agreed in such situations to allow buyers into their new properties before completion is finalised.

Call us for a conveyancing quote

When you’re ready to move, call us for a conveyancing quote. We work on fixed fees so you have additional peace of mind.