Keep Your Records Safe

29th November 2018 By Alireza Nurbakhsh

The High Court of Justice is a very expensive place to resolve a family dispute, as is evidenced by a recent case which pitted members of a farming family against each other: it shows beyond doubt the importance of documenting decisions and retaining the evidence of them.

The dispute was over a farm and bungalow, valued together at more than £1.5 million. The difference of opinion was simple. The farm was operated as a partnership between the farmer and his son. When the farmer died, his will left his estate to his widow. The son argued that the farm and bungalow had been transferred into the farming partnership, so they should have been dealt with in the dissolution of the partnership, not through the administration of his father’s estate.

There was no dispute that other land used by the father and son was owned by the partnership, but the family denied that the farm and bungalow, which were owned by the farmer before he took his son into partnership, had ever been partnership property. There was neither sufficient documentation nor proof of intention to agree that the assets in question had been passed into the partnership, so the judge relied on evidence that was largely based on memories of events that happened many years ago. This was critical, because such evidence is notoriously unreliable and the presence of collaborative evidence is normally a fatal flaw.

In ruling that the assets in question were not partnership assets, the judge commented that ‘the evidence of each of the Claimant and his wife and of the First Defendant was flawed. At the very least each of them had allowed their evidence to be coloured by their belief as to what the correct or just outcome should be; by their belief as to what ought to have happened; and by a feeling of grievance arising from their beliefs as to the actions or failings of the other side. I take account of the fact that the witnesses were giving evidence about matters which had taken place over a period of time and that some of the relevant events and dealings were more than thirty years ago. In those circumstances it is not surprising that some of the details were unclear and imprecise. However, I have concluded that these witnesses had lost objectivity and a sense of proportion.’

Source: Concious

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