Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
Is this a company that peddles asset protection trusts and the like who called upon you at home please?
What was the purpose of the trust?
To place 2 properties into trust to avoid death duties and nursing home fees shoul I become ill
To place 2 properties into trust fund to avoid taxes
I presume this firm was not a solicitor firm? Did they give you a notice of cancellation rights in respect of your right to cancel the agreement if meeting you at home?
Are you continuing to live in either of the properties as or main home? If so are you paying rent?
Yes -We are living in one of the properties and not paying rent
Thanks. There are huge issues with these unregulated firms peddling these trusts as there are many pitfalls which are frequently not explained properly. For example, in respect of care fees, or the council need do is show that a significant or principal reason for placing property into trust was to avoid care fees and the companies sales literature does all the hard work for the council in showing such evidence frequently and potentially entirely removes the effectiveness of trust in this respect. In addition, in respect of avoiding inheritance tax, unless paying rent at market rate for the property to the trust, then rules known as reservation of benefit rules come into play and disregard the gift to the trust for the purposes of inheritance tax and still treat the property as being owned by you when it comes to calculating the same. While some companies do explain these issues, in my experience, frequently such pitfalls-and there are those-are not explain properly nor are the tax consequences such as capital gains tax issues and so on.
In terms of where this leaves you...
If the service was offered to you in your home the position is governed by the Doorstep Selling Regulations under which you are entitled to 7 days cooling off period starting on the day you were provided with notice of a right to cancel.
Do you recall if you were given such a right to cancel? It should have contained the following information:-The identity of the trader including any trading name -The date it was issued -The trader’s reference number, code or other details to enable the contract to be identified -A statement that the consumer has a right to cancel the contract if he wishes and that this right can be exercised by delivering, or sending (including by electronic mail) a cancellation notice to the person mentioned in the next paragraph at any time within the period of 7 days starting with the day of receipt of a notice in writing of the right to cancel the contract -The name and address, (including any electronic mail address as well as the postal address), of a person to whom a cancellation notice may be given -A statement that notice of cancellation is deemed to be served as soon as it is posted or sent to a trader or in the case of an electronic communication from the day it is sent to the trader -A cancellation form in the prescribed form provided as a detachable slip and completed by or on behalf of the trader in accordance with the notes (see section 8) -If applicable an indication that the consumer may have to pay for the goods or services supplied if the contract has begun with his written agreement before the end of the cooling off period -A statement that the consumer can use the cancellation form provided if he wishes
would you like to continue?
Please let me know if you would like to continue when convenient.
Do you think we might be able to get our money back as it was mis-sold? also we paid by credit card
Potentially but there may be an easier way. Could you tell me if you were given a notice advising you of your rights to cancel including the above information at the time you entered the agreement?
Yes we were
Thanks and the notice so far as you know contained the above information?
if the notice you were provided with did include the required above information than the company would appear to satisfied their obligations. It is worth examining the notice given in detail because of any of the information that is required to be in it, as above, is not, then the company is in breach of its obligations and no contract exists between you and you can demand a full refund.
If you find that the notices compliant however then you are limited to a claim against the company on the grounds of negligence and or breach of contract on the basis of potentially negligent advice or failure to provide appropriate advice as to the effect of such trusts and under which contract under the Supply of goods and services act for failure to supply adequate and appropriate quality of service
my overriding concern is that you are properly advised before you take any further action as playing about with properties and trusts is an area fraught with pitfalls and opportunities for costly mistakes if proper advice is not obtained and they can be potential capital gains tax implications as well as income tax issues property is rented out not to mention inheritance tax and so on. In addition, in order to fully understand in the areas of negatives advice that potentially has been given all advice which has failed to be given, you may need to consider appointing a properly qualified solicitor to advise you fully on the trusts that have been entered into and what appropriate measures should be considered to rectify any areas which are not ideal and indeed what trusts you may wish to consider going forward. If the solicitor identifies areas of negligence or failure to provide advice, you could consider using this as a basis to seek a claim against the company in question for breach of contract negligence as above. If you pay by credit card, you have the reassurance of section 75 of the consumer credit act which allows you to jointly pursue your credit card company in the event that the trust company itself is in financial difficulty of the time
Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?
No thank yoj
No thank you,