Archive for April, 2015

IS DIVORCE FINAL?

Friday, April 3rd, 2015

Seperation
There has been considerable media coverage recently concerning the decision in the case of Wyatt v. Vince by the Supreme Court, the highest Civil Court in the United Kingdom, writes Graham A. Garden.

Briefly stated, this is a case where a wife, some 22 years after her divorce, sought an award of £1,900,000, against her former husband, who is now a multi millionaire.  What was not made clear in the reports was, firstly, that the wife had not been awarded this sum but had simply been granted the right to seek a claim for financial provision, and secondly, and more importantly for those of us who live and work in Scotland, this decision has no application in Scotland. The Law in England, as I understand it from the terms of the Matrimonial Causes Act 1973, is that notwithstanding that the parties were divorced in 1992, it was open to the wife to initiate an application for financial provision in 2011 or indeed at any time.  The principal ground in support of her application was her former husband’s alleged failure to support the children of the marriage during the intervening period.   The action had been raised initially in a lower Court and it was due to the lower Courts decision to “strike out” her application that she appealed to the Supreme Court.

The five Judges sitting in the Supreme Court decided that the wife’s appeal against the “strike out” should succeed and her application should proceed.   Whilst they acknowledged that under the law of England there is no time limit for seeking orders for financial provision or property adjustment for the benefit of a spouse following divorce, public policy is “hostile to forensic delay”.   The Judges noted and acknowledged that the wife is currently seeking an award of £1,900,000 but commented that even at this early stage they concluded that an award approaching that size was out of the question.

So what is the possibility of a Court in Scotland being faced with a similar claim?    I have to say that it is unlikely in the extreme.   Financial provision in Scottish divorces is dealt with in terms of the Family Law (Scotland) Act, 1995, as amended.   Section 12 of that Act states that an order for payment of a capital sum, transfer of property or indeed for a Periodical Allowance i.e. regular payments for a fixed period of time or until the occurrence of a particular event must be made either on granting of a Decree of Divorce or within such period as the Court on granting the Decree of Divorce may specify.  This means that effectively after the granting of Decree of Divorce the rights to claim any financial award are extremely limited.   There is specific provision in Section 13 of the Act for one party to seek a Periodical Allowance after Decree of Divorce where no such order has been made previously and since the date of decree there has been a change of circumstances.  I suspect that any such application will have to be made reasonably soon after date the Decree of Divorce and that there would have to have been a significant change in the parties circumstances to justify it before there is any chance of success.

If you wish to discuss this article or any matter which flows from it please do not hesitate to contact Graham A. Garden (01569 763555) – g.garden@jgcollie.co.uk or any of the other members of the Court team, namely Duncan Love (01224 581581) – d.love@jgcollie.co.uk, Susan Waters (01224 581581) – s.waters@jgcollie.co.uk or Jenni Sutherland (01224 581581) – j.sutherland@jgcollie.co.uk.

Relieve the stress of buying a home

Friday, April 3rd, 2015

For sale
A recent poll carried out by EstatesDirect.com concluded that,along with divorce and the death of a close relative, buying a property is one of the most stressful experiences in modern life.

So why is buying a home, anecdotally, one of the most stressful experiences we encounter?

The conveyancing process has, believe it or not, been significantly simplified in the last quarter of a century. For example, the Land Register was introduced in 1979, which resulted in the title deeds being contained in a single booklet called the Land Certificate, rather than severaldeeds which, in some cases, could date back to the 17th Century.

The Offer for a property itself now refers to the Combined Standard Clauses, which is a nine page document designed to simplify the missives, or commonly, the contract, for both solicitors and clients. Once an offer has been accepted, certain information must be exhibited to the purchaser’s solicitor including, most importantly, the title deeds and this is where problems might come to the buying solicitors attention.

Buying a home is often the single most important financial transaction a person will make in their life.  It is therefore imperative that your solicitor ensures that you obtain a good title. A common complaint is that the language used is in “legalese” and confusing.

A solicitor must scrutinise the deeds in detail and ensure that there are no onerous obligations affecting the property.  It is of course our professional duty to ensure the client is aware of any issues, so that they, and any lender, can make an informed decision as to whether or not to proceed with the transaction.

The solicitor/client relationship has changed over the years. Thanks to the advance of technology, there are far more demands on solicitors to keep their clients fully informed regarding all aspects of their transaction. This is a double edged sword because although the client is more involved, they are also more aware of the problems that inevitably arise; this is what may result in ’stress’.  Whilst we, as solicitors, are often confident there is a resolution to the problem, to the client it can seem like a disaster, and often their anticipation is thatthe deal is going to fall through.

The key to a successful relationship and a stress free transaction is for any issues to be resolved quickly and efficiently given the impending date of entry.

Find a solicitor you can trust and let them take the stress away from you and allow you to concentrate on the more important matters – like furnishing and decorating your new home.

For further information on the property sale and purchase procedure, trust Mary Birse of our Stonehaven branch, Kinnear & Falconer, and contact her on 01569 763555 or by email at m.birse@jgcollie.co.uk.

Intestacy and The Importance of Making a Will

Friday, April 3rd, 2015

Will

If a person dies without leaving a Will or a testamentary writing they are said to have died intestate, The

Prior Rights rules of intestacy can be divided into three different parts. These are Prior Rights, Legal Rights and Free Estate, otherwise known as Dead’s Part. andtheir estate will be dealt with under the rules and law governing intestacy. The deceased’s assets and personal possessions will be shared out in accordance with the law instead of the deceased’s wishes and in fact could pass to someone they hadn’t intended to benefit on their death.

Prior rights are designed to ensure that the surviving spouse’s needs are provided for. The surviving spouse or civil partner is entitled to the ownership or tenancy of any house owned or rented by the deceased at the time of death providing that they were ordinarily resident in the house. The surviving spouse or civil partner is entitled to the deceased’s interest in the house up to a maximum value of £473,000 together with an entitlement to the deceased’s share of the furniture and plenishings in the house, up to the value of £29,000.

Financial provisions are also made for the surviving spouse whereby a sum of up to £89,000 is left to the spouse/civil partner where the deceased left no children. If the deceased had children this figure is reduced to £50,000.

Legal Rights

Legal rights ensure that it is not possible to disinherit a spouse, civil partner or children. Legal rightscan be enforced against the deceased’s moveable estate once all debts, funeral expenses, administrative costs in winding up the estate and prior rights have been satisfied. It should be noted that legal rights cannot be defeated and can also apply to a deceased’s estate where the deceased left a Will.

Free Estate otherwise known as Dead’s Part

The balance once prior rights and legal rights have been satisfied, is known as the free estate or dead’s part. It may contain heritable and moveable property. The executor will look at each successive class of beneficiary and once a possible claimant entitled to the free estate is found the executor goes no further. The order of distribution is generally as follows:-

(1)    Children

(2)    Parents AND brothers or sisters (if someone survives from both classes each class takes half the estate)

(3)    Brothers or Sisters (if no parents survive)(including nephews and nieces and their descendants)

(4)    Parents (if no brothers or sisters survive)

(5)    Spouse

(6)    Uncles and Aunts (both maternal and paternal) (including cousins and descendants of cousins)

(7)    Grandparents

(8)    Grandparents’ brothers or sisters (and so on)

(9)    The Crown.

It is important to consider whether you would prefer to leave a Will to ensure that your wishes are adhered to once you are gone. There are many reasons why it is important to make a Will and these are mentioned below.

Why make a Will?

One fundamental benefit of making a Will is that you get to exercise your freedom of choice. It allows the testator (the person making the Will) to make choices about who to appoint as executors or trustees who are entrusted to deal with the administration of thetestator’s estate in accordance with their wishes as set out in the Will.

A testator can benefit from naming as many beneficiaries as they like in their Will. The testator may wish to leave a legacy of money or an item of jewellery, which if the bequest had not been specifically mentioned in the Will, it might not otherwise be given effect to under the laws of intestacy.

It is advisable that those with young children should make a Will in order to provide financial provision and protection for them. If no Will was in place children could be left in the care of any member of the family. A trust clause in your Will can provide for the appointmentof Guardians to look after your children should you die. This trust clause will also deal with the financial aspects, including money to be paid over to the Guardians to be used for every day financial support for the children.

It should be noted that once a child has attained the age of 16, they can demand, as of right, the benefit left to them under a deceased relative’s Will. This can be avoided by inserting into the trust a clause specifying which age you would like your beneficiaries to attain before they can inherit under your estate. Typically this can be the age of 18 or 21.

Another fundamental benefit of making a Will is to make provision for financial and tax planning purposes. It is advisable for those with a high valued estate, apart from considering inheritance tax planning pre-death, to make a Will to provide for the potential tax liabilities their loved ones may face on their death.

A Will can also include specific funeral directions that the testator wishes to be carried out upon their death. This can include whether the testator wishes to be buried or cremated, any other instructions relating to their funeral, and directions as to what they wish to be done with their remains.  It is becoming increasing popular for individuals to pre-pay their funeral to alleviate the burden on their loved ones. Details of pre-paid funerals can be included in their Will.

By making a Will the testator eliminates the uncertainty surrounding what is to be done once they die and in turn gives the testator peace of mind knowing their estate will be dealt with in accordance with their wishes.A Will can also relieve the stress for your loved ones at a time of grieving.

Should you wish to discuss making a Will, or perhaps making amendments to your existing Will, please contact our Philip G. Dawson(p.dawson@jgcolie.co.uk), Vivienne Bruce  (v.bruce@jgcollie.co.uk)  or Sarah McAllan (s.mcallan@jgcollie.co.uk) by email or on 01224 581581, to make an appointment.

The end of an era

Friday, April 3rd, 2015

stuart web picThe end of March saw another milestone in the history of James & George Collie – the retirement of Stuart J. T. McKay as Partnership Accountant after nearly 27 years of service.

Stuart’s retirement was marked by the Partners hosting a dinner in his honour, and separately a small gathering in the office so that the staff could wish him a fond farewell.

The Partners would like to thank Stuart for his considerable contribution to the development of, and his dedication to, the Firm over many years, and the Partners and staff wish him a happy, healthy and lengthy retirement. We are sure Stuart is looking forward to spending more time with his family, pursuing his interest in photography, and over the winter months, continuing his participation in, and enjoyment of, curling.