Divorce and your Will in Scotland

Will image

It is surprisingly common that the ex is left something in the Will. Even more startling is that people do not change their will, at all, after a divorce.

Up until the end of 2016, not changing your Will was an option. Divorce had no effect. Not any more! Now if you want your ex to benefit, you have to specify that you have taken the new law into account or the law will treat your ex as if he or she had died before you. This means a new Will or, at least, a change to your existing Will.

That’s advice but  why would someone not change their Will after divorce?

Life isn’t black and white. You can’t live with them but does that mean you lose all respect and affection? Not if my experience of advising clients is anything to go by!

I think there are 2 reasons.

The first is pragmatic and practical. This is a person with whom you have shared a life and, quite possibly, children. Particularly, if the children are young, the ex might well be the appropriate person to care for the them and, unless you can afford a trust, leaving something to your ex may be a reasonable way to ensure that your children benefit. By this I mean that, in Wills, it is all about the blood. My experience is that most of the time Wills only mention the family. If you believe that your ex will leave everything to the children, the thought process is that by leaving something to the ex it will eventually go to the kids. Only someone who knows another intimately can know that person, so you cannot say it is wrong.

The second is some lingering affection and respect and wish to ensure that, if you are out of the picture, the ex should not end up in poverty. Just because you cannot live with them does not mean they are bad people. This reason is especially so if there are no children to leave your estate to.

Anyway, if you are in this category, change your Will now!

Bruce de Wert cropped.and websize

 

I am a solicitor in private practice and Managing Director and owner of online websites where you can make Wills, Powers of attorney and even have a divorce.  I have appeared on the BBC and STV speaking about legal matters on a number of occasions.

 

Bruce de Wert

Caithness and Sutherland Property – what happened in 2016 and the prospects for 2017.

Bruce de Wert

Bruce de Wert

Let us start with Brexit. I am very happy to report that, despite the doomsayers, the public shrugged it off!

We were delighted to find that nobody in the buying and selling market saw it as an issue. And this despite the politicians getting into (and continuing in) a lather.

Indeed, following upon the usual summer holiday lull, the market took off again and we have seen no diminution in interest in buying and selling, since.

Our own statistics indicate that sales remained steady despite the fact that Buy to Let sales dropped off a cliff following the Scottish Government imposing a 3% tax on top of the normal Stamp Duty for anyone buying a second home.

The objective was to discourage landlords from buying property and to encourage first-time buyers. It has certainly succeeded in discouraging landlords but it has failed, in this area anyway, in encouraging first-time buyers. Prices in Caithness and Sutherland are low and first-time buyers ignore the typical letting property and buy something bigger!

Having said that, generally, the lower price brackets have done well. In the early part of 2016, there was not much selling over £150,000 but, more recently, a good number of the higher priced properties have sold, as have some properties which had been “stuck” since the crash. Very welcome news!

Whilst the North ploughs its own housing furrow and national statistics should be treated with caution, RICS, the Surveyors body, in their latest report issued this month, indicate that there have been “small increases in new buyer enquiries” and that they anticipate “a gradual rise in activity over the months to come”.
Gail Hunter, director of RICS in Scotland said: – “In Scotland, prices looks set to remain firm in part caused by the lack of stock across the country”.

There is some opinion to the contrary. Talking about the whole UK market, the Halifax in October indicated that “Optimism in the housing market has taken a fall in recent months, with many people now expecting a general slowdown in the market and no, or little, change in house prices over the coming year. This sentiment is consistent with recent findings from the Halifax House Price Index which show that prices are still growing, but to a lesser extent.”

All I can say is that there is no sign of a slowdown here with continued activity right up to Xmas.

In Highland, the Registers of Scotland report that values started this year with an average price of £148,265 which, by October, had risen to £155,163.
Registers of Scotland’s director of commercial services, Kenny Crawford said: “The average price of a residential property in Scotland continues to show steady growth, with month-on-month increases in every month this year apart from February and August. This is a significant change from last year when there were decreases month-on-month in six out of the 12 months. Average prices have been steadily increasing on a year-on-year basis, too, with only one drop in average price being recorded in the past three years.”

It is always worthwhile to look at long-term trends. Sheenagh Adams, Keeper of the Registers of Scotland recently said: – “It’s been a mixed decade in the Scottish property market. Over the 10 years between 2006 and 2016, prices rose by nearly 20 per cent, whilst the volume of sales fell by a third, dominated by the dramatic fall in 2008.”

I remember, in late 2011, reporting to you that prices in Scotland since the crash had fallen by 16% and, in the North, rather more. As a result, my advice to potential sellers was stark – do not sell!

Happily, the picture has changed entirely.

We, in the North, tend not to be affected by the peaks and troughs that occur further South. We are not immune (as was seen in 2008) but, generally, the market here has its own pace and is, currently, on an upward trend.

If there is going to be the much heralded but yet unseen negative effect of Brexit (of which I have considerable doubts), I suspect that it will be some time away.

Certainly, for the past three years, we have had nothing but good news and, for 2017, my advice to potential sellers and buyers in Caithness and Sutherland is – go for it!

Anyone who would like to comment on this article or for this column to touch on any particular matter, please email me on bruce.de.wert@georgesons.co.uk.

Bruce de Wert has over 25 years of experience of Law and Estate Agency and is the Principal Solicitor at Georgesons and a Director at Georgesons Estate Agents

 

Making an online Will with MyScottishWill- how does it work?

MSA how does it work

See other videos like this at MyScottishWill

 Video narrative

Making an online will – how does it work?

 

The concept is quite simple. What I have done is set up the website so that it asks you a series of questions and all you have to do is answer those questions.

These are simple questions, for instance, your name and address and who you want benefit. You are guided through the system by these questions and at the end of the process you have a valid Will.

What you must understand is that you do not pay a penny until you are quite satisfied.

Having answered all the questions you are, then, presented out with am a summary of what it is that you want in your Will and only one you are completely satisfied our about that you press the button and that then you are asked to pay.

You can go back, you can go away and have a cup of coffee, you can go away for a week and come back and finish it.

Only when you are completely satisfied are you asked to pay.

I have been providing this service online for a few years now and have hundreds of happy customers and the reason I think that there are happy is because it is easy, it is inexpensive and it is private.

See other videos like this at MyScottishWill

Bruce de Wert

 

Online Power of Attorney – Can I make it for Mum and Dad? Video blog

MSA make it for Mum and Dad

See other videos like this at MyScottishAttorney

Can I make a Power of Attorney for my Mum and Dad?

Video narrative

One thing I should say, when I am talking about “you” making the Power of Attorney on MyScottishAttorney, is that, of course, I know that many people are not, actually, making the Power for themselves.

I know it is, actually, the son or the daughter who is completing forms.

I just want to reassure you that that happens all the time.

I have been providing this service online for a few years now and have hundreds of happy customers and the reason I think that there are happy is because it is easy, it is inexpensive and it is private.

See other videos like this at MyScottishAttorney

Bruce de Wert

Bitter family feud over Mum’s houses and her Will

Children can be wicked and I thought my readers may be interested in such a case which has been recently decided in the Court of Session

Lord_Uist

Lord Uist

It involved a vulnerable 80-year-old Mum of three boys, Mrs Audrey Matossian, who was “persuaded” to hand over her three valuable houses to 2 of the brothers. The judge in the case, Lord Uist, said that these sons had a “dominant influence” and “there was an absence of independent advice and assistance.”

Two of the brothers had organised their own Solicitor (that she did not know) and drove their Mum to one of their houses where she met him. They had primed the Solicitor that their mother wanted to hand over the properties and he had prepared the documents ready for her to sign. She did, indeed, sign but, a few days later, she had her own Solicitor draw up a will appointing the third brother as Executor. As the judge said, that showed that she had no real intention of transferring the three properties to the brothers.

Clearly, the two boys cared nothing for their Mum because she ended up with no houses and a large Capital Gains Tax bill.

When Mum died, the executor raised an action asking the judge to “reduce” (reverse) those property transfers and he had very little hesitation in doing so, saying, in legal language, that she was vulnerable and they took advantage of her.

He was, in fact, very critical of all of the brothers who he said had subjected the court to the “undignified spectacle of a family feud”. None of them had backed down and they all wanted their day in court, he said.

Incidentally, the two brothers had the cheek to claim that, even if the judge were to reverse the transfers, they were entitled to compensation for the improvements that they had made to the house. The judge dismissed that, out of hand, saying that they should not gain from their bad intentions.

It goes to show that, sometimes, as Executor, it is worthwhile investigating the circumstances of an earlier transfer if the deceased was vulnerable at the time.

You can read the full judgement as well as a legal news report.

Bruce de Wert cropped.and websizeBruce de Wert

I am a Scottish Solicitor in private practice with over 25 years of experience and have 4 offices at Georgesons and Smiths Grant. As well as the standard legal business model, I also offer Online Divorces and, by a separate limited company, OnlineWills and Powers of Attorney.

If you wish to consult me, please e-mail me at bruce.de.wert@georgesons.co.uk in the first instance.

Challenging Wills in Scotland – Part 1 – the basics


Challenging the will In this series of blogs, I shall be dealing with the main issues that I have experienced in dealing with claims on Estates.

That experience is from both sides, acting, on various occasions for the claimant and, on others, for the Executor.

I shall write, later, on the situation where there is no Will at all – or, at least, not one that can be found.

Looking at the big picture, when compared to England, there are few legal challenges to Wills in Scotland. This is because the law lays down strict rules whereby children and spouses, disappointed by the provision (or lack of it) in the Will can claim specific amounts or percentages of the estate of a deceased whereas, in England, the law is judge-made and each case is judged on it’s merits.

That is not to say that the manner of identifying the specific amount is simple. It is apparently so but subject to a number of complex quirks so, sometimes, it is worth challenging what is offered or, at least, having the calculation checked.

Co-habitees, incidentally, are in a special situation with their own rules and I intend to write about that, also.

Most of the cases I have dealt with relate to such claims but there are others where the challenge is much more fundamental and relates to the validity of the Will itself or, where there is no doubt as to its validity, it’s interpretation.

On other occasions, there are challenges to the actions of the Executor in implementing (or failing to implement) the Will of the deceased. Sadly, not everyone acts as they ought and, whilst most challenges succeed because of ignorance of the law (even from some Solicitors as it is complex and specialised), there are dishonest executors out there and even, very sadly (but, thankfully,  very rarely), dishonest Solicitors that need to be brought to book.

More soon.

Bruce de Wert cropped.and websizeBruce de Wert

I am a Scottish Solicitor in private practice with over 25 years of experience and have 4 offices at Georgesons and Smiths Grant. As well as the standard legal business model, I also offer Online Divorces and, by a separate limited company, Online Wills and Powers of Attorney.

If you wish to consult me, please e-mail me at bruce.de.wert@georgesons.co.uk in the first instance.

Inexpensive and easy Scottish separation agreements. Can it be done? Help needed.

 

Bruce de Wert

Bruce de Wert

Let us say that you have “separated” and everything is going swimmingly. You have, informally, agreed any current issues. Why on earth would you want to rock the boat? What is the point in making a formal agreement?

I feel like a party-pooper when I pose these questions….

  • Who is to say that whatever informal agreements that you have made will last?
  • Even if they did, what would happen if you were to die prematurely?
  • Where do kids fit in?
  • What if you want a divorce?
  • What about the future?
  • It is expensive to see a lawyer but will it cost you more not to see a lawyer?

You are where you are and it is not easy. The current way out is for both parties to see separate lawyers. This is time consuming, emotionally draining and, with two lawyers involved, usually, expensive.

It is not that the lawyers cause this but the very step of seeing separate lawyers focuses on the conflicts where there may well be a great deal of common ground.

I have an idea whereby the parties could, with some legal guidance, set out their common ground in a draft separation agreement. This would leave only those areas where there is real disagreement to be dealt with by lawyers. That would save money and stress.

In certain cases you could end up with a whole agreement although, as a lawyer, I would feel uneasy about it not being checked over for the stuff the things you may have forgotten about or are yet to crop up.

It is my goal to make something complex both easy and inexpensive, just as with MyScottishDivorce, MyScottishWill and MyScottishAttorney.

It can be done but I need a little help.

In the comments box, below, please let me have your thoughts about but not limited to:-

  • Would it help you?
  • Have you been through this process? How would this have made it easier?
  • What would make it easy?
  • What would you want from such a system?
  • What would it look like?
  • What would it cost?
  • Would you consider an agreement that was based upon legal principles that had not been checked, by lawyers, for your particular circumstances.

I shall be very grateful to all contributors and I look forward to the discussion.

Bruce de Wert

 

A child’s Will disinheritance dilemma – to claim or not claim…

Bruce de Wert

Bruce de Wert

Sometimes, I see (or I am asked to write) Wills where the parent has fallen out with a child (or vice versa) and, as a result, decided to leave them something but very little compared to the others.

The child is then faced with a dilemma. Should they accept what is in the will or should they claim “legal rights“?

Legal rights can only be money so, if the child has been left some family papers or Grandad’s medals, this can cause a dilemma. Should they take the money or the emotion-laden legacy?

They cannot have both. They must opt for one or the other.

Unfair? Perhaps but the benefit that Scotland has is that the law is clear. In England, there is a whole legal industry dedicated to challenging Wills. If there is financial pain, it is, mercifully, brief in that it does not rumble on in court for years. The emotional pain can remain, of course.

If you find yourself in this situation and wish consult me, as a  Solicitor, please telephone 01955 606060 or 01361  883222, speak to my Secretary  and a telephone appointment will be made for you.

 

Why making a Will or Power of Attorney is an unselfish act

Bruce de Wert

Bruce de Wert

In the same way that you don’t buy life insurance to benefit yourself, making a Will and Power of Attorney is an unselfish act that benefits your family.

Sadly, if you do not make a Will then you can leave a mess. That tends to be an emotional mess whilst the family sorts itself out or disputes arise but if you do not make a Power of Attorney it can also be an expensive mess as court action may well be required to make arrangements for your care.

Making them does not take long and they are file and forget. Once you have done it, you can breathe a sigh of relief and relax knowing that you have done the best you can for your family.

You can make one immediately –  just go to MyScottishWill and MyScottishAttorney or, should you wish to consult me, as a  Solicitor, please telephone 01955 606060  in Caithness and Sutherland or 01361  883222 for Duns, speak to my Secretary  and a telephone appointment will be made for you.

 

 

 

 

Disinherited daughter story does not apply in Scotland

Bruce de Wert cropped.and websizeI have just read the story, this morning, about the daughter who was disinherited and was able to claim on her mother’s estate. What is not made clear is that this only applies in England and Wales (not sure about Northern Ireland).

Scots can rest easy. They can still disinherit their children if they want to without their dirty washing being hung out for all to see in a courtroom.

Well, of course, it is never that easy. The main difference in Scotland is that whilst children have a claim (known as legal rights), this is expressed as a percentage of your estate and excludes any houses or land that you own. This very rarely, if at all, comes to court because it is very clear to everybody exactly what the entitlement is.

Even then, as I tell my clients, if you are keen to leave them as little as possible, turn your cash into property or give it away. That minimises the claim. On a number of occasions, my clients done just that.

Bruce de Wert

 

I am a solicitor in private practice both in the North of Scotland and in the Borders. I also have online websites where you can make Wills, Powers of attorney and even have a divorce.  I have appeared on the BBC and STV speaking about legal matters on a number of occasions.

 

 

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