Tag Archives: Scottish law

Dementia and Powers of Attorney in Scotland

 


Dementia comes in all shapes and sizes and can vary from time to time but there is a touchstone so far as Powers of Attorney (PoA) are concerned.

A diagnosis of dementia does not infer that capacity to make a PoA has been lost. When told that someone has lost capacity, the next question should always be – capacity to do what? Even with severe dementia, the capacity to go to the shops and contract to buy your groceries may never be lost. Perhaps entering into a contract for a complex investment trying to be sold by a pushy salesman may be a different matter, however!

What a diagnosis of dementia may well be, however, is a wake-up call to make your PoA as soon as possible, so don’t delay. If there is doubt, ask your doctor beforehand but, if there is no doubt, just go ahead and make one straight away.

The swiftest way to make one in Scotland is at MyScottishAttorney and, as well as lots of free information about PoA’s, there are videos which give the background, there.

You can make one for yourself or for your parents. It is available in your inbox as soon as you have paid and, although you will need a trip to the doctor to have a capacity certificate signed, it is done and dusted without the usual need of, at least, two visits to or by a Solicitor and at a lot less cost.

Bruce de Wert
Scottish Solicitor

 

 

 

 

 

 

 

 

Bruce is a Solicitor who, as Director of the company behind MyScottishAttorney, makes the complicated simple and you can make  a Scottish Will or a Scottish Power of Attorney for yourself or your loved one.

Making a Will by text message in Scotland?

Texting a Will whilst having your coffee and biscuits.

The suggestion is that you could, in the future, make a will by texting, voicemail and email.

It is, just now, England only but, to my mind, not a great idea. I am all for easing Will-making – after all I own MyScottishWill which allows you to make a valid Will at home – but I am not keen on the relaxing of the signing and witnessing arrangements. There is something about that ritual which means that people do not make hasty and unwise decisions.

It also makes it less easy for bad people to strong arm the elderly and vulnerable.  It doesn’t need much imagination  to see what could happen. It happens now with all the checks and balances.

Leaving it to a judge to decide whether it is a valid will is also questionable. In England, there is a whole legal industry of challenging Wills because the law is uncertain as to what you must leave your children. That is not true in Scotland where court fights are rare. The law should be simple and certain. If it has to go to a judge that is potentially very costly and not, I suspect, something that the deceased would have desired.

The making a Will and the reading of it, after a death, is an emotional experience. Let’s not make it harder.

You can make one immediately –  just go to  MyScottishWill

Bruce de Wert
Scottish Solicitor

 

 

Lesson for Scots from legal fight over Will

 

 

 

 

 

 

 

 

 

Heather Illot – Picture PA

Will dispute fought out in Supreme Court

I think this story is quite tragic as it deals with a very sad family rift but there is a clear lesson involved.

If you want your wishes followed after your death, you must make a Will.

The story is about English law and Scots Law would have dealt with it differently but the essential fact is that the daughter, in this case, felt that she was entitled to a significant share in her mother’s wealth. Had her mother not made a Will, she would have got it a lot more than the court awarded.

So the moral of the story is, if you are the parent make a Will or what you want may not happen and, if you are the child, don’t fall out with your Mum and Dad!

One very easy, private and inexpensive way to make your Will in Scotland is at MyScottishWill

Bruce de Wert

 

 

 

 

 

 

 

 

 

 

 

Beat the Scottish Power of Attorney registration delays

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 [email protected] 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

 

Are wills made outside Scotland valid in Scotland?

Bruce de Wert

Bruce de Wert

Wow!  That is a difficult question.  The answer is that it depends!

You know, sometimes things are just complicated. This is one of those occasions.

It depends upon: –

Where the will was made.

When the will was made.

What the circumstances of the will maker were, when the will was made.

What the present intentions of the will maker are, at the moment or, if dead, his or her intentions at the date of death.

If you look at my posts, you will see that, generally, I try to give a cogent answer to the question but this one is far too complicated.

The consequences of getting it wrong are too huge to contemplate trying to guide  you.

This is one occasion where I advise you to obtain legal advice on your particular circumstances or the particular circumstances of the Will maker, before  making decisions based on the Will.

Sorry about that!

Bruce de Wert

 

As well as my online Wills service at www.myscottishwill.co.uk, I am private practice  in Wick  (01955 606060) in the north of Scotland and in Duns  01361 883222 in the south of Scotland.  As well as standard physical appointments, I can take telephone or Skype appointments. Please phone for an appointment.

 

 

 

 

Claims after divorce in Scotland

Bruce de Wert cropped.and websize. with border

I have been asked by a lady whether she will have a claim on her ex-husband’s pension, after his death.

The circumstances were that she separated and there was no separation agreement. They subsequently divorced. There was a house which was jointly owned but her then husband was contributing towards the mortgage but she, subsequently, bought him out of that, after the divorce.

Her ex-husband has died and she wonders whether she would have a claim on the pension.

In Scotland, at least, the answer is a resounding no!

This question reveals 2 important issues about separation and divorce.

The first is that divorce is final. If you want to make a claim, negotiate a separation agreement (the cheapest method) or enter into a separation or divorce action. After the divorce, it is too late. I have had some who were desperate to remarry and I’ve had my work cut out persuading them that disclosing that will put them in a very weak position. Don’t be tempted!

The second is that some things survive a divorce. In this particular case, the pair owned a house together. That ownership is entirely separate from any issues of marriage. An old favourite were endowment policies which were also jointly owned assets. So, be careful that you do not leave any stone unturned when you are organising a separation agreement!

Bruce de Wert

If you have children under 16, I offer a swift and inexpensive divorce at  www.MyScottishDivorce.co.uk

Why is a Scottish separation agreement a good thing.

bruceI have just been asked by a chap whether a letter from a solicitor inviting him to enter into negotiations for a separation agreement should be ignored as he wishes to use my online divorce service to save money.

My answer has been that the opportunity to negotiate a separation agreement is to be grasped with both hands!

If the marriage is over, you have 2 options, negotiate or be sued.

If my correspondent has a very deep pocket then he might take the option of being sued but it could be an expensive one. Negotiation will, virtually always, be cheaper. I am not saying it will be cheap but, as soon as court action is initiated, it has a momentum all of it’s own and will eat up your funds.

Even worse for the chap concerned, his wife has legal aid. If he has any kind of earned income at all, he will not get legal aid and the whole costs of the process will fall on him with no chance of recovering anything even if he is “successful”.

As regards his wish to use my online service, it is designed to save money and time but only works after everything has been agreed with regard to money and children.

Anyone in this position should find a specialist solicitor and there is an easy way to locate one in Scotland using the Law Society of Scotland Find a Solicitor Service. Click the drop-down list to “find a solicitor by specialism” and then put in your own postcode. The Specialism that you are looking for is “family law”. This will bring up a list of solicitors who are recognised as being specialists.

Once everything is agreed, whether you have kids or not, I can offer a service.

The main service for those with children under 16 is at www.myscottishdivorce.co.uk

For those with no children under 16  it can be found at http://www.myscottishdivorce.co.uk/nochildrenunder16.php

Bruce de Wert

Married abroad? Want a divorce in Scotland?

I have been asked a number of times whether it is possible to divorce in Scotland, having been married abroad.

Take for instance this real life question: –

I got married in Newfoundland, Canada and have been legally seperated from my husband since 1999. I now live in Scotland! Can I get a divorce here without having to contact him? I don’t want money and our child is 22! Can you do the paperwork and if so at what cost? I don’t know where he lives anymore!

The answer depends upon whether you now live in Scotland, how long you have lived here and, sometimes, whether you intend to remain in Scotland for the rest of your life.

So, if you have lived here, permanently, for one year or you have lived here for 6 months and intend to remain here for the rest of your life, you can raise your action here.

This last question is a question of “domicile”.

The issue of the whereabouts of the husband not being known is dealt with by the courts and it is to be hoped that he should find out.

It is perfectly possible for the questioner to raise the action herself but for those who do not want to do that, I offer a fixed price service (including court fees) for £495 including VAT at http://www.myscottishdivorce.co.uk/nochildrenunder16.php

The only caveat is that if the husband does find out and wants to defend it (he may want some money even if she does not), no divorce can be granted until that issue is dealt with so, sadly, my fixed-price offer ends at that point! Of course, the “legal separation” to which she refers may cover that point.

 

Bruce de Wert

www.georgesons.co.uk

 

 

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