Throughout our lives, we remember our departed loved ones. When we do, we might start to consider our own futures. We may wish for an heirloom or our home to go to a dear friend. We may want to appoint a guardian to our children, or just make things easier for our relatives when the time comes. Whatever the reason, a Will gives you the peace of mind to face the future.

There are three main benefits to having a Will: choosing your Executors, specifying to whom things should be given, and it being much cheaper than dying without having written a Will, in which case, you are ‘intestate’; having a Will means that you are ‘testate’.

Your Executors have the task of ensuring that your wishes are carried out properly in accordance with the instructions in your Will. They will administer your estate and make decisions if something unexpected happens. You can appoint whomever you wish. If you die intestate, an application will have to be made to the Sheriff Court for the appointment of an Executor; it would most likely be the closest relative who applies. Having a Will allows you to pick the best person for this sensitive position.

When you die, everything that you own is referred to as your ‘Estate’. If you die intestate, it will be divided up and go to the people specified by law, and in the obligatory proportions; there is no discretion. A Will avoids such a division and lets you choose the people to benefit from your Estate.

Having a Will is more cost effective for your Estate in comparison to dying intestate. Your family tree might need to be reviewed to ensure that everyone entitled to a proportion of your Estate has received the correct amount if you do not have a Will. As can be imagined, the legal fees can be quite high in this scenario.

Thus, you should have a Will drafted because: you can choose your Executors, you can decide how to distribute your Estate, and you can expect a saving on legal fees.

 

Contact Miller Hendry today to plan for the future by making a Will.

Leases of commercial property are now largely driven by institutional landlords favouring a full repairing and insuring (FRI) lease which originates from south of the border. A commercial lease, even in its shortest form, generally runs on for many pages covering topics including payment of costs other than rent, such as rates and buildings insurance; use and keep open obligations; maintenance and repairs; assignation and sub-letting; tenant’s works and alterations; default and termination. Commercial leases are also subject to underlying principles from the common law as well as regulation by statute. Consequently, there are hidden traps for the unwary.

One such underlying rule is known as “tacit relocation” which provides that a lease continues beyond its contractual termination date unless there is evidence of either party not intending to continue the lease. Ordinarily this is done by service of a formal notice to quit. The operation of this principle and the difficulties it can create were highlighted in a recent dispute between Rockford Trilogy Limited and NCR Limited.

NCR rented a unit in a business park in Woodhead, Motherwell from Rockford under a lease which had an expiry date of 26 March 2020. For around a year or so before the parties had been negotiating terms for a new lease. Ultimately those negotiations were unsuccessful but Rockford took NCR to court seeking payment of rent, insurance and service charge for another year on the basis that, in the absence of sufficient notice to terminate, the lease continued for another year. The court took the view that whilst service of a formal notice to quit was prudent it was not the only way of evidencing an intention not to continue. In this case, the Court concluded there was clear evidence in correspondence between the parties that failure to come to agreement during negotiations meant that the tenant would leave and this was enough to prevent tacit relocation and the lease continuing beyond its contractual termination date.

As noted above and in the case, service of a formal notice to quit is the prudent course of action and except in particular circumstances, would always be our advice. That said, even the service of a formal notice to quit requires attention to detail and careful drafting. Generally, at least 40 days’ notice must be given and the lease often specifies method, place and timing of service. Notices have been deemed invalid where the correct procedure has not been followed.

If you are a landlord or a tenant of commercial premises and are considering bringing a commercial lease to an end, a little time spent in consultation with your solicitor may be worthwhile saving you worry and unwanted expense.

The Children (Scotland) Act 2020 (‘the 2020 Act’) is a welcome update and goes some way to bring the law governing decisions about children into the 21st century.  The changes apply to the primary legislation, which is The Children (Scotland) Act 1995 (‘the 1995 Act’).  The Scottish Government have now listened to children, families and organisations who have in the past criticised the practical implementation of the 1995 Act in court cases involving children i.e., contact disputes, residence orders or other section 11 orders.

We will therefore highlight the main changes in the new legislation to help you understand what parents and children involved in court proceedings can now expect.

Removal of age 12+ presumption for child’s views

The purpose of this change is to ensure younger children who can form a view on contact etc, and wish to give their views, can do so.  Under the 2020 Act, the presumption will be that any child can form and provide the court with a view, unless the contrary is shown.  We have already seen cases appealed where the relevant courts have not provided a child with the opportunity to express a view and have done so in the absence of evidence that the child was unable to form a view due to his/her age and maturity.

Abandonment of the F9 

The 2020 Act goes further in obtaining the views of children and abandons the ‘one-size fits all’ approach of gathering the views of a child through the F9 Form.  Children are now encouraged to provide their views in any manner they prefer, such as drawings, video recording, letter writing or play therapy – whatever the child feels comfortable with.

Duty of Court to explain the reasons for a decision 

Once the court has reached a decision in relation to contact, residence or other section 11 orders, the Sheriff will be required to communicate that decision to the child, in a way the child can understand.  This could be conveyed face-to-face, electronically, in writing or the Sheriff can request a Child Welfare Reporter to explain the decision.  This change provides a child with the opportunity to hear why a decision has been made from a neutral party, and in language the child understands, rather than having both parents explaining it to them differently. 

Failure to Obey Order 

The 2020 Act introduces section 22 where a party fails to comply with a court order such as a contact order.  When the court is considering finding a person in contempt of court for failing to obey a s.11 order or varying such an order where a party has failed to obey it, the court must seek to establish the reason for the failure, must give the child an opportunity to express a view and must give regard to any views expressed.  It is not clear how this new section will encourage parties to adhere to contact orders or how many parties will seek recourse under this section due to additional litigation costs.  Only time will tell whether this section proves useful or not.

If you require advice on any of the issues mentioned in this article, please contact a member of the Miller Hendry Court Department.

Traditionally, November is the month during which our minds turn to our departed loved ones. We might start to consider our own future. We may want an heirloom to go to a dear friend, or for our home to go to someone specific. If we have children, we may want to appoint someone whom we trust as their guardian. We may just want to make things easier for our relatives. Whatever the reason, having a Will drafted will give you the peace of mind to face the future in confidence.

This November, we at Miller Hendry are delighted to be taking part in Will Aid, which involves our Solicitors drafting free, simple Wills for members of the public. In 2019, we raised the second highest amount of funds in Scotland!

Instead of a fee, you are encouraged to donate to one of nine participating charities:

  • ActionAid;
  • Age UK;
  • British Red Cross;
  • Christian Aid;
  • NSPCC;
  • Save the Children;
  • SCIAF;
  • Sightsavers; or
  • Trócaire.

The recommended donation is £100.00 for a single Will, or £180.00 for ‘Mirror’ Wills (for a couple). The Will must be basic, so if you require a more complicated one, please contact us to arrange a regular appointment.

The appointments for Will Aid must be in November, but we are now taking bookings. There is a limited number of available appointments, so booking early is essential. You can book by going to <www.willaid.org.uk>. We are offering appointments at our Perth, Dundee, and Crieff Offices. The appointments can be done entirely virtually.

Miller Hendry would be delighted to help you, your family, and Will Aid’s charities!

Leading Tayside solicitors and estate agents Miller Hendry has announced promotions and new appointments to its teams in Dundee and Crieff.

Fiona Kelly has been appointed as a solicitor in the Court Department Dundee. Fiona graduated from Abertay University with a LLB(Hons) in 2015, before completing the Diploma in Professional Legal Practice at the University of Dundee in 2016. After working at the Ministry of Justice, Fiona undertook her traineeship in 2018 and qualified as a solicitor in June 2020.

Erin Peoples has also joined the firm’s Residential Property Department.  Based in the Dundee office, Erin graduated with an Honours Degree in Law from the University of Aberdeen in 2017 before going on to complete the Diploma in Professional Legal Practice at the University of Dundee in 2018. Erin completed her traineeship in Fife before joining Miller Hendry as a Solicitor in August 2020.

Shona Douglas has recently been promoted to Paralegal after becoming a Law Society Accredited Paralegal. Based in the Residential Conveyancing Department of our Crieff office Shona joined Miller Hendry in 2014 as a legal secretary and became a Law Society Accredited Paralegal in 2020.

Chairman John Thom said: “I am delighted to congratulate Shona on her well-deserved promotion. We are also delighted, at last, to welcome both Fiona and Erin into the Dundee office after a delayed start due to the Covid-19 pandemic.  Here at Miller Hendry we remain commitment to developing talent and growing our services, despite what the world throws at us, to ensure clients receive specialist legal advice of the highest quality.”

Tayside based solicitors and estate agents Miller Hendry today (12 March) celebrated raising over £10,000 for nine of the UK’s best loved charities through its Will Aid campaign activity in November 2019, ranking it the second highest fundraising firm in Scotland.

Representing the nine charities, including SCIAF (Scotland), ActionAid, Age UK, Christian Aid, NSPCC, Save the Children, Sightsavers, Tro̓caire (Northern Ireland) and the British Red Cross, Stephen Gillies, Community Legacy Manager at the British Red Cross, was present at the company’s office in Perth to present the firm with a certificate for the £10,885 raised for charity.
Miller Hendry is the second highest fundraiser in Scotland and the twelfth highest donating firm in the UK for Will Aid, committing itself every year to take part in November’s month-long fundraising drive. The national campaign asks solicitors to waive their usual fees for creating professional Wills, with clients then donating to Will Aid instead.

Having supported Will Aid for several years, the firm has now raised £103,404 to date from 17 Will Aid campaigns, making it the UK’s third highest donating firm in the history of the Will Aid campaign which has been promoted annually for the last 30 years.

Stephen Gillies, Community Legacy Manager at the British Red Cross said: “We’d like to thank Miller Hendry and all the people who made their Will during Will Aid month last November. Contributions like this help charities such as the British Red Cross, who then use those donations to reach people in crisis, both here in the UK and all around the world.”

John Thom, Chairman of Miller Hendry, said: “Miller Hendry has been committed to raising money for these fantastic charities for many years now and we are absolutely delighted to have been able to raise so much during the last campaign in November 2019. We are particularly proud to be the UK’s third highest donating firm in the history of Will Aid!

“Will Aid is the ideal opportunity to make a Will and the campaign has made an amazing contribution to the work of the nine participating charities.
“People are often unaware of the problems they are leaving behind for those closest to them if they pass away without having a Will. Having a Will prepared gives people peace of mind that their families are being taken care of. It is the only way to put you in control of your estate after death. To be able to donate money to these nine worthy charities through Will Aid is the icing on the cake.”

Peter de Vena Franks, Campaign Director at Will Aid, said: “Thanks to the commitment of local solicitors that took part on this year’s Will Aid, many people both in the UK and abroad will have received life-changing support and local people who used the scheme have the peace of mind that having a professionally drawn up Will brings. I would like to offer my heartfelt thanks to Miller Hendry for their incredible efforts this year.”

Tayside based solicitors and estate agents firm Miller Hendry has started the New Year with the promotion of three key staff members.

Mhairi Cage, based in the Perth office has been promoted to Senior Associate, Julie Darroch, based in the Crieff office has been promoted to Senior Associate and Lindsay Kirkwood, based in the Dundee office has been promoted to Senior Solicitor.

A graduate in law from the University of Glasgow before completing a Diploma in Legal Practice at the University of Dundee, Mhairi joined the firm as a trainee in 2010 working within the private client department. Her responsibilities include dealing with Wills, Powers of Attorney, Executries, Guardianships, Inheritance Tax Planning, Trusts and Charities.

Julie, who is the third generation of her family to work for the firm, practised in Edinburgh before starting at Miller Hendry in 2014. At the firm she specialises in all aspects of residential property work including conveyancing, Title Disputes and sale and purchase of property. As Senior Associate Julie will be responsible for helping the growth of the business in Crieff going forward.
A graduate in law from Glasgow University, Lindsay started as a trainee with the company in 2015 within the private client department, qualifying as a solicitor in 2017. Since then has achieved a coveted international industry qualification, the STEP Diploma in Trust and Estates (Scotland), which means she is now a recognised expert in her field of family inheritance and succession planning.

John Thom, Chairman of Miller Hendry, commented:

“We’re delighted to start the year with a series of promotions for our extremely hard-working team, which span all three of our offices in Tayside. Mhairi, Julie and Lindsay are exceptional staff members, who thoroughly deserve their promotions. They will be an integral part of the firm as we move the business forward and realise our ambitious plans for growth in Tayside.”

Alan Matthew, consultant in the Commercial Department at Tayside based solicitors Miller Hendry, provides advice on what companies should be considering as the clock ticks down to the annual Christmas party and how employers can avoid the event becoming the wrong sort of cracker

“Any company-organised office party, whether in or out of working hours and on or off site, is an extension of the workplace which can test a business across the board on its policies and attitudes. It’s a real stress-test for the culture of the business and its employment policies. Each year we see another significant case reaching the courts arising from an incident at a work party.  Often the focus is on creating a morale-boosting and team-building event, and that’s important, but staff need to know the boundaries and what is acceptable behaviour if companies are to safeguard against a difficult morning after.

“One big headache for employers is the risk of being held vicariously liable for the misconduct of their employees at such events. Aggression and sexual harassment are the most common forms of misconduct at such events, something no organisation wants to see happening at what is supposed to be a festive celebration. This type of misconduct can lead to substantial claims for compensation, with the associated damage to a company’s reputation.

“To protect staff, it’s important that companies take the necessary steps to assess and guard against potential risks, including setting out expected standards of behaviour, limiting the amount of alcohol and having a clear boundary for when the event will close.

“From the get-go, employers should set out the company’s attitudes to alcohol consumption at the party. It’s particularly important to set clear boundaries as there is generally a zero-tolerance policy towards alcohol in the workplace and the party is an extension of the workplace. Additionally, to be inclusive, employers should ensure non-alcoholic drinks are available if alcohol is being served. This is particularly important for those who may not want to drink on the night, if they are driving or for cultural and religious reasons.

“Its important employers manage overall alcohol consumption, so employees don’t lose their usual workplace inhibitions.  Remind everyone that actions or comments that would be unacceptable behaviour in the workplace still hold in the relaxed atmosphere of the party.  Be clear about when the event will close and make everyone aware at the appropriate time that the party is over.

“Employers ought to be alert for health and safety risks the morning after, if it’s a working day, particularly where machinery or driving is involved, in case anyone is still under the influence of alcohol. If anything happens, act promptly to investigate and make sure grievance or disciplinary policies are followed.

“The annual work Christmas party is a fantastic opportunity for colleagues to let off some steam and get to know each other in a more informal environment.  By following some simple, practical guidelines, employers can be sure to avoid a cracker of a hangover the morning after.”

Lindsay Kirkwood and Samera Ali, solicitors at Tayside based solicitors and estate agents Miller Hendry, have both achieved a coveted international industry qualification, the STEP Diploma in Trusts and Estates (Scotland), and are now fully-fledged members of the organisation.

STEP is the leading worldwide professional body for practitioners in the fields of trusts, estates and related issues. It runs several qualifications for those who advise on family inheritance and succession planning, including Certificates, Advanced Certificates and Diplomas. Students need to gain a specific number of credits via examination, essays or prior experience in order to become a Full Member or TEP.

The qualification means that both Lindsay, who works in Miller Hendry’s Dundee office, and Samera, who works in Miller Hendry’s Perth office, are now internationally recognised experts in their field of family inheritance and succession planning.

Lindsay previously won a STEP Worldwide Excellence Award for achieving the highest mark in her Trust and Executry Accounting paper on her journey to achieving her Diploma. She was one of only 46 students internationally to receive such an award.

Ernie Boath, Head of Private Client department at Miller Hendry, said: “We’re delighted to have two team members who are now fully-fledged members of STEP and therefore internationally recognised experts in their field. Lindsay and Samera have both done incredibly well and as a firm we are extremely proud of their achievements.”

Madeleine Jennes, STEP’s Senior Manager, Professional Development, said: “The STEP Diploma is a rigorous and challenging qualification, which takes years of study. We extend our warmest congratulations to Samera and Lindsay on completing the diploma and achieving Full Membership of STEP conferring the designation TEP. The TEP designation gives assurance to clients that their advisor is a highly qualified and experienced trust and estates practitioner, upholds high professional standards and is best placed to advise them and their families across the generations.”

By Alistair Duncan, Partner and Head of the Commercial Department at Miller Hendry

Two recent tribunal claims have highlighted the challenge for employers in safely navigating personal expression by employees in the workplace.

A hospital nurse who discussed her Christian views with patients, offering a bible to one and advising another that his survival prospects would be improved if he prayed to God, was fairly dismissed for improper proselytising, a court has ruled.  But another, where a quality control manager was asked to keep her sexual orientation under wraps, has seen a compensation award of £8,000 for direct discrimination.

Nurse Sarah Kuteh was responsible for assessing patients about to undergo surgery, part of which involved asking them about their religion, but patients complained that she initiated unwanted religious discussion. When the issue was raised with Mrs Kuteh, she assured management at the Darent Valley Hospital that she would not discuss religion again unless she was directly asked by a patient.

When further incidents followed, she was dismissed on the grounds that she had breached the Nursing and Midwifery Council’s code of conduct.  She later issued an unfair dismissal claim, alleging a breach of a European Convention right to freedom of thought, conscience and religion.

When the case of Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818 reached the Court of Appeal, the court recognised the importance of the right to freedom of religion, but said improper proselytising was not covered under Article 9 of the European Convention on Human Rights, which defends the qualified right to practice religion.  As a result, the court ruled it was not unfair for the NHS Trust to have dismissed the nurse for proselytising to patients after being asked not to do so.

But in Mrs A McMahon v Redwood TTM Ltd and Mr Darren Pilling: 2405368/2018 the company found itself in hot water for stopping an employee speaking out.

When Ashleigh McMahon joined textile firm Redwood TTM, she disclosed that she was gay to her immediate boss during the first week of her new job, but he told her to avoid mentioning this to anyone else, saying the owner of the company was ‘old school’ and wouldn’t like it.  After being made redundant some months later, she made a number of tribunal claims against her former employer, including unfair dismissal and making a protected disclosure, as well as direct and indirect discrimination.  Although the other claims were rejected, the tribunal agreed that the request by her manager amounted to direct discrimination on the grounds of sexual orientation, as the same request would not have been made to one of the company’s heterosexual employees.

These two cases highlight the need for businesses to keep their recruitment and working practices under constant review, as there is growing pressure to keep pace with both the law and changing attitudes across society.  There is no special escape clause for those who are ‘old school’ and everyone must make sure they refresh their mind-set.  Employees cannot be treated differently on the basis of their sexual orientation or any other protected characteristic.

The Equality Act 2010 prevents direct and indirect discrimination based on protected characteristics, which include gender, age, disability, race, sexual orientation, personal relationship status, and religion or belief.  The protection of the Act extends to consumers, the workplace, education, public services, private clubs or associations and when buying or renting property.

Questions can be asked about health or disability only in certain circumstances, such as whether someone may need help to take part in an interview, and disability covers both mental or physical impairments and an employer should make ‘reasonable’ adjustments to accommodate disabled applicants and employees.

In addition, the Act makes it unlawful to discriminate, or treat employees unfavourably because of their pregnancy, or because they have given birth recently, are breastfeeding or on maternity leave.

Employees should not be required to share personal information if they are not comfortable doing so, but equally they should not be precluded from discussing aspects of their private life if others who do not share their protected characteristic can freely discuss those aspects.

Employers should have up to date equal opportunities policies detailing their approach to equal opportunities and setting out what is and what is not acceptable.