Tayside based solicitors and estate agents Miller Hendry today (23 May) celebrated raising over £10,000 for nine of the UK’s best loved charities through its Will Aid campaign activity in November 2018, ranking it one of the top fundraising firms 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 training day at the King James VI Business Centre in Perth to present the firm with a certificate for the £10,390 raised for charity.

Miller Hendry is the third highest fundraiser in Scotland and the fifth 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 a number of years, the firm has now raised £92,174 to date, 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 of the British Red Cross said: “We were so very grateful to Miller Hendry Solicitors and the Will Aid scheme for their generous contribution last year and in previous years as well. The Red Cross uses donations to reach people in crisis, both here in the UK and all around the world. This year, with the help of legal firms like Miller Hendry, we’ll be able to help even more people at home and across the world.”

Caroline Fraser, Partner at 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 2018. 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. Thanks to the commitment of local solicitors that take part, many people both in the UK and abroad will receive life changing support. Local people who use the scheme also have peace of mind thanks to having a professionally drawn up Will.

“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. The team at Miller Hendry will certainly be fundraising once again in 2019.”

Peter de Vena Franks, Campaign Director at Will Aid, said: “Will Aid has made an amazing contribution to the work of these nine participating charities in the last 30 years. Thanks to the commitment of local solicitors that took part in this year’s Will Aid, many people both in the UK and abroad will receive 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.”

For further advice or information on creating a Will or any other legal issues, please visit www.millerhendry.co.uk.

In Scotland, any individual who is assessed as requiring care and is over the age of 65 is entitled to the “free personal care allowance”. This financial allowance is there to assist people in paying for care where it relates to day to day tasks e.g. washing, eating etc.

Leann Brown, an Associate Solicitor in our Dundee office comments, “From 1st April 2019, the rate of the free personal care allowance rose to £177 per week. For those living in care homes and who have been assessed as also requiring nursing care services, the rate payable rose to £80 per week. The capital thresholds also rose to £28,000 and £17,500. The lower of these two figures represents the point at which an individual will stop being deemed to be “self-funding” for care fee purposes. Once this point is reached, the Local Authority are required to fully fund care fees for those in need.”

Prior to 1st April 2019, those under 65 who fell into the above category would not be entitled to the free personal care allowance, meaning that those who had been diagnosed with illnesses such as Motor Neurone disease would not have been entitled to anything. Such individuals had to pay for their care themselves.”

Free Personal Care
Leann adds, “1st April 2019 saw the introduction of “Frank’s Law” which will allow those under the age of 65, who are assessed as requiring care, to claim this allowance. This change was the result of a campaign by the widow of the late Dundee United footballer, Frank Kopel. He was sadly diagnosed with vascular dementia aged 59 but was unable to claim this allowance to assist with his care due to his age. This represents a big change in funding policy and will help so many people.”

As dementia rates continue to rise in our elderly population, adults in Scotland are urged to make a Power of Attorney and get their affairs in order. Alzheimer Scotland reports approximately 90,000 adults in Scotland have dementia, and this is expected to rise over the coming years. It is increasingly important for our ageing population to make plans for their future care should they lose capacity or become unable to manage their financial and welfare affairs.

Lindsay Kirkwood, a Solicitor in Miller Hendry’s Dundee office confirms, “A Power of Attorney allows you to choose a person or persons to take care of your financial and welfare affairs should you be unable to manage these yourself whether through immobility, illness or incapacity. This may include dealing with your general finances such as banking, investments and utility bills together with making decisions about your medical and personal care. You may be surprised to learn that your spouse is unable to deal with and manage any financial products you own that are not held in joint names such as ISAs and shareholdings.”

Appointing an Attorney is a very important decision and you should take care to choose someone you trust and feel would make decisions with your best interests at heart. Many adults are understandably cautious about granting such powers to another, for fear of abuse of power or feeling superstitious about their fate.

Lindsay adds, “An adult with no Power of Attorney in place loses the opportunity to choose a person they trust to manage their affairs in their time of need. Instead, a Guardian is appointed by the court which is a complicated, expensive and time consuming process, and inevitably stressful for your family at an already difficult time. Granting a Power of Attorney will allow you to retain control of your affairs as far as possible by choosing a trusted person, avoiding the need for involvement from the court. Making a Power of Attorney is a quick and relatively inexpensive process. It will offer piece of mind, and make matters easier to deal with at a stressful and difficult time for family members.”

April has ushered in many significant dates for new and amended employment legislation and Alan Matthew, an employment law specialist at local firm Miller Hendry is warning businesses they will need to be on their toes to ensure they continue to comply with the law.

“Gender pay gaps, itemised payslips and what to do about working rights for EU citizens – these are some of the issues looming large for employers over the coming weeks,” explained Alan Matthew.

“It’s important for local employers to keep on top of the deadlines and make sure they’re facing up to issues that may otherwise pose difficulties later.”

Here, Alan highlights some of the key issues to watch out for this month:

Itemised payslips

New payslip requirements are set to come into force, requiring itemised calculations for variable rates of pay and hours worked.  Alongside, the requirement for payslips will be extended to include workers, not just employees.

The two amendments to the 1996 Employment Rights Act will come into force on 6 April 2019.  From that date, employees and workers, including those under casual or zero hours contracts, must receive correctly detailed written, printed or electronic payslips.

The greater transparency is designed to help employees understand their pay and see if they are being paid correctly.  Also, it is hoped that it will make it easier to identify if employers are meeting their obligations under the National Minimum Wage and National Living Wage and that holiday entitlements are correctly applied.

Employment tribunal awards limits increase

Also on 6 April, the Employment Rights (Increase of Limits) Order 2019 comes into force, increasing the limits for tribunal awards and other amounts payable under employment legislation for relevant events that occur on or after that date.

The maximum amount of a week’s pay, for the purpose of calculating the basic award for unfair dismissal, and a redundancy payment increases to £525, and the maximum amount of the compensatory award for unfair dismissal increases to £86,444.

Alongside, the maximum level of penalty that an Employment Tribunal can impose on an employer who repeatedly breaches their employment law obligations will increase from £5,000 to £20,000.

Gender Pay Gap Reports

For the second year, organisations with 250 or more employees must publish their annual gender pay gap report to the Government Equalities Office.  The figures must be submitted by 4 April 2019 for the private sector and it’s expected that these will come under increased scrutiny to see what movements and improvements have been made by employers towards increased equality.

The Gender Pay Gap Regulations apply to all private, public and voluntary sector organisations with 250 or more employees, who must publish details annually of their gender pay gap, for both basic pay and any bonus payments.  The information must be published electronically on their own website and on a dedicated government space.

The aim is to measure differences between the average pay of men and women in an organisation, not just whether men and women are receiving equal pay for equal work.  The figures will show the distribution of men and women at different levels across the organisation, highlighting whether an organisation is promoting or appointing women into more senior roles, or whether men are dominating the higher-paid jobs.  If so, then the organisation will have a gender pay gap, even if men and women are paid equal pay for equal jobs.

Brexit: settled status

And finally, the Brexit debates rumble on in Parliament, and dates and deadlines all appear subject to ongoing negotiations.  But, for now, the pre-scheduled date of 30th March will open the door for applications from EU, EEA or Swiss citizens who have notched up five years of continuous residence in the UK to apply for settled status, in anticipation of the UK’s eventual departure.

This will enable them to continue to live here after the end of the Brexit transition.  Alongside, those who do not meet this requirement can apply for pre-settled status, allowing them to remain until they have accrued enough residency to be granted settled status.

While negotiations continue with the EU, the government has confirmed that if the UK leaves the EU without concluding a deal by the deadline, EU/EFTA citizens and their family members already in the UK on that date would still be able to stay by applying under broadly the same terms of the current Settlement Scheme, but would need to do so by 31 December 2020.

Until employees have been granted settled or non-settled status, employers should continue to check the right to work on all current and prospective employees in the normal way.

This includes the changes introduced in January 2019 which allowed employers to rely on online checks to verify a person’s right to work in the UK.  The online right to work checking service covers those who hold a biometric residence permit or residence card, or status issued under the EU Settlement Scheme, as an alternative to viewing their passport or ID card.

The introduction of the new Scottish Private Residential Tenancy (SPRT) has focussed recent attention on Scotland’s residential tenancy market. Leases for offices, retail space, pubs and restaurants, hairdressers and other commercial units are a very different world far removed from residential leases. Consequently, greater care should be taken before signing up to a commercial lease.

Where money is tight, such as new business start-ups, in many cases a prospective tenant will sign a lease without considering its terms in detail. I would not recommend that anyone follow that course of action. It may save on paying legal costs and appear cheaper in the short term but there are many hidden costs in a commercial lease and our experience with clients is that often it is not the cheaper option in the long run.

In particular, you should be aware of the following:-

1. Without examining the landlord’s title, there is no certainty that the landlord has the necessary rights to validly grant a lease or that there are no restrictions in their title that may be prejudicial to the tenants’ interests. The landlord may have granted a security over the property which prohibits them leasing the property. A tenant may find that after investing funds in the property they are not in fact entitled to remain for the duration of the lease or that the purpose for which they wish to use the property is prohibited in terms of the titles.

2. A prospective tenant should consider instructing a survey over the property. This would allow them to be satisfied that the property is in good repair which is particularly important given the lease may require that they put the property into good and tenantable condition regardless of its present state. This could be expensive. An appropriate survey would also give you an indication as to whether the rent demanded is reasonable.

Under a standard commercial lease, the tenant could be held liable to carry out remedial works to clean up any substances contaminating the land which is let under the lease whether or not the tenant caused that contamination.

3. There may be Land and Buildings Transaction Tax payable and appropriate returns to be submitted to Revenue Scotland both at the point of entering into the lease and after 3 years or where the initial rent has been increased. It is the tenants’ responsibility to submit the appropriate returns and there are penalties for failure to do so timeously.

4. If the lease is for a period in excess of 5 years then it is likely that the rent will be reviewed upwards every 3 or 5 years.

5. It may not be possible to dispose of your interest as tenant which may become a significant liability if the lease is for a long duration.

6. The landlord is unlikely to give any warranties in respect of planning permission and a ingoing tenant should satisfy themselves that the property benefits from having appropriate planning permission for their proposed use.

7. Tenants may be liable for the landlord’s legal costs and other outlays incurred by them.

8. In addition to the rent, tenants may have to pay VAT chargeable on the rent and are also likely to have to pay rates, all costs incurred for public utilities and the landlord’s insurance premium. There may be an additional charge payable for the maintenance and/or use of common parts or services.

Landlords are sometimes willing to negotiate less onerous terms reducing a tenant’s exposure to the risk of unforeseen future costs.

For further advice or information on commercial leases whether from a landlord’s or a tenant’s perspective, please visit:

Brand owners have new ways to fight counterfeiting and trade mark misuse thanks to changes in the law, according to legal experts Miller Hendry.

A new EU Directive focused on harmonising the law across member states offers brand owners new ways to battle both counterfeiting and the misuse of trade marks within company names. It also introduces new procedures for registration, renewal and restoration.

Some of the key changes include extended rights for owners acting against producers of counterfeit products, and easier rules for those with lapsed trade markets to renew.

Alan Matthew, commercial and intellectual property law expert with Tayside legal firm Miller Hendry, said:

“The amendments to UK law are mainly straightforward and many people will have come across them as they have already been implemented into EU Trade Mark Law. The one that may cause some controversy is the change to the own name defence as this is not being applied retrospectively, so we will have situations where long-standing companies continue to use a name that would fail under the new infringement provisions. We will have to see how the courts tackle this.”

The changes come at the same time as a “David and Goliath” legal case which serves as a warning for all brand owners, says Miller Hendry.

In a branding challenge which toppled fast food giant McDonald’s, a small Irish fast food company managed to block the burger chain from trademarking the terms Big Mac and Mc throughout Europe.

The European Union Intellectual Property Office ruled that McDonald’s had not been able to prove genuine use of the name Big Mac as either a burger or restaurant name, and that the trademark they registered back in 1996 should be cancelled.

The judgement opens the door to expansion for Galway-based Supermac as it will be able to register its brand as a trademark in the UK and Europe.  McDonald’s had used the brand name’s similarity to Big Mac as a reason to block previous expansion outside Ireland, even though the Supermac company name had been based on the founder’s nickname when the food chain was established in 1978.

Alan Matthew, partner at Miller Hendry and an expert in intellectual property law

Alan Matthew, partner at Miller Hendry and an expert in intellectual property law

Alan Matthew said: “This was a real David and Goliath case and demonstrates how important it is to protect your brand whatever your company size.  It is also a good example of why you need to look ahead and anticipate where your company may go in future.  If Supermac had registered their trade mark in other jurisdictions when they started out, they would have been in a stronger position when McDonald’s came along.”

How well do you know your neighbours? It seems that in the modern world we’re not as friendly with the ‘folks next door’ as previous generations were. We jealously guard our domain, carefully marking out our borders and ensuring that nobody encroaches on our ‘personal space’.
Border disputes between neighbours can be some of the most fiercely contested and ugly conflicts in modern society. From someone’s fence being a couple of inches over their boundary to overhanging trees, high hedges or fences or the dreaded Public Footpath across private land, it seems there are a multitude of ways to annoy the neighbours without saying a word. Let’s have a look at the guidelines around border disputes, and how to resolve them.

Drawing the line – where are boundaries recorded?
You’ll usually find your property boundaries marked out on your deeds. However, it can be difficult to precisely know who owns a hedge, fence, or trees between two properties. Walls are often a little easier to determine, but even these can be the subject of disputes if there’s no precise indication as to where the original wall should be.
Your title plan may throw a little more light on where a boundary runs, however, the scales on the title plans may not offer much clarity! Some older title deeds may have more specific measurements. You may need a Solicitor to help interpret them.

Fences and hedges
These are often the cause of real vitriol between warring neighbours, especially if a hedge starts to get out of control. If fences become damaged then there may be justification in asking the owner to repair it, especially if you or the neighbour have dogs who may then get onto the adjacent property and cause damage.
If you have been unable to resolve the issue with your neighbour, there is some fairly recent legislation that can provide a solution to the problem of high hedges. Home owners and occupiers of domestic property have the right to make an Application to their Local Authority under The High Hedges (Scotland) Act 2013 for a High Hedge Notice if the reasonable enjoyment of their property is affected.
The law defines a “high hedge” as comprising a row of 2 or more trees or shrubs that are more than 2 metres (6.56 feet) above ground level and that also forms a barrier to light. If the Local Authority accepts your Application, they will then investigate and reach a decision as to whether there is a requirement for a High Hedge Notice.
A High Hedge Notice is binding on the current owner of the property and subsequent owners. If the owner fails to take the action required in terms of the High Hedge Notice, the Local Authority can ultimately organise for the work to be done to meet the requirements of the High Hedge Notice and then send their bill to the owner.
It is important to bear in mind that the Act does not cover single trees or trees which do not form a hedge. The Act also does not take in account the roots of a high hedge. The Act also does not cover overhanging branches. However, under common law provisions, you would have the right to cut branches back to the boundary between the properties. We would of course strongly recommended that you let your neighbour know in advance if you intend to do so.

Sorting the problem out
Neighbour disputes over boundaries and overgrown trees fall under civil law, so unless things degenerate so badly that you feel physically threatened then there’s absolutely no point in calling the Police to settle an argument. They will not respond to neighbourly disputes over a boundary argument.
The best way to resolve the situation is to talk. Emotions can run high, so if the situation has really escalated out of control then you can call in a mediator who can talk to both parties and get them around a table. The Citizens Advice Bureau can help with mediation services, or you can call in a solicitor who specialises in boundary disputes and property law. They’ll be able to research the boundary and try to find an exact and defining map to show exactly where the line is.
Remember that no matter what happens, you’re still going to have to find a way to live with each other after the dispute is over, so mediation is by far and away the best route to tackling a boundary dispute and resolving the situation amicably. Be prepared to pay, though, as legal disputes over boundaries have been known to drag on for years. Sometimes it’s easier, quicker, and cheaper to sit down over a cup of tea and sort things out peaceably!

It’s less than eight weeks to Christmas and Tayside shoppers are already buying presents online to get ahead of the annual rush.

However November and December are the busiest months for fraudsters too and the internet is just full of seasonal scams.

Leading Tayside solicitor Alan Matthew from Miller Hendry says: “Generally speaking shopping online is safe if you use reputable websites. But if you stray from the usual vendors you need to take special precautions to keep your card details secure. Consumers should also be aware that you have a ‘cooling off’ period if you change your mind, and that online sellers are subject to the same consumer rights regulations as the high street!”

Here’s Alan’s advice for staying safe online this Christmas:
Shopping online for Christmas

Online security

You probably already know all this, but it’s worth going through once again. Online credit card fraud is at an all-time high, so it’s never been more important to be as robust as you can when it comes to protecting your details. Here are my five top security tips:

1. Never use the same password for everything. If your account is compromised then all of your online activity is vulnerable, including online banking details. Make it complicated, random, and our top tip is to include the £ sign in your password: it’s a symbol that overseas hackers may not have on their keyboard.
2. Look for the padlock. Before you type in your details, check that you’re on a secure ‘https’ site, complete with a locked padlock icon.
3. Don’t leave your browser open, especially in a public place
4. Don’t click on links you aren’t expecting, or are unknown to you
5. Your bank will never, repeat, NEVER ask for your banking details in an email or over the phone, especially passwords, so don’t be tricked into giving them out.

If you’re buying a high-ticket item online and are asked to pay by bank transfer, then make sure that the name of the account holder matches the account number and sort code. If you’re not sure, you can ask your bank to check the details before you make the transfer.
Oops, I did it again…

Impulse buys (especially late at night) can be rectified, so don’t panic if you wake up the next morning and decide that you don’t need a pet vacuum (mainly because you don’t actually have a pet). All online purchases are covered by a raft of legislation, including an all-important 14-day ‘cooling off’ period, when you are perfectly entitled to change your mind and cancel your order. In fact, online purchases are covered by more rights and legislation than ‘real world’ buys, including the option of requesting a full refund if the goods you purchase do not appear on your doorstep by the agreed delivery date, which has to be given at the time of purchase.

Bear in mind, though, that if you buy something from abroad then your delivery dates are going to be considerably longer, and you may have more issues in claiming a refund, especially for smaller, cheaper items. No matter what you buy, though, it has to be of ‘satisfactory quality’, which means no minor defects or imperfections, and fit for purpose.
Does this cover digital purchases?

For years, there was a big loophole in the Consumer Rights Act – digital content. However, the Act was amended in 2015 and has made a proviso for digital content (such as downloaded music or videos), so if it doesn’t meet the same standards (namely satisfactory quality), then you are entitled to your money back.
What if I don’t like a gift?

If someone buys you a gift, and it’s not exactly what you want, it can be very awkward to ask, “Do you still have the receipt?” so you or your gift-buyer can get their money back. However, if a present isn’t quite what you’re looking for, then you’ll find that most stores will be quite understanding. Bear in mind, though, that any refunds will go to the person who paid for the item, not the gift recipient.
You may also find that some stores around Christmas extend that ‘cooling off’ period for up to 30 days to deal with the returns rush that often happens on Boxing Day and into the New Year.

Buying online saves time, effort (especially if you don’t like crowds), and quite frequently, money. It’s the easiest way to buy Christmas presents, and as long as you practice a little due diligence, you should have a great buying experience without any problems. If, however, things go wrong and you’re battling to get a refund, talk to a legal expert who specialises in consumer law for advice.

Former Chancellor George Osborne’s introduction of a 3 per cent Stamp Duty (Land and Buildings Transaction Tax in Scotland) surcharge on second properties from April 2016 caused a dramatic fall in HMRC’s revenues from the tax, according to property specialists London Central Portfolio. They estimated that the loss to the Exchequer was GBP500 million in just six months.

Scotland also implemented a similar charge in April 2016, when the government introduced the Additional Dwelling Supplement, or “ADS”. ADS is payable when a person buys more than one property and is charged at a flat rate of 3% of the purchase price. At first glance, you might expect the new tax to apply only to amateur property developers and people with second homes or buy-to-let properties.

Mhairi Cage, a Senior Solicitor in our Perth office confirmed: “Imagine, however, that a relative has died and you inherit their house under their Will. In some circumstances the new law will treat you as the owner of the property (or a share in it), even if you weren’t expecting that to be the case. If you decide to purchase your own house whilst the estate administration is underway, you may be deemed to own two properties and thus find yourself liable to ADS. The unsuspecting buyer who doesn’t realise that they have incurred a tax bill may also find themselves subject to penalties.”

The new rules will also have an impact on people who have rights to a house held in certain kinds of Trust.
If you have savings and capital worth over £26,250, you will have to pay all your care home fees until your savings and capital reduce to the limit discussed above.

Mhairi added: “If you are inheriting and purchasing properties at the same time, we would recommend that you speak to a solicitor to make sure that you don’t end up with an unexpected tax bill.

A recent English case has highlighted the importance of taking professional advice when preparing your Will.

Raymond White was diagnosed with terminal cancer in 2010. Shortly before his death, he instructed a firm of solicitors to draw up a Will for him, which left the bulk of his estate to his daughter from a previous marriage. His second wife raised a court action challenging it, claiming that at the time the Will was made Mr White was suffering from the side effects of palliative drugs and did not understand the document he was signing.

Mhairi Cage, an Associate Solicitor based in Miller Hendry’s Perth office commented, “In order for a Will to be valid, it is essential that the person making it has capacity – the ability to understand what they are doing. Capacity can be affected by many things, including dementia, strokes, brain injuries and indeed certain medication.”

Making a Will

Mrs White argued that her husband did not have capacity when he instructed and signed his Will because the drugs he was receiving affected his mental state. The Court disagreed, and found in favour of his daughter. In reaching his decision, the judge gave particular weight to the evidence of the legal executive who had prepared the Will. She had kept notes about her meetings with Mr White and was satisfied that he understood his decisions. Her evidence appears to have been preferred to that provided by some of the doctors who had been caring for Mr White.

Mhairi added, “If you or someone you know are considering making a Will, and there are concerns about capacity, you should contact a solicitor as soon as possible. Time can often be of the essence in these situations. Not only can your solicitor keep written records of their own views on your capacity, they can also help instruct medical reports where a second opinion is felt necessary. This information can be critical if a Will is later challenged, and may ensure that your wishes are followed.”