Succession for unmarried couples has come under the spotlight after a recent landmark decision by the UK Supreme Court which considered the pension entitlement of a cohabitee.

Miss Brewster cohabited with her partner, Mr McLellan, for 10 years before his sudden death in December 2009 at the age of 43. Miss Brewster raised a claim against Mr McLellan’s employer as she was denied the right to receive his occupational pension because she was not his wife and there was no nomination form nominating her to receive it. Miss Brewster argued that the rule discriminated against unmarried couples. The Supreme Court ruled unanimously in her favour, awarding her right to receive Mr McLellan’s pension.

This decision is a positive step forward for unmarried couples in the UK. However, legal rights for unmarried couples on death are still very limited and offer little protection. Miss Brewster’s case, taking 7 years to resolve, is a prime example of the potential difficulty and expense faced by unmarried couples in inheriting their partner’s estate.

Rights Of Cohabiting Couples

Lindsay Kirkwood a Solicitor in Miller Hendry’s Dundee office comments, “Cohabiting families in the UK have grown exponentially in the last 20 years, more than doubling from 1.5 million to approximately 3.3 million. Contrary to what is commonly believed, unmarried couples do not have an automatic right to inherit their partner’s estate, unlike married couples. Cohabitation is yet to achieve legal recognition in the UK, and until it does, unmarried couples are left financially vulnerable on the death of their partner.”

In the absence of a Will expressly providing for an unmarried partner, an application to the Court seeking a financial award needs to be made within 6 months of the partner’s death. For a claim to succeed, the Court must be satisfied that the couple lived together as if married. Many factors are considered such as length of the relationship, emotional commitment, children and shared finances. It can be difficult for younger and newer couples to prove that they lived together as if married. If the claim fails or the time limit is not met, the deceased’s estate will pass to a spouse (if the deceased is not divorced from their ex-husband/wife) or pass to blood relatives under current succession rules.

Lindsay also added, “I would strongly advise unmarried couples to either make a Will or review their current Will to provide for partners on death. Couples should also check nomination forms for their pension and death in service benefit, and not make assumptions about who will inherit these. This is the only way unmarried couples can ensure financial security on death under current rules.”

Inheritance tax (IHT) paid by UK families has topped £5bn a year for the first time in history.

People often assume that IHT only applies to the very rich, but a record number of middle-class families are affected as a result of soaring house prices and stamp duty discouraging elderly people from downsizing.

According to the most up-to-date figures provided by HM Revenue & Customs (HMRC), the amount of money paid in Inheritance Tax (IHT) by UK families has risen by almost 70% over the last five years (2012-2017).

The figures show that in 2011/12, HMRC collected £2.9bn and this increased to £4.8bn for the 2016/17 tax year. The statistics also show a sharp peak in IHT receipts at the beginning of this tax year, with an increase compared to the same period last year of 34%.

Record numbers of estates, particularly in the south of England, are paying IHT as a result of increasing house prices and the freezing of the IHT nil-rate band at £325,000 since 2009.
Make the most of new inheritance tax

people who own their own property of £500,000 by 2020/21. In the case of spouses or civil partners, two allowances are commonly available giving a total allowance of £1,000,000.

This additional allowance will be introduced gradually over four years, with the allowance worth £100,000 in 2017-18, £125,000 in 2018-19, £150,000 in 2019-20 and £175,000 in 2020-21.

Separate projections produced by the Office for Budget Responsibility (OBR) also show that the number of estates on which IHT has been paid has more than quadrupled since 2010, from around 10,000 to well over 40,000.

Caroline Fraser, a partner with Tayside legal firm Miller Hendry, commented: “What we have seen over the last five years is more and more estates being pulled into paying IHT due to increasing house prices, a recovery in the financial markets and the IHT nil-rate band remaining static at £325,000.”

She added: “As a result of the new residential nil-rate band, we should see less estates paying IHT. However, as with any changes in taxation legislation, there are various requirements which must be met for an individual’s estate to qualify for the allowance. Our clients are able to see the potential benefits of this new allowance but, as with all estate planning matters, it is always best to seek professional advice.”

Miller Hendry’s £4645 boost for Will Aid scheme
After taking part in the most recent Will Aid campaign, Miller Hendry raised £4645 for nine of the UK’s best loved charities – SCIAF (Scotland), ActionAid, Age UK, British Red Cross, Christian Aid, NSPCC, Save the Children, Sightsavers and Trocaire (N. Ireland).

Anthony McVeigh, from the Scottish Catholic International Aid Fund (SCIAF),visited the firm to present partners and staff with a certificate to thank them for their support. The firm has taken part in Will Aid every year since 1996 and, in that time, has raised an impressive £79,503.

Every November, participating solicitors waive their fee for writing a basic Will. Instead, they invite their clients to make a donation to Will Aid. The recommended donation for a basic Will Aid will is £95 for a single will and £150 for a pair of mirror wills.

Ernie Boath, Partner and Head of Private Client Department, commented: “Everyone at Miller Hendry is very passionate about raising money for all these fantastic charities through Will Aid and we are very proud of the amount we have raised over the years. We were delighted that Anthony was able to join us for our celebrations and our certificate will take pride of place in our reception areas for all our clients to see.”

Will Aid takes place in November each year and is the ideal opportunity to make a Will.

Mr Boath continued: “People are often unaware of the difficulties they can be leaving behind for loved ones if something were to happen to them. Wills give people peace of mind that their families are taken care of and it is the only way to put you in control of your estate after death. Will Aid also allowed people to donate money to charity which is all the more reason to consider making that all-important Will. The team here at Miller Hendry will certainly be fundraising again in 2017.”

Anthony McVeigh (SCIAF) said: “The team at Miller Hendry have really embraced the Will Aid campaign this year and their efforts are greatly appreciated. The money raised will go towards helping families in some of the poorest communities around the world. With a gift of £120 we can give goats to four families. A goat will give them up to 12 pints of fresh milk a week and they can sell any extra milk to buy other food.

“A gift of £1,500 will give seeds, tools and training for 10 people so that they can learn news ways of farming their own food and be able to provide for themselves and their families. The gift makes such a difference to people’s lives both now and in the future.”

Peter de Vena Franks, campaign director for Will Aid concluded: “Will Aid has made an amazing contribution to the work of the nine participating charities and last year was no exception. 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 thanks to having a professionally drawn up will.

“I would like to offer my heartfelt thanks to Miller Hendry and let them know that thanks to them, lives will change for the better and people who need it will continue to receive the help and support that the charities work so hard to provide.”

Brisbane Supreme Court, Australia recently decided that an unsent text message detailing how a man wished for his estate to be divided was a valid Will. Could this be a turning point leading to digital Wills being accepted in Scotland?

In the Australian case, the individual composed a text message addressed to his brother, but the message was never sent. The message contained information regarding the individual’s bank accounts and wished for “all that I have” to go to his brother and his nephew, followed by the words “my Will”. Typically, for a Will to be valid in Queensland, the Will must be written and signed by two witnesses. Nevertheless, the text message was held to sufficiently show the deceased’s intention for it to be used as his Will.

This decision could revolutionise the Will drafting rules and procedures across the world. However, this method of drafting is clearly open for abuse.

A new digital age in will making

John Thom, a Partner in our Perth office confirms, “The English Law Commission has branded the current regulatory regime south of the border as “outdated” and recommends that it is reformed to reflect the changes in modern society. They have pointed out that nowadays it is far easier and more convenient for people to use a smartphone or tablet, rather than pen and paper.”

He added, “However, it should be borne in mind that there is the question of whether someone making a digital Will could have been subjected to any undue influence or had sufficient capacity to make a Will, digital or not.”

In Scotland, it seems unlikely that digital Wills will be legally acceptable anytime soon as currently all Wills must comply with the Requirements of Writing (Scotland) Act 1995. A Will must be signed on every page in the presence of an independent witness. Having the Will signed in the presence of a solicitor is an additional safeguard as errors can be avoided, the capacity of the individual can be assessed and the solicitor can ensure that there is no undue influence.

It is likely that, for the time being, the law in Scotland will remain unchanged. John added, “Until any changes are enacted, it is crucially important to have a validly executed Will to ensure that your estate is distributed according to your wishes.”

The Government has recently carried out research to gain information on how much people with business and agricultural interests know about the Inheritance Tax (IHT) reliefs available to them.

The research found that, for the vast majority, their key focus is to keep these sort of assets within their families. IHT planning is not at the forefront of their minds. That said, there is the possibility that the Government may change the reliefs available, or may scrap them altogether. It therefore makes sense to check the various reliefs available and take action at the earliest opportunity.

The two reliefs in question are Agricultural Property Relief (APR) and Business Property Relief (BPR). For those who are aware of these reliefs, there is a common misconception that if you own agricultural land and/or a business, then the reliefs will be fully available at a rate of 100%. This is not always the case.

For example, not all agricultural assets attract relief at 100%. Some may only attract relief at 50%. Some farmers are also unaware that their farmhouse may not be eligible for relief at 100%. Indeed, HMRC look at a number of factors when determining whether or not a farmhouse is entitled to APR. It’s not enough to simply say that it is a farmhouse and is used as part of the farming business, and should therefore attract APR at 100%.

A further potential issue for farmers is when they let out holiday cottages on their farmland. Many farmers believe these will qualify for APR or BPR, but again this is not always the case.

Lindsay Kirkwood, a Solicitor in our Dundee Office advises, “It would be sensible for agricultural

and business clients to have a review of their assets with their Solicitor and Accountant to ensure that the maximum amount of IHT reliefs are utilised, whilst preserving the assets in the business to pass down to the next generation.”

She continues, “Many of our clients with agricultural or business interests find that the majority of their assets are tied up in property, therefore, if they fail to take advantage of the reliefs available, their estate could be liable to pay a considerable IHT bill, which potentially could have been avoided had they undertaken appropriate planning prior to their death.”

All title deeds regarding ownership of land in Scotland must be registered with Registers of Scotland in Edinburgh. Currently, there are two registers. The Register of Sasines began in the 17th century and was the first land register in the world. A map based Land Register commenced in 1981 and is progressively replacing the Sasine Register.

Over 35 years later, many properties are still on the Sasine Register. The Scottish Parliament recently introduced legislation to speed up the process and set a target to complete the Land Register by 2024.

Properties on the Land Register have the benefit of having clearly defined property boundaries based on the Ordnance Survey Map, single Title Sheets disclosing title conditions, rights and securities (e.g. mortgages) and a state backed warranty of the information on the Title Sheet. The legal process to sell or transfer a property on the Land Register is also much simpler.

How is this being done?

Other than the compulsory updating of any old titles following a transfer by sale or gift, two new processes have been introduced, (1) Keeper-induced Registration (KIR) and (2) Voluntary Registration (VR). KIR is a system whereby Registers of Scotland update the title themselves. The owner is neither involved nor notified and there is no charge. Under VR, the owner’s lawyer makes the relevant application with the benefit that the owner is involved in the process. However, there is a charge in this case.

Will this affect my title deeds?

Registers of Scotland have begun the process of KIR in selected areas within Midlothian, Dumbarton and Dundee and Angus, including DD5 postcodes. This will be widened to include the whole of Scotland in the future. Only those titles which are not currently registered in the Land Register are affected.

Should I be concerned at all?

KIR is likely to work satisfactorily for properties where the titles are all similar and usually have accurate plans, such as those in modern housing estates. For many older properties the format of plans or lack of plans in the title can cause difficulties. In addition, titles for other land such as farms, forestry and large estates and commercial or industrial land, are more likely to be complex and unique as to boundaries, burdens and rights.

Registration in the Land Register can often highlight irregularities in the title particularly where there is a discrepancy between what is physically occupied and the title according to the deeds. The benefit of a VR is that the owner is in control whereas leaving matters to a KIR may mean that errors are only discovered when seeking to transfer or lease the property, or use it as security for a loan, causing unwanted delay and added expense in those transactions.

Alistair Duncan, a Partner in our Dundee office comments, “Our residential and commercial conveyancers are very experienced in dealing with the Land Register and can advise on how these proposals apply to our clients and whether Voluntary Registration might be of benefit to them.”

In late 2017, a retired English judge Denzil Lush made highly publicised remarks about the risks of granting an English Power of Attorney. Mr Lush commented that he would never grant a lasting Power of Attorney (LPA) over his financial affairs, because of the risk of abuse. He estimated that one in eight English LPAs were misused by Attorneys, to the detriment of the donor’s financial affairs.

Mr Lush’s remarks resulted in significant press coverage and a large number of calls from anxious members of the public to their solicitors or to the Office of the Public Guardian. Scotland’s Public Guardian, Sandra MacDonald, issued a statement reassuring the public on the safe use of Scottish Powers of Attorney.

Ms McDonald confirmed that there are a number of differences between Scottish and English Powers of Attorney. One key difference is that Scotland requires an assessment of the capacity of the person granting the Power of Attorney before the document is granted. A lawyer or doctor has to certify that the granter is aware of what a Power of Attorney is, what powers they are granting to whom, and that they are satisfied that the granter is not being pressured to grant the document. Ms McDonald commented, “This capacity assessment is a critical safeguard”.

In addition, the majority of Powers of Attorney in Scotland are drafted by solicitors on behalf of their clients, following detailed discussions. Ms McDonald added, “This legal involvement offers a significant protection”. In England and Wales, an LPA can be registered with minimum formalities using a paper form or even an online process.

The third protection in Scotland is that the powers granted by a Power of Attorney are specific rather than generic as in England. “The extent of the authority of the Attorney [in Scotland] is explicit”, said Ms McDonald.

Ernie Boath a Partner and Head of Miller Hendry’s Private Client Department commented, “Although there have been cases of Attorneys abusing their powers, the Scottish system has significantly more safeguards in place to protect against this. If any misconduct does occur, there is a system in place to deal with it.”

Ernie added, “The statement issued by Ms McDonald should serve to reassure the public that there are appropriate safeguards in place in Scotland and it also highlights the importance of granting Powers of Attorney in favour of people you trust.”

Losing the ability to make our own financial and welfare decisions can be an uncomfortable thought; however, sadly, for some people this is the reality of life. More and more clients are becoming aware of the importance of granting a Power of Attorney.

What is a Power of Attorney?

A Power of Attorney is a formal document authorising someone you trust to act on your behalf. It can only be granted when you have full mental capacity. Therefore, it is crucial that the document be prepared as early as possible. Many people believe that Powers of Attorney are only required for the elderly. While the urgency to grant a Power of Attorney may be due to the onset of a degenerative illness such as dementia, they are also extremely important where an individual becomes mentally incapable due to an accident or illness.

In Scots law, there are two types of Powers of Attorney
Power of Attorney

Continuing – This covers financial and business affairs and can be brought into operation at any time, i.e. before you lose capacity with your consent.
Welfare – This covers personal affairs and can only be brought into operation if capacity is lost.

Powers of Attorney can be designed to cater to present and future requirements. Your situation can quickly change and it is important to have powers in place that cover all of your needs.

Donnie MacLeod, a Partner in our Crieff office commented: “We work with many clients with different needs and requirements and we can almost always incorporate these into a Power of Attorney.

It is important that our clients consider granting a Power of Attorney at an early stage. If a client has lost capacity (which can be confirmed by a doctor), and ongoing financial and welfare decisions need to be made for them, a Guardian will need to be appointed through the Court. This is a time consuming and costly process, which can be easily avoided at the outset by putting a Power of Attorney in place.”

At Miller Hendry we are here to take the pressure off of these future decisions by working with you to design a tailor-made Power of Attorney that caters to all of your needs.

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New legislation will force employers in Tayside to provide itemised payslips for all staff including part-time and zero-hour workers.

The new rules which will come into force in six months time will mean workers must be issued with written, printed, or electronic payslips detailing how payment was calculated.

The change has been introduced to help employees better understand their pay and ensure they are being paid correctly. It is also 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.

Alan Matthew, employment law expert at Miller Hendry, said: “Many employers are not meeting legal minimum requirements because they do not understand their employment law obligations when it comes to workers. It’s hoped that this new process will be one step towards improved awareness.

“The distinctions between an employee, a worker and a self-employed contractor may not be clear cut for some organisations, so it’s important to keep abreast of what’s going on in employment law and what legislative changes are coming up. That way you can keep ahead of the deadlines and make sure you’re facing up to issues that may otherwise pose difficulties later.”

The two amendments to the 1996 Employment Rights Act will come into force on April 6 2019. From that date, employees and workers, including those under casual or zero hours contracts, must receive correctly detailed written, printed or electronic payslips.
But while the change itself is straightforward, new payroll procedures and alternative software may be needed to satisfy the new requirements.
Alongside, a more complex question for many companies when it comes to implementing the new requirements will be whether someone is an employee, a worker or a self-employed contractor.

Many organisations do not recognise that even where someone is not an employee, they may still be categorised as a ‘worker’ and be entitled to certain rights such as the national living wage, paid holiday and sick leave. An employee may also be a ‘worker’, but with extra employment rights and responsibilities.
And the boundaries as to who is a worker and who is self-employed are increasingly difficult to pin down following high-profile cases involving Uber and other so-called gig economy companies, with individuals winning the right to be treated as a worker, rather than a self-employed contractor.

What needs to be included in the written statement of wages:

• the amount of gross wages or salary
• for any part that varies according to time worked, the total number of hours worked and the rate of pay, either as a single aggregate figure or separately for each type of work or rate of pay
• the amounts of any deductions and what they relate to
• the net amount of wages or salary payable
• if paid in parts, the amount and payment method for each part

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In recent years, following the tragic death of a young Black Watch soldier, a case regarding disputed funeral wishes reached the headlines. In addition, we have seen a number of changes in the law covering burials and cremations in Scotland.

A soldier serving in the Black Watch passed away in 2011 and his mother and wife could not agree on the terms of his funeral. The soldier had expressed a wish to his mother that he would like to be buried near his grandfather. He subsequently expressed a wish to his wife to be buried beside her late brother. The soldier appointed his mother as his executor, giving her the responsibility of administering his estate with everything passing to his wife. The Will did not include funeral arrangements.

Subsequently, the relationship between the soldier’s mother and wife broke down. They could not agree on the funeral arrangements. The case eventually went before Sheriff Johnson of Forfar Sheriff Court. The Sheriff found that the soldier’s wife was entitled to make the arrangements for the funeral of her late husband. Sadly, it took 4 years for his remains to finally be laid to rest.

Funeral instructions

This is an unusual case in that the soldier had been slightly misled when drawing up an Army Will by his Sergeant who had stated that the executor and the beneficiary could not be the same person. If this misinformation had not been given to the soldier then he would have likely appointed his wife as both executor and beneficiary to his estate.

Perhaps offering some further clarity following this case, The Burial and Cremation (Scotland) 2016 Act (“the Act”) provides a modern legal framework for burial and cremation. The existing legislation was old, dating back over 100 years, and had become

increasingly out of date for modern life. The Act offers guidance and clarity in many areas, some of which are explained below.

Leann Brown, Associate Solicitor confirms, “One area in particular where the Act should offer some clarity is where there is such a dispute amongst family members over the arrangements of a deceased’s funeral. Disputes such as this do happen, especially if the deceased left no written instructions. The 2016 Act provides some useful directions in this area.

If the deceased leaves no guidance of their intentions, or it is impossible to fulfil their wishes, the 2016 Act provides that their “nearest relative” is entitled to make the funeral arrangements. The 2016 Act sets out who may be classified as a “nearest relative”. The deceased’s spouse or civil partner is at the top of the list.”

Leann added, “If our clients have any concerns regarding their wishes being followed, we would be happy to review their current arrangements.”

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