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”.
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.
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.
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.
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.
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%.
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.
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.
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.
1. “I’m married, it will all go to my wife” - this is not the case. If a couple are married and a spouse dies without leaving a Will, the surviving spouse does not automatically inherit the whole estate.
Aileen Scott, an Associate solicitor in our Perth office writes: “The surviving spouse has a prior right to an amount of assets in the estate, then a legal right to a share of cash in the estate along with any children of the deceased. The remaining estate then passes to children, if there are no children then to parents and siblings of the deceased. Only if there are no children, no parents and/or siblings does a spouse inherit all of the estate. To ensure the bulk of your assets on your death pass to your surviving spouse a Will should be granted in their favour”.
Recent media reports have highlighted the fact that increasing numbers of applications for Guardianships in Scotland are putting strain on the specialist social workers who deal with the applications and oversee the guardians.
An investigation by the Mental Welfare Commission discovered that in many of the cases they examined, it was clear that local authorities were struggling to carry out the appropriate supervisory visits, or to carry out the initial checks during the application process.
The new Personal Savings Allowance has now been with us for a number of months. Many people may not even be aware of it and for the majority of people, its presence will have only a minor impact, if at all, in that they will receive slightly more savings interest than before. This is because the requirement for banks and building societies to deduct tax at source was also removed on 6th April 2016 and all such interest in now paid gross. From that date, a savings allowance of £1,000 for basic rate taxpayers, or £500 for higher rate taxpayers, was introduced.
With the current low interest rate continuing to erode income and savings, we have had a noticeable increase in enquiries from clients asking us: Should we release the capital tied up in our property?
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Living in a care home can be expensive. Some people are able to pay their own care fees, others may need help. To figure out how you will pay your care fees, you should know what type of assets you own and their value. This along with knowledge of the eligibility criteria means that you can plan for your future timeously.
We hope that we will always be able to deal with our own financial affairs and make decisions regarding our welfare, and never have to reply on another individual to make decisions for us; however, sadly, this isn’t always the case. More and more clients are becoming aware of the importance of granting a Power of Attorney.
Proving that where there’s a will there’s an opportunity for charity, Tayside based solicitors and estate agents, Miller Hendry is celebrating a successful collaboration with the campaign Will Aid.
Miller Hendry raised £6925 through the annual Will Aid drive, which asks solicitors to waive their usual fees and have clients make a donation to Will Aid instead. The donations are then divided among nine Will Aid charities, which include Save the Children, Christian Aid and British Red Cross
The first significant reform of the law relating to succession to a person’s estate on death in more than 50 years came into force on 4 March 2016 through the Succession (Scotland) Act 2016.
Donnie MacLeod an Associate in the firm’s Perth office commented: “Many of the provisions have yet to come into effect but the new Act is intended to clarify the law of succession and make it fairer.”
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