Latest blog entries All blog entries from Wed, 29 Jun 2016 05:21:54 +0000 en-gb Disputes Develop Over Celebrities’ Estates The recent deaths of two music legends have given rise to bitter inter-family disputes over their estates.

The first music-icon, Prince, died in April this year at the age of 57. No will has so far been found, creating a lack of clarity over who should inherit a share of the music star’s estate. According to CNBC, the exact value of the estate is not known, but could be worth as much as $300 million.

Prince wasn’t married at the time of his death, had no surviving children and both his parents are deceased. His closest relative is a full sister, Tyka Nelson, but he was also known to have six half-siblings.

However, since his death, a number of people have come forward claiming to be related to Prince and therefore to be potential heirs to his estate. These include three further half-siblings, and two people claiming Prince was their father.

In addition, a further seven people have stepped forward as potential beneficiaries, even though the relationship they claim is very distant - they say they are related to the sister of Prince's great-great grandfather.

The responsibility for determining who has a valid claim on Prince’s estate rests partly with the court appointed executor, or special administrator, Bremer Trust, which also has to evaluate claims made on the estate from various creditors. In addition, Bremer Trust will have to sort out the tax liability on the estate. According to CNBC, the absence of a will means that over 50% of the estate could end up going to the IRS and to the state.

A second music star whose death hit the headlines recently is BB King, who died in in May this year. The blues singer did leave behind a will, but nevertheless a dispute appears to be developing between some of his children and the person in charge of his estate, reports the Daily Mail.

King fathered 15 children during his lifetime, 11 of whom are still living. He was in regular contact with his children, and paid for their educations. Some of these children have now brought legal challenges again King’s business manager, LaVerne Toney, who was awarded power of attorney over King’s affairs in 2011 and is responsible for administering his estate. Other children however support Toney’s actions.

She says that she is following the wishes of a will signed by King in 2014, which apparently names his children but makes no specific provision for them. A number of his children claim that this will isn’t valid, as King was suffering from Alzheimer’s at the time he signed it, and instead say that a will he signed in 2007 should be taken as a correct expression of his wishes.  Under this will he left specified inheritances to some, but not all, of his children.

Some children are also disputing the declared value of King’s estate. According to Toney, the estate is worth around $5 million, however the children believe it should be worth between $30 – 40 million.

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]]> (Mark Wilson) Contesting Wills Wed, 22 Jun 2016 10:43:00 +0000
The Importance of Planning for the Future Recent research has revealed that British people feel more comfortable talking about their own death or the death of a loved one than they did five years ago, but only a third have actually started to put plans in place for when the time comes.

The research was conducted by Comres on behalf of the annual Dying Matters Awareness Week, which took place last month. It found that:

  • only 1% of 18-24-year-olds say they have written a will,
  • 52% agree they have become more comfortable talking about their own death or that of people close to them over last five years, but only 35% say they have made a will,
  • two-thirds (67%) would help someone organise or record end of life plans, and
  • 45% feel talking or thinking about death scares them.

To mark Dying Matters Awareness Week, the Law Society issued a reminder of the importance of planning ahead to help meet the future needs of yourself and your family.

This is becoming more and more important, as people are living longer than ever before and there may come a time when individuals are no longer able to make vital decisions about future finances and care.

Putting a power of attorney in place is one important way that people can plan for the future, says the Law Society. This means that someone you trust is given the power to act or make decisions on your behalf in certain specified situations. A power of attorney could be put in place to allow your attorney to manage your finances on your behalf when you are no longer able to do so, such as paying bills, collecting benefits, or selling your house.

Alternatively, it could enable your attorney to make decisions on your behalf about your future day-to-day care if you are no longer able to care for yourself, including, if you wish, the power to accept or refuse life-sustaining treatment on your behalf.

A second important aspect of future-planning is writing a will. Failing to do this could create additional problems for bereaved family and friends.

The Law Society highlights that family structures have become increasingly complicated, and more people have property to leave that has risen significantly in value over their lifetime. The legal consequences of dying without a will can depend on a number of different factors, including whether you are married, in a civil partnership, or living together, whether you have children, whether there are other surviving relatives and the value of your estate. The best way to ensure that your estate goes to your chosen beneficiaries is to make a will.

“It is worth taking care over a will to make sure that you understand tax liabilities and that property rights are properly addressed,” commented Law Society president Jonathan Smithers. “A solicitor can help explain the complexities and help you avoid any pitfalls.”

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]]> (Mark Wilson) Power of Attorney Wed, 22 Jun 2016 07:45:52 +0000
Court Ruling in Banchory Devernick Estate Will Dispute In Lumsden & Anor v Lumsden [2016] CSOH 53, delivered in April this year, the Court was asked to grant an interim interdict preventing the sale of the Banchory Devernick Estate on the outskirts of Aberdeen. The dispute arose between the surviving children of Captain Kenneth Ian Hugh Lumsden and concerned the interpretation of his Will and Codicil.

The case is a useful example of how the terms of testamentary documents, i.e. Wills and Codicils, are interpreted, as well as the legal obligations on executors. If you are in need of expert legal assistance with the executry process or looking for specialist advice about contesting a Will, please contact our knowledgeable and experienced probate solicitors.

The Will & Codicil

The executors nominated in the Will, and duly confirmed by the Court, were Lumsden’s widow, his elder son Rupert, his younger son Hugo and a solicitor. The Will set out that the residue of Banchory Devernick Estate, valued at over £3 million, was to go to Rupert, subject to certain exceptions.

The exceptions set out that shares in specific development sites on the Estate were to be divided between his widow and children and held in Trust by Rupert, Hugo and the solicitor. A day after the Will was created, these terms were altered by a Codicil to remove the need for a Trust and one of the sites on the basis that any development on any part of the Estate be equally divided between the deceased’s three children.

When Rupert took over ownership of the Estate, no mention was made of the condition that the Estate be equally divided between the siblings. Rupert then entered into negotiations to sell the property.

Hugo and Katherine brought an action against their brother to prevent the sale, on the basis that his actions, as an executor, were contrary to the terms of the Will and Codicil, and therefore amounted to a breach of trust. Although their father had wished to give the family estate to Rupert in line with family tradition, the Will should be interpreted to mean that his ownership was subject to the condition that they were entitled to an equal share of any profits made from the future development of any part of the Estate. If the sale went ahead, they would be deprived of that benefit.

Interpretation of the Will

The Court wasn’t required to resolve the dispute. All that needed to be determined was whether Hugh and Katherine were entitled to an interim interdict preventing the sale until the main case was heard. This involved a preliminary evaluation of the strength of their case.

Wills are to be construed in the same way as commercial contracts. The aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context (per Marley v Rawlings [2015] AC 129).

Looking to the terms of the Will and Codicil and its true context, the Court held that Hugh and Katherine had, at best, a weak case. It was reasonable to infer that the deceased’s intentions related to specific development projects at the time of his death. It was not reasonable to infer that his intentions encompassed any development carried out at any time in the future by anyone who might come to own the Estate. It was impossible to spell out such a far-reaching obligation from the sparse language used in the documents.

Lord Pentland concluded:

‘On a prima facie view of the key question of interpretation, I consider that the effect of the codicil read with the will was to require the defender to drive forward both development schemes to the best of his abilities and to share any profits from the two contemplated developments in the shares specified by his late father. There is no suggestion that the defender has not been faithful to these directions. I am unable to read the codicil as creating an entitlement in perpetuity for the pursuers and all of their descendants to share in the fruits of any development that might ever come to be carried out on the estate. I am equally unable to hold that the codicil imposed an obligation on the defender to ensure that the estate was forever to be burdened with a liability to pay development profits to the pursuers and their descendants. It follows that the pursuers' prima facie case is a weak one. It does not, in my opinion, provide a convincing or even an arguable basis for granting interim interdict.’

Although the court recalled the interim interdict, holding that it was ‘disproportionate at this stage for the court to pronounce an order that would have the effect of disrupting the contractual arrangements the defender has entered into’, it noted that the pursuers could, ‘if they consider it appropriate to do so, bring proceedings against the executors for breach of trust’.

Wilson & Fish – Specialist Succession Law Solicitors

If you would like to know more about contesting a Will in Scotland or the executry process, one of our specialist solicitors is ready to help. At Wilson & Fish, our expert lawyers have vast experience assisting and representing clients in all manner of succession law matters in Scotland. We regularly carry out technical reviews of Wills and the circumstances surrounding their creation on behalf our clients. We also have vast experience assisting clients in the administration of estates, both large and small. If you are considering a challenge to a Will or need assistance with probate, please contact us for specialist legal advice and assistance.

]]> (Mark Wilson) Contesting Wills Mon, 13 Jun 2016 09:56:48 +0000
Disinheritance in the UK: The difference between Scotland and England & Wales How much, and what, we are left in a Will can cause great distress if it doesn’t marry with our expectations or understanding of our relationship with the deceased. Earlier this year, BBC Radio 4’s Analysis examined what our powerful emotional responses to inheritance say about our attitudes to family, society and the state (the programme is available here). Interestingly, it raised, amongst many other things, the different approaches to disinheritance in Scotland and England & Wales. In this blog post, we take a closer look at these fundamental differences in the law and how disinheritance can be challenged in Scotland.

Different Approaches to Disinheritance in the UK

In the Radio 4 programme, University of Glasgow law lecturer Dot Reid noted the radically different traditions in Scotland and England & Wales. In Scotland, you cannot completely disinherit a spouse or children. This is because Scotland’s approach in law is based on a community of property within the family, which the spouse and children have a stake in. In England & Wales, however, the law is based on the owner as an individual, the overarching principle being that we are free to do with our property what we want.

Although it’s possible, in certain circumstances, to challenge a Will on the basis of need in England & Wales, especially in the light of recent developments in case law south of the border (see our previous blog on the landmark judgment from the English & Welsh Court of Appeal here, although also note that the charities in that case have been granted permission to appeal the ruling to the UK’s Supreme Court), there is a much greater level of protection against disinheritance under Scots law.

Claiming Legal Rights in Scotland

As the presenter noted in the Radio 4 programme, it isn’t only money and property we can expect to inherit from our spouse or parents – we inherit many other things – however, should we find that they haven’t made sufficient provision for us in their Will, the law in Scotland grants some protection.

In Scotland, the fundamental freedom to make a Will is limited by certain restrictions. The concept of legal rights is one such restriction. These are granted to spouses, civil partners and children and entitle them to inherit proportions of the deceased’s moveable property. This entitlement partially overrides the provisions of the Will, in that those entitled to legal rights can claim them over what they have been left in a Will.

Crucially, a spouse, civil partner or child cannot claim both their legal rights and what they have been left by the deceased. They must choose which entitlement they wish to claim. If they claim the legacy in a Will, they renounce (give up) their legal rights. Conversely, if they claim their legal rights, they renounce their entitlement to the legacy in the Will. Further, if a hen claiming legal rights, it isn’t possible to demand

The entitlements under legal rights are prescribed by law. It’s therefore important for surviving spouses, civil partners and children to be aware that if they choose to claim their legal rights over what has (or hasn’t) been left them in a Will, they cannot claim specific assets. It’s also important to be aware that legal rights can only be claimed against the deceased’s moveable estate, which is valued at the date of the death, and does not include the deceased’s heritable property, which is any land or building such as the family home. What they are entitled to, however, is listed directly below.

  • If the deceased has surviving children or descendants, then the surviving spouse or civil partner is entitled to one-third of the deceased’s moveable estate
  • If the deceased has no surviving children or descendants, then the surviving spouse or civil partners is entitled to one-half of the deceased’s moveable estate
  • If the deceased has a surviving spouse or civil partner, then the surviving children of the deceased are entitled, collectively, to one-third of the deceased’s moveable estate
  • If the deceased has no surviving spouse or civil partner, then the surviving children are entitled, collectively, to one-half of the deceased’s moveable estate
  • According to the principle of representation, where a child would have had a claim had they not died before their parent, then that deceased child’s descendants may claim their parent’s share

Legal rights are calculated only once all the deceased’s debts and liabilities have been paid out of the estate, such as funeral expenses and inheritance tax.

it’s important to keep in mind that the Scottish law of succession is going through a process of reform. Earlier this year, the Succession (Scotland) Act 2016, aimed at revamping and updating the law, received Royal Assent. Although legal rights are not affected by the new Act, there may be changes in the future in light of the Scottish Law Commission’s recommendations. However, due to the inherent controversy over disinheritance, any proposed changes to legal right entitlements are likely to be subject to heated debate. At Wilson & Fish, our succession law experts are closely following developments. If you would like to know more about how this area of law operates, please contact us.

Wilson & Fish – Specialist Wills Lawyers in Scotland

If you are interested in knowing more about the law as it applies to disinheritance in Scotland, or any other issue relating to a Will that is is causing a dispute or concern, please speak to the team at Wilson & Fish. We are regularly involved in advising on the terms of Wills. Our many years of experience affords us considerable insight into how the law operates, and ensures that we will be able to provide comprehensive assistance to our clients. At Wilson & Fish, we believe that every client is different and take pride in providing truly bespoke legal advice. No matter how complicated or superficial you believe your question may be, the team at Wilson & Fish are here to help you. To find out more, please contact us.

]]> (Mark Wilson) Contesting Wills Mon, 09 May 2016 10:12:14 +0000
Prince Had No Will – How Would the Law Apply in Scotland? Last month, the unexpected death of multi-millionaire musician Prince hit headlines across the world. Iconic landmarks including the Eiffel Tower, New Orleans Superdome and LA City Hall were cast in violet light in tribute to his song, album and film Purple Rain. Even NASA paid tribute to the visionary artist by releasing an image of a purple nebula.

As the world mourns the loss, it’s been recently revealed that Prince’s sister has petitioned Minnesota's Carver County Court to open a probate case (the process of applying for legal permission to wind up a deceased’s estate, which is known as Confirmation in Scotland), claiming that her brother died without a Will. Prince has left behind a vastly complex estate that has been estimated to be worth up to $300 million and is only survived by a sister and half-siblings, all of whom are named as heirs in the petition to the court.

When a loved one dies without a Will, their next of kin will usually be appointed to act as executor and administer the estate. Understandably, this can be a particularly traumatic experience, especially when there is no indication of how the deceased wished their property to be distributed – so it perhaps comes as no surprise that Prince’s sister has requested that a special administrator be appointed to help handle the musician’s estate. No matter the size or complexity of the estate, this is a common way of ensuring the deceased’s affairs are properly handled and their property legally distributed.

In this blog post, we take a brief look at how the law in Scotland treats the estates of those who have died without a Will (intestacy) and how this affects the executry process. If you require any legal advice or assistance with probate or executry, please get in touch.

Winding up an estate when there’s no Will

When a loved one dies without a Will, it can lead to complications for those they leave behind. In Scotland, this situation is governed by a detailed legal framework contained in the Succession (Scotland) Act 1964 known as the intestacy rules.

The administration of an intestate estate is subject to different rules and procedures than when the deceased left behind a valid Will. First, an executor, who is the legal representative of the deceased responsible for handling the deceased’s affair and winding up their estate, will need to be appointed. This involves applying to the Sheriff Court and usually results in either the next of kin or an executry solicitor being appointed the executor.

Once an executor is appointed, it will be necessary to acquire Confirmation (also known as probate), which is a court document confirming that the executor has legal authority to act on the deceased’s behalf. It involves compiling an inventory of all the deceased’s assets and liabilities (valued at the date of the deceased’s death), as well as obtaining a Bond of Caution. A Bond of Caution is an insurance policy that protects executors should the estate be distributed incorrectly, such as to the wrong beneficiaries.

Following Confirmation, the executor can begin collecting (also known as ingathering) all the deceased’s assets. This involves dealing with all relevant third parties in order to cash in all investments and assets, paying for the funeral, satisfy all the deceased’s debts and liabilities, including utility bills, as well as calculating and paying inheritance tax. Only once all these aspects and more have been settled, can that remains of the estate be distributed to surviving loved ones according to the intestacy rules.

According to Scotland’s intestacy rules, the deceased’s estate is to be distributed as follows:

  • First, the prior rights of the surviving spouse or civil partner are satisfied. These rights rank above all other entitlements, including the rights of surviving children. According to these rights, the surviving spouse or civil partner is entitled to the dwelling house in which they live up to the value of £473,000, furniture and furnishings in the house up to the value of £29,000 and a cash payment of up to £89,000 if there are no surviving children. This amount falls to £50,000 if there are surviving children;
  • Secondly, legal rights of surviving children and other descendants are satisfied. These rights only apply to the deceased’s moveable estate (i.e. they do not apply to the deceased’s house). According to these rights, surviving children are entitled to either a half share or a third share of the estate, depending on whether there is a surviving spouse or civil partner. All the children must share the sum between them equally;
  • Finally, what remains is called the free estate, which is distributed according to a list contained in the 1964 Act.

Crucially, cohabitants must be quick to act if they want to make a claim on their deceased partner’s intestate estate. They only have six months to make a claim and how much, if any, of the estate is to be transferred to them is at the discretion of the court.

Future changes to Scotland’s intestacy rules

it’s important to bear in mind that the law of succession in Scotland is going through a process of reform. Earlier this year, the Succession (Scotland) Act 2016, aimed at revamping and updating the law, received Royal Assent. Although the law of intestacy is not affected by the new legislation, changes should be expected in the future in light of recommendations made by the Scottish Law Commission, particularly in respect of prior rights, legal rights and the rights of cohabitants. At Wilson & Fish, our succession law experts closely follow all developments. If you would like to know more about how the new and proposed changes may affect you, please get in touch.

Wilson & Fish – Specialist Executry and Probate Lawyers in Scotland

If you are interested in knowing more about intestacy laws and executry process in Scotland, please speak to the team at Wilson & Fish. We regularly advise and guide executors through the process of administering estates where the deceased didn’t leave a Will. Our many years of experience affords us considerable insight into how the law operates, allowing us to provide comprehensive assistance to our clients. At Wilson & Fish, we believe that every client is different and take pride in providing truly bespoke legal advice. No matter how complicated or superficial you believe your question may be, the team at Wilson & Fish are here to help you. To find out more, please contact us.

]]> (Mark Wilson) Executries and Probate Tue, 03 May 2016 09:21:22 +0000