Wills & Thrills: 3 succession planning scares to avoid!

As a fan of horror films, this is a time of year that I always enjoy: the TV schedules are filled with marathons of blood-curdling, bone-chilling classics.  As a solicitor regularly advising on Wills and estate-planning issues, this gives me a rare excuse to combine these deathly interests.

Succession planningis the way in which we plan for what should happen after our own death, and is something that can really haunt your family if not done properly.  So to help make sure your affairs are in order, here are three horror shows that you can avoid forcing your loved ones to sit through:

The ex-Bride of Frankenstein

It is vitally important that you review your Will if you separate or divorce from your spouse or civil partner.

For spouses who are separated but not divorced, the situation is particularly urgent.  No matter how long you have been separated, your Will still stands and so your ex-spouse would still be entitled to act as your executor and inherit your estate if that is what the Will says.  The same is of course true for unmarried couples who feature in each other’s Wills.

For divorcees, the situation is about to become a little easier.  The new Succession (Scotland) Act 2016 provides that, for deaths on or after 1 November 2016, the deceased person’s Will is to be read as though their ex-spouse had pre-deceased.  This will mean that even if the deceased person had not actually gotten round to changing their Will, their ex-spouse would not be appointed as executor or stand to inherit anything.  This brings Scotland into line with the position that has long been the case in the rest of the UK, which will hopefully mean fewer disasters for people who have consulted Google Q.C. rather than an experienced solicitor.  However relying on this rule is no substitute for actively reviewing the Will and taking good advice.  For instance, the new rule will do nothing to remove people from your Will such as the children or parents of your ex-spouse:  you still need to take action if you want to take them out of the Will.

Rosemary’s Baby (is not in her Will)

There is a little-known rule in Scots law with the snappy Latin title of the conditio si testator sine liberis decesserit – just imagine hearing it being chanted through your bedroom wall at midnight.  If it sounds scary, it’s because it is!

This rule tells us that if a child is born after the date of their parent’s Will, and if the Will does not provide for that child and the parent later dies, then the child can revoke the parent’s Will.  This leaves the parent intestate (i.e. dead without a Will).  The parent’s estate would then be divided in terms of the “default rules” of intestacy.  This could have frightening implications for unmarried couples, as the laws of intestacy are particularly unkind to unmarried partners or cohabitees of the deceased person.

The answer to this is simply ensuring that you apply “good house-keeping” by reviewing your Will after any significant changes to your family – hatches, matches and dispatches.  This is not a difficult trap to avoid, but it can be a real chiller – particularly if you have a “Damian” in your family!

The Inheri-Tax-Us Chainsaw Massacre

You can’t run or hide from death and taxes, however you certainly can escape from death-taxes.  Inheritance tax is charged at 40% for estates over the allowance known as the nil rate band (currently £325,000 per individual), and so it has the potential to really slash the inheritance that you’d hope to pass to your family.

You can outrun this tax-monster, but it will take some good forward-planning.  There are many ways in which to do this – however the simplest tends to be with the gift of generosity.  By being generous to your family (with gifts) and to yourself (by spending money), you can reduce the value of your taxable estate.  There are many rules about different kinds and sizes of gifts:  some gifts will leave your estate immediately, while others will require you to survive for seven years before their value will leave your estate.  If you struggle to remember that crucial number of years, just remember it is the same as the number of blood-chilling films in both the Saw and Police Academy series – though I’d recommend burning those rather than giving them away.

 “Who you gonna call?”

Don’t go screaming into the abyss – Blackadders’ Private Client Team are available to help with all your worldly (and other-wordly) concerns.  We are also available to travel to see clients at home if they cannot make it into our office.

Stewart Dunbar
Associate Solicitor – Tax, Trust & Care
@LawyerStewartD
www.blackadders.co.uk

Patrons’ rights if the show goes on without its star

It’s Festival time in Edinburgh and the mainstream theatres are packed, with all the drama – so far – being confined to the stage.

Not so in London, where the hiring of major stars of film and television to take the leading roles in some West End productions has been compromised by an all-too-frequent incidence of big names being replaced by an understudy – most notably by Glenn Close in Sunset Boulevard and Sheridan Smith in Funny Girl.

As a result disappointed patrons have complained about spending a three-figure sum for a ticket, specifically because they wanted to see Glenn Close/Sheridan Smith on stage and felt short-changed because these were replaced by an understudy.

So in these circumstances where do patrons stand should they wish to seek recompense?

Basically as a patron I have a contract with the theatre, in terms of which I have paid for a seat and in return will see Glenn Close in Sunset Boulevard.  Just as the lights go down there’s an announcement that Miss Close will not appear and an understudy will be taking her part, as a result of which I walk out.

This would then give me the right to claim damages for a breach of contract, including the cost of the ticket, cost of travel to London, and hotel accommodation while there.  And if it then transpired that Glenn Close did not appear because the theatre never actually booked her on that date there’s little doubt that the theatre would be liable for those damages.

However had Glenn Close cancelled because of illness, say just an hour before the show, the theatre could oppose a damages claim on the grounds that the contract had been frustrated by an event which was not the fault of the management and beyond its control.  It would then have to refund my ticket price on the grounds of unjust enrichment, but would not have to pay anything else.

A long-forgotten, but still relevant, judgement on a similar theme stated: “A contract by an author to write a book, or by a painter to paint a picture is subject to the condition that, if the author became insane, or the painter paralysed, and so incapable of performing the contract, he would not be liable personally in damages.”

However what if, on hearing just as the lights go down that Glenn Close will not appear, I decide to remain in my seat and still claim my money back afterwards?

 Yes, I could still make a claim but the theatre might say in reply that I have had some benefit out of my ticket, so that it would not be fair to refund the full amount.

As to whether it’s worth going to court over, the familiar cost/benefit analysis would have to apply.  For a claim amounting to circa £150 I would normally tell a client to raise a Small Claim (shortly to be replaced by Simple Procedure) himself, and not worry about using a solicitor, as the costs will probably make it uneconomic.

Richard Godden
Partner – Dispute Resolution
@The_PIMan
www.blackadders.co.uk

Blackadders Traineeships 2018 – Open

Blackadders are very pleased to invite applicants for our 2018 traineeship intake.

Here are a few words from one of our current trainees and one of our newly qualified trainees on how they are enjoying life with Blackadders.

I am thoroughly enjoying my traineeship with Blackadders LLP. I have experienced a high level of responsibility and undertaken quality legal work. I have benefitted from tailor made, in-house training and learning from some of the most talented legal professionals. I have found getting to know and assisting clients one of the most rewarding aspects of my traineeship. I have also really enjoyed getting involved in my firm’s activities, from professional networking events to joining our touch rugby team ‘The All Black-adders.’ If you want to get the most out of your traineeship and kick start your legal career, I would highly recommend a traineeship with Blackadders LLP.”

Gillian Wilson, Trainee Solicitor

Following the completion of my traineeship with Blackadders, I was delighted to accept a position within their private client division.  The idea of being a “trainee” one day and a “qualified solicitor” the next can be quite daunting but Blackadders have made the transition seamless. My traineeship with Blackadders was well-rounded and the skills and knowledge I acquired throughout the two years have fully prepared me to deal with the increased responsibility and complex legal challenges that come with completing the traineeship. I would definitely recommend a traineeship with Blackadders.”

Samera Ali, Assistant Solicitor

How many seats are on offer throughout my Traineeship?

Blackadders believe it is extremely important to ensure any Trainee is offered the opportunity to experience as many disciplines as possible.  Therefore 4 seats are always made available throughout the 2 year Traineeship.  The selection of your seats will be made following a discussion with you on how you wish your career to progress.

Mentoring

Every Trainee is placed with a Mentor that they will keep throughout the whole of their Traineeship.  It is important to ensure that the mentor is a non-reporting one and does not replace any of the organisational structures in place but has a mutual desire for development towards career goals and objectives.  For support within each seat there is a Buddy allocated for each Trainee.

Training

As well as having the opportunity to learn from some of our Accredited Specialists, Blackadders are the only local firm who have accredited TCPD recognition from the Law Society.  As such, we run our own in-house Training Academy which is held every week covering a large range of topics relating to Law including mandatory ethics whilst also offering workshops on personal development – a hugely important aspect to develop the Trainees of today enabling Solicitors for the future.

The Interview

It is agreed that some people do not perform well in an interview situation and that is why we have committed to our Assessment Day again.  There are a variety of team discussions, quizzes, teambuilding exercises and presentations as well as meeting a very large percentage of our Partners, Solicitors and current Trainees.  If you are fortunate to progress to the second round then you will be invited back to give a presentation and be interviewed by the full Board.  A decision on who has been selected will be made very quickly.  For those who do not get through to the second round, they will receive individual feedback on their performance and offered guidance to help them in the future.

How to apply

Firstly we ask for a hand written covering letter to accompany the full application form which you can access by clicking here along with an up to date passport sized photo.  Successful applicants must be available on Thursday 29th September, all day to attend the Assessment Day at Discovery Point, Dundee.  Those fortunate to be selected for the second round must also be available to attend our Head Office in Reform Street on 6th October.

Applications must be submitted by 12.00noon on 27th September.  Any applications received after this will not be processed.

Please submit your application directly to recruitment@blackadders.co.uk  or by post to HR Manager, 30 & 34 Reform Street, Dundee, DD1 1RJ.

Harry Potter and the School of Legal Pitfalls

Between dressing up in long black gowns and uttering bizarre Latin phrases that make no sense to anyone but themselves, lawyers and would-be witches and wizards have much in common.

It is therefore unsurprising that I, like many of my colleagues, have been eagerly anticipating the release of the next Harry Potter book this summer. However, having poured through the series so far it may be that the school board of Hogwarts could use some legal assistance of their own.

Occupier’s Liability

As a place of learning and care of young adults Hogwarts certainly has some serious health and safety issues with giant spiders, forbidden forests and a chamber inhabited by a man-eating basilisk  to name but a few.

Owners of a building are required to take reasonable care to ensure that the premises are safe for visitors. This includes ensuring that public areas and access points are kept free from hazards as far as reasonably possible. If it is proved that the school board knew, or ought to have known, of the existence of these hazards and it can be demonstrated that they failed to take adequate steps to either remove the hazard or prevent access to the hazardous area, they will likely be facing a wealth of personal injury claims in the not too distant future.

Dilapidations

On the subject of the Hogwarts castle, whilst the actual ownership of the building is never explored within the books, if the castle has been leased to the school there may be some real difficulties ahead.

Readers will know that following the Battle of Hogwarts the school was in a very sorry condition; staircases destroyed, turrets tumbling down and front doors torn from their hinges. This would have been very costly for the school, because tenants are liable to their landlords for any deterioration in the property during their tenancy.

In commercial leases it is common practice that upon the expiry of the lease a schedule of dilapidations will be prepared and served on the tenant detailing the work required to return the property to the state which it was in prior to the beginning of their tenancy. Until recently, landlords could claim large sums from tenants without ever actually carrying out the repairs. Following the Court of Session’s recent decisions however, landlords must now prove that either the repairs have been carried out or will shortly be carried out before claiming compensation from the tenant.

However, as the castle is the only operating school of witchcraft and wizardry in the country it is to be presumed that the owners will indeed have to carry out these repairs, the cost of which will not be insignificant!

Vicarious Liability

Whilst I am as big a fan of Albus Dumbledore as anyone, his recruitment and HR skills could certainly use some improvement. A host of teachers have been appointed who have either accidentally or deliberately harmed their students.

Employers are liable for any harm that their employees cause whilst that employee is acting within the course of their employment. These acts can include bullying, harassment, discrimination or violence. If an employee is acting in the course of their employment an employer must have taken all reasonable steps to prevent such acts or omissions from occurring. The only saving grace that the school board may have is that the actions of the teachers, such as attempting to wipe their students memory or turn them over to the Dark Lord, are so far from what they were employed to do that they cannot be said to have been working within the scope of their employment. Further, it would surely be argued that it would not have been reasonable to predict that this could occur and therefore they can be excused from failing to put in place the necessary safeguards. However, simply claiming that the position is ‘cursed’ just won’t cut it in court!

If you have any questions arising from the contents of this blog or wish to speak with a solicitor concerning a dispute you are currently experiencing please contact our Dispute Resolution Team who will be happy to assist you.

Alastair Johnston
Solicitor – Dispute Resolution
@LitigationLawyer
www.blackadders.co.uk

(Ghost)busting Succession Planning Myths: 3 Ways to Avoid being Slimed

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The new Ghostbusters film has caused quite a stir. Amongst all of the spooks and scares that the feature provides, there are loads of ghosts who are floating around New York with “unfinished business” that they didn’t clear before their time had come. It wouldn’t surprise us if a lot had come back regretting their lack of effective Succession Planning!

Succession Planning is the process of planning for what should happen after your own death and is something that can really haunt your family if not done properly. So, in honor of the 3rd Ghostbusters film, here are 3 easy ways to avoid being slimed and leaving as little “unfinished business” as possible!

  1. The Great Unknown (leaving more questions than answers)

Ghost Trap: The time after a death is a difficult time for any family, however it’s worse if you weren’t organised with your affairs during your lifetime.  There can be immediate questions about fundamental things such as what kind of funeral you wanted – which can cause a real problem if you do not have immediate family members who would know the answers.  And even after that, your relatives could still be spending months going through bin-bags of old papers without knowing what information matters and what can be thrown out.   They may even give up and spend your money getting Derek Acorah to bring you back to start giving answers – an altogether less popular franchise!

How to avoid being slimed: While we can’t all be accountants like Louis Tully in our spare time, a big part of this is about keeping relatively up-to-date records of your finances in one place (“the box” or “the folder” are the common ones in my experience!).  Technology has the potential to make this either a lot easier or a lot harder – maintaining a spreadsheet of your finances gives a great at-a-glance guide, but if your records are all scattered on different websites and hidden behind different passwords, then make sure someone knows where and how to start looking when the time comes!

  1. The Proton Pack has been breached! (Having a shoddy or out of date Will)

Ghost Trap: Having a solid Will in place gives you a great feeling of security, as you know what is to happen after you’re away.  However that ‘security’ quickly turns to ‘complacency’ if you don’t make the effort to regularly review your Will.  It is very common for named executors or beneficiaries to have died or fallen out of favour, but if you don’t update your Will then you either have the wrong people in charge (if you’ve fallen out) or no one in charge (if the executors themselves have died), or more obviously your money ends up going to completely the wrong people.

How to avoid being slimed: You should check your Will every few years as a matter of course, but also bear it in mind when there are ‘landmark’ events within your family:  whether that is births, deaths, marriages, divorces, separations, retirement, disability – there are many things that can change, so you need to make sure your Will keeps track. Asking “What if..?” questions are a great way to stress-test a Will, by ensuring that you have a reasonable plan in place regardless of what happens in the future.  Above all else, consulting a solicitor with experience with Wills is a great way to make sure you’re not missing anything obvious.

  1. I ain’t afraid of no ghost (opening the door to Legal Rights claims)

Ghost Trap: It is not unusual if you want to reduce the inheritance of un-favoured children, or even to cut them out entirely.  Regardless of why you want to do this, and it’s not always about criticism towards that child, a lot of people simply change their Will and leave the matter there.   However, this completely ignores the law of “legal rights” – the share of your estate that any surviving child (or spouse) is entitled to claim as an alternative to what you leave them in your Will.

Naturally, if the value of the claim is worth more than what you leave them in your Will – and particularly if the Will leaves them nothing – then that child will be tempted to make the claim, regardless of how things were during your lifetime.  Depending on what you have in your estate, that might mean they receive a Stay-Puft sized claim, rather than the dancing toaster that you had in mind for them.

How to avoid being slimed: Legal rights claims are based on “moveable property”, and so obvious strategies are to reduce the value of your moveable estate by either (a) giving away money to your preferred beneficiaries, or (b) converting it into “heritable property” by for example, investing in a property.  However it’s not always straightforward, particularly where you are a business owner, so specialist advice can help avoid creating a real river of slime!

“Who you gonna call?”

Blackadders’ Private Client Department are available to help with all your worldly (and other-wordly) concerns.  We are also available to travel to see clients at home where they cannot make it into our office – though we are still saving up for our own Ecto-1!

Stewart Dunbar
Associate Solicitor – Private Client
@LawyerStewartD
www.blackadders.co.uk

Accreditation in Agricultural Law

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Petra Grunenberg: Head of Rural Land & Business

Blackadders LLP are pleased to announce that partner and head of the Rural Land & Business division, Petra Grunenberg, has been awarded Accreditation in Agricultural Law. This award denotes official recognition by the Scottish Law Society of Petra’s skill and significant experience as an agricultural lawyer, and illustrates the part that she has played in providing an excellent service to the clients of Blackadders. Accreditation as a form of recognition by the Law Society is granted by a process involving peer review and for Petra personally it is the acknowledgement of the past number of years’ commitment and active involvement in a sophisticated and ever changing area of the law.  She is one of only 25 solicitors in Scotland to receive this Accreditation.

My Top 5 Tips on Progressing from Student to Trainee Solicitor

The Diplomas in Professional Legal Practice are drawing to a close for yet another year. After five years of studying, the Scottish Law Student is filled with elation and relief as they realise school is out – forever!

Before you know it, you are approaching the first step of the legal ladder: ‘The Traineeship’. As I come towards the end of my first year at Blackadders, here are my top 5 tips on how to progress from Diploma Student to Trainee Solicitor.

  1. Get involved

If you want to get the most out of your traineeship, get involved with your firms’ activities. With each event that you attend, opportunities (both social and professional) arise. Since starting my traineeship with Blackadders, I have been invited to present to Diploma students at the University of Dundee, attended the Faculty Dinner, worked on my networking skills at professional events, and even joined our incredibly talented touch rugby team ‘The All Black-adders’!

I have found that by getting involved in these activities it has helped me create an invaluable network of colleagues with whom I have a positive relationship. Not only has it made my time at work more enjoyable, it has also provided a platform from which I can approach my colleagues for their assistance and advice. Having a number of colleagues who are ‘informal mentors’ has certainly aided my development, particularly when I have been faced with a challenge.

Furthermore, as someone who has moved to a new city, building connections at work has allowed me to get involved with various organisations in and around the area. For example I am now a member of the Dundee Rotaract and Tayside Young Professionals. In my opinion, being a successful trainee is not just about demonstrating your legal capabilities, but about showing you are a team player.

  1. Find the balance between using initiative and knowing when to ask for help

It is only natural that after five years of studying you will want to impress your new colleagues and hit the ground running. However, at the same time, it is important to remember a traineeship is a learning environment.

You might feel like you are asking a lot of questions – especially at the beginning of your new seat – but as you gain confidence and experience you will find some things become second nature to you. Don’t view asking your colleagues questions as a negative thing. However, where possible try to do some research of your own and see if you can find the answers by yourself. If you do have to ask, make sure you direct your questions at the appropriate people and be sensitive to other people’s workloads. Finally, if a colleague is giving you advice, listen to them carefully and take notes.

  1. Made a mistake? Hold up your hands!

Everybody makes mistakes. As a trainee, you are likely to make more mistakes than your more experienced colleagues. As soon as you realise you’ve made a mistake, tell whoever is supervising you. There is little that cannot be rectified by the wise words of one of your more experienced colleagues. However, the longer you leave a mistake, the more difficult it may become to fix. Your colleagues would much rather you came forward and held your hands up, to allow you to amend the error quickly and prevent having an unhappy client. It is important not to dwell on your mistakes but rather come clean, learn from them and move on.

  1. Learn how to network

Whether it fills you with excitement or dread, learning how to network effectively is an essential skill. Networking isn’t just about how many business cards you can hand out, but how many meaningful contacts you can make. Blackadders has provided excellent in-house training in relation to networking and again leaning on your colleagues’ experience is a very useful practice to help hone your skills. Start practising early and hopefully, with experience, you will find as I have, your confidence will grow and your networking skills will begin to develop smoothly.

  1. Reflect

In my experience, the traineeship has been a very eventful period. You will find that you have new workloads to manage, various processes to learn, people to meet, events to attend and before you know it, your start date seems like a lifetime ago. With all that in mind, find time to reflect. It is important to consider the areas that you feel you are doing well in, the areas you find more challenging and identify where you can improve moving forward in your traineeship. It is your traineeship and the beginning to your career and whilst the people around you are there to help, the onus is also on you to take control of your own learning.

I hope you find my top 5 tips helpful when starting your new traineeship. No doubt your new colleagues will have plenty more of their own, but for now, a little food for thought. Good luck!

Gillian Wilson
Trainee Solicitor, Blackadders LLP

@LegallyGillian

http://www.blackadders.co.uk