Australian Court decides a text is a Will
The widow of a man who took his life applied to the courts in Australia to be appointed to administer his estate. His brothers contested the case on the basis that an unsent text found on his phone was sufficient to constitute his Will. The case went all the way to the Supreme Court in Queensland.
The text read:
“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636
MRN190162Q
10/10/2016
My will”
Despite Mrs Nicholl, his widow arguing that her late husband had died intestate and, as such, she was entitled to be appointed, the Supreme Court ruled against her. The Court decided that the text was sufficiently clear to indicate the deceased’s intentions and despite not being sent or signed, could be considered his Will.
The legal interpretation in Scotland
The rules in Australia regarding Wills were relaxed some years ago. This can’t happen in Scotland as there aren’t any provisions that would allow for a digital Will. However, the Law Commission in England is conducting a consultation into Wills and how these might be constituted and this will take into account current technology. You can view that Consultation here.
If you would like to read the Australian Supreme Court judgement, please click here.
We continually remind our clients that it pays to be organised and to prepare for the inevitable so if you haven’t yet done so – contact us today and make your Will.
Walker Laird supporting Renfrewshire Foodbank
Walker Laird has teamed up with Renfrewshire Foodbank to help fight hunger this Christmas time. We are pleased to be working together for this year’s Christmas food drive.
Facing Christmas with little or no money and struggling to make ends meet can be the reality for many people. Unable to afford food to make a decent hot meal, let alone presents, is a very daunting time for too many.
Walker Laird are hosting a food drive
That’s why, at Walker Laird, we’ve decided to help by hosting a food drive at our Renfrew office at 10 Canal Street. Please drop in on your way past with a donation, if you can. Underneath our Christmas tree, there is a box for whatever you can bring us.
Things like UHT milk, fruit juice (long life carton), cereals, jam, tinned fruits, tinned vegetables, tea bags, dried rice, pasta sauces and toiletries are some of the most needed items.
The work of Renfrewshire Foodbank
Renfrewshire Foodbank provides three days of emergency food to local individuals and families in crisis. The foodbank is run by a team of volunteers who give up their time to collect food, organise the warehouse and distribute food packages to people in need. Frontline care professionals including health visitors, social workers and school liaison officers refer people who are facing hunger to the Foodbank.
So, you can see how important this is. Please pop into the Renfrew office and help us with our food drive. All the food collected will be taken to Renfrewshire Foodbank on the 21st of December, in time for Christmas.
Renfrewshire Foodbank distributes food at Renfrew Baptist Church, Erskine Baptist Church, Johnstone High Parish Church and Central Baptist Church in Paisley.
In the future, it is hoped that more people can be helped out of crisis and fewer people need to use food banks. You can find out more about the work of the Renfrewshire Foodbank on their website.
Separating cohabiting couples – beware the 1 year rule
A recently decided case in the Court of Session
emphasised the need for separating cohabiting couples to take legal advice if one party intends to make a claim for a capital sum against one the other. A key aspect of this case was the failure by the Pursuer to apply to the Court for an order against the Defender to make payment of a capital sum within 1 year of the date their cohabitation came to an end.
The facts of this case are that a Mr Courtney started a relationship with a Ms Campbell in 2009. In May 2010 Ms Campbell bought a property in Glenrothes in her own name for £195,000. It was claimed the intention was that she and Mr Courtney would live together in that property. On 14 May 2010, Mr Courtney paid £50,000 to Ms Campbell and he paid her another £50,000 on 28 February 2011. During the course of their living together, renovations were carried out to the property and Mr Courtney made further payments to Ms Campbell. Their relationship came to an end in May 2013 and Mr Courtney moved out.
There are further complications in this case. Mr Courtney died and the action was raised by his executors. The basis of the action was for unjustified enrichment rather than a straightforward claim for a capital sum because the one-year time limit was missed. In her defence, Ms Campbell claimed that Mr Courtney knew that the house was in her name alone and that he was simply sharing the house rather than cohabiting with her. Ms Campbell had a son and Mr Courtney’s executors claimed that it was the son who asked him to leave.
Leaving aside the above complications, the Judge had to consider the terms of Section 28 of the Family Law (Scotland) Act 2006. This provides that if one party to the cohabiting relationship wishes to make a claim for a capital sum or other payment after the relationship has ended, then that claim must be made within a period of 1 year from the date of the cohabitation coming to an end.
Mr Courtney’s representatives stated there were special circumstances that had prevented him from seeking legal advice in the situation. They claimed he hadn’t sought advice because Ms Campbell’s son was ill (and later died) and by the time he did seek advice in August 2014, more than a year had passed since the separation. This meant that Mr Courtney had lost the opportunity to make a claim for a capital sum in terms of Section 28.
In his judgement, Lord Beckett stated he was satisfied that Mr Courtney and Ms Campbell were cohabitants. He then went on to say that the time limit of one year was intended to discourage stale claims and that by failing to raise the action within that one-year period, Mr Courtney’s representatives could no longer seek a capital sum on the basis of Clause 28. This was fatal to the remainder of the pursuer’s case and Lord Beckett dismissed the action.
Anyone who has been in a cohabiting relationship that has ended and who wishes to make a claim for a capital sum must raise the action within a period of one year from the date the cohabitation comes to an end.
Get In Touch
If you find yourself in such a position and wish some advice, please call us on 0141 887 5721 or click here to email us.
Note: the case in point is Igoe and Macari v Campbell [2016] CSOH 136. You can view the Judgement in this case by clicking here.
Do you need a Shareholders Agreement?
Going into business with someone can be a little like going into a marriage – it’s fine if it’s all going well, but if problems develop the “divorce” can be terribly acrimonious and terribly expensive!
If you are a shareholder in a private limited company, there are some very good reasons for having a Shareholders Agreement in place to set out the arrangements amongst the shareholders that aren’t otherwise dealt with in the Companies Acts. For instance, you may wish to make provision for a mechanism to manage the purchase of shares of a shareholder who wishes to leave the company or, worse still, to deal with a situation where a shareholder has died and you need to deal with her or her family members at what can be a very stressful and emotional time. If you do not have a Shareholders Agreement in place, there might be some difficulty in dealing with issues such as the valuation of the deceased or departing shareholder’s shares and the mechanism and timing of payment.
You may also find that it had been your preference, at the outset, to put up most of the money when the company started up resulting in your holding a majority of the shares with others who had a much smaller shareholding actually running the company. If, over time, you don’t like the way the company is being run, you have to rely on the Companies Acts to remove any Directors appointed by the minority shareholders and replace them with your own choices. Whilst this might be an effective way of replacing the Directors, you still have the minority shareholders who will, by now, undoubtedly be unhappy that they have been replaced. They don’t have to sell their shares to you and whilst they might not be in day to day control of the management of the company, they can certainly cause trouble and make life very unpleasant – and you don’t have a mechanism (other than to petition to have the company wound up) to buy them out for a properly assessed value. This means that they might try to hold you to ransom!
Let’s say you receive an offer to buy your shares, but that is conditional on the others in the company selling their shares to the buyer as well. If they don’t want to sell, then you might find that the buyer will not proceed with the purchase and your investment in the shares of the company is “locked in”.
On the other hand, you might be very happy working with your co-shareholder and/or Directors and your company might be very successful, but come unstuck when your co-shareholder wants to retire and sell his shares to realise his investment. You could find yourself with another person as your co-shareholder and potentially a co-director in the company or be left fighting with your one-time friend and co-shareholder about the buy-out value of his shareholding.
These are just some of the possible causes of dispute between shareholders in private limited companies and to avoid many of the pitfalls, it makes perfect sense to put a Shareholders Agreement into place to regulate the position of all shareholders in a fair and equitable way in the event of a dispute or death or disposal.
Arrange A Shareholder Agreement
If you would like to discuss a Shareholder Agreement or any other issues relating to the operation of your Company, please call us on 0141 887 5721 or click here to email us.
Employment Tribunal Fees Illegal – Official!
The UK Supreme Court has declared application fees for Employment Tribunals and Employment Appeal Tribunals illegal as they are contrary to UK and EU law.
In delivering its judgement on this case, the Court said "The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful and must be quashed".
In July 2013 fees were introduced for Employment Tribunals and Employment Appeal Tribunals. These fees ranged from £390 to £1,200 with additional charges in cases that involved discrimination. At the time, the UK Government said that it needed to introduce fees to reduce the burden on the taxpayer who then funded the tribunal service. It also stated that such fees would outlaw claims that didn’t have any merit and that the introduction of fees was likely to encourage settlements.
What actually happened when fees were introduced was a dramatic reduction in the number of cases raised by individuals against their employers – with costs being cited as the main reason for this. This is a view supported by the UK Supreme court in its judgement.
What this now means is that the Government faces a bill of around £32 million to repay those who paid application fees since July 2013. It also means that from now on, anyone who wants to make an application to an Employment Tribunal or Employment Appeal Tribunal need not face application fees.
You can view Lord Reed delivering a Summary of the court’s judgement by clicking here. The Press Summary provides an outline of the points the court was asked to consider and the reasoning behind its decision. You can view the Press Summary by clicking here. The full text of the Judgement can be viewed by clicking here.
Contact Us
If you would like any help or advise in relation to any employment matter, please call us on 0141 887 5271 or click here and use our contact form to ask your question.
Cecilia Miller, Commercial Lawyer at Walker Laird
Today, our most recent recruit Cecilia Miller, gives us an insight into her experience in law and what she aims to achieve on joining Walker Laird.
I qualified as a lawyer over 20 years ago, and, since then, have spent my time specialising in commercial property, doing deals and giving advice to buyers, sellers, landlords, tenants, lenders and borrowers.
When Walker Laird offered me the opportunity to head up their commercial team, I was delighted to join this well established and trusted firm and to lead the already respected commercial department forward.
Commercial property comes in all shapes and sizes but I would like to think that there is very little during my practice that I haven’t come across whether in terms of legal challenges or types of property. I have had transactions involving fast food drive-thrus, sea-life centres, marinas and tram tracks as well as the usual shops, offices, restaurants and development land. Its variety that makes life interesting!
At the heart of it all is good, pragmatic, commercial advice and the aim to get the best deal for my clients.
I enjoy working alongside my clients, getting to know them and their business and find it rewarding when a transaction settles and everyone is happy with the outcome
I have worked for corporate law firms in Glasgow city centre and I am excited to bring that expertise and experience to Renfrewshire. With all the mergers and take overs in the large firms it’s becoming increasingly difficult to provide a personal, quality service at a cost-effective rate – that is what Walker Laird aim to do and I am delighted they’ve given me the chance to lead this department.
The team at Walker Laird are friendly and approachable and are very much client focused. They’ve made me feel welcome as I get to know the Paisley and Renfrew area and market and I’m looking forward to meeting and working with some of you who are reading this.
Get In Touch
Please contact me to discuss any needs you have in relation to any commercial property you have, or wish to have, an interest in. I am always pleased to chat through your requirements and how I can help.
To get in touch, call me on 0141 887 5271 or email me on cecilia.miller@walkerlaird.co.uk.
Accident at work? Here’s what you need to know
When it comes to accidents at work, it can often be a daunting process when looking to pursue a claim especially if you are unsure of how to go about it. Here we have summarised some key facts to consider when reporting an accident at work or claiming compensation for a workplace injury.
Key Points
Employers have a duty of care
Under the 1974 Health and Safety at Work Act, employers have a duty of care to take all measures possible to ensure the health, safety and wellbeing of their employees. This often involves providing adequate health and safety training, advising employees on health and safety issues and carrying out risk assessments to name a few.
Common types of work injuries
Common types of work injuries that you can claim compensation for include slips and trips, dangerous practices, defective equipment, insufficient training, assault at work, negligence of co-workers and more. With any claim, the amount of compensation will vary depending on the accident reported.
Employers must record all accidents at work
Employers must keep track of all accidents at work in line with RIDDOR regulations. RIDDOR stands for the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations which governs who reports accidents at work and how they’re reported. Logging all accident reports also allows for understanding how the health and safety strategy in the workplace can be improved.
You can’t be sacked for making a claim
A main factor for employees hesitating to make a claim is due to the thought that their job might be under threat. This is not the case. All employees hold the right to claim compensation for an accident at work under the 1996 Employment Rights Act and employers cannot dismiss an employee for making a claim against them.
If you have suffered from a workplace accident and looking to make a claim, it’s important to note that the sooner you make this claim the better as there’s a strict time limit of three years for making a claim.
If you have had an accident and would like our assistance, please contact our specialist court team on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew)
Distracted Drivers and the Dangers
The law regarding mobile phone usage at the wheel has recently changed, involving a hefty fine and penalty points for those caught. Recent study results have shown that road users are frightened by the idea of colliding with a distracted driver more than having their car stolen or driving in bad weather. If you’re involved in a road accident caused by a distracted driver, it’s important that you know the correct procedure to take.
The new penalties imposed on drivers include a £200 fine and 6 points. This is an increase of £100. The aim is to discourage drivers using their phone at the wheel. Additionally, those who have been driving for less than 2 years will have their license invalidated requiring a re-sit of both their theory and practical exams. But what about you? How can you claim compensation for a road accident that wasn’t your fault?
Essential Information
There can be a lot of confusion and shock following a car accident, but there is some information you should collate in order to claim successfully:
- Share information with the other party including names, contact details, insurance details, registration numbers and make and model of vehicles.
- Take photographs of the incident as a visual aid towards your claim.
- Take witness information and refrain from discussing the incident, this will help you with your claim if things go wrong.
- Report incident to the police in the case of future disagreements with other party.
- Inform your insurance company immediately
By following this advice it will assist your solicitor in making a successful claim.
If you’ve had a road traffic accident and need some advice, guidance or assistance, please get in touch on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew).
Walker Laird scores for the Scottish Association for Mental Health
Walker Laird were proud to take part in a charity football tournament which was hosted by Rutherford Cross in order to raise money for SAMH, the nation’s leading mental health charity. It was an excellent team-bonding event fuelled by competitive spirit and we've managed to raise over a whopping £1,000 in donations so far! The tournament took place at Powerleague, Townhead in Glasgow and was a brilliant way for Michael Wilson, his colleagues and friends to unwind from the office and interact with the other companies participating in the tournament.
The event was extremely well organised by the Rutherford Cross team, it was great to see such enthusiasm not only amongst all the teams participating, but the supporters that came along and helped give the players that little extra "kick", allowing us to reach the semi-final in the tournament!
Supporting SAMH
Walker Laird were delighted to contribute towards such a worthy cause along with the other companies: Clydesdale Bank, AJ Gallagher Insurance, Maxim, Dawnfresh, City Facilities, Wright Johnston MacKenzie, Keepmoat, French Duncan, First Milk and Harper MacLeod.
Congratulations to the winning team, AJ Gallagher Insurance. Walker Laird will be back training soon to hopefully reach the final next year!
SAMH aims to reduce the stigma attached to mental health, promote good mental health and provide invaluable support to those indeed. If you would like to make a donation to support this charity, you can do so by following this link: https://www.justgiving.com/fundraising/jonathan-donnelly1
Mortgage Lending up 12% in May
The latest release of date from the Council of Mortgage Lenders (CML) shows that lending in May increased 12% when compared to April’s figure. Standing at £20.1 billion, it is also ahead of the May 2016 figure when it stood at £17.9 billion. However, it’s not all positive growth. The CML has also revised down its forecast for buy-to-let mortgages for 2017 and 2018.In December 2016, it had forecast lending of £38 billion in both 2017 and 2018. These figures have been reduced to £35 billion in 2017 and £33 billion in 2018.
Paul Smee, Director General of CML commented:
“Re-mortgage activity and first-time buyers continue to drive lending this year. Looking ahead, we expect to see this trend continue, but not as strongly, as the factors supporting lending are blunted by less favourable economic conditions.
Buy-to-let had a weak start to 2017, and the sector’s contribution to overall net mortgage lending has fallen considerably over the last year.
While falling mortgage interest rates have helped support borrowing, tax and prudential measures are exerting pressure on the buy-to-let market. Following the distortion of the stamp duty change on second properties last year, we expected a slight recovery in lending levels. However, this has not materialised, and we therefore have lowered our forecast for buy-to-let lending this year and next.
This re-emphasises the case for avoiding further changes to the tax and regulatory framework until the effect of these already in train have been properly assessed.”
Contact Us
If you’re thinking of moving house, contact our experienced estate agents and property solicitors on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew).