When a Will is made, several decades may pass before it is required. In that time a number of events could take place which cause the original will to be misplaced. Examples being the testator moving home and losing it or the solicitor who prepared it not storing it correctly. Unfortunately accidents do happen however if there is a copy of the signed Will then there is a court process that can allow the copy to be used.
‘Proving the Tenor’
The court process
Leaving school can be a daunting time for anyone. Not always knowing what career you would like to pursue. Sometimes having the choice between staying in education and learning through a college/university course or getting a job can seem like the only two options available.
I left school with the intention to go to college and gain a qualification, meanwhile I was having to work part-time at night and weekends to fund my finances. However, I found life was busy and often stressful trying to
Last week we were all alarmed at the seemingly heartless way in which 800 staff were dismissed by P&O Ferries by way of a 3-minute long pre-recorded message. While redundancies and business restructures are unfortunately relatively common place, it was the lack of correct legal approach, together with the lack of civility which drew attention to this situation. Here we look at what the correct legal approach is in this situation and what P&O should have done if it had to make staff redundant.
Redundancy
Endeavour clauses are a common feature in commercial contracts and rather than impose an absolute obligation to achieve a desired result or outcome, they require a party to ‘endeavour’ to achieve it.
Common examples include:
“The sales agents shall use best endeavours to promote, market and sell the product.”
“X shall use all reasonable endeavours to obtain planning permission”
“Y shall use reasonable endeavours to secure a waiver of the restrictive covenants from Z”
These clauses are particularly helpful when performance is outwith the
The Simple Procedure Rules were introduced on 28th November 2016. Since that date, all debt recovery actions for payment of money for sums of £5,000 or less were required to be raised via a court process known as “Simple Procedure”. Where the claim seeks certain other Orders, for example, repossession of a property which includes payment of money, £5,000 or less, Simple Procedure is not the appropriate procedure.
Simple Procedure is designed as a means of allowing the Court to determine cases quickly and
There is no doubt that the Covid-19 pandemic has radically changed the work place for all. I began my traineeship with TC Young in the midst of the pandemic on 09 November 2020. While we can now begin to see the light at the end of the tunnel, I think it is safe to say that my training experience together with all those young lawyers embarking on their legal career in 2020 will be unlike any other.
So, how does my experience differ to that
Limitation of liability clauses are often found in the standard terms of supply contracts, and commonly provide that, should an issue arise, the liability of the supplier is limited to the contract price or some other fixed sum.
The recent case of Benkert UK Limited v Paint Dispensing Limited [2022] CSOH 17 provides a helpful illustration and summary of how the courts will determine the enforceability of such a clause, if challenged.
Background
A fire broke out at Benkert’s factory, causing losses of £29.6 million.
Let’s pause and think about the menopause.
As with many subjects which at one point seemed too “taboo” to discuss in the workplace, the menopause, and its symptoms, have started to shift the conversation in workplaces across the country.
Managing the effects of the menopause at work is essential for both employers and their staff. Menopausal women are the fastest growing demographic in the workplace. However those going through it often feel as though they must do so quietly and behind closed doors. This piece
The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2022 have been published and come into force on 29 March 2022.
These regulations will bring an end to extended notice periods on 30 March 2022.
What does this mean for particular tenancies?
Private Residential Tenancies
The notice period will revert back to either 28 or 84 days depending on either the duration of the tenant’s occupation or the ground relied upon.
Assured and Short Assured Tenancies
The notice period for service of the AT6 will
The Scottish Government announced its roadmap out of Covid restrictions on Tuesday. Hot on the heels of this was the publication of legislation ending the extended notice periods for certain grounds for recovery of possession for social tenancies yesterday.
The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2022
These Regulations come in to force on 29th March 2022 and will effectively bring an end to the extension of the notice period applicable for certain notices/grounds for recovery of possession on 30th March
Did you know that the law in Scotland provides that you cannot entirely disinherit your spouse, civil partner or child even if you do not include them in your Will? This is because we have what are known as legal rights.
What are legal rights?
Under Scots law, certain family members are entitled to legal rights when a person dies testate (with a Will) or intestate (without a Will). A surviving spouse, civil partner and children (including adopted children) can make a claim against your
It is not commonly known that in Scotland a clause can be inserted into a Will appointing a guardian to children who may be under 16 at the time of the parent’s death.
Here are the important points to note:
A Caveat is a document that a private individual or company can lodge at any Sheriff Court in Scotland and at the Court of Session to provide you with the advantage of a pre-warning that certain types of court orders are being sought against you.
The Caveat will have the effect of preventing an interim order being granted against you without you being informed that such an order has been asked for, and for you to be given a chance to be heard or represented
Following the first lockdown the property market in Scotland has exploded. There is such high demand for properties it’s no wonder the most recent statistics* are showing an average annual increase in value of over 11% for residential properties in Scotland. Currently the average price of a property in Scotland is £182,755, said to be “one of the highest reported for any month since the index started in 2004.”* Whether owners had more time during lockdown to finish DIY projects to get their property sale
The vast majority of tenancies offered by Registered Social Landlords in Scotland are Scottish Secure Tenancies (SST). However, in some specific circumstances, landlords are able to offer tenants Short Scottish Secure Tenancies (SSST) instead. A SSST is a tenancy that lasts for a specified period of time (not less than six months) and can be terminated in certain circumstances upon reaching its end date. Tenants with SSSTs have fewer rights than those with SSTs and have less security of tenure.
Landlords can offer SSSTs to
As of the 1st January 2022, the public procurement thresholds have changed in Scotland.
These thresholds were previously set at an EU level. However, as a result of the UK leaving the European Union, the Scottish government must now revise the threshold values of the procurement regulations every two years to ensure that they are aligned with the thresholds set out in the World Trade Organisation’s Government Procurement Agreement (“GPA”).
One key difference under the rules of the GPA is that the procurement thresholds
Quite often family members can be left disappointed with the terms of a Will. They may feel they have been unfairly left out of the will or that the deceased wishes are not correctly set out in the will perhaps even because of the influence of someone else.
There are certain circumstances in which the courts can be asked to reduce (cancel) a will.
Incapacity
A person signing a will must be capable of understanding that will. If they lack the capacity to do so,
The Scottish Government has introduced new rules for fire and smoke alarms across homes in Scotland. From February 2022, every home in Scotland must have:
All alarms need to be mounted on the ceiling and interlinked. They can either be sealed battery alarms or mains wired alarms.
You will also require a carbon monoxide alarm where
Following the Grenfell disaster in 2017, the Scottish Government has introduced new rules for fire and smoke alarms in homes across Scotland. Originally intended to be introduced in February 2021, these rules are to come into force in February 2022 and will apply to every home in Scotland.
The rules
From February 2022, every home in Scotland must have:
On 20 August 2021, China passed the Personal Information Protection Law (PIPL). The new PIPL came into force on 01 November 2021 and has been described as one of the strictest data privacy laws in the world. While there are various requirements under the new PIPL, many articles are modelled on similar concepts as the GDPR.
Like the GDPR, the purpose of the PIPL is to “protect the rights and interests of individuals”, “regulate personal information processing activities”, and “facilitate reasonable use of personal information”.
An announcement was made on 1 October 2021 that child witnesses in criminal court cases would be able to give evidence in pre-recorded interviews, under a new scheme announced by the Scottish Government. In criminal cases the intention is that Police Officers and Social Workers will be able at an early stage to interview children involved in criminal trials at the High Court, to reduce distress in court when recounting experiences.
The Justice Secretary commented that the aim is to gather “the child’s best evidence
The Sheriff Court Rules state that at any stage of a family action, the Sheriff may appoint a Child Welfare Reporter to (a) seek the views of the child and report any views expressed by the child to the court; or (b) undertake enquiries and report to the court.
If you are involved in a court action in which a Child Welfare Reporter is appointed, the Reporter will probably want meet with you and your ex-partner, and with the child(ren). Sometimes the Reporter will go
More than three million couples in the UK live together. For any number of reasons, many do not intend to marry. However, this means if they split up, their rights are limited. If you are considering moving in with your partner, or are already living with a partner but are unmarried, here are some essential points to note:-
There is no such thing in Scotland as “common law marriage” and it should not be assumed that cohabitees have the
Pre-nuptial agreements (or more commonly referred to as a ‘pre-nups’) have become more popular over the years. They are no longer considered to be documents used by only the wealthy or by celebrity couples. More people now are looking to regulate their financial affairs before entering into marriage.
A pre-nuptial agreement is signed before marriage and enables a couple to decide how they wish their assets to be divided should they later decide to separate or divorce. Although it may not be considered the most
The Department for Business, Energy and Industrial Strategy (BEIS) will shortly be publishing its consultation on extending the right to request flexible working to all employees, removing the current requirement for 26 weeks' service before doing so.
This proposal was part of the Conservative party's 2019 manifesto but the introduction of the "day one" right was delayed due to the COVID-19 pandemic. If introduced it will allow employees to request flexibility from the outset of their employment, which will assist many more employees to better
The Herald reported earlier this month that domestic abuse charges reported by the police to Scottish prosecutors, which include attempted rape and serious assault, have hit a five year high. Lockdown was described by Scotland’s Law Officer, Advocate Depute Dorothy Bain QC as having a “devastating impact” for domestic abuse victims.
When there is a prosecution for an offence of domestic abuse there are often protective bail conditions put in place. It is important to be aware that there are also a number of remedies
The ongoing COVID-19 pandemic has been a challenge for everyone. However as lockdowns lift and vaccines begin to take effect, the Scottish Government has begun to walk back some changes in law made to accommodate the impact of the pandemic through the: Coronavirus (Extension and Expiry) (Scotland) Act 2021.
What does the Act Change?
The Act repeals a number of provisions contained in Coronavirus legislation passed in 2020 and, in particular, reverses some of the leniency around FOI compliance.
Under changes to the law made
It was announced last week that New Zealand’s privacy commissioner, John Edwards, has been named as the UK government’s preferred candidate for the next information commissioner.
Why is this significant? Well, the Government has announced that with a new Information Commissioner will come a shake-up of current data rules. On 1st January 2021, the official “transition period” governing the UK’s departure from the EU ended. With the UK set to take more steps to depart from the General Data Protection Regulation (GDPR), Digital Secretary, Oliver
The new Heat Networks (Scotland) Act 2021 (the “Act”) is not without its controversies, with correspondence released under Freedom of Information this summer showing that the Queen had lobbied the Scottish Government in order to seek changes to the Act.
But, what does this legislation mean for RSLs – both those operate heat networks and those who currently have no plans to do so? This blog will give an overview of upcoming changes that RSLs should monitor.
What is a heat network?
Heat networks
Despite curfews and closures, 2020 was a busy year for licensing lawyers due to the ever changing nature of restrictions introduced to combat the Coronavirus pandemic. In February 2021, the Scottish Government withdrew the Licensing Order in relation to short-term lets from the Scottish Parliament to allow guidance to be drafted. That has now been published and the revised Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2021 (‘Licensing Order’) has been open to consultation throughout the summer. The consultation period closed on
A Trust is an unincorporated entity set up to hold property to be used solely for charitable purposes. Just how do you go about establishing a charitable trust?
The main characteristics of a Trust are as follows:
1. It is simple to set up
2. The Trust Deed (which is the governing document of the Trust) will identify the individuals who are the trustees responsible for the control and management of the Trust and its assets. The powers and duties of the Trust are set
You may be excused for thinking that if a public body was holding money on your behalf that they would hand it over without any hassle. Unfortunately, when it comes to the Scottish Courts and Tribunals Service, it is not as straightforward as many would hope. The court, as a public body, have to follow strict procedures to ensure they can legally release money they hold. One important procedure for the court is that they must check there are no taxes due on the funds
As RSLs will be aware, LIBOR will cease to be published from 31 December 2021 and those who have Loan Agreements where the interest rate is, or may be, set by reference to LIBOR will have to decide how the interest they pay on these loans will be calculated when it is no longer available.
Whilst Banks vary with regard to what they will offer, the possible alternatives suggested by the Bank of England are:
On 1 May 2019, the Housing (Scotland) Act 2001 was amended to provide Registered Social Landlords (RSLs) with a mandatory ground of eviction in certain circumstances where a tenant is convicted of a crime.
Section 16 (2)(aa) of the 2001 Act establishes a two part test for RSLs to have a mandatory ground for eviction:
By now, most Registered Social Landlords (RSLs) in Scotland will have dealt with a Freedom of Information (FOI) request. It may be a more regular occurrence for some RSLs than others. Regardless if you receive one or one hundred FOI requests, each request must be dealt with in accordance with the rules set out in Freedom of Information (Scotland) Act 2002 (FOISA). To assist RSLs in following the correct process, we have created a handy checklist to which you can refer to which provides brief
To help manage the COVID-19 pandemic, the Scottish Parliament passed two Bills in 2020. These became the Coronavirus (Scotland) Act 2020 and the Coronavirus (No.2) (Scotland) Act 2020. We previously blogged about the impact each of these Acts would have on Scottish Residential Tenancies.
On 18th June 2021, the Scottish Parliament introduced a new Bill: The Coronavirus (Extension and Expiry) (Scotland) Bill. If enacted, the legislation will amend the existing Acts, which were due to expire on 30th September 2021. The legislation will
Hearing so many families losing loved ones and the long-term effect Covid-19 has had on their lives is distressing. However it does highlight the importance of having a Power of Attorney in place. Too often we hear of spouses with separate bank accounts where one of them becomes ill and the other isn’t able to deal with their accounts, their bills and other important matters at what is already a traumatic time. So, alongside the worries of their loved one’s health they now have to
Although restrictions have eased there is still a significant impact, which will be felt in the coming weeks and months.
Where someone has been assessed as lacking capacity and has not put in place a power of attorney, an application requires to be made to the Court for a guardian to be appointed with legal authority for decision making in respect of the incapax adult’s health, welfare, finances and/or property. This was brought into effect some 20 years ago by the Adults with Incapacity (Scotland)
You have saved up scrupulously for months, found the property of your dreams, and now you have had your offer accepted. You are finally ready to begin moving home and you have instructed your solicitor to arrange the legalities for you.
However, there are many practical aspects to consider when moving to a new property. For example, which items within the home are to be included as part of the sale? What if any of those items are not in working order? Is the home
A Guardianship Order is a court order, which authorises a person to act and make decisions on behalf of an Adult with incapacity. In Scotland, an Adult is a person who is 16 years old and over. The law relating to guardianship is governed by the Adults with Incapacity (Scotland) Act 2000. It is important to seek legal advice prior to making an application for Guardianship to ensure that the appointment will benefit the Adult and that no other means provided for under the Act
Today sees the start of Dementia Awareness week in Scotland which, prior to the pandemic, would have culminated with Alzheimer Scotland’s annual conference. Sadly, the conference will not be taking place again this year due to current restrictions. However, during this time we can all continue to show support and continue to raise awareness for those living with dementia, their carers and families.
Now, possibly more than ever, it is important that those living with dementia and their families know that getting their legal affairs
Since December 2020, the enforcement of eviction orders has been prohibited unless the order is based on the tenant’s antisocial behaviour or criminal activity. The ban applies in all areas which are within Tier 3 and Tier 4 of the Scottish “lockdown” levels.
The majority of mainland Scotland moved to Tier 2 on 17 May 2021 (except for Glasgow City and Moray) and some island communities moved to Tier 1. As such, the ban on enforcement of eviction orders was lifted from 17 May 2021.
Among the excitement of purchasing a property together, the question of how the ‘title’ to the property should be taken is often only given a quick thought.
Very little time is spent on considering what it means to include or not to include a ‘special destination’ in the title and the consequences this may have down the line.
What is ‘joint title ’?
When a person buys a property he/she takes ‘title’ to that property in their sole name. When two people fund a
The Coronavirus (Scotland) Act 2020 (“the 2020 Act”) contains emergency powers relating to coronavirus and health protection in Scotland. In exercising these powers the Scottish Government have introduced rules which have afforded additional protections to tenants by increasing the notice periods required before eviction action can start and banning the enforcement of eviction orders in certain circumstances.
Eviction ban update
Since December 2020, the enforcement of eviction orders has been prohibited unless the order is based on the tenant’s antisocial behaviour or criminal activity. The
The Coronavirus (Scotland) Act 2020 (“the 2020 Act”) contains emergency powers relating to coronavirus and health protection in Scotland. In exercising these powers the Scottish Government have introduced rules which have afforded additional protections to tenants by increasing the notice periods required before eviction action can start and banning the enforcement of eviction orders in certain circumstances.
Eviction ban update
Since December 2020, the enforcement of eviction orders has been prohibited unless the order is based on the tenant’s antisocial behaviour or criminal activity. The
In November 2019 no one could have predicted what a difficult year 2020 would prove to be. However a new report published by the Scottish Information Commissioner (SIC) highlights that RSLs are coping well with their new FOI obligations despite the challenges raised by COVID-19.
The Report contains a number of key figures, namely:
In an earlier blog we set out the basics of how the transition from LIBOR to SONIA would be effected. The matter has become more pressing as since October 2020 Banks have been providing detailed drafting to document the proposed transition and it was announced on 5 March 2021 that LIBOR as currently calculated would no longer be available from 1 January 2022. We examine some key issues below:
Spread
Although other periods are possible, LIBOR has generally been offered to the sector for periods
The practice of serving Notices to Quit by sheriff officers has recently been considered by the Upper Tribunal (UT). In a decision which will be of interest to private landlords and letting agents in Scotland the UT held it is competent for a sheriff officer to serve a notice to quit.
In 2019, Mr Henderson raised eviction proceedings in the First-tier Tribunal (FTT). The action was based on rent arrears. An Eviction Order was granted by the FTT in October 2019. The tenant sought to
Many employers take steps to ensure that their staff undertake equality and diversity training within their organisations. Employers can also use this as a defence in any discrimination claims to say they have taken all “reasonable steps” to ensure that no discrimination takes place within their organisation.
However, a recent case of Allay (UK) Ltd v Gehlen, the EAT has held that an employment tribunal was entitled to reject an employer’s ‘reasonable steps’ defence to a claim of racial harassment. Although the perpetrator of the
The past few months has seen the roll out of the Covid-19 vaccination across the UK and while the availability and speed of the process is being questioned daily in the press, one issue which we have seen brought the foreground of discussions amongst clients is whether or not they can mandate their staff to have this vaccination.
Many employers are likely to encourage their staff to take up the vaccine, but the issue of whether this can become mandatory is an interesting one from
