Caesar & Howie Latest News

Separation and Divorce – what are my rights?

June 30th, 2017


Nothing in life is straightforward, not least of which are the wide range of issues that couples face when they separate or divorce. Inevitably, it is a very difficult time where, sometimes, emotions of hurt and anger, though understandable, must be kept in check.
We appreciate it is extremely difficult to take the emotions out of the situation. However, one of the options you should consider is putting a Minute of Agreement into place. By doing this, you will be able to set down clearly what has happened and what is to happen in the future as well as dealing with the practical matters of separation such as what happens to the children, money, assets and debts.
The financial aspects of your separation will involve a valuation of your matrimonial assets and when dealing with these you will need to address the following issues:

1. You need to determine the legal date of your separation because this is the date on which you actually separate and is the date on which most matrimonial assets and debts are valued.
2. The law is not interested in who is the “guilty” party and this will not impact on any settlement.
3. Even if the family home is owned by one spouse, the other spouse can legally remain there until the marriage ends.
4. If you attempt to sell your home while your spouse remains living there, you will need your spouse’s consent to the sale and the purchaser cannot force your spouse to move out.
5. Matrimonial property is anything owned by the parties that has been acquired after the date of marriage but before the date of separation.
6. Inherited property and gifts are not matrimonial property. However, if you use your inheritance or any inherited money to buy an item for use within the marriage then that item will be included as matrimonial property.
7. If you acquire your home before marriage, but with the intention of it being the matrimonial home, it will be classed as matrimonial property.
8. Debts usually remain with whoever acquired them. Joint debts such as a mortgage are split equally.
9. All assets and debts need to be valued and this might mean involving surveyors and other professionals to conduct the valuation. If an asset is inherited, then evidence of the inheritance will be required.

Having dealt with the valuation of the actual assets and debts, we now need to consider how these are properly dealt with. This then gives rise to another set of issues that you need to address:

1. The law requires fair sharing of matrimonial property. The net value of the property is calculated and split. This split is usually equally but if special circumstances can be shown, this might not always be the case. If you own more matrimonial property than your spouse, a balancing payment will have to be made.
2. If there are circumstances where an equal division would be unfair, we can assess those circumstances to determine whether they might warrant an argument for a greater share in your favour.
3. If you have been economically disadvantaged by the marriage – for example, by taking a career break to raise children – you might be able to claim or agree a one-off payment to compensate.
4. If there are children under 16 and you are their main carer, you might be able to agree (or a court might order) that the matrimonial home is transferred to you to allow the children to remain there.
5. A court might grant a periodical allowance for a short period to allow you to re-train in a new job or career.
6. You must put your feelings to one side and make residence and contact arrangements that take into account the best interests of your children. If no agreement can be reached a court will (depending on their age) take into account your children’s views.
7. Any arrangements made during separation may require to be changed as your children get older (this can be built into any Minute of Agreement.
8. There may be a requirement for Aliment. Aliment is a payment that arises out of an obligation to reasonably support your former spouse and your children. This takes into account your needs and resources, your earning capacity and other relevant circumstances.
9. Conflict of interest rules mean it is not appropriate to have the same solicitor representing your spouse and also representing you.
10. Negotiations between solicitors will normally take the form of letters sent back and forth and/or meetings between them where you and/or your spouse may or may not be present.
11. Once an agreement is reached a Minute of Agreement is signed and registered in the Books of Council and Session.
12. Be patient – it can take some time to arrive at a negotiated settlement.

We appreciate that this is a very difficult time for clients where emotions tend to run high. Please don’t give over things you don’t have to or accept less that you’re entitled to and please do take independent legal advice before signing anything. If you need to talk to someone then please contact us. Martin Monahan, based in our Livingstone office, is an accredited Family Law Specialist and can help you with his expert advice.
You can be assured that our experienced team will handle your query with sensitivity and in the strictest confidence. Is you need our help, contact us on 01506 815 900 or email us now.

Planning for our future years

June 30th, 2017


We Scots are getting healthier and living longer, and as medical advances continue to astound us those trends presumably will continue. But this great news brings with it questions for everyone – one of the main ones being “how will we fund a long period of retiral”. A recent report by the Department of Work and Pensions (DWP Workplace pension participation and saving trends 2006 – 2016) highlights that our savings levels through the new workplace pension schemes remain pretty modest.
Nigel Waterson, Chairman of the Equity Release Council, commented: -
“Despite the modest increase in the amount being saved, millions of workers are set to face a severe reduction in income when they retire.
This crisis has been exacerbated by the shift from defined benefit to defined contribution schemes. The Equity Release Council estimates that defined contribution pensioners making contributions of 8% throughout their working life, can expect to retire with a pension of only 15% of their final salary – only one fifth of the pension of an identical worker in a DB scheme”.
If you are reading this and in work – just think – are you actually contributing 8% to a pension – and could you survive on 15% of your current income? And if you are contributing less than 8% to a pension, how you would survive on less than 15% of your current income?
David Borrowman of Caesar and Howie comments “these are pretty scary questions for most people. But not facing up to the serious issues here is just not a sensible option. The problem won’t go away and delaying dealing with it won’t help either. If I were starting a career now – I’d try to get into the best pension scheme I could get into, and save as much as I reasonably could in it – whilst at the same time taking a mortgage to get on the housing ladder – and to stay on it. The value of homes in Scotland have increased substantially over the years and are forecasted to continue to do so. Consequently, if I were starting a career now I would hope to fund my retiral partly from my pension and partly from releasing equity from my home, if needed.
Equity release schemes are sensible flexible products these days. That’s just my personal view – which for example I have passed on to clients and family. But of course, it is not the only way forward and others might think differently and want to plan differently which is fine. But “plan” is the key word here – “no plan” in my view could lead to a very troubled retirement because I think it unlikely that the state pension alone will provide a comfortable lifestyle into the future”.
If you would like to discuss any aspect of Equity Release, please call us on 01506 815 900 or email us now.

Do you have the Power?

February 10th, 2017


A Power of Attorney is a document that gives someone else the power to make decisions for you and allows them to look after your affairs. Most people assume that the requirement for a Power of Attorney only arises when you are old and unable to make your own decisions. Unfortunately, by then it may be too late to grant a Power of Attorney. Now is the time at least to consider a Power of Attorney. What if you are incapacitated by accident, stroke or other illness? Having a Power of Attorney in place means you can be sure your affairs will be dealt with by the person or persons of your choice.

If you cannot manage your own affairs and there is no Power of Attorney in place an application must then be made to Court to have a Guardian appointed. This will lead to inevitable delay and much greater expense both initially and in the long term as the costs of administering a Guardianship tend to be much greater than those of administering a Power of Attorney.

By making a Power of Attorney at the present time you can also ensure that your financial affairs and, if you so wish, your welfare is safe-guarded in the future.  There are two principal types of Power of Attorney – a Continuing Power of Attorney and a Welfare Power of Attorney. The Continuing Power of Attorney is the more financially oriented type where your Attorney is authorised to look after your financial and business affairs and can range from simple actions like operating a bank account to major decisions like selling a house.
A Welfare Power of Attorney allows your Attorney (who will normally be a trusted relative or close family friend) to make decisions for your benefit about your personal welfare and healthcare in the event you can no longer make those decisions yourself.

You may arrange an appointment to discuss in more detail the benefits of Powers of Attorney. If you would like to discuss a Power of Attorney, please telephone us on 01506 815 900 or email us now.

Making a Will is the right thing to do

February 10th, 2017

 

Make a Will

It is a worrying fact that only 37% of Scots have a Will. Many wrongly assume their spouse or partner and close family will automatically inherit their estate. Here are some reasons why you really must consider making your Will.

Your spouse or civil partner will not automatically inherit everything if you do not have a Will. For example, a spouse or civil partner would only be entitled to a £473,000 share of your family home. There are many homes worth much more. The amount of £473,000 is the figure applicable at September 2013. The amount may change in the future.

Surviving unmarried partners still have to apply to Court to obtain a discretionary grant of their rights to an estate. This can be costly, time consuming and is not guaranteed to be successful. A Will provides much more certainty.

A Will is the only way to ensure you can choose your own executors.
There are more procedures involved winding up an estate where there is no Will, such as the requirement to have a Petition prepared and presented to the Sheriff Court. Also, depending on circumstances, an insurance Bond of Caution may be required which makes the whole process longer and more expensive.
Without a Will your children will automatically inherit their share of your estate at the age of 16.  With a Will you can defer payment until they reach 18 and have a trust section to ensure their needs are met until they reach that age.

A Will allows you full control over who will be the guardians of your children, should you die prematurely.
A Will can be drafted to minimise your liability to Inheritance Tax and, in some cases, Capital Gains Tax.  Even having been through a deep recession, the increase in property prices over many years of ownership leaves many surprised to find their estate liable to Inheritance Tax.

Avoid the temptation of a “DIY” Will – there are too many things that can go wrong. Making a properly drafted Will is the only way to ensure your estate is distributed according to your wishes. Why not arrange to discuss your requirements with us?
Contact us on 01506 815 900 or email us now.

Scamming …………………… lets help stop this horrible crime!

February 24th, 2016

Most of us respect the older population.   We help look after our older relatives – enjoy their company – learn from their wisdom and try to make later life easier for them if we can.  It’s just a natural part of family life for a lot of us.

However one group of people only have contempt for our older folk – these are the criminal gangs hell bent on stealing as much money from as many older people as they can.  Ruthless and determined these people are out and out criminals.  Whilst scams generally never involve violence – don’t for one minute think these crimes do not have a devastating effect on their victims.   We’ve had experience of older clients losing significant sums of money.   Imagine how distressing that would be – money you have maybe saved over a long time – gone in a flash to someone you thought you trusted.   The result often goes way beyond the financial – causing stress, depression , loss of confidence and often affecting the victims’ wider families too.

We need to fight these criminals – old and young together.   But you need knowledge of scams to be able to do this.  A short article like this cannot begin even to touch on the myriad of scams out there targeting our older folk.

Royal Bank of Scotland as programme sponsors, and STV, have teamed up to make a second series of “Stopping Scotland’s Scammers”.   Watching that programme would be a great start point for learning some of the techniques the scammers use.   Please tune in ………. find out all about this and think what part you might play in helping stop more older victims being fleeced by these criminals. The series airs for four weeks starting Friday 29th at 8 pm.

We are starting our own social media campaign to support RBS and STV get the important messages out to families.  Feel free to join in!

David Borrowman

Solicitors for Older People Scotland

www.solicitorsforolderpeoplescotland.co.uk

Extra property tax – but who will pay eventually?

January 29th, 2016

The Scottish Government proposes to introduce a significant new property transaction tax of 3% on purchases of residential property where the buyer already owns a residential property.

Effectively this tax on anyone buying a second home or a property perhaps to let out.   The charge is likely to come into force on the 1st of April this year.

Deputy First Minister John Swinney said the change in legislation was intended to help first time buyers.   Mr Swinney said “our priority is to make sure that first time buyers have the greatest possible chance to get a foot on the property ladder”

The move was met with a mixed reception.  The Chartered Institute of Housing Scotland welcomed the new tax.  Spokesman Ashley Campbell said “We welcome proposals to increase land and buildings tax for second homes and buy to let properties”.

On the other hand John Blackwood chief executive of the Scottish Association of Landlords was scathing about the new proposals.   He said “The supplementary tax on the purchase of second homes will have a huge impact on the buy- to- let market and exacerbate an already serious shortage of properties in many areas.”

The new tax certainly is quite significant – kicking in as it does for all properties over £40,000 in value – which pretty well means every property.   That means anyone buying a second property of £145,000 or over will pay a minimum m 5% tax with the rates going up at higher prices.   So the cost of buying second homes is going to be  hefty from April.

David Borrowman of Caesar and Howie comments “Mr Swinney suggests this measure is to help first time buyers.  I really don’t want to get into politics but I cannot agree with that suggestion – this is a revenue raising exercise pure and simple.  The Scottish Government failed to make the targets it set itself with the new Land and Buildings Transaction Tax – and this is a way of raking in more revenue.  Housing markets work best when buyers and sellers at any price level can complete transactions at reasonable costs – anything which artificially puts up these costs doesn’t help the market or anyone involved in it, or reliant on it.     Personally I think “buy to letters” will probably still buy in reasonable volume,  and  the losers here will be tenants in the private sector – with landlords putting up rents to recover these extra costs”

The Silver Shindig – dancing the night away for a good cause!

July 9th, 2015

Some folk just love to party!    And there were plenty of those at the Silver Shindig in May.   This dinner dance, sponsored by Solicitors for Older People Scotland (SOPS) was held in The Hub in Edinburgh, which proved to be a most popular venue.   A good turn out of guests enjoyed top quality food with lively chat at every table.  Spirits were high in the company though, and some rowdy Scottish dancing   followed to the music of Callanish.    Many of those attending were introduced for the first time to the activities of SOPS working in partnership with Age Scotland – great for getting the message out.    Best of the lot, the event raised a super total of just over £16,000, for the charity – all to be used to improve the lives of our older people. What’s not to like about having a great night out and doing some good as well?

Brave but Bonkers!

July 9th, 2015

Member firm Caesar and Howie is known as a steady and reliable outfit.    But some of the partners and staff have a side to them which could only be described as a wee bit crazy.  Who in their right mind would want to jump of the Forth Rail Bridge?   Well Alison MacPhee , Lizzie Douglas, and Michelle Dixon of Caesar and Howie   would  -  that’s who.  They call it abseiling of course but it still involves jumping off a very high structure on a cold windy morning when most sensible people would be at home reading the papers.   But these three don’t do sensible – and they all completed the task with some style.   They actually even reported back that they had enjoyed themselves – although the writer understands this message was sent after some sustenance had been taken in a nearby hostelry.   Well deserved mind you!     Not content with proving what they were made of, our trio also managed to raise £2,051 for Age Scotland.  Well done ladies! You have put all of us paper readers to shame!

What is not Assisted Suicide…………..

February 4th, 2015

Evidence continues to be taken in Holyrood over the proposed new assisted suicide law.  Most commentators seem to think that the bill is likely not to make progress.  Certainly the Government does not support a change in the law.

However what is clearly happening is that the issue of assisted suicide and end of life issues generally are getting a lot more media coverage at the moment.  Those giving evidence are widely reported and frequently background stories on assisted suicide elsewhere are brought into the mix.  The latest of these was the sad story of the cousins who travelled abroad for assisted suicide apparently their desire for it having been induced by their fear of being separated.

With all this coverage it is perhaps appropriate to look again at an “end of life” approach in Scotland and to differentiate it completely from assisted suicide.

In Scotland an adult with capacity has the right to refuse medical treatment.  It would appear that increasing numbers of people want to take control of the end of their lives, and to control what medical treatment they wish to receive or not receive where death is imminent.   Refusing treatment is not suicide and medical practitioners not administering unwanted treatment is not assisted suicide.

Of course when death approaches many folk will in their last days become unconscious and not be able to communicate.  Increasing numbers of clients of member firms of Solicitors for Older People Scotland are choosing therefore to make their refusal of treatment wishes clear in a written document called an Advance Directive.  Typically an Advance Directive will state a person’s wish not to be resuscitated after an incident of heart failure if death is clearly imminent.   It will probably also state the patients wishes not to be given other treatments which may only prolong briefly a life which otherwise would end naturally and quickly.  These are important personal decisions which everyone has a right to make in law as it currently stands.

The existence of an Advance Directive stating clearly someone’s end of life treatment wishes can and does remove a lot of distress from other family members.   Being in discussion with doctors at such a time is difficult but  huge comfort can be often be found if everybody realises what is happening  “treatment wise”  accords with what the patient clearly wanted.

So people in the current law have significant rights which they can use to model how their death may happen.    It is however important to realise that this area of the law is far removed from the concept of assisted suicide currently being debated at Holyrood.

Legal Standards Alert on Equity Release as Market Booms

September 3rd, 2014

  • Concern over adviser awareness of new standards introduced in January 2014

The Equity Release Solicitors’Allianceis issuing an alert to intermediaries and advisers to be fully aware of the new legal safeguards introduced earlier this year. This is due to concern that as the market experiences strong growth, intermediaries who do not advise on equity release regularly or are new to it, may be entering the market not fully aware of the requirements.

Recent industry data (Equity Release Council) shows that the equity release sector has experienced soaring levels of business this year, with over 10,000 new customers in 2014 so far, and £641.2 million of plans written in the first half of 2014, a record level and 34% increase on 2013.*

The legal requirements introduced on 1st January 2014 by the Equity Release Council provide enhanced protection for consumers and have been widely welcomed. They require that all solicitors arrange a face to face meeting with customers during the advice process, and that customers must sign the solicitor’s certificate. This has presented a new way of working for many advisers and solicitors.

Claire Barker, chairman of ERSA said,

“The new requirements have tightened up the advice process for clients and advisers, providing greater certainty and peace of mind for both, something that is essential for a financial product that is potentially used by a client for two decades or more.  The requirement for customers to not only meet with a solicitor but also sign the solicitor’s certificate adds an extra layer of safeguarding and should  reduce potential disputes at redemption.

“Eight months into the year, we believe that advisers and solicitors are getting used to the new requirements but we are concerned that as the market expands rapidly, and new advisers may be entering the market for the first time in a while or at all, that all advisers are reminded about them.  Advisers and solicitors both play a vital role in ensuring this and by working together using the standards set by the industry body The Equity Release Council, the continued success of the sector will be assured for homeowners and intermediaries.”

David Borrowman of Solicitors for older peopleScotlandcommented

“Equity release is a growing market – this new record lending is no real surprise.  Equity release products are  becoming a key part of the retiral planning of many people.  The simple fact is that other sources of retiral income are being squeezed whilst at the same time many householders since the seventies certainly have been fortunate to build up equity in their homes.  For many it makes good sense to access that capital and improve lifestyles in later years.  I do believe however that proper financial advice is a must for people in retirement – and if someone is considering taking out an Equity Release product they should take independent advice from a suitably qualified ER adviser.  We find that clients who take good advice and access a suitable product generally are delighted with the positive change to their lives releasing some extra funds brings for them”

For more information on Legal Standards in Equity Release visit www.ersalaw.co.uk