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  • Morag Hunter
  • June 11, 2020 01:44:25 PM
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Articles relating to family, personal and property law. Gibson Kerr are family lawyers in Edinburgh and Glasgow specialising in divorce, separation, child law, adoption, power of attorney, executries and wills.

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    My partner has died without a will; what are my rights?

    The coronavirus pandemic has sadly claimed the lives of many people in Scotland before their time. Someone who is taken ill suddenly may not have the opportunity to make a will. If your partner has died without a will, you may be left wondering what your rights are. If you were living with your partner […] The post My partner has died without a will; what are my rights? appeared first on Gibson...

    The coronavirus pandemic has sadly claimed the lives of many people in Scotland before their time. Someone who is taken ill suddenly may not have the opportunity to make a will. If your partner has died without a will, you may be left wondering what your rights are.

    If you were living with your partner in Scotland just before they died, but you were not married or in a civil partnership, you may be classed as their “cohabitant”. In these circumstances, and if they have not left a valid will, you may be able to make a claim against the estate. This might be for a cash sum, a particular asset, or both.

    How do I qualify for a cohabitant’s claim?

    In order to make a claim against an estate as a cohabitant, you have to raise a court action within six months of your partner’s death.  This is a tight timescale and you should therefore seek legal advice as soon as possible.

    In considering your claim, the court will first decide whether you can be treated as a cohabitant of your partner. This means that you must have been living together as if you were married or civil partners. The court will consider the length of the time you have lived together, the nature of your relationship and the nature of any financial arrangements between you. The court will then decide whether they agree that you and your partner were cohabitants and, if so, whether you should be awarded something from the estate.

    How much can I claim as a cohabitant?

    The maximum amount a cohabitant can be awarded from the estate is the amount which you would have received had you been married to, or in a civil partnership with, the deceased person.  This will depend on the assets your partner owned.  For example, if you are living in a house owned by your partner at the time they died, you may be able to claim to receive the house and furniture up to a certain value. You may also be able to claim a cash amount from the estate. The maximum amount will vary depending on whether your partner had children or not.

    Our personal law solicitors at Gibson Kerr can advise you on the maximum value of your claim once we know more about your partner’s assets.  It is important to understand that you may not necessarily receive the maximum amount of the award from the estate; it will be for the sheriff to decide what the award is.  The sheriff will take account of various factors, such as whether you have received any other benefit from the deceased person, like a pension benefit, and who else will inherit from the estate.

    By working out the maximum value of the estate, we can help you decide whether you should proceed with a claim against the estate.

    Is it always necessary to go to court to make a cohabitation claim?

    Depending on who the executors and beneficiaries of the estate are, it may be possible to negotiate with them to agree that you should receive assets or money from the estate.  An amicable agreement reached out of court will save both parties the time, expense and stress of pursuing a court action. We can act on your behalf in the negotiation.

    Unless the agreement is made and signed before the six month time limit, we may advise you to raise the court action to protect your position. The court action can be dropped if an agreement is later reached.

    Can I make a claim as a cohabitant if my partner did leave a will?

    If your partner has made a valid will, you should check if they have left you a legacy.  If they have made a will, but not left you a legacy in it, unfortunately you cannot make a claim against the estate as a cohabitant. This is because cohabitants’ claims can currently only be made against estates where there is no will.

    What is the impact of the Covid-19 pandemic on the process?

    With the continued emphasis on remote working and some local lockdowns in place, it may be difficult to meet with a solicitor in person. However, many solicitors’ firms are continuing to operate and may be able to offer you a remote meeting. At Gibson Kerr, our solicitors are working remotely. We will be happy to have an initial meeting with you over a video call, using video software such as Zoom or Skype. If you do not have video facilities, we can have a telephone meeting with you.

    We understand that this will be an emotional time for you. Our honest, practical advice can help you to decide whether to make a claim against the estate. And we will guide you through that process if you do.  If you require assistance with making a claim against your partner’s estate, or deciding whether to make a claim, please do not hesitate to contact our personal law solicitors.

    The post My partner has died without a will; what are my rights? appeared first on Gibson Kerr.


    Dealing with Divorce: What’s Best for Your Children?

    It’s an unfortunate fact. Sometimes couples make the decision to separate and it’s rarely an easy decision. However, if you are married with kids, going through a divorce is especially tough. While many factors play a part in a divorce, one of the most contentious areas is deciding who children will stay with once their […] The post Dealing with Divorce: What’s Best for Your Children? appeared first on Gibson...

    It’s an unfortunate fact. Sometimes couples make the decision to separate and it’s rarely an easy decision. However, if you are married with kids, going through a divorce is especially tough. While many factors play a part in a divorce, one of the most contentious areas is deciding who children will stay with once their parents are no longer living together.

    Building a new normal for your family

    And at a time when our children have already been through such great upheaval, parents who are divorcing need to work hard to keep things as normal as possible for their kids, but how do you manage this when a marriage has broken down?

    Minimising the impact

    Through our years of experience dealing with families in this situation, we know that parents who have a good understanding of their options can make better choices for the future of their families. Children expect their parents to have all the answers, so making sure you understand the process means you will be in a better position to keep life as normal as possible for the children – and this is one of the most important things you need to consider each step of the way.

    In many divorce cases, the issue of where the children will stay is settled amicably between the spouses and the children themselves. But in cases where an agreement can’t be reached, the courts have to get involved to make a decision and this is where things can become problematic.

    Studies have shown that, unsurprisingly, keeping life as normal as possible for children following a divorce (e.g. staying in the family home and having contact with both parents), minimises the negative impact on them. So, if you’re divorcing, this article will give you some insight into your options to help the process to run as smoothly as possible, so you can get the best outcome for all.

    Things the courts will consider

    If arrangements for children are being decided by a court, bear in mind the court will take all the circumstances into account including:

    • The respective houses of the parents: who will stay in the family home; the size and suitability of homes and the proximity to the children’s school.
    • Schooling: ideally, children will stay at their current schools.
    • Friends & Family: if children have family ties and friends in the area where the family home is located, the court will look at this as a factor.
    • The children’s preferences: if the children are deemed mature enough, their opinions about who they’d like to live with will be taken into account.

    The court’s paramount consideration is always the best interests of the children.

    Arranging shared care

    We have many clients who want to operate a shared care arrangement and there are a number of ways to do this. Below we outline the most popular options for shared care and the pros and cons of each, although each family’s situation is unique.

    • Alternate weeks: The benefit of this option is that it gives the children a longer period of time in each home, rather than having to move frequently, so they can feel more settled. This can be a good option if both homes are handy for schools and the children are happy being away from one parent for a week at a time.
    • Split the week in half: This option can be confusing for children and can only work if both homes are close to each other. But it does reduce the absence time from both parents and can work if a good routine is established, especially for older children.
    • Weekends: In some cases, a good option is one parent having the children during the week and them staying with the other one at weekends. This helps to instil a good sense of routine and can also work well where one parent has moved away from the child’s school for example. It can also be beneficial if one partner works long hours during the week or works
    • Ad-hoc arrangements: For some families, ad-hoc arrangements for the children may be the best option as they allow for flexibility on all sides. These tend to work better with older children where establishing a routine is not so important. As long as all parties are in agreement, more flexible living arrangements can work out fine.

    Keeping the conversation going

    Without a doubt, it’s best all round if an amicable agreement can be reached between the parents on arrangements for the children after a divorce. If divorcing couples can sit down to talk about the future of the family, a better outcome is always possible. Many children from families who have been through a divorce enjoy a happy and stable future with great relationships with both parents. This is the most desirable outcome for all as you work together to build a new normal for your family.

    Here’s a quick recap of the main points from the article:

    • Children who have regular contact with both parents after a divorce are usually happier and can have fewer issues in the future.
    • If your dispute about the children goes to court, the court will take a number of things into account such as schooling, social life and the child’s preferences (if mature enough).
    • There are a variety of ways to make shared care arrangements work, including alternate weeks, splitting the week in half and one partner having the children at the weekend.
    • Agreeing arrangements without court involvement (for example, through mediation) is normally preferable.

    Contact us

    If you need advice or support with anything related to divorce, our team of divorce lawyers in Edinburgh and Glasgow can help. Contact us to discuss your situation.

    You might also be interested to:

    The post Dealing with Divorce: What’s Best for Your Children? appeared first on Gibson Kerr.


    Property market moves into “new normal” phase

    The Scottish Government’s Route Map will see restrictions on moving home eased as of the 29th June 2020. Recent figures from ESPC indicate there may be pent up demand for property, which will only increase as lockdown restrictions are eased. But things aren’t the way they were, so as the property market moves into the […] The post Property market moves into “new normal” phase appeared first on Gibson...

    The Scottish Government’s Route Map will see restrictions on moving home eased as of the 29th June 2020. Recent figures from ESPC indicate there may be pent up demand for property, which will only increase as lockdown restrictions are eased. But things aren’t the way they were, so as the property market moves into the “new normal” phase, what will it mean for buyers and sellers in Scotland’s property market?

    What has changed?

    Quite simply, from 29th June 2020, unless you are shielding, you will be able to have your property surveyed, valued and viewed in order to facilitate a sale. Provided you take sensible precautions, of course.

    This might seem daunting at first. For the past few months the restrictions on movement have been severe. The idea of having strangers in your property may seem like a huge hurdle considering you haven’t been able to have family or friends round for tea and cake since March!

    There are a number of guidelines in place to ensure the safety of all those involved in the buying and selling process. The advice and guidance is evolving, but the property team at Gibson Kerr is here to help guide you through the process as seamlessly as possible. 

    Safe as houses

    Our key focus is to ensure the safety of everyone involved when bringing your property to market. Our surveyors and our marketing consultant will visit separately and at pre-arranged times in order to adhere to social distancing guidelines.

    Ideally you should vacate your property while the survey or photography is taking place. If you are unable to completely vacate your property, please try to ensure as few members of your household as possible are present.

    In addition, you should take some sensible precautions:

    • Everyone present should wear face coverings and use hand sanitiser as necessary.
    • All surfaces should be cleaned before and after visits.
    • Walk through your property prior to a visit and ensure all doors are open as this will limit any unnecessary touching of handles.
    • Leave open any cupboards with ample storage space, any attic hatches or boiler cupboards, and also doors to garages and sheds. 

    How will viewings take place?

    The way “new normal” viewings take place will be changed for buyers and sellers alike. Open viewings will not be available for the foreseeable future, so start enjoying your Sunday afternoons again! Virtual viewings will be encouraged by all firms. Whether this is done via Zoom, or FaceTime, a 360 tour or a video will vary for each firm and for each property. We look forward to discussing various different options for viewings in order find a suitable virtual option for your situation. 

    In person viewings will be permissible as of the 29th June, but vetting will take place. Again, this will vary from firm to firm, and from property to property but the main questions we will ask are:

    1. Why are you interested in the property (e.g. as a main residence, a second home, buy to let)?
    2. What is your current situation (i.e. do you have a property to sell yourself)?
    3. Have you used all the virtual tools available to view the property?
    4. Do you have adequate funding?
    5. Have you, or your household had any symptoms of coronavirus?

    We would advise when viewing properties you maintain social distancing, wear PPE, and avoid touching any surfaces. In addition, you should follow public health guidance in relation to not touching your face and using hand sanitiser as necessary.

    If you or a member of your household becomes unwell during the process of your sale, please get in touch as soon as possible. This will allow us to discuss the best way forward and to postpone any viewings that may have been arranged.

    Flexibility is key

    Once you have had an offer accepted on your property a date of entry will need to be agreed upon. This will require extra flexibility for several reasons.

    Many lenders have had to furlough staff. ESPC have reported mortgage offers are taking around one week longer to process. This means the date of entry may be slightly later than the 6 to 8 weeks we are used to. As the “new normal” beds in, we hope this situation will improve.

    When it comes to moving day, you may find moving companies will have less availability. Their staff will more than likely take slightly longer to move your things as a result of following social distancing guidance.

    You should expect a slightly longer conveyancing period than you may have experienced in the past. You may need to be patient while a date of entry that suits all parties is negotiated. This date could also be subject to change at short notice – if anyone in either household has coronavirus symptoms, the date may be subject to postponement for isolation purposes.

    To prepare your property for handover to the new owners, you should undertake a thorough clean with domestic cleaning products. Similarly, we recommend you do the same when you take possession of your new property. The guidelines do not suggest specialised cleaning is necessary.

    Get in touch

    If you would like advice on a property transaction, please do not hesitate to get in touch with our property team on 0131 226 9167 or email: property@gibsonkerr.co.uk.

    The post Property market moves into “new normal” phase appeared first on Gibson Kerr.


    Top tips for stress-free school holidays for children of separated parents

    This year the school summer holiday period is likely to be a more stressful time than usual for parents. Cancellation of planned holidays, lack of clarity on childcare options, and the potential of returning to work will all affect a family’s enjoyment of the holiday period, not to mention the uncertainty of children’s return to […] The post Top tips for stress-free school holidays for children of separated parents appeared first on Gibson...

    This year the school summer holiday period is likely to be a more stressful time than usual for parents. Cancellation of planned holidays, lack of clarity on childcare options, and the potential of returning to work will all affect a family’s enjoyment of the holiday period, not to mention the uncertainty of children’s return to school in August.

    For separated parents, or those currently going through a separation, this uncertainty is likely to be exacerbated as they try to divide the time with their children between the two parents. However, in these difficult times, it is better for everyone if you can agree on how the school holidays should be divided up.

    Our top tips

    Here are our top tips to help separated parents reach a civil agreement and avoid the stress of court.

    1. Plan ahead as far as possible.  Most arrangements can be accommodated if plenty of notice is given.  It also means you have time to act if agreement is not possible and a court hearing is necessary.
    2. If you have limited or restricted time in the holidays, due to work or other commitments, discuss this with your ex-partner in plenty of time.  If you have a good reason for seeking specific dates make this clear while keeping discussions as friendly as possible.
    3. Consider the travel time involved in moving the children between your homes and be realistic in what you can expect the children to cope with.  This will vary depending on the age of your children.
    4. Avoid discussing exciting plans with the children prior to discussing them with your ex-partner. This can cause animosity and could result in very disappointed or conflicted children.
    5. Keep a record of what has been agreed e.g. keep texts or emails where consensus is reached.
    6. Consider whether there are any strong traditions that the other parent has. For example if the other parent is religious, certain religious festivals might be especially important to them.  Concessions on these times will likely be met with gratitude and will enable smoother communications.
    7. Do not make bookings or other financial commitments until you have secured agreement or a court order. 

    Reaching agreement

    Making arrangements that both you and your ex-partner can agree on may be difficult. See our blog on dispute resolution methods for ways to reach agreement as amicably as possible without going to court.

    If agreement is impossible you will have no option but to ask the court to make an order.  If you have already engaged in the court process to deal with contact or residence difficulties, you may be able to recall that action to deal with this specific issue.

    However, if you have until now managed to reach agreement between you, you will need to raise a fresh court action.  This can be expensive and does take some time.  Actions can be raised urgently but courts are busy and cannot always accommodate an urgent hearing. So it is better to establish early whether you will have to resort to court action. 

    In normal circumstances, you should raise a court action about 6 months before the holiday contact you wish the order to be granted for.  This gives the court sufficient time to adequately consider the issues surrounding each parent’s position.  The court may have to take the views of the children into consideration and this cannot be rushed.

    You should bear in mind that due to Coronavirus restrictions, courts have only been dealing with urgent cases. When activity resumes more fully there is likely to be a significant backlog to work through, so things may not move as quickly as you hope.

    If you would like any advice on child arrangements, our experienced family law team will be happy to help. Please contact us or call 0131 202 7516.

    The post Top tips for stress-free school holidays for children of separated parents appeared first on Gibson Kerr.


    Separated? 6 Ways to Resolve Disputes

    When couples separate, there are often issues that have to be sorted out and disputes can arise. Whether the problem is financial or in relation to property or childcare arrangements, there are a number of options for you and your former partner to resolve the issue. During the coronavirus lockdown, the courts have stopped dealing […] The post Separated? 6 Ways to Resolve Disputes appeared first on Gibson...

    When couples separate, there are often issues that have to be sorted out and disputes can arise. Whether the problem is financial or in relation to property or childcare arrangements, there are a number of options for you and your former partner to resolve the issue.

    During the coronavirus lockdown, the courts have stopped dealing with all but the most urgent business. This means that clients are not able to bring non-urgent disputes to court for a decision by a judge. When the courts start to reopen it is anticipated that there will be a significant backlog of business and this will mean delay for many people who have disputes with former partners. Fiona Rasmusen, Partner and Head of Family Law, explains the other options available for resolving disputes at this time.

    1. Kitchen table

    Although it doesn’t have to be at a kitchen table, this is where you and your former partner sit down together to negotiate an agreement. Depending on the nature of the relationship breakdown, this is sometimes possible and has the advantage of saving on legal fees and it’s likely that your relationship can remain more amicable. However, you should always take some legal advice and even if you can reach an agreement this way it’s still wise to engage a solicitor to draw up a formal legal agreement.

    2. Mediation

    This method involves both parties sitting down together to discuss the issues in the presence of a neutral mediator. The mediator will work to guide a constructive discussion, so it’s more likely that the parties can reach an agreement. Again, it’s advisable that you take separate legal advice throughout this process so you’re clear what your rights are, and you should not sign any agreement without having legal advice.

    3. Collaborative Law

    In this process each party engages their own solicitor, who will be trained in collaborative law.

    All four people then have a series of meetings and work together to reach a settlement. Both parties and their solicitors sign up to the process before starting and agree not to raise court proceedings. This process is less likely to result in a total breakdown of the relationship, which is important if you have children together. It can also be quicker and cheaper.

    4. Negotiations through solicitors

    This is the most common way that disputes are dealt with. Each party engages their own solicitor and they negotiate an agreement on the issues between them. The advantage is that each party has legal advice, so are fully aware of their options. However, depending on the complexity this process can be lengthy and can become expensive.

    5. Arbitration

    Instead of going to court an arbitrator is appointed and each party gets the chance to present their case to the arbitrator who then makes a decision. A decision made by an arbitrator is binding. The advantages of arbitration are that you can choose your arbitrator and you and your former partner can control the process, which is 100% confidential.

    6. Court litigation

    This would normally be another method commonly used to resolve disputes. However, because of delays caused by the lockdown, it is problematic at the moment.

    Find out more …

    If you want to discuss any particular method of dispute resolution, please get in touch.

    Email: fiona.rasmusen@gibsonkerr.co.uk Tel: 0131 226 9161.

    The post Separated? 6 Ways to Resolve Disputes appeared first on Gibson Kerr.


    Why is Power of Attorney important and can I still do it during lockdown?

    Let’s face it, power of attorney isn’t something we discuss over dinner every day. You may be wondering, why is it important to have one? Granting a power of attorney is still possible during lockdown and the coronavirus pandemic means having one in place is more important than ever. What is a power of attorney? […] The post Why is Power of Attorney important and can I still do it during lockdown? appeared first on Gibson...

    Let’s face it, power of attorney isn’t something we discuss over dinner every day. You may be wondering, why is it important to have one? Granting a power of attorney is still possible during lockdown and the coronavirus pandemic means having one in place is more important than ever.

    What is a power of attorney?

    A power of attorney is a deed in which you appoint another person (or people) to deal with your affairs on your behalf. You may be unable to deal with your own affairs as a result of illness, or an accident, or maybe as a result of the ageing process. A power of attorney can also be useful if you are in good health. For instance, if you are out of the country for an extended period, or unable to leave your home for any reason.

    A power of attorney can cover financial matters such as paying bills and accessing your bank accounts. It can also cover welfare matters such as decisions about where you live and certain medical treatments.

    You can set up your power of attorney so that some of the powers can be used by your attorney even if you are capable of managing your own affairs, if you wish to do so.

    Why is a power of attorney so important?

    Granting a power of attorney means there is someone you trust who can manage your affairs for you, if you are unable to or you want assistance. By granting one, your money and property can be preserved and used for your benefit.

    If you become incapacitated and have not granted a power of attorney, no one has automatic rights to deal with your affairs. A court order for legal guardianship may have to be applied for, which can be a lengthy and costly process.

    Attorneys must act in accordance with certain legal principles and any action they take should be for your benefit.

    A power of attorney could be particularly helpful if restrictions remain in place for coronavirus longer term. Your attorney may be able to undertake transactions on your behalf. This may include visiting your bank, if you are unable to as a result of illness, or self-isolating, or being shielded.

    How does lockdown change the process?

    Like other aspects of our daily lives, the process for putting a power of attorney in place is slightly different from normal. However, it is still possible despite lockdown restrictions.

    Normally a power of attorney is signed in the presence of a solicitor or doctor. As it is currently not possible to carry out face-to-face meetings, the Law Society of Scotland have confirmed that such meetings can be completed by way of a video call instead.

    So, the first step is to instruct a solicitor by a telephone or video call. Your solicitor will then prepare your power of attorney for you to approve. Once approved, you can sign the power of attorney by video call. If you are unable to attend a video call, we can discuss possible alternatives for signing your power of attorney.

    We offer fixed fee packages for basic powers of attorney. For further information about the costs or the process of putting a power of attorney in place, please contact Stuart Millar, Associate in the Personal Law Department, 0131 226 9163.

    The post Why is Power of Attorney important and can I still do it during lockdown? appeared first on Gibson Kerr.


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