lindsays life
Issue 22
Our Services For you and your family Buying and Selling your Home Child Matters Cohabitation and Prenuptial Agreements Divorce and Separation Housing and Letting Personal Injury Claims Powers of Attorney and Guardianships Resolving Family Disputes Rural Services Trusts Wills and Executries For Business Agriculture and Farming Banking and Finance Buying and Selling Your Business Charity Governance Commercial Property Commercial Disputes and Litigation Corporate and Commercial Employment Law for Businesses Landed Estates Managing a Family Business Renewable Energy Restructuring and Insolvency Technology and IT
lindsays life
Welcome to our 22nd issue of Lindsays Life, now in a refreshed digital format for 2022. For many of us, the easing of the last Covid-19 restrictions – including simpler rules for travel abroad and the end of compulsory masks – makes this spring a memorable one. There’s a definite feel of renewal in the air. With this in mind, many of our articles in this issue have a theme of new beginnings and coming back stronger (even after setbacks). For those entering a new relationship phase, our article on cohabitation agreements and pre-nups is essential reading. We also have articles on how to manage change, with suggestions on how to aim for a “good divorce”, and how blended families can navigate inheritance issues.
Issue 22
For anyone who’s had the misfortune to go through a personal injury (PI) case, we have information on the use of PI trusts to support your financial planning post-injury. There’s an article on how you could use your digital skills to help charities come back stronger after Covid-19, and our Rural team describe how they’re supporting the Argyll Estate restore some of the Charters in their archives, some of them over 700 years old. Plus, we have new rules for employers on pay and other matters; ideas for anyone setting up a company (or looking to protect their current one); and the latest news on the resurgent residential property market in Scotland.
the life of this magazine This magazine has been issued by Lindsays on the basis of publicly available information, internally developed data and other sources. Whilst all reasonable care has been taken to ensure the facts stated and the opinions given are correct, Lindsays does not accept any responsiblity for its content and advise that specific advice should be sought regarding the topics covered.
Last but not least, we have a blog from our sponsored athlete Eilish McColgan on how she’s restoring herself to fitness postCovid. As ever, it’s a wide-ranging set of articles, and we hope you will find it useful and interesting as you emerge from the challenges of the past 2 years. Peter Tweedie Chairman petertweedie@lindsays.co.uk 0131 656 5607
To read Lindsays life using our accessibility toolkit, simply click below Read fully accessible version
Contents
Issue 22
02 Flexible work makes co-parenting a reality
03 Is your business paying enough?
04 Wills for all: making law accessible
05 Could your digital skills help a charity?
06 Everything including the kitchen sink
07 Property focus: the sellers’ market stays strong
08 Wills: how best to avoid (or deal with) disputes and challenges
10 Dusting off the running shoes: a celebration
11 Update from our sponsored athlete Eilish McColgan
12 Preserving the past: the Argyll Charters
14 The business view: tips for corporate success
15 Inheritance and modern families: a bumpy ride
16 Divorce dramas are best kept to TV
Example One 17 PI to post: pitfalls of social media An individual who says they need a
18 News from lindsays
walking aid but has recently posted holiday photos of them diving into a pool will more than likely have their claim argued. If such a case were to go to a court hearing, it would be difficult for that person to prove themselves as credible.
20 In brief: personal injury trusts explained
21 Sign up for lindsays life
lindsays.co.uk
issue 22
02
Flexible work makes co-parenting a reality In recent months, we’ve seen a trend gather pace among families where the parents are separated. We suspect that it relates to changing work patterns. Previously, the practical realities of work and family life have often meant that when parents separate, one of them becomes the primary carer for their child(ren). However, there’s lately been a noticeable trend for people – in particular, fathers (or mothers) who were not originally the primary carer post-separation – to ask for a shift to more equal co-parenting arrangements.
We know that some people enjoyed assuming a more active parenting role during the pandemic.
1 2
Children come first
Any arrangements must work for your child(ren), and their own views should be taken into account.
Paper trails are useful
How you make any changes may depend on whether your current arrangements were negotiated informally, through solicitors or decided by a court. Your solicitor can advise on this. But even when agreeing changes informally, it’s wise to document any discussions or decisions in case there are later disputes or differences of memory.
The new normal vs the next normal There's no evidence that this is the result of changes to people's work and childcare arrangements during Covid-19, but we do know that flexible work patterns can make it easier to take a co-parenting role. We also know that some people enjoyed assuming a more active parenting role during the pandemic. Let's suppose that your own family is discussing a switch to equal co-parenting; what should you bear in mind?
Alison McKee Partner and Head of Family Law alisonmckee@lindsays.co.uk 0141 302 8447
lindsays life
issue 22
3
Most people agree that some degree of virtual and hybrid working is here to stay, but can we really be sure that regular business trips or burning the midnight oil in the office are gone forever? Children tend to need and prefer stable parenting arrangements and schedules, and it is far from ideal to insist on a co-parenting role that you may not be able to sustain.
Tread carefully around emotions
4
It's fantastic if both parents want to be actively and constructively involved in family life, but beware of reviving old tensions if your original residence and contact discussions were fraught. Remember that the current primary carer may feel undermined, the children anxious or other family members sceptical. Some empathy and/or mediation may be needed!
03
Is your business paying enough? Have your pay rates kept up to date with current requirements? And did you know there’s an extra bank holiday this year? New Minimum / Living Wage rates and the one-off bank holiday are just some of the changes for employers and employees to be aware of this spring. Other changes relate to statutory rates and measures introduced in response to Covid. Below we give you a short summary of the new rules and rates.
EXTRA BANK HOLIDAY
The additional bank holiday, on Friday 3 June, marks the Queen’s Platinum Jubilee. The usual late May bank holiday has moved to Thursday 2 June to give a four-day weekend. As a result, it’s safe to expect one or more of the following that weekend: bad weather, delays on the roads or long queues at airport security.
INCREASE TO MINIMUM WAGE
Since 1 April 2022, the following rates apply for National Minimum / Living wage: • • • •
23 years and over: £9.50 per hour (up 61p) 21-22 years old: £9.18 per hour (up 27p) 18-20 years old: £6.83 per hour (up 27p) Under 18 years old (above compulsory school age): £4.81 per hour (up 19p) • Apprentices under 19 years (or over 19 in year 1 of apprenticeship): £4.81 per hour (up 51p)
COVID-RELATED SSP
From 21 December 2021, employers with fewer than 250 employees (at 30 November 2021) were able to recover two weeks' of SSP for each eligible employee who was off work due to Covid-19. However, the Scheme applied only to Covid-related absences until 17 March 2022, and employers had to submit claims to recover this by 24 March 2022.
OTHER STATUTORY PAY RATES
From 6 April, Statutory Sick Pay (SSP) rose to £99.35 per week (from £96.35). From 3 April, maternity, paternity, shared parental, parental bereavement and adoption pay increased to £156.66 per week (from £151.97).
PERSONAL PROTECTIVE EQUIPMENT (PPE) COMPENSATION LIMITS FOR TRIBUNAL AWARDS
Where employment has been terminated on or after 6 April 2022, the following rates now apply: • The limit on a week's pay is £571 (up from £544). • The same weekly limit applies for statutory redundancy payments. • The maximum compensatory award for unfair dismissal in Employment Tribunal awards is £93,878 (up from £89,493). • The minimum basic award for certain unfair dismissals (including health and safety dismissals) is £6,959 (up from £6,634).
Since 6 April 2022 the Personal Protective Equipment at Work Regulations 2022 have extended the duty on employers to provide suitable PPE, where there is a health and safety risk, to all workers, not just employees.
Katherine Irvine Associate, Employment katherineirvine@lindsays.co.uk 0131 656 5542
lindsays.co.uk
issue 22
04
Wills for all: making law accessible How do you go about making a Will if you have sight loss or mobility issues, or don’t speak English? An amicable resolution
I read a statistic recently that every day 250 people in the UK start to lose their sight. And whereas today there are roughly 2 million people with sight loss in the UK, this may rise to 4 million by 2050. With these stats in mind, it’s not surprising that we’re increasingly being asked about how people can make a Will (or do other legal paperwork) if they are partially sighted or blind. After all, in Scotland, anyone making a Will needs to read and sign every page.
If the person making the Will (the ‘granter’) is partially sighted, the Will can be printed in a font large and clear enough for them to read and sign it. In fact, the process is relatively straightforward. • If the person making the Will (the ‘granter’) is partially sighted, the Will can be printed in a font large and clear enough for them to read and sign it. • If the granter cannot do this, the law in Scotland provides that a ‘relevant person’ (such as a solicitor) can read the document to them in the presence of a witness. The granter then authorises the solicitor to sign it on their behalf, and there will be a clause in the Will stating that this has happened. The witness will also sign.
lindsays life
issue 22
• This process, called ‘notarial execution’, can also be used for people who are sighted but cannot read or write – perhaps because they have literacy or mobility issues. • It’s also possible for the granter to make a declaration that they don’t want the ‘relevant person’ to read the Will to them, and to have a witnessed statement to that effect in the Will.
Wills for non-english speakers
What if someone wishes to make a Will but cannot understand or speak English? In this situation, we usually suggest having an interpreter / translator assist them. To avoid future disputes, the interpreter / translator should not have any conflict of interest (for example, be a family member standing to gain from the Will). They should also understand the need to keep the information confidential and, ideally, have a reasonable grasp of the legal concepts involved.
Capacity issues
It’s important to emphasise that these scenarios are very different to the question of whether someone has capacity (i.e. the legal or cognitive ability) to make a Will. This is a separate issue that requires its own arrangements and precautions.
Clare McCarroll Partner, Private Client Services claremccarroll@lindsays.co.uk 0131 656 5609
05
Could your digital skills help a charity? From local groups to national organisations, the third sector needs trustees with digital knowledge. 3 TIPS for charities Over the past two years, we’ve all made more use of digital technologies to get things done. This includes the third sector. Over four out of five (81%) charities and voluntary sector organisations changed the way they use digital technology as a result of Covid, states research by NCVO. One consequence of this is that charities need staff with digital skills, covering anything from marketing and fundraising to online security. In the NCVO survey, 73% of respondents said the level of digital skills required by staff and volunteers had increased. In tandem, charities also need trustees with digital skills. Without having digital expertise on their boards, they may: • Miss out on the opportunities that digital offer. • Underestimate risks around, for example, cybersecurity – or the lack of it.
Filling digital gaps
Some charities are approaching the issue by bringing on board a ‘digital trustee’ – accepting that some of their longer-standing trustees may be reluctant to embrace this area. Others are taking a hybrid approach, both recruiting trustees with digital perspectives and providing training on digital issues to other trustees.
Do a skills audit – including of all digital skills. Build digital into your governance training and succession planning. Understand the scope of digital – it’s not just about having a trustee to do your social media.
Either way, if you have any digital skills, now could be the time to deploy them for a good cause.
Part of a wider issue
It’s important for charities and charity trustees to recognise that upping their digital awareness is part of a wider picture around skills and diversity. Digital skills gaps on their boards may result from trustees typically being ‘of a certain age’ – an issue that may also lead to other problems such as being out of sync with their service users, donors or volunteers, or being unaware of emerging risks or opportunities for the charity. In this sense, going digital could be one part of a much bigger, and very valuable, process of surviving and thriving.
3 TIPS for potential trustees Don’t worry that you’re too young or inexperienced – charities are looking for new perspectives. Understand your value – your digital skills could help a cause you care about. Ask for trustee training to help you perform your role.
David Dunsire Consultant, Charities and the Third Sector daviddunsire@lindsays.co.uk 0131 656 5654
lindsays.co.uk
issue 22
06
Everything including the kitchen sink The value and flexibility of prenuptial and cohabitation agreements are not always appreciated. But they’re a great way to set out what you really, really want… Many people who marry don’t know that a prenup would work well for them. And most people who buy a home together (without being married) don’t know they need a cohabitation agreement. This is understandable. It’s hard to grasp what a prenup or cohab agreement could do for you unless you know the legal rules about what happens if you split up. Most people don’t know this until the rules bite them. Prenups and cohabs would be more compelling, and also even more useful, if people realised how flexible they are (compared to the relatively rigid rules that apply when you don’t have them). The answer to the question “What can you put in these agreements?” is simple: “Pretty much anything, including the kitchen sink!” What’s in a prenup? In essence, a prenup sets out which of your assets will or won’t be counted as matrimonial property if you divorce. For example, ordinarily, the matrimonial pot would include: • Any assets you acquired during the marriage. • Your family home and furniture – even if you bought it pre-marriage and one partner paid for it. • Gifts from your spouse during the marriage – including jewellery, cars, investments. • If you owned a business, property or assets before your wedding, they would usually be excluded. But if you sold them after marrying and spent the money on something else, that new asset could be part of the matrimonial pot, as could investments you added to after the marriage.
lindsays life
issue 22
• Another grey area is where one spouse’s existing business grows significantly during the marriage. If any of these points ring alarm bells for you, be assured that a prenup could exclude them from the matrimonial pot – along with other assets we haven’t mentioned. What’s in a cohab? The situation with cohabitation agreements is different in that cohabiting partners have fewer rights than spouses. But cohabs also look more compelling if you understand what you could lose in a split. One classic example should help here: where you pay all or most of the deposit (or total price) when buying property with your partner. If you split and sell up, you won’t have any automatic right to get that money back. Nor will you have any remedy in law allowing ownership of the property to be transferred to you. Fortunately, these and many other points can be covered off in a cohab. Anything you want them to be The common point with these different scenarios is that prenups and cohabs allow you to protect assets or rights that you care about. All you need is: • An agreement that is fair and reasonable at the time you make it – for example, no one is put under any pressure to sign. • A lawyer who understands the possibilities and how to execute them effectively.
Nina Taylor Partner, Family Law ninataylor@lindsays.co.uk 0131 656 5788
07
Property focus: the sellers’ market stays strong Our regular round-up of the property market in Edinburgh, the Lothians, Fife and Tayside. So far in 2022, the story in the residential property market is similar to that of 2021: demand remains high, prices are strong, sales records are being broken, and intense bidding among buyers remains the norm in some areas. Here at Lindsays, we have been seeing sales worth £17 million a month, on average, as demand in the housing market continues to outstrip supply in many parts of Scotland. As a result, the value of homes we sold in 2021/22 topped £200 million – a first for the firm.
Edinburgh and the Lothians Competition in the capital continues to fuel price rises. The average house price in Edinburgh was £314,798, yet buyers do not seem deterred. This year, it has not been unusual to have 10 to 15 potential purchasers bidding on a property, and this drives up their bids. Those looking to sell houses can expect to achieve a solid return across most areas of Edinburgh. One of the big property trends from 2020 and 2021 remains in place this year: people’s search for homes with a garden or space for a home office continues to drive demand in the Lothians and Fife. In parallel, In parallel, there are signs of revived interest in flats in the city centre and areas like Leith, including for one-bedroom flats as firsttime buyers re-enter the market.
We have been seeing sales worth £17 million a month, on average, as demand in the housing market continues to outstrip supply in many parts of Scotland.
In addition, Dundee’s Waterfront development continues to create an economic buzz. As a successor to the “V&A effect” of a couple of years back, we may see an “Eden effect”, following the announcement of the next phase of Eden Project Dundee. As a result of factors like these, the value of property Lindsays sold in Dundee and Tayside in 2021/22 jumped by 3.5% on the previous year. In addition, the affordability of property in Dundee makes this a good hunting ground for buyers as well as a solid market for sellers. Kirsty Cooper Partner, Residential Property kirstycooper@lindsays.co.uk 0131 656 5779
Vhari Selfridge Partner, Residential Property vhariselfridge@lindsays.co.uk 0131 656 5786
Dundee and Tayside In Dundee and Tayside too, the market is buoyant, powered by: • The quest for more space. • Hybrid working patterns making it possible to live further from the office. • People looking to invest lockdown savings into a home.
lindsays.co.uk
issue 22
08
Wills: how best to avoid (or deal with) Simple mistakes can invalidate a Will or lead to family fall-outs. We highlight some of the main errors to avoid when making your own Will, and your options if you want to challenge someone else’s Will. Research south of the border shows inheritance disputes reaching record highs in recent times. One reason posited for the growing number of disputes hitting the courts is families feeling the financial pinch as a result of Covid or the cost of living crisis. Another is that with families becoming more blended and/or widely dispersed, family members may not be fully aware of their rights or entitlement under a loved one’s Will. Disputes regarding Wills can be highly specific and technical. They can also be emotionally difficult given that the catalyst of the dispute involves the death of a loved on. Whilst there is no sure way of preventing a Will dispute, it may be possible to reduce the risk of such a dispute arising by avoiding 5 common mistakes when drafting your Will.
1. Choice of executors Perhaps the most common mistake is choosing an executor who is not competent to perform the role or not interested in doing it, or equally choosing multiple executors who cannot work together constructively. Whilst it is not uncommon for family members to seek to have executors removed from office in practice it is very difficult to do. It is not enough to show that the executor has made mistakes but certain grounds must be established including that the executor has acted in a manner which is blatantly inappropriate in their role, or that there is an unacceptable conflict between the executor’s personal interests and their duties as executor.
lindsays life
issue 22
2. Whereabouts unknown Many people think their families will intuitively know where to find their Will, but would you know where your loved ones have put theirs? Or whether the one you find is their most recent one? The easy solution is to have your Will stored by your lawyer, keep your own copy in a safe place, and tell people about those arrangements.
3. Falling behind the times Life events, such as marriage, separation, divorce, remarriage, having children and the death of an executor or beneficiary, generally require a Will to be updated. Some events invalidate your current Will; whereas with others your Will remains valid but may no longer suit your family circumstances (see our article on “Inheritance and Modern Families” for some examples of this). One frequent issue is where parents leave a child (perhaps from an earlier relationship) out of a Will, without recognising their legal right to a share of the estate.
4. Capacity and influence Sadly, the rising numbers of people with dementia and mental health issues mean we’re likely to see more questions being asked as to whether someone had ‘testamentary capacity’ when they executed their Will or indeed whether they had been influenced by another when doing so. The fact that someone has dementia, for example, doesn’t stop them from making
a legal Will but the right measures should be taken to ensure that it is valid. Where such steps aren’t taken it may be difficult to retrospectively prove that the individual had the requisite capacity to draft their Will and could result in court action being raised.
5. Textbook errors Sadly, far too many people make textbook errors when drafting and executing their Wills. For example, they download a Will template from an online source which hasn’t been drafted in accordance with Scots law, or they have failed to sign their Will or have it witnessed properly. In each of these examples the Will could be deemed invalid. Alternatively, many do not recognise the consequences of the contents of their Will to the effect their Will and the way their estate will be distributed does not represent their wishes. For example, failing to take account of different people’s legal rights, who could then potentially go on to make a claim against the estate. Many of these issues crop up because people try to save costs which is of course understandable. However in practice the above errors can actually lead to higher costs for family members who may be required to raise a court action to resolve a dispute. In addition, it can lead to family conflict at a time where family ought to be supporting one another. Asking a solicitor to help you avoid these errors could therefore protect your loved ones from an expensive and stressful inheritance dispute.
09
disputes and challenges Will disputes: try to dial down the tension There are many scenarios where you might want to challenge a Will or the execution of a Will. You may have been left out of a Will, or not been giving the option to claim your legal rights. You may suspect that a relative, new partner or neighbour manipulated a loved one into making a Will (or changing one). A Will may have been poorly prepared, revoked or lost. Or the executors may appear to be performing their roles incompetently or unfairly. And so on and so forth – this list is certainly not exhaustive. If you do feel uneasy about the contents or handling of a Will, there are plenty of legal remedies and solutions available to you.
The starting point is to talk to a lawyer. More often than not they can tell you where you stand from a legal point of view and what options are available to you (if any). In the first instance this should assist you in deciding whether to take action. If you decide to take further action in relation to a Will dispute, your lawyer can provide you with more detail regarding the different options which may be available to you and explain the pros and cons of each option. Given the delicate nature around these types of disputes your lawyer will typically try and resolve any disputes through negotiation, rather than proceeding straight to court action. This approach can often be quicker, less expensive and less damaging to longer-term family relationships.
Lynsey Kerr Partner, Private Client Services lynseykerr@lindsays.co.uk 0131 656 5721
For example, often with disputes, legal rights or professional negligence issues, an early letter from your lawyer to the executor, their advisors or the solicitor accused of professional negligence can quickly and effectively highlight the problems and open the doors for a solution. With lost Wills, a lawyer can help you with the standard procedures for investigating how the Will was lost, putting together the relevant evidence, and taking the necessary steps with the court (known as a ‘proving the tenor’ action). If a dispute can’t be resolved through negotiation, a good lawyer can guide you through the next steps with the courts, still looking to avoid delays and escalating costs.
Samantha Miller Solicitor, Dispute Resolution and Litigation samanthamiller@lindsays.co.uk 0141 302 8424
lindsays.co.uk
issue 22
10
Dusting off the running shoes: a celebration What were you doing on 26 February this year? You may not remember, but here at Lindsays we certainly do. Saturday 26 February 2022 saw the return of the Lindsays National Cross Country Championships – a red letter day for us. The last time the event took place was back in February 2020 before Covid-19 brought the world to a halt. Celebrating the return of the National XC Championships with us were around 2,200 athletes from over 100 different clubs. They came from as far away as North Uist and Stornoway to compete at Falkirk’s Callendar Park.
Lindsays National XC Championships at Callendar Park, Falkirk: Senior Mens race Photos by Bobby Gavin
The excitement at Falkirk wasn’t just about which clubs and runners were going to win after the 2021 hiatus. Much of it was about community – the gathering of different clubs, volunteers and runners, ranging in age from 12 to 70+.
There was also a sense of elation about the return to cross country itself, with many people telling us about the physical, mental and social benefits they get from club running.
There was also a sense of elation about the return to cross country itself, with many people telling us about the physical, mental and social benefits they get from club running. These benefits reach far beyond the track (or in this case, mud) into their job, studies and how they plan their life.
Our Chief Operating Officer Ian Beattie MBE, also Chair of UK Athletics, agrees, believing that lessons from the sporting arena translate well into the office: “I genuinely believe that lessons learnt in sport – such as focus, organisation and
A buzz in the air
lindsays life
issue 22
having short, medium and long-term targets – can be used to create healthier, happier and more efficient workplaces – and vice versa.” In common with many of those at Falkirk, Ian also believes that the joy and self-belief people get from running can feed into other parts of their life. “Do not underestimate happiness,” he says. “It breeds success.” Yet another reason to celebrate the return of the Lindsays National XC Championships!
Ian Beattie MBE Chief Operating Officer ianbeattie@lindsays.co.uk 0131 656 5751
11
Update from Eilish Our sponsored athlete Eilish McColgan describes her rollercoaster start to 2022 and her return to form post-Covid infection. Fresh off the back of a Half Marathon PB and British Record in February, I headed across the pond to the US for our first altitude camp of 2022.
Eilish McColgan Lindsays has sponsored Eilish since 2013. Eilish is 31 years old, a three-time Olympian, British record holder for 5,000m and European Record holder for 10k and 10 miles. She holds numerous British titles over five different events and is a European Medalist both outdoors and indoors.
I knew I was going to feel a bit tired when we landed in Colorado - it was to be expected with seven hours’ time difference and almost a full 24 hours of being awake from door to door! But when we finally reached Colorado Springs, I knew that I didn’t feel quite right. That night, I came down with cold sweats, a thumping headache, a bad fever and extreme nausea. The following morning, I tested positive for Covid-19. It felt a little surreal considering I had had a negative PCR test less than a day before travelling, but it must have been in my system. The first few days were rough. I was sleeping all day every day and did not have the energy to do anything. I managed my first little walk on day 5, and it took around 2 weeks before I started feeling normal and confident enough to try my first track session. Initially, every run felt awkward and forced. Going from being in the best shape of my life to struggling in every interval session was both physically and mentally challenging. Nevertheless, I persisted, listened to my body and adjusted my schedule. We essentially shifted all my plans back by 4-6 weeks and will continue working towards some big goals for the summer season. Although it will be a later start to my racing season, I’ll be ready for it.
Going from being in the best shape of my life to struggling in every interval session was both physically and mentally challenging. Nevertheless, I persisted, listened to my body and adjusted my schedule.
RECORD Breaking At the ASICS event on 24 April, Eilish set a new British record in the 5k road race. As her mum and coach Liz McColgan tweeted afterwards, “How the heck she pulled that out of the bag, I just don’t know… she amazes me.” Congratulations Eilish!
My first race back was an ASICS event on 24 April. From there, I'm planning to take part in a few shorter road races to help me prepare for the upcoming track season. Ultimately my goals remain the same: to run personal bests over 5,000m and 10,000m on the track. There are three major championships to choose from this summer – World Championships, Commonwealth Games and European Championships – it‘s going to be a jam-packed schedule!
Eilish also secured a new PB, a National Record and a European Record over the 10km at the Great Manchester Run on 22 May. Eilish tweeted her delight after crossing the finish line, "33s faster than last year & second behind the incredible Hellen Obiri! Over the moon & excited for the track ” season!
lindsays.co.uk
issue 22
12
Preserving the past: the Argyll Chart Lindsays has helped to preserve papers that tell the story of the Dukes of Argyll. The recent TV series A Very British Scandal, about the acrimonious divorce of Iain Campbell, 11th Duke of Argyll and Margaret, Duchess of Argyll, turned the spotlight on the Campbell family and its long association with Inveraray and Argyllshire. Though Lindsays’ roots don’t reach as deep as those of the Campbells – who arrived in Argyll in the 1200s – we have acted for the Argyll Estate since we were founded in 1815. Because of this long association, we were delighted to become involved in the Argyll Estate Archives’ Adopt a Charter project. The project was set up to fund the urgent repair of a unique series of medieval documents housed at Inveraray Castle which provide invaluable insights into Scotland’s history and the lives, lands and business of the Earls of Argyll. The charters Lindsays has adopted three charters from the Argyll Papers, covering a turbulent period in the history of Argyll, which saw the creation of the Earldom of Argyll and the establishment of Inveraray as a Free Burgh of Barony in 1474. They are part of a set of 17 charters that a recent conservation survey identified as needing urgent preservation work, including stabilising parchment, supporting and infilling holes, and consolidating disintegrating seals.
“We can never replace the wording or seals that have already been lost – through holes, damage, fading ink etc – but we now have documents that we can study in detail, using UV lighting and magnifiers, and from which we can draw the most detail possible,” states Archivist Alison Diamond.
Though Lindsays’ roots don’t reach as deep as those of the Campbells – who arrived in Argyll in the 1200s – we have acted for the Argyll Estate since we were founded in 1815
Before preservation works
‘Our’ three charters have now been cleaned, repaired and repackaged in archival folios to protect them for centuries to come.
Before preservation works
lindsays life
issue 22
13
ters The realities of modern estates
T Michael and Susan appreciating the opportunity to view the restored Argyll Charters (Background L-R: Alison Diamond, the Argyll Estate archivist and Leanne Gordon, Senior Associate in our Rural Services team)
he Argyll Estates Adopt a Charter project illustrates the very diverse challenges faced by modern landed estates. On the one hand, they are the stewards of historic assets that may be centuries old; on the other, they must be up to speed with 21st-century approaches to keeping their estates viable, from crowdfunding, renewable energy generation and property development to heritage tourism.
M
odern estate management is in reality far less tempestuous or glamorous than the scenes portrayed in A Very British Scandal!
After preservation works
Susan Law Partner, Rural Services
Michael Yellowlees Partner and Head of Rural Services
susanlaw@lindsays.co.uk 0131 656 5751
michaelyellowlees@lindsays.co.uk 0131 656 5751
After preservation works
lindsays.co.uk
issue 22
14
The business view: tips for corporate success Behind many successful businesses, there’s a crucial (and unglamorous) ingredient: an effective shareholders agreement. At the end of last year, the number of companies in the UK reached a record high – with over 5 million registered. That included over 771,000 companies registered during 2021 itself. It’s encouraging to see the UK showing its entrepreneurial spirit but we also saw a record number of company dissolutions – almost 607,000 of them. The wider economy played a part in this, of course, but another factor in corporate longevity and success can be the nuts and bolts of how the company is set up. Shareholders agreements In our view, a shareholders agreement is a key element here. As it’s not a legal requirement, people often neglect it, leaving the door wide open for future problems. Rather than relying only on standard articles of association, it’s worthwhile reading our guide below to shareholder agreements.
It’s a classic situation in business that two people (or groups) with equal shareholdings reach deadlock over a dispute, stalling or even destroying the business.
As a shareholders agreement is not a legal requirement, people often neglect it, leaving the door wide open for future problems. Rather than relying only on standard articles of association
Who do they protect? Both majority and minority shareholders.
Why have one? Because people fall out. Even if you start a business with family or friends, you may disagree over the direction or financing of the business, or your personal or family circumstances may change.
In the case of majority shareholders, the shareholders agreement could include, for example, ‘drag-along’ rights to prevent a minority shareholder blocking a company sale.
issue 22
• How you run the business and make key decisions. • Whether the shareholders get different share classes, rights and dividends. • Dispute resolution. • What happens if a shareholder wants to sell shares, leaves the company or dies.
What are they? A shareholder agreement can define shareholders rights and obligations, facilitate the smooth running of the business, and prevent conflict. Any private company with two or more shareholders can – or should – have one.
lindsays life
What else can they offer? That depends on what you and your co-shareholders, and your advisers, want. The agreement could cover areas such as:
In the case of minority shareholders, an agreement could provide them with greater rights than they get with standard articles.
• Non-compete provisions. Some of these elements may be covered by the Companies Acts or other corporate law, but an agreement may make it easier to achieve them in practice. A corporate lawyer can help with this.
Nimarta Cheema Associate, Corporate and Commercial nimartacheema@lindsays.co.uk 0131 656 5686
15
Inheritance and modern families: a bumpy ride Leaving money to loved ones is not always straightforward or tension-free in a blended family. Planning and communication are essential. The families of Pablo Picasso, John Lennon and turkey tycoon Bernard Matthews all have one thing in common: they’ve found that inheritance and blended families can be an awkward mix. The details of each story vary, but the common theme is the fact that all three had children from different relationships and this led to all three estates becoming caught up in legal wrangles. Pitfalls aplenty Regular readers of Lindsays Life will know already that making a Will is an important part of ensuring your loved ones are looked after following your death and spared the stress of dealing with ‘intestacy’ (i.e. when someone dies without a Will). With a blended family, this becomes even more critical; the Will must also take account of some of the legal and emotional issues associated with blended families.
Don’t let the contents of your Will be a surprise to your family
1. Conflicted loyalties When planning their Will, people are often caught between leaving money to older children from a previous relationship or to a subsequent partner. There’s no simple or right answer here, but an experienced lawyer can help with practical ideas and solutions. 2. Legal Rights Scotland is unlike England in giving biological children and spouses ‘Legal Rights’ even when they are deliberately excluded from a Will. This means, for example, that children estranged from a parent for decades could choose to claim some of their estate after death. These rights apply only to ‘moveable’ property, not land or buildings, so inheritance planning can take account of this.
'We need to talk’ Many people don’t want to talk about any of this stuff, especially when there is tension between old and new partners and families. But awkward as these conversations can be, it’s better to have them. To quote the Financial Times, “Estate planning is not complete until it is communicated to heirs”. Don’t let the contents of your Will be a surprise to your family.
Kirsty Preston Associate, Private Client Services kirstypreston@lindsays.co.uk 01382 317180
3. Not all family members are equal Cohabiting partners and stepchildren have no automatic right to inherit in Scotland. If you want to pass assets onto them, you need to put this in a Will, while also taking account of the Legal Rights of other family members. 4. Cross-border issues Complexities can arise if you have assets (e.g. property) in jurisdictions with different succession rules. Legal disputes could arise over local forced heirship rules or which jurisdiction’s inheritance laws should apply.
lindsays.co.uk
issue 22
16
Divorce dramas are best kept to TV Have you ever watched The Split? The TV legal drama has returned for its third series, and as ever it's packed with great clothes, enviable kitchens, and wise words on the importance of the "good divorce". To celebrate the return of The Split*, we're giving our own tips for achieving a good divorce (or avoiding a difficult one becoming more tortuous or torturous).
DON’T use online solutions, DIY
services or apps. Not only do different parts of the UK have different divorce rules, but every couple’s finances and circumstances and, most importantly, children are unique. This is the rest of your life you’re thinking about, so you need a solution tailored for that.
DON’T rely on the courts (or your pals) to steer the divorce. The courts can only apply a narrow set of legal rules and your friends’ “legal advice” may be skewed by their own experiences and lack of legal knowledge. You’ll get better outcomes from using experienced and creative solicitors and mediators.
DO be informed about financial
DO recognise that some stages of the
planning and provisions. Be clear about all the assets involved, and get some financial advice. There may be tricky and technical decisions around, for example, division of pensions or a business (or even the possibility of hidden or disappearing assets) and you’ll need help with that. Don’t agree to something in haste and suffer for it afterwards.
DON’T go straight for the jugular. The
divorce is the end of your previous relationship but also, perhaps, the start of your new co-parenting relationship. The nature of the divorce will make it easier or harder to embark on that.
DO keep the children out of it. Yes,
they need to be consulted about future contact and residence arrangements, but, no, they probably don’t need to hear your views about your expartner’s failings or new relationship(s). When putting things on social media, remember that your children, your expartner, their friends and their solicitor may see your posts.
lindsays life
issue 22
divorce may become argumentative or emotional, whatever your intentions. Good solicitors and mediators will help to inject balance here: agreed and constructive approaches will usually produce better outcomes and avoid a costly (and possibly unsatisfactory) trip to court. *You can find all three series of The Split on BBC iPlayer.
Jennifer Gallagher Partner, Family Law jennifergallagher@lindsays.co.uk 01382 346400
17
PI to post: pitfalls of social media In personal injury cases, insurers may look with interest at your social media content. Don’t let your Facebook or TikTok habits undermine a claim. For many people, social media has become an essential everyday tool to share information about our lives. Usually, it’s friends and family who look at your social media updates. However, if you are involved in an accident and pursue compensation, the third-party insurers may also start taking an interest in the content you are posting – whether you use Facebook, Instagram, TikTok or anything else.
Why would they care?
Put simply, insurers may use your social media content as evidence if anything you post casts doubt on the injuries you have sustained or their severity. They will look to gather all relevant content which they believe could discredit someone who claims their injuries are more limiting than they really are.
Psychological injuries
While physical injuries may be visible in photographs, psychological ones are invisible and are often masked with a smile.
Example One An individual who says they need a walking aid but has recently posted holiday photos of them diving into a pool will more than likely have their claim argued. If such a case were to go to a court hearing, it would be difficult for that person to prove themselves as credible.
How best to manage this • Remain honest and truthful throughout the life of your claim. • Insurers are looking to reduce the amount of compensation that is paid out, and social media could be what they need to help them do this. Exercise caution about the content you post to social media after intimating a claim.
This is where people’s tendency to portray their lives positively on social media can become problematic. Two cautionary examples will illustrate this.
Put simply, insurers may use your social media content as evidence if anything you post casts doubt on the injuries you have sustained or their severity.
Even though photographs may not necessarily reflect the true extent of an injury, a stream of positive, uplifting content could be used by insurers to refute the extent of psychological injuries. For some pursuers, this could lead to psychological damages being reduced.
• It is especially important to remain vigilant when posting content about any type of physical sport or activity which could give deceptive impressions of the extent of injuries.
Example Two A claimant may state he has not yet been able to return to work due to his injuries; however, he is pictured on his colleague’s Instagram account working on roofing sheets. The injuries may have been genuine, but he has exaggerated them for a purported loss of earnings claim. In this case, the claim would more than likely be rejected in full.
Lauren Pasi Partner, Personal Injury laurenpasi@lindsays.co.uk 0141 302 8468
lindsays.co.uk
issue 22
18
News from lindsays In order to provide the best service to clients, we make sure we have the best people with us across the firm. Following our latest internal promotions and new hires, our team is stronger than ever.
Staff promoted at Lindsays from 1 April 2022. Left to right: Tim Macdonald, Gregor MacEwan, Leanne Gordon, Nimarta Cheema, Kirsty Cooper, Vhari Selfridge, Ginny Lawson, Claire Hurst, Emma Conway, Adam Gardiner and Lewis Crofts
Congratulations to our new promotees This spring Lindsays broke one of our own records, making our biggest-ever tranche of promotions. In total, we made 11 promotions. Heading the list are two new partners, Kirsty Cooper and Vhari Selfridge, in our Residential Property department in Edinburgh. Both step up from their previous roles as Directors in that team. The nine other promotions in Edinburgh and Dundee cover several departments: • In the Residential Property team in Dundee, Emma Conway has been promoted to Associate, and Ginny Lawson becomes a Senior Paralegal. • In the Rural department, Leanne Gordon and Tim Macdonald have been promoted to Senior Associates, and Lewis Crofts to Associate. • In Dispute Resolution and Litigation, Gregor MacEwan becomes a Senior Associate, and Adam Gardiner an Associate. • In Corporate and Commercial, Nimarta Cheema moves up to Associate, and Claire Hurst becomes a Senior Company Secretarial Assistant.
lindsays life
issue 22
Commenting on their promotions, Alasdair Cummings, our Managing Partner, said:
We have enjoyed sustained success in recent years and are constantly alive to opportunities for growth. In order to achieve that, it is vital that we have the best people in place. As a firm, we pride ourselves on the strength of our team and the opportunities we provide to our colleagues for career progression, as is demonstrated by such a strong number of promotions. Each of them is thoroughly well deserved, and my congratulations go to everyone. Alasdair Cummings Managing Partner alasdaircummings@lindsays.co.uk 0131 656 5672
19
A warm welcome to our new colleagues Over the past weeks, a number of new staff members have joined Lindsays, and we’re delighted to have them as part of our team. Based across our Edinburgh, Dundee and Glasgow offices, they’re working in a range of roles and departments, illustrating the breadth of services we offer to clients across Scotland.
Lauren Mitchell | Associate Residential Property | Glasgow
Zoe Allan | Senior Solicitor Residential Property | Dundee
Philippa Abernethy | Solicitor Family | Glasgow
Aziz Yasin | Solicitor Commercial Property | Edinburgh
Eilidh Goodall | (Trainee) Solicitor Residential Property | Edinburgh
Katie McIntosh | Property Negotiator Residential Property | Edinburgh
Ellie Riddell | Property Negotiator Private Client Services | Dundee
Lynne Ellie Riddell Morrison | Property | Paralegal Negotiator Private Client Residential Property Services | Edinburgh | Dundee
Scott Briggs | Case Co-ordinator PI Claims | Glasgow
Joel Glass | Case Co-ordinator PI Claims | Glasgow
lindsays.co.uk
issue 22
20
In brief: personal injury trusts explained If you (or a family member) receive a lump sum as a result of an injury, you could use a personal injury (or PI) trust to support your financial planning. Below we explain the key points. The main attractions
The timing
A PI trust can also help people who are young, old, vulnerable or financially inexperienced to manage their money or protect it from third parties.
The people involved
Putting any payments related to the injury into a PI trust means they are not considered by the Department for Work and Pensions (DWP) and local authorities when they assess you for means-tested benefits or care contributions. Without a trust, you may be ineligible after the first year.
The contents
Any funds received in connection with the injury can be held in the trust. This could include damages, insurance payments, charity and JustGiving donations and other compensation. But it is important not to mix other capital into the trust funds.
A PI trust can also help people who are young, old, vulnerable or financially inexperienced to manage their money or protect it from third parties.
lindsays life
issue 22
You can set up a PI trust at any time, but to work most effectively, it should be set up within 52 weeks of receiving the first payment due to the injury. Any payments held outside the PI trust after that 52 weeks may then be taken into account by the DWP or local authorities when they calculate benefits. Anyone who receives a personal injury payment can set up a PI trust. In the case of children or adults with incapacity, others will need to do this for them. In all cases, trustees need to be appointed.
The small print
PI trusts blend different areas of law, and the financial impacts of mistakes in setting them up or managing them could be serious. It’s important to seek support from lawyers who habitually work in this area, who can advise on whether a PI trust would be appropriate, what type you need, how to select trustees and how to maximise the trust’s effectiveness.
Sandy Lamb Partner, Private Client Services sandylamb@lindsays.co.uk 0141 302 8444
21
Sign up for lindsays life We produce two issues of lindsays life each year which you can either receive by email or view on our website. You can let us know how you would like to be sent it by setting your prefrences here. Previous issues can be viewed here.
Issue 18
fe lindsays li
lindsays life Issue 17
fe lindsays li
lindsays life
Issue 21
We also produce news articles and updates on legal issues affecting you, your family and your business. To receive relevant updates from us, click here.
lindsays.co.uk
issue 22
lindsays offices Edinburgh Caledonian Exchange 19a Canning Street Edinburgh EH3 8HE
Dundee Seabraes House 18 Greenmarket Dundee DD1 4QB
T: 0131 229 1212 F: 0131 229 5611 E: edinburgh@lindsays.co.uk
T: 01382 224112 F: 01382 200109 E: dundee@lindsays.co.uk
Glasgow 100 Queen Street Glasgow G1 3DN
Dundee (Child Law) 21 Crichton Street Dundee DD1 3AR
T: 0141 221 6551 F: 0141 222 2707 E: glasgow@lindsays.co.uk
T: 01382 802050 F: 01382 868109 E: dundee@lindsays.co.uk