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Fergusson Law shares their latest news, the latest legal news and provides some legal advice on this blog.

Principal of Fergusson Law in Edinburgh.

Fergusson Law expands staff

Lyndsey Mackay joined Fergusson Law in October 2019 to begin her two year legal traineeship under the supervision of Janice and the other solicitors.

Lyndsey completed her undergraduate LLB in 2017 and Diploma in Professional Legal Practice in 2018, both at Edinburgh University.  During her undergraduate studies, Lyndsey played for the Edinburgh University Women’s Football Team.  In her Diploma year, she was a member of the Operations Team for the University’s Free Legal Advice Centre, helping organise and run clinic nights.  Before joining Fergusson Law, Lyndsey completed a year as a paralegal for the Revenue Scotland Legal Team where she grew an enjoyment of tax matters and developed a further understanding of the Civil Court system.

Lyndsey is passionate about training to be a solicitor who is both knowledgeable and accessible.

Digital Assets in your Will

We all use the web daily. The number of online accounts and the value of digital assets are only going to increase. So why do so few people consider what will happen to their digital assets when they die?

The story of Gerald Cotten may ring a bell with you.  £100m locked up, with his executors and heirs unable to reach it.   Read all about it here.

Think of two categories.

  1. Financial Information - While not being an asset itself, it  leads us to our assets and liabilities such as online bank accounts, savings and investments, PayPal, eBay, and shopping accounts.
  2. Digital Assets - With value in their own right, whether a character in World of Warcraft, our music downloads or a Kindle library.

You might wonder what the problem is. The law covers all of this either with wills, for those who make them, or the rules on intestacy for those who do not. Why are digital assets any different to paper-based ones? Executors or next of kin just ingather the assets of the deceased, settle their liabilities, pay any inheritance tax that is due and then distribute the estate. There are, in fact, 3 problems:

  • access
  • valuation
  • location

Most of the internet or digital service providers regard their service as a lifetime service and do not see the concept of a digital legacy at all. It is a common contractual term that when an account becomes permanently inactive it will be deleted. It would be much better for you to engage with the service provider and ensure that you have made your wishes known as to what you would like to happen after your death. For example, you should state that access should be passed to a certain individual. Google provides an Inactive Account Manager service for this purpose.  Apple say that their digital downloads are for your lifetime only. Similarly, your Photos in iCloud will disappear. You could store your Apple ID and password with your Will so that executors can deal with your data. You might be surprised to know that the balance on some dormant accounts could be paid to the Treasury of Luxembourg or indeed to the Malta Lotteries and Gaming Authority.

Further issues arise where the executors or next of kin have to value the digital assets. Provided they can locate them, this often will not be a problem but digital assets in the form of pure gaming characters may require specialist assistance. There are exchanges on which such virtual items can be sold, such as Sony's Live Gamer Exchange.

The solicitors at Fergusson Law are experienced and ready to advise you about including your digital assets in your will.

This article has been updated from the original first posted on April 2014.

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DISINHERITING THE FAMILY? TAKE ADVICE BEFORE YOU DO IT. 2018 UPDATE

A recent ruling in the Court of Appeal in England and Wales highlights that although you can leave your money to whom you like there are some limitations, wherever you live in the UK.

England, Scotland and Wales, like the United States, have a tradition of "testamentary freedom" - the idea being that you can, in theory, leave your wealth to whoever you like.

Countries like France, Spain and the Republic of Ireland, by contrast, have fixed heirship shares.

However in Scotland, children and spouses may have "legal rights" to a portion of the deceased's estate.

A surviving spouse, or civil partner and children are entitled to part of the deceased person's moveable estate. In Scots law, heritable property means land and buildings, while moveable estate includes such things as money, shares, cars, furniture and jewellery.

The surviving spouse or civil partner is entitled to one-third of the deceased's moveable estate if the deceased left children or descendants of children, or to one-half of it if the deceased left no such children or descendants.

In England and Wales the Inheritance Act of 1975 section 2 sets out that close relatives may apply to a court for a variation to a will ‘such as to make reasonable financial provision for the applicant’.

The bar is set high in that an applicant must show real need or that they were led to believe that they were to receive an inheritance and acted on that belief.

One dispute currently going through the High Court involves Clive Shaw, 55, a dairy farmer who reportedly does not like cows, He is making a claim for the family farm after a disagreement with   his   parents who have written him out of their wills.   

It is the latest in a series of similar legal claims made this year. Lucy Habberfield brought a claim in the High Court in January 2018 against her mother. After the death of her father, her mother became the sole owner of the family farm   despite repeated promises over the years that Ms Habberfield   would inherit.   She had devoted much of her life to the farm working long hours for little pay. She was awarded £1.2m  to set up her own farm.

professionally drawn up Will covers all these eventualities and you must show that the needs of your close family were considered fully.

For advice in this matter please get in touch.