Has the pandemic affected the number of contentious matters you have had to deal with?
It is difficult to see if the statistics will show more contentious work over the last year so far. As someone who has been working in this area for some years there continues to be a steady increase particularly around duties of attorneys and executors where there are historic family tensions.
The impact of COVID on people’s physical and mental health has affected their time to deal with business matters. Therefore, executors or attorneys who might have dealt with issues quite easily before have had to delay matters, which has led to tensions.
This ultimately has put pressure on clients and their advisers to look at the best way to progress matters in these difficult times.
Do you have any advice for people in avoiding these sorts of disputes?
Contentious advice often relates to families where there is underlying tension. Whether it be a favoured child or perhaps an adult child still living at home which comes to a head on the death of the parent. My advice to avoid disputes around decisions being made by attorneys or issues coming out of estates, particularly around gifts, is that communication is key. For a parent who is aware of family tensions, if you are going to do something unexpected, then speak to your family, avoid surprises and explain the reasons for your decisions.
Lawyers have embraced the technology around them to be able to support clients at a difficult time. Making legal advice more accessible has benefits for clients who would otherwise have delayed taking advice.
Along with that, is the need to plan for the unexpected whether that be ill health or death. If nothing else, COVID has taught us not to put things off. No matter your age, it is important to know if anything happens to you that your loved ones are protected.
What role can lawyers play in supporting clients during crises such as COVID?
Lawyers play an important role in encouraging clients to think about the unexpected and make plans to protect their families for the future.
Lawyers have embraced the technology around them to be able to support clients at a difficult time. Making legal advice more accessible has benefits for clients who would otherwise have delayed taking advice.
Are there alternatives to avoiding disputes?
We work closely with our Dispute Resolution team on looking at options when it comes to contentious wills and trusts. My starting point is always to be pragmatic as to how families resolve issues, ideally through discussion, and we are seeing an increase in the use of mediation to resolve complex family fallouts. While this is still a relatively time consuming process the costs outweigh dramatically those of any court action and usually end in agreement.
Are there further changes you anticipate for families as we head into 2021?
Most topical is the update from the Chancellor on the billions of pounds that has been spent dealing with the pandemic and the likelihood of the costs increasing. Tax rises are inevitable, the difficulty is knowing what the Scottish and UK Governments may tackle first.
In the last 18 months or so The Office of Tax Simplification has issued two reports on Inheritance Tax along with the report from the APPG. There has also been the recent consultation on changes to Capital Gains Tax. The Autumn Budget was delayed and there is now probably a reason to be nervous about what the Spring Budget will say as the Government start to look at how they are going to repay this vast debt.
In Scotland, there had been a number of consultations in relation to Succession Law, most recently 2019, which is currently on hold while further consultation takes place in relation to the rights of civil partners and cohabitees. Whether the Scottish Government has time to look at this in 2021 with its own pandemic costs to deal with and another election remains to be seen.
As a lawyer who is always advising clients to plan for the unexpected, COVID is a good example of why people should do so!
agnes.mallon@gillespiemacandrew.co.uk
0131 260 7529
I’m Agnes Mallon, a Partner and Co-Head of Private Client team at Gillespie Macandrew LLP, an independent Scottish law firm. I am also Head of our Contentious Wills and Trusts Team which is made up of solicitors from both the Private Client and Dispute Resolution teams. With a strong technical base we provide practical advice to clients on the options open to them at a difficult time.
