A deceased Scots resident’s land outside Scotland cannot be taken into account when evaluating a surviving partner’s claim on the estate under s29 of the Family Law (Scotland) Act 2006.

This is from the judgement:

Background:

“Anthony Mangan cohabited with Margaret Kerr for twenty–two years before he died on 10 August 2007 but did not marry her.  He did not make a will.  However, the law had changed before he died and Ms Kerr was able to apply to the court for an order for money to be paid to her out of the net intestate estate of the deceased, even although she was not a surviving spouse.  The sheriff awarded her the sum of £5,502 but the sheriff principal, on appeal, decided that a house and land in Ireland which was owned by the deceased was not part of the net intestate estate. The result was that the award was reduced to nil. Ms Kerr now appeals to this court.”[1]

The issue:

“Does “net intestate estate”, in terms of section 29 of the Family Law (Scotland) Act 2006 (“the 2006 Act”), include heritable property outside this jurisdiction?  If it does not, the sheriff principal was correct to reduce the award to nil.  If, on the other hand, it does include such property, then the appellant’s claim will have to be remitted to the sheriff to consider, of new, what award, if any, to make.  I am persuaded, for the reasons explained below, that the deceased’s net intestate estate did not include his Irish property and that the result is, therefore, that no money is payable to the appellant.” [2]

Reasons for decision:

“Section 29 of the 2006 is about rights arising on a “Scottish” death.  In particular, it is about a right that arises where a deceased domiciled in Scotland has died intestate survived by a cohabitant; it gives a right to that cohabitant to ask the court to direct that some part of the estate be distributed to him or her. “Intestate” has to be construed in accordance with the Scots law of succession.  “Legal rights” has to be construed in accordance with the Scots law of succession.  “Prior rights” has to be construed in accordance with the Scots law of succession.  The definition of “net intestate estate” is an updated version of the definition of that phrase as it is used in the Scots law of succession.  The definition of “net intestate estate” accords with the approach that would require to be adopted by an executor–dative, under the Scots law of succession, in determining the extent of the free estate available for distribution to the heirs on intestacy.  The court’s power is limited by reference to an assessment of, amongst other things, what would have been the value of the rights of a surviving spouse under the Scots law of intestate succession.  The order of the court must be directed at the executor-dative appointed under the Scots law of succession, whose powers, duties and liabilities are as provided for by the Scots law of succession.” [35]

“It is, of course, true to say that section 29 does not, of itself, entitle the cohabitant to any part of the estate and it does not make a cohabitant a member of the class of persons upon whom intestate estate automatically devolves under Scots law.  Rather, it gives power to the court to confer benefit on the cohabitant where no such right arose under the Scots law of succession before the 2006 Act.  However, its provisions are clearly designed to enable a member of the family of the deceased who could not previously have benefitted under the Scots of succession to succeed to some part of the estate.  That omission was seen as a flaw. Social circumstances had undergone a transformation since 1964 and statistics showed that many couples, including those who lived in family together for many years, were, for whatever reason, not marrying.  Had they been married, the law of succession would have applied so as to confer a benefit on the surviving spouse in the event of an intestate death.  The same would have applied had they entered a civil partnership. There was a gap that required to be filled in some way; the cohabitant ought to be able to inherit. That was the easy part. Precisely how to fill that gap raised and raises difficult issues of policy, some of which are referred to above. One of the things that was and is, however, clear is that what was identified was a hole in the law of succession. The conclusion that section 29 reformed the law of succession and is, accordingly, a part of the Scots law of succession is inescapable. It is also, I would add, inherently unlikely that Parliament intended to establish a special regime that was independent of other legal categories, for the reasons which Lord Drummond Young explains at paragraphs 45 and 46 below.” [36]

The full judgement can be found here.

The First-tier tax Tribunal in Edinburgh has ruled ‘snowballs’ should be classed as cakes and therefore be zero-rated for VAT.

This is from the decision:

“A snowball looks like a cake. It is not out of place on a plate full of cakes. A snowball has the mouth feel of a cake. Most people would want to enjoy a beverage of some sort whilst consuming it. It would often be eaten in a similar way to cakes; for example to celebrate a birthday in an office. We are wholly agreed that a snowball is a confection to be savoured but not whilst walking around or, for example, in the street. Most people would prefer to be sitting when eating a snowball and possibly, or preferably, depending on background, age, sex etc with a plate, a napkin or a piece of paper or even just a bare table so that the pieces of coconut which fly off do not create a great deal of mess. Although by no means everyone considers a snowball to be a cake we find that these facts, in particular, mean that a snowball has sufficient characteristics to be characterised as a cake.”

The full decision can be found here.

“Purpose of the Brief

This Brief explains a number of changes relating to the transfer of a business as a going concern (TOGC):

• a change in HM Revenue & Customs’ (HMRC’s) policy on whether the surrender of a property lease can be a VAT-free TOGC
• to clarify the scope of certain aspects of the policy change announced in RC Brief 30/12
• to explain a change in policy concerning TOGCs of new residential and relevant charitable developments.”

“Scotland

For the purposes of this Brief all references to ‘surrender’ of a lease include the renunciation of a lease in Scotland, all references to ‘assignment’ of a lease include the assignation of a lease in Scotland and all references to a ‘reversion’ retained by a transferor include the heritable title retained by the landlord in Scotland.”

The full “Brief” can be found here.

The UK Government has published a new consultation on extending the inheritance tax exemption for armed forces personnel to all emergency service personnel who die in the line of duty.

The consultation can be found here.

Chartered Accountants in England & Wales will soon have powers to licence accountancy firms to practice non-contentious probate work.

More on this can be found in an article from the Law Society Gazette and which can be found here.

“Filing outside of ARTL – urgent requests for the SDLT certificate.”

More on this from HMRC can be found here.

It has now been confirmed that the mother of Private Mark Connolly is to appeal the recent decision in this matter by Sheriff Valerie Johnston.

My previous blog on this matter can be found here.

The background to this case is a family dispute.  The dispute is over where the body of Private Mark Connolly will be buried.

Sheriff Valerie Johnston has now ruled that Mark Connolly who died three years ago is to be buried in a place chosen by his widow and not his mother.

This is from the judgment: “On the facts in this case I consider that the pursuer as widow has priority over the defender and other close family members when it comes to making the funeral arrangements. The deceased left his family at a young age to join the Army. He never returned. He married and was living in family with his wife. He rarely visited Methil and maintained no close friendships there. He had witnessed at extremely close quarters the obliteration of a fellow serviceman in an explosion and suffered physical injuries in that explosion. He was also left with the sort of mental scars that a person who has not been in a combat situation cannot properly understand. His wife had been at his side throughout his recovery. She had also during that time endured the loss of her brother in tragic circumstances and had the comfort of her husband to assist her in coming to terms with that. In the intimacy of that marital relationship conversation took place about the couple’s respective wishes should the unthinkable occur. There is no evidence that her desire to comply with those wishes is motivated by any grudge against the defender or her family. I accepted her evidence that she was seeking to ensure that his last wishes were honoured. She gave her evidence in a quiet, dignified manner and with due regard to the delicacy of the subject matter involved.

The full case report can be found here.

We do not yet know if this decision will be appealed.

Links to my previous blogs on this can be found here.

“Plans to open a £2m crematorium in the Borders have been put on hold after a nearby objector threatened to invoke a 112-year-old law.

Dr Fraser Quin’s house lies within 200 yards of the chimney stack of the Houndwood Church site.

The 1902 Cremation Act states that a crematorium must have written approval of property owners within that range.”

The full Act can be found here.

The report from the BBC news website can be found here.

The European Court of Justice has ruled that the estate of a deceased employee is entitled to a payment in lieu of untaken statutory annual leave under the Working Time Directive.

The Working Time Directive (2003/88/EC) (the Directive) states that workers in the EU must be entitled to at least four weeks’ holiday each year.  The case concerned a worker in Germany who had accrued but untaken annual leave entitlement at the time of his death. His widow brought a claim in the German courts seeking his unpaid holiday pay under the Directive.

The ECJ held that the Directive precludes national legislation from providing that workers’ entitlement to paid annual leave is lost when they die.

The full case report can be found here.