David Bartos advocate, Edinburgh, Scotland

Wills, Trusts and Succession

Bereavement and loss remain the greatest stressors of life. Unfortunately personal loss is often accompanied by material and financial uncertainty, not just for relatives but also for everyone who has dealt with or been in any way dependent on the deceased. Is there a will ? If so, what does it mean ? Can it be challenged ? If there is no will who gets what ? These are just a few questions for which answers may not be clear.

Particularly when there is a family divide it is important that the client is made aware of their entitlement at the earliest possible opportunity. Similarly an executor must be made aware of his rights and duties in order to avoid any justifiable complaint from a beneficiary.

But what if there is not death but loss of mental faculties or capacity ? There too the law has made provision, most recently in the Adults with Incapacity (Scotland) Act 2000.

And then there are situations where for tax or other reasons property owners choose to release control of their property while still imposing restrictions on its use. This is where inter vivos (life-time) trusts come into play. There can be private trusts, for the benefit of private individuals and public trusts for the benefit of members of the public. Often these are charities. Trustees may be uncertain of their powers and liabilities.

The trust concept has proved so flexible that it has been used for commercial transactions to protect assets from creditors. But is it effective ?

In these fields, my work has included –
• Attorney’s breach of fiduciary duty
• Beneficiaries’ claims against solicitors for negligent drafting of wills
• Care charges and liability of local authority
• Executors’ misconduct and failure to account
• Executors’ wrongful distribution
• Judicial factor appointment and discharge
• Partnership succession and dissolution
• Public trust purpose variation
• Solicitor negligence in drafting of wills
• Succession with a foreign element
• Vesting of legacies
• Will and trust deed construction and interpretation
• Will drafting and validity of proposed legacies
• Will : proof of the tenor (terms) of lost or destroyed document
• Will reduction (annulment)

If you would like more details, please contact me or my practice manager at Terra Firma Chambers. I am also secretary of TrustBar a group of advocates who have teamed up to share knowledge and expertise in this field and the related fields of partnership, agency, and directors' duties.