Former Advocate General Lady Clark of Calton QC appointed new Chair of the Scottish Law Commission

A former Advocate General, Lady Clark of Calton QC, who has been a Court of Session judge since 2006 after serving as MP for Edinburgh Pentlands from 1997 to 2005, has today been appointed as the new Chair of the Scottish Law Commission.

Lady Clark appointed Chair of Scottish Law Commission

21/06/2012

Cabinet Secretary for Justice Kenny MacAskill today announced the appointment of a new Chair to the Scottish Law Commission.

The new Chair is Lady Clark of Calton QC.

Lady Clark of Calton QC brings to the appointment the necessary level of legal knowledge across a range of areas of Scots law, and an ability to provide strategic direction of the Commission. She has wide ranging skills and experience in law reform issues, drawn from her current judicial role, and from her background at the bar and as Advocate General. Lady Clark was appointed in 2005 by the then Prime Minister to the House of Lords.

This appointment will be for five years and will run from 21 June 2012 until 20 June 2017.  Lady Clark succeeds Lord Drummond Young in the post.

Mr MacAskill said: “The work of the Scottish Law Commission is highly valued by the Scottish Government, and I am very pleased that Lady Clark has accepted the appointment of Chair. I am sure that her wide ranging experience and skills will be an asset in taking forward the work of the Commission and its commitment to law reform in Scotland.”

Lady Clark has been a Senator of the College of Justice since 2006. She has had a long and active interest in law reform over 30 years.  She graduated LLB (Hons) St Andrews in 1970, PhD Edinburgh University 1975 and was a lecturer in law at Dundee University 1973-76 during which time she carried out research into the pre-trial release system in criminal proceedings. She had a successful career at the Scots Bar where she appeared in a wide range of cases, particularly medical negligence and a number of public inquiries.

She was MP for Edinburgh Pentlands from 1997 to 2005, and became the first female law officer in the UK in 1999 when she was appointed Advocate General for Scotland. As Advocate General she was involved in legislative reform both in the House of Commons and in the House of Lords to which she was appointed in 2005 shortly before she ceased active involvement in politics when she was appointed as a Senator of the College of Justice.

This post is made on a part-time basis, with 60 per cent of Lady Clark’s time being spent on Commission business, and the remainder of her time devoted to her judicial functions.  Lady Clark retains her judicial salary and receives no additional payment for this work.

The Scottish Law Commission, along with its counterpart for England and Wales, was set up by the Law Commissions Act 1965.  It exists to keep the law of Scotland under review with a view to its modernisation, simplification and systematic reform.  The Commission receives and considers proposals for changes to the law, examines particular branches of the law, and makes recommendations for reform.

This Ministerial public appointment was made in accordance with the Commissioner for Public Appointments in Scotland’s Code of Practice.

All appointments are made on merit and political activity plays no part in the selection process.  However, in accordance with the original Nolan recommendations, there is a requirement for appointees’ political activity within the last 5 years (if there is any to be declared) to be made public.  Lady Clark has undertaken no political activities over the last five years.

Further information on the Scottish Law Commission (and many reforms they propose which are more often than not, watered down by politicians) can be found on their website at www.scotlawcom.gov.uk .

Scots Law Commission propose law change to disclose previous convictions in court to ease burden of proof on ‘institutionally inept’ Crown Office

A PROPOSAL by the Scottish Law Commission to allow prosecutors to use previous convictions as evidence in criminal trials has been welcomed by the Scottish Government as part of an effort to ease the burden of proof on Scotland’s notoriously incompetent Crown Office & Procurator Fiscal Service (COPFS). The move comes after a series of high profile failures in prosecutions which in one well known case, that of the collapse of the World’s End murder trial, the QC acting for the Crown Office absconded from the court and was found ‘somewhere in England’.

The full report from the Scottish Law Commission on Similar Fact Evidence and the Moorov Doctrine 

Previous convictions in court

23/05/2012

A report which recommends prosecutors should be able to use previous convictions as evidence in criminal trials will be considered by the Scottish Government.

As the law stands, the prosecution in Scotland cannot rely upon previous convictions to help prove their case against an accused person.

The report is the final in a series of studies commissioned Scottish Law Commission aimed at ensuring an appropriate balance between the rights of the accused and the ability of the Crown to prosecute in the public interest.

Justice Secretary Kenny MacAskill said:  “I welcome this report from the Scottish Law Commission. In 2007, in order to strengthen public confidence in the justice system, I asked the Commission, with its track record of independent analysis and Scots Law reform, to look at specific issues relating to evidence and criminal procedure. This is the third and final report from the Commission in this area. Previous recommendations on Crown Appeals and Double Jeopardy have now been enacted in law and prosecutors are currently reviewing cases which can be prosecuted anew under the Double Jeopardy Act as a consequence.  Taken together, this comprehensive programme of reform has taken significant steps towards improving the public’s confidence in the justice system and in ensuring that our criminal law is fit for the 21st century. Today’s report makes a strong case and I am grateful to the SLC for its thorough and authoritative work since 2007.  I will consider the recommendations carefully.”

The first report, on Crown Appeals, was published in July 2008 and has been followed up by the enactment of sections 73-76 Criminal Justice and Licensing (Scotland) Act 2010. The second report, on Double Jeopardy, was published in December 2009 and has been followed up by the enactment of the Double Jeopardy (Scotland) Act 2011.

The proposal has provoked strong reaction in the media, covered by the Herald newspaper here :

Outcry at plans to reveal past convictions to juries

Published on 23 May 2012

Lucy Adams

JUDGES and jurors in Scotland will be able to hear evidence of an accused's previous convictions and "bad character" under proposals by a panel that advises the Scottish Government on new legislation.

The move will mean that in the case of killers and rapists they would learn of similar previous convictions.

Leading QC Donald Findlay expressed "horror and disgust" at the proposals by the Scottish Law Commission, which are similar to those introduced in England and Wales in 2004. He said: "It is another fundamental strike at the very heart of what has been our distinctive legal system for hundreds of years that, except in very particular circumstances, we try people on the evidence, not on what they may or may not have done in the past. I can guarantee there will be horrific miscarriages of justice."

Niall McCluskey, an advocate and human rights expert, said: "This is not conducive to a fair trial. It is ironic that under an SNP Government our criminal justice system is becoming more and more like the English system."

Serial killer Peter Tobin's murder of Polish student Angelika Kluk could not be made public at his trial for the murder of Vicky Hamilton.

However, on December 16, 2009, a jury in England took 13 minutes to find Tobin guilty of the murder of schoolgirl Dinah McNicol. They were told of his previous offences at the start of the trial.

Ministers asked the Law Commission to reconsider the admission of previous convictions as one of three major questions following the collapse of the World's End trial in 2007. Angus Sinclair had been accused of the so-called "World's End murders" of Christine Eadie and Helen Scott in October 1977.

As the law stands, the prosecution in Scotland cannot rely upon previous convictions to help prove its case. This has been so since 1887. Prior to the 1880s previous convictions could be shared in Scottish courts.

In a new bill drafted by the commission, it concluded that the current rules for evidence are "illogical and arbitrary".

The admission of previous convictions would depend on their relevance to the case in question rather than the discretion of the judge, and would be challengeable by the defence.

At present, someone accused of theft with previous convictions for dishonesty would not have these convictions read to the jury. If an accused, charged with murder, has been convicted of a number of other murders, the jury will not know this when considering their verdict.

But Patrick Layden, QC, the lead commissioner on the project, said: "Evidence of how the accused has acted on another occasion is relevant to whether he has acted in a similar way in relation to the offence with which he is charged. It does not become irrelevant because he has been convicted on that other occasion. This report, if implemented, will ensure that the jury can consider all relevant information.

"We believe all the relevant evidence should be before the jury. The argument depends on where you would strike the balance between the interests of society and the interests of those charged with a crime. If someone with five convictions for rape was charged with rape then these convictions would go before the jury."

Justice Secretary Kenny MacAskill said: "In 2007, in order to strengthen public confidence in the justice system, I asked the commission, with its track record of independent analysis and Scots Law reform, to look at specific issues relating to evidence and criminal procedure. This is the third and final report from the commission in this area.

"Previous recommendations on Crown appeals and double jeopardy have now been enacted in law and prosecutors are currently reviewing cases which can be prosecuted anew under the Double Jeopardy Act.

"Taken together, this comprehensive programme of reform has taken significant steps towards improving the public's confidence in the justice system."

Scottish Law Commission : Give mistresses a share of their dead lovers wealth

In recent proposals from the Scottish Law Commission, plans have been put forward to give people who have ‘relationships’ with married lovers a share of their wealth after death.

How families of the deceased but married philanderer will react is anyone’s guess … (now that's going to cause a few hair pulling battles in solicitor’s offices ! –Ed)

Mistresses should get share of dead lovers' estates, says Law Commission

Published Date: 15 April 2009
By Tanya Thompson

MISTRESSES could be able to claim a share of their married lovers' wealth under radical plans to change Scotland's inheritance laws.

The proposal is being considered by the Scottish Law Commission, amid concern that people who have relationships with married partners are unfairly discriminated against when their partner dies.

The report, published today, recommends that cohabitants should be entitled to a percentage of what they would have received if they had been the deceased's spouse or civil partner.

The amount of money they get will be determined by considering the length and quality of the cohabitant's relationship with the deceased.

Professor Joe Thomson, a member of the Scottish Law Commission leading the review, said the changes would help simplify the current law – which came into force in 1964 – reflecting changing family structures in contemporary Scotland. He said: "We're saying if a woman lives with a man for 40 years and has six children, she should be treated as if she was married.

"But if she has only lived with them for two years and had no children, the percentage she gets would be much smaller – perhaps 20 per cent of the estate."

As the law stands, the whole of the estate tends to be awarded to the wife because her succession rights have to be satisfied before a mistress or cohabitant can make a claim. Critics say the status quo is unfair, as society has evolved and attitudes to married life and adultery have changed.

"We are suggesting the estate is divided into two – the wife gets half and the cohabitant gets a proportion of the other half," said the professor.

"At the moment, the whole of the estate may go to the wife. Unless the estate is very big, the surviving spouse will exhaust the estate."

Last night family solicitors described the plans as controversial, predicting an angry backlash from church groups who may regard the changes as an attack on traditional family values.

Lawyer Martin Monaghan said that, under the current legislation, the wife is entitled to the lion's share of the estate even though she is no longer in a relationship and may have been estranged from the husband for many years.

He said: "These are big changes. As the law stands, the wife is the priority. There's no doubt about that.

"The idea of the family ethos coming first ... some will say is being dissipated by these proposals. It will be inflammatory for church groups."

But Mr Monaghan said he believed it was unfair for a cohabitant to be deprived of a share of the spoils because of the existence of a spouse.

The changes are being considered because of the growing trend for married couples to separate without seeking a divorce – because children are involved, for religious or financial reasons or because either party is holding out hope of a reconciliation.

"At the moment, a lot of people think a cohabitant has the right of succession," added Prof Thomson.

"People have this notion of common-law wife, which is a nonsense in Scots law.

"What we're proposing is that even if there is a will, a cohabitant can get a proportion of the legal share she would have been entitled to if she had been married."

Another contentious element of the report relates to family inheritance. Under Scots law, children cannot be disinherited in a person's will, but one proposal suggests that adult children should have no legal rights and the deceased should have the option of leaving his offspring with nothing.

Today's report builds on a number of recommendations first published in 1990 but which were not implemented by successive governments. The measures went out to consultation 18 months ago and are due to go before government ministers.

Scots Law Commission gets a new member …. change we think not

Business as usual at the Scottish Law Commission … which usually means not much changes as people come & go.

The Scotsman reports :

New man on Law Commission block takes advice from the old authorities

Published Date: 13 October 2008

Claire Smith meets Patrick Layden, one of the five guardians of Scots law

IN A revolving bookcase behind his desk, Patrick Layden has a collection of leather-bound books which include work by the 18th century lawyer David Hume. As the newest member of the Scottish Law Commission, Mr Layden has already found himself reaching for Hume – the nephew and namesake of the philosopher.

Going back to first principles is all part of a day's work for Scotland's five law commissioners, who work from a nondescript office in Causewayside.

He may be the newest member of the team, but Mr Layden, who has a formidable record as a lawyer working in government has been given a weighty first assignment.

Over the next few months, the QC who previously worked in London and Edinburgh for the Lord Advocate's office, will examine the principle of double jeopardy – the notion that a person should not be tried twice for the same offence.

"The basic principle – and this is found in Hume – seems to be that you shouldn't be put through the stress and the worry and the risk to your liberty and reputation twice if you have been charged with an offence and found not guilty," he says.

"If the jury has not accepted the evidence then the prosecutors should not be allowed to have another shot. A person is, after all presumed to be innocent until found guilty."

Mr Layden's enquiries will try to weigh up whether such a significant point of law should be waived in specific circumstances – and if so, in what circumstances.

"This is against the background of the Stephen Lawrence case," Mr Layden continues. "The MacPherson enquiry recommended that rule should be looked at in England to see whether exceptions should be made."

Stephen Lawrence, an 18-year-old A-Level student, was stabbed to death in South London in 1993. Five suspects were charged but only two stood trial. After the case collapsed due to lack of evidence, Stephen Lawrence's family brought a private prosecution against the accused – but this also failed.

The MacPherson report labelled the Metropolitan Police "institutionally racist", and in 2003 David Blunkett, then Home Secretary, introduced a bill to amend the principle of double jeopardy in cases where: "new and compelling evidence" is found. The notion of "fresh and compelling evidence" is enshrined as a principle in European law.

Mr Layden's job over the next few months will be to prepare a report to be discussed and amended by his fellow commissioners before a recommendation is drawn up and passed to Scottish ministers.

The commissioner will look at England, and also at the way the law has changed in Australia, New Zealand and the US. But he will also be going back to venerable figures such as Hume to try to uncover the thinking behind the original rule.

In keeping with the archetypal circumspect character of the Scottish lawyer Mr Layden retains an open mind.

"You start looking at the principles, find out what the law is, consult academic writing on the subject and consider these in the light of modern circumstances," he explains.

"It doesn't take much imagination to see that if you are a person of good reputation and you are charged with an offence, the result will be to disrupt your income and your family life. If you are found not guilty you would like to be able to carry on with life – that is the basis on which the law has been put together.

"But of course it sticks in the craw to have somebody walking about the streets if you know they have committed a crime but you can't get them convicted.

"It takes a really bad case like the Stephen Lawrence to experience that at its most compelling. However, bad cases make bad law. We have always taken the view in Scotland that it is better not to convict innocent people – even if it means you get the occasional guilty person walking free."

Although Mr Layden's recommendations may form the basis of a new law, he stresses that the decision rests with the legislature.

"The ultimate test of what the law commission does is whether the Scottish Parliament passes it into law. We can make recommendations but it is their decision."

He adds: "It is a great mistake to get too tied up with the beauty of your concept. Bills are made to pass as razors are made to sell."

Although he began his practice as a QC in Scotland, Patrick Layden has long experience of working alongside government ministers. He worked for the Lord Advocate's office in London for 22 years and, after devolution, came to Edinburgh to act as legal secretary to the Lord Advocate.

He says: "The Scottish Parliament is designed to be very different from Westminster. Westminster has two houses and there are five stages where you can amend legislation. Here there are two stages – which means legislation has to be front loaded – there is not as much chance to make changes."

Nonetheless it is important to be pragmatic when drafting potential legislation.

The lawyer says he was thrilled to move back to Scotland eight years ago to work for the reconvened Scottish Parliament. "Personally I was very excited because I had been working in public law for 22 years and to be involved in working a new constitution is one of the most exciting things you could imagine. I was lucky that it happened at a stage when I was young enough to move and old enough to have the experience to be able to contribute.

So far, he says, the 116-page Scotland Act of 1998 has been: "quite a successful piece of legislation – in that we have had no litigation.

"The fun of starting out with a new constitution is there are so many questions that are going to be asked which have not been asked before."

He believes there are important distinctions between English and Scottish law – which he is keen to see maintained.

"We always say that Scottish law works from principle to practice whereas English law works from practice. I think Scottish lawyers tend to be pragmatic and I think they are principled. You have got to be practical. You are not in this business to produce some aspirational view, you are in the business of getting something that will work.

"That is why I like the work here and I am looking forward to getting more involved."

Among the laws currently under consideration by the commission is the law of succession, which has been unchanged since 1964. This deals with the what happens when a person dies without writing a will – and rules which people are entitled to their heritable property. It is, Mr Layden says, a prime example of the way a piece of legislation a person may not even be aware of can make a huge difference to their lives – which is, he believes, the way things should be.

"A piece of law has an effect on the lives of people so the question is how do we make it better. If we can improve things then it is worthwhile.

"Most people will never think about it until it bites them in the shoulder."

Scottish Law Commission recommends 5 year limit for personal injury claims

The Scottish Law Commission has recommended in a recent report that the time limit of personal injury cases which currently must be proceeded within a three year window from date of incident should be extended to five years.

You can read the Scottish Law Commission's report here : Report on Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No 207) (pdf)

The Scotsman reports :

Commission's recommendation will help those 'time-barred' from justice

DAVID SHORT

CONTRARY to public perception, many claims relating to personal injury in the workplace do not involve people being crushed by overturned forklift trucks or falling great heights from warehouse roofs.

In reality, they come about after the pursuer has developed a long-term medical condition directly as a result of spending many years working in conditions that his or her employer should not, in law, have permitted to exist.

This is why the recommendation by the Scottish Law Commission, announced last week, that the limitation for raising personal injury actions should be extended from three to five years (after the diagnosis of illness or injury) is so welcome, because it gives hope to one sector of society that has been "time-barred" from justice.

Although the recommendation relates to several areas, the commission rightly points out that it will be particularly welcomed in cases involving claims for occupational diseases, where gathering evidence to bring an action can be both difficult and extremely time-consuming.

It notes that, in particular, this applies to people who suffer from industrial diseases, which require intensive investigation before proceedings can be brought. For example, before an action can be raised, the injured person's employment history has to be looked into, records obtained, former colleagues traced and statements recorded.

Paradoxically, what exacerbates the problem is that most of the "victims" tend not to be the type of people who complain easily and they are certainly not litigation-conscious: in fact, quite the opposite.

Despite the loss of so much British, and Scottish, heavy industry over recent decades, there are hundreds of thousands of people living today - both still employed or retired - who are suffering, or may yet still suffer, from a medical complaint brought on by working conditions during the 1960s, 70s and 80s. These complaints include deafness, vibrating white finger, or breathing difficulties brought on by long-term working with asbestos materials.

But because these people tend also to be mature, and stoical, members of society, the very persons who do not "throw a sickie" at the drop of a hat, the three-year time bar on raising personal injury actions has adversely affected them more than most.

One case, despite being almost 20 years old, encapsulates the situation. In 1989, a man in Aberdeen eventually visited his GP after being constantly told by his wife that he watched television with the volume turned up too high. He was then referred to an ear, nose and throat (ENT) surgeon who, after consultation and investigation, informed the man he was officially deaf and the condition was most likely caused by working for many years in an over-noisy environment.

However, when the man contacted his trade union about making a personal injury claim, the employer's insurers would not pay up and because, by then, the three-year limit on personal injury pursuits had passed, he was not able to raise an action through the courts.

Extending the limit from three to five years will not help every worker, or former worker, with a current - or future - medical complaint for which compensation could be available. But it should certainly help level the playing field in favour of people who, up to now, are being "timed out" from justice through no fault of their own.

I hope the commission's recommendation forms the basis of a Bill and a change in the law.

• David Short is a partner in Lawford Kidd.

Campaigners call for protection of families & beneficiaries in Inheritance law reform proposals

More From A Diary of Injustice in Scotland where Peter Cherbi reports on the Scottish Law Commission's call for reforms to Inheritance Law while critcising the lack of attention to protection for beneficiaries & families against rogue lawyers & executors.

Cherbi presents his own case as one of the more famous examples of poor handling of a will by the legal & accounting professions in Scotland, identifying Borders accountant Norman Howitt and Kelso solicitor Andrew Penman as being the main culprits in the disaster that befell his late father's will, with no resolution to-date and worryingly including details of potential criminality yet to be addressed.

An all too common example of how wills are handled in Scotland, so surely it's time to give protection against such poor behaviour which has dragged the legal profession's reputation into the gutter ...

Scottish Law Commission omit calls for protection from crooked lawyers & executors while recommending Inheritance Law reform

Wives & children of the deceased should be given greater protection against a possible disinheritance by their partners & parents under new proposals to grant greater rights over the current 'laws of succession', reports the Herald newspaper.

The current laws on inheritance & wills are rather antiquated - just like many parts of Scots Law these days sadly, antiquated and not really reflective of life in the 21st Century (although some ex-judges and a few members of the judiciary seem to prefer it that way .. or worse, fight to preserve ancient law with the odd loophole, having to rely on judicial whim to let cases through).

At the moment, dependents have a right to one-third of a deceased parent's 'non heritable', or more commonly referred to "moveable estate" regardless of the terms of a will, whether they are included in it or not.

"Moveable estate' doesn't really include properties, it's more like cash, bank accounts, etc .. but one point on this would be that in several observed cases, lawyers have taken advantage of such incidents by altering the wills of deceased clients to write out family members, and then scooping the remaining properties of the client for themselves or selling them to preferred clients & colleagues .

However, the Scottish Law Commission has strangely missed the most glaring recommendations for overhauling the laws of succession - and those are, stronger regulation & oversight of how wills are handled by the likes of the legal profession & courts, protection for beneficiaries against negligence, corruption & incompetence by crooked lawyers, accountants & other professionals, including protection against crooked executors.

One could ask why the Scottish Law Commission didn't recommend increased protection from the likes of negligent, corrupt & incompetent solicitors & executors ... could it be too many links to the legal profession or perhaps, not enough statutory powers given to them by previous administrations because the legal profession itself doesn't want the SLC to have too much power, much like the position of Scottish Legal Services Ombudsman has been since it was formed from the Law Reform (Misc Provisions) (Scotland) Act 1990

The answer to that may well be that if such protections were put in place, the likes of actions of crooked lawyers such as Andrew Penman, of Stormonth Darling WS, Kelso, and crooked Executors such as the Norman Howitt of Welch & Co, Accountants in the Scottish Borders , wouldn't so frequently take place .. and the legal profession wouldn't be so easily able to milk dead clients assets for furthering their own legal firm's profits & wallets while many families in Scotland get ripped off in an almost daily occurrence from the Scottish legal profession.

Of course, I have the example of what happened to my late father's estate to illustrate what so many in Scotland go through when dealing with crooked lawyers & crooked executors out to ruin an estate for their own personal profit & gain.

Norman Howitt, the Executor of my late father turned up the day after my father died, with a hand written list of 'addittions' to my father's will in Mr Howitt's own favour and of other unspecified relatives & 'unidentified people'. The 'additions' were written in Mr Howitt's own handwriting, and also strangely wrote myself and my mother out of the will - much to the amazement of myself, my mother, my own lawyer, family & friends, and the Police.

Suffice to say the 'amendments', seemingly written after my father's death, and in the Executor's favour, didn't get the time of day but these unsubstantiated handwritten 'amendments' didn't stop Norman Howitt, teaming up with the lawyer crooked lawyer Andrew Penman Andrew Penman to ruin my late father's assets & estate, in their own interests. paying themselves fat fees along the way and making sure no one got anything.

Not content with ruining my late father's estate and trying to write myself and my mother out of my father's will, Norman Howitt then went on to take all my mother's assets too including her bank book & pension book, while Mr Howitt and Mr Penman made sure no one bought the properties of my late father in Jedburgh ... no doubt so they could be sold to a preferential colleague perhaps ...

A severe example of a crooked lawyer & crooked executor one might think ? but in reality a common occurrence which only goes on and on because lawyers regulate complaints against their colleagues via the corrupt Law Society of Scotland, and make sure that when a family of a deceased client complain a crooked lawyer has wiped out their inheritance, nothing is ever done against the offending legal firm or lawyer concerned - and to make sure nothing is done, the family of the deceased client are obstructed to the nth degree by the protectionist Law Society of Scotland and prevented at all costs by the most senior members of the legal profession to obtain legal representation to pursue the likes of crooked lawyers & crooked executors for negligence & compensation for what was done.

So you see - when lawyers & executors rip off a will and a family - nothing gets done, ever - and the lawyers & executors get away with their frauds & rip offs because their professional regulatory bodies, the law, the Police and politicians all take a back seat, seemingly quite content to do so, and safe in the knowledge the many victims are never given a significant public voice calling for reforms.

The dead client is robbed (easy since they are dead), the remaining family & beneficiaries are robbed (easy because nothing can be done about it since lawyers regulate themselves) and executors get away with it too because they cut the crooked lawyer in on the deal ... all the while politicians & the courts stand by doing nothing because of their good friends in the legal profession need to make their fat profits.

Here's another common example of what happens to residual estates of deceased clients, involving the famous Scottish legal firm of Turcan Connell : Law Society of Scotland rejects complaint over estate ruined by huge legal fees

Reform is needed - but the rules & laws governing Executors etc are stuck in the dark ages, with the approval of many in the legal profession it seems because they make money from it in an easy hit against deceased clients and grieving families whom the likes of solicitors, accountants & others easily target for money.

The Scottish Parliament must have it's say on this issue, and people, particularly those who have experienced the full horrors of solicitors & executors mishandling wills should write to their MSP and the Scottish Executive with their experiences, to bring reforms & protections against the mishandling of wills by the law and those professions & executors charged with such duties.

Report from the Herald newspaper to follow :

Shake-up of law on wills aims to protect children

CALUM MacDONALD

NEW PROPOSALS: Parents will no longer be able to cut dependant children out of their will

Parents would no longer be able to disinherit their dependent children by cutting them out of their wills under new proposals which amount to the most radical shake-up of Scotland's inheritance laws in a generation.

Spouses and dependent children would be given greater protection against being disinherited while co-habiting partners would see their rights to make a claim on an estate extended under the proposals.

And in cases where a person dies without leaving a will, surviving spouses should inherit their entire estate, according to the Scottish Law Commission (SLC), which published the proposed reforms yesterday.

Scotland's inheritance laws, otherwise known as the laws of succession, are in need of a radical overhaul to reflect changes in society such as the legal recognition of gay relationships, the increasing number of step-families and divorces, according to the SLC. The report from the SLC deals with two major issues: the position of surviving spouses, civil partners and co-habitants when a person dies without having made a will; and the protection of close relatives from being disinherited.

It says that the current rules governing intestacy, when a person dies without a will, sometimes fail to provide a fair result for surviving partners and therefore should be changed. At present if a person dies and leaves a large estate or a mainly heritable one - in other words one comprising land and buildings - and is survived by a spouse or civil partner but has no children, the spouse will be the major beneficiary.

However, a substantial proportion may go to the dead person's parents, siblings and even the sons and daughters of siblings who died before them. In some circumstances they can inherit more than the spouse.

The SLC proposal is that in this situation the surviving spouse or civil partner should be entitled to the whole estate.

The other major proposal contained within the SLC report deals with close relatives who are disinherited. Under Scots law someone who makes a will is able to disinherit any member of his or her close family by leaving all of their estate to other people.

The SLC said: "There is strong and consistent public support for some protection for spouses, civil partners and issue and dissatisfaction with the existing regime of legal rights applicable to them."

It proposes that in these circumstances spouses and civil partners should be entitled to a quarter of what they would have got had there been no will, and that dependent children should be able to apply to court for maintenance from the estate. The definition of who would qualify as a "dependent" child under the new proposals has still to be decided.

It also recommends that co-habitants be entitled to a share of the estate in these circumstances.

The report also calls for new legislation to prevent a person evading the protections against disinheritance by giving property away before they die instead of leaving it in a will. Currently in Scots law there is nothing to prevent a person doing this.

The SLC proposals were welcomed by academics and legal practitioners alike.

Alan Barr, a partner with Brodies LLP, said: "I think these proposals are entirely reasonable.

"It's not a root and branch removal of the law as it stands, but it's modernising and deals with problems that people have perceived about it.

"There is always a balance to be struck between whether on the one hand you should be able to do exactly what you like with your estate, and on the other whether people should be bound to provide for at least some of their family.

"This is an attempt to change that balance slightly and to simplify what is very complicated law."

Michael Meston, emeritus professor of Scots law at the University of Aberdeen and one of the foremost authorities on the Scots law of succession, said: "The law in this area is undoubtedly in need of improvement.

"These proposals are very welcome and address a much-needed improvement in the law."