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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12080
Experience:  30 years as a practising solicitor.
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Can someone who is due to pay out legal rights on a business

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Can someone who is due to pay out legal rights on a business capital they inherited.
Refuse to pay out the legal rights claim she is on the grounds that the business is not making money, However the books are showing a substantial profit. The lawyer seems quite happy to accept her word stating money is not there.
Is there any guidelines on this.?
I am a solicitor in Scotland and will help you with this. Legal rights are based on the value of moveable property. So the value of the deceased's interest in the business at the date of death is the relevant inventory value for legal rights. Whatever the profits of the business are or whether the business is making money is irrelevant. I think your lawyer has to write pointing this out to the other lawyer.
I hope that helps. Please leave a positive rating so that I am credited for my time.
Customer: replied 2 years ago.
Can I clarify that, my sister is liable to pay out our legal rights even if business is not making a profit?
4 years have passed. Are we able to claim interest on this?
Customer: replied 2 years ago.
Sorry, read your reply again and a bit confused. My sister was left my mothers capital in business. We were of understanding that we got a percentage of that. Are you saying we would only be able to claim on the stock?
Yes, legal rights are payable irrespective of the profitability of the business and interest is payable, normally from the date of death.
As regards ***** ***** point above, when I say moveable property I do not mean stock and when I say inventory value I do not mean the stock inventory of the business. The business itself is irrelevant to the issue of legal rights. Only the deceased's capital interest in the business at the date of death is relevant.
Moveable property is all non heritable property owned by the deceased at the date of death. That includes her capital account in the business. Her interest in the business at the date of death has to be included in the inventory of the estate submitted to the court for the purposes of Confirmation (the Scottish term for probate). It is that value which is used for the legal rights calculation.
Customer: replied 2 years ago.
Thank you. My late father also wanted to claim his legal rights on his late wife's estate. However as my father was deaf blind and in a wheelchair,he asked to call and state he wishes. The lawyer refused to acknowledge it as I did not hold power of attorney. I did explain my fathers situation.
And wondered what legal aspect of this
Legal rights exist and have to be renounced otherwise the executor could find himself in difficulties.
Legal rights can be claimed for up to 20 years from the date of death.
So your father's executor has 20 years to claim his legal rights from his wife's estate, assuming your father didn't claim any inheritance under a will.
Customer: replied 2 years ago.
For clarity then she did not have the right to refuse me asking on my fathers behalf?
My father had all his facility's just physically disabled so there was no need for power of attorney? As my fathers executor I put in a claim as my father. She now says that it would change the value of his claim because he was now deceased is this true?
Customer: replied 2 years ago.
I would like to call you tomorrow as well.
Is there a good time to do so?
Normally she should have dealt with your father. In the absence of you having formal authority such as power of attorney. However at the very least she should have been alerted to the issue of legal rights.
Legal rights is an arithmetic calculation. I am unaware of any legal provision which would change the value of a deceased person. She is talking nonsense.
Customer: replied 2 years ago.
Thank you and what is the percentage payable to a spouse.
One half of moveables if there are no children and one third if there are.
Customer: replied 2 years ago.
Thank you. We had asked that she didn't inform my sister of my fathers wish to claim his legal rights as we were concerned of the repecausions on him. Or at least wait until the estate had been finalised. She ignored this and informed my sister.
To which as we suspected would happen if she found out. Bullied him into signing a waiver typed up by herself . I am Still not convinced he signed it knowing it was a waiver. Took my sister over a year to hand this in dispute numerous requests from my lawyer. I have challenged it on grounds on it not bringing executed by a lawyer.
She said she would discuss this with the other executer still waiting on a response.
As you are aware my father was very vulnerable and disabled. Would the executors have justifatication to reject my official will and if so how to I counter challenge their decision?
If your sister was an executor or a beneficiary then it would have been impossible for her not to have been told about a legal rights claim at the time it was made.
The fact that the waiver wasn't signed off or witnessed by a lawyer is irrelevant. The legal issue is whether it was signed under duress or under facility or circumvention which essentially means signed by a vulnerable person at the insistence of a person in a position of influence.
Any challenge would have to be to the court.
Customer: replied 2 years ago.
What chances of winning if taking this to court?
Customer: replied 2 years ago.
And rough estimate of costs involved
It depends on the evidence of facility and circumvention. Evidence of family and medics would be needed. On paper there is a good case but the evidence would have to be investigated.
Costs are based on time spent by the lawyers. However, expect to be in tens of thousands. You can claim costs back from the losing party.
Customer: replied 2 years ago.
Don't really understand legal talk.
Could you explain it please.
She also handed in a letter from the doctor
Stating he was of sound mind to make decisions on his estate. He told the doctor he was in fear of his life. Would lithos sort of thing be put in his medical notes
A challenge can be made if there is evidence of duress by a person in a position to influence someone of a weak nature either mentally or physically.
The extent to which something like that would be recorded in medical notes by a doctor will vary. I can't tell you what would be put in his medical notes. They may not be available any longer. You should contact the medical practice urgently so as to ensure they aren't sent for destruction.
Customer: replied 2 years ago.
How long do they normally hold on to them. He has been dead two years
Customer: replied 2 years ago.
I asked for them and they said no longer had them that they are sent away
Legal rights are not "sent away". If they are renounced they are paid out as part of the estate. What has happened here is that the executor has perhaps paid the estate out to the beneficiaries because the executor is relying on the renunciation of legal rights. If you are challenging the renunciation as far as your father is concerned then the executor's could be found liable for that if they have already distributed the estate. Please see a lawyer as this is a very difficult area of the law and very specific evidence will be required.
Customer: replied 2 years ago.
Sorry I meant his medical records.
I called the G P and they said no longer had them. Just looked on goggle and its says gp should hold onto the for ten years
I understand. My understanding of the position is that after a death a GP sends the medical records to the Health Board.
Customer: replied 2 years ago.
What would be deemed as proof?
As I mentioned above, evidence from the family to confirm the medical condition and that the person could be easily influenced by the other person. And available medical evidence to say that the person wouldn't fully understand what they were doing.
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