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Over the last few years I have been asked on a number of occasions if I would give a eulogy.

So what is a eulogy? In simple terms, it is a tribute to someone who has just died. It is though not a simple task. Each eulogy is unique. It is also different from most other speaking engagements given the context and the location. It is commonly given by a minister, a priest, humanist celebrant, close family member or friend.

I have been asked by clients who had already outlived most of their family and friends.  I have also been asked by relatives who simply did not want to do it and did not want someone who did not know the deceased well to do it.  I have also been asked to provide a few pointers for colleagues and friends who had themselves been asked to do this.

The starting point is always the same.  Are you the right person to do it?

Is there someone else who might be better placed to give the eulogy? Should the responsibility be shared with someone? If more than one person is involved remember and discuss with them what you are going to cover.

For obvious reasons a eulogy can be an extremely difficult thing to do.  It is an emotional time and not everyone wants to speak in public.

Do you have time to do it properly?  A decision has to be made relatively quickly given the time constraints.

Even if a family member does not want to give the eulogy maybe there is something else they want to do such as reciting a poem or a religious reading.

Notwithstanding the above points, do not forget how privileged you are to be asked to do this.

If you decide to do it, start to note down what you already know about the person. Then who do you need to speak to. Find out if there is to be a funeral or cremation and who will be officiating.  In some cases you may also be organising the funeral arrangements.

As regards what you might want to say.  I do not follow a particularly style.  I do though spend a fair amount of time talking to people who knew the deceased such as family, friends or colleagues.

A eulogy is also a good opportunity to thank a number of people especially if the deceased had been ill or had been being cared for.  The obvious landmarks in a person’s life should also be mentioned.  Sometimes there is a story that a family member wants to be included.  The tone also needs to be appropriate.  Again your discussions can help you find out what the deceased would have wanted.

Do not also assume that everyone knows who you are. 15 minutes should be enough time in most cases.

One final point.  Not everyone may be able to make the funeral of a loved one or a friend because they themselves may have health problems or it may be too far to travel.  I have found that in situations such as this the person really appreciates being sent a copy of the eulogy.  Also if they are a close relative you should mention the fact that they could not make the service in the eulogy.

“A new report on funeral poverty has found funeral director and local authority costs should be more consistent and bereavement support more widely available.

The report by John Birrell, chair of the Scottish Working Group on Funeral Poverty, and Citizens Advice Scotland, highlighted factors that contribute to funeral poverty and called on the UK and Scottish Governments, the funeral industry, local authorities and others, to take action.

The independent report’s recommendations include:

• Ensuring social security funeral payments meet the real costs of a funeral
• Parity in burial and cremation charges charged by local authorities
• Licensing of funeral directors
• Encouraging people to talk about their own funeral wishes with their families
• A new national ‘Scottish Funeral Bond’ to standardise costs and allow more people to save for their own funeral”

More on this can be found here.

A Bill for an Act of the Scottish Parliament to amend the Land and Buildings Transaction Tax (Scotland) Act 2013 to make provision about an additional amount of tax to be chargeable in respect of certain transactions relating to dwellings.

Bill as introduced can be found here.

Explanatory guidance can be found here.

Scottish Parliament progress update can be found here.

A Bill for an Act of the Scottish Parliament to restate and amend the law relating to burial and cremation; to make provision about exhumation of human remains; to make provision in relation to the inspection and licensing of funeral directors; and for connected purposes. 

Bill as introduced can be found here.

Explanatory notes can be found here.

Scottish Parliament progress update can be found here.

Background
Outer House case in which William Tracey sought damages from SP Transmission in respect of overhead power cables and other equipment running through William Tracey’s site in Linwood which William Tracey argued amounted to an encroachment on the site.

William Tracey occupied the site as a tenant (of the William Tracey Private Pension Fund) from 1997 and then as the proprietor from 2006.

Prior to 1997, the site was owned by Thomas Houston & Son (Johnstone) Limited. Thomas Houston had agreed a wayleave in favour of Scottish Power plc allowing installation of the equipment on the site.  However the wayleave conferred only a personal right on Scottish Power and did not bind successor owners of the land. SP Transmission contacted William Tracey seeking to agree a wayleave in respect of the equipment in 2005 but William Tracey refused to grant the wayleave.

In December 2010 William Tracey issued a notice requiring SP to remove the equipment from the site (following a procedure contained the 1989 Act[1] which provides for the situation where ownership has changed and a wayleave is no longer binding on the landowner). Using powers available to it under the 1989 Act[2], SP then applied for a “necessary wayleave” which allows a licence holder to obtain a wayleave from the Scottish Ministers where the owner or occupier refuses to grant the wayleave voluntarily. The necessary wayleave was granted by the Scottish Ministers in August 2014.

Arguments
William Tracey argued that the necessary wayleave only had effect from August 2014 onwards and, as such, that it was entitled to damages in respect of the encroachment of the cables and equipment on its property between 1997 and August 2014.

Decision
Lord Brodie rejected that argument and dismissed William Tracey’s action. In doing so, he agreed with SP’s contention that, having regard to the wording used, the correct interpretation of the 1989 Act is that, when a change in ownership means that a wayleave ceases to be binding on an owner of land, the wayleave is nevertheless continued meaning that keeping the equipment on the property is lawful and not an encroachment. If the landowner wishes to bring that temporary state of affairs to an end, its only remedy is to give notice requiring removal of the equipment[3].  Following receipt of the notice the licence holder can then, if it requires, apply for a necessary wayleave from the Scottish Ministers (which may or may not be granted).

Lord Brodie also noted that, if William Tracey’s argument were correct, it would mean that, where landowner refuses to agree a wayleave with a licence holder, a delictual liability could be imposed on a licence holder doing no more than complying with its statutory duties. Moreover, in some cases, that liability would be unknown to, and unavoidable by, the licence holder.

The full judgement is available from Scottish Courts here.

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[1] Electricity Act 1989, sched 4, para 8 (1) and (2)

[2] Sched 4, para 6.

[3] Under para 8(2) of sched 4 and as William Tracey did.

Background
Outer House case considering a dispute as to the ownership of a semi-detached cottage near Kilmarnock. Mr McNaughton argued that the cottage had been owned by his late father (for whom he was acting as executor) and sought reduction of an a non domino[1] disposition conveying it to the Majors (which had been granted by another neighbouring proprietor). Mr McNaughton also sought a decree ordaining the Majors to vacate the cottage.

The cottage was one of two semi-detached properties in the same building. The other property in the building had been occupied by Mr McNaughton’s family since at least 1922. Mr McNaughton’s father bought the feudal superiority to both parts of the property in 1961 (and recorded the deed in 1987). The last recorded disposition of the dominum uitle (or vassal’s title) to the cottages had been recorded in 1868 and was in favour of a John Arnott but, at the time the superiority was acquired, no one was exercising any rights to the dominum uitle. Feudal Superiorities were abolished on 28 November 2004 and the estate of dominum uitle became full ownership of land[2]. Consequently, the court had to determine whether the Mr McNaughton had acquired the dominum uitle prior to 28 November 2004.

Arguments
Lord Jones found that the disposition conveying the superiority to Mr McNaughton’s father was capable of being read so as also to include the dominum uitle to the property. As such[3], it was possible for Mr McNaughton to obtain title to the dominum uitle by prescriptive possession based on that disposition. Although Mr McNaughton’s father had not occupied the part occupied by the Majors, Mr McNaughton argued that the Majors’ occupation of the cottage amounted to civil possession on his father’s behalf.

On the other hand, the Majors argued that, although there would have been civil possession of the property if they had occupied it under a lease from Mr McNaughton’s father, they had not done so and had been given possession of the property by Mr McNaughton’s mother on the basis she believed it was not owned by Mr McNaughton and would be returned to the Crown if left vacant. Although they paid £15 per week to Mr McNaughton in order to occupy the premises, they said that it was a contribution towards insurance costs and was not rent.

Decision
Lord Jones granted decree for reduction of the a non domino disposition in favour of the Majors and put the case out by order for further discussion as to the granting of a decree requiring the Majors to vacate the cottage.

In coming to this conclusion Lord Jones accepted the Majors’ evidence to the effect that they did not acknowledge Mr McNaughton’s ownership of the property but rejected their argument that civil possession could only be established if it could be proved that they had occupied the premises under a lease.  Whether or not there had been a lease in place and whether or not they acknowledged Mr McNaughton’s father’s ownership of the property, the Majors had only been able to occupy the property because Mr McNaughton’s father had allowed them to do so in return for a weekly payment. If he had withdrawn his permission, they would have had to move out of the property. As such, Lord Jones found that the Major’s possession derived from Mr McNaughton’s father’s right to the property meaning that Mr McNaughton’s father was able to establish civil possession of the property through the Major’s physical possession allowing him to acquire title to the property.

The full judgement is available from Scottish Courts here.

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[1] A disposition from someone who is not the owner which, after 10 years prescriptive possession, can give good title to the property.

[2] Abolition of Feudal Tenure etc. (Scotland) Act 2000.

[3] If it had been clear from the deed that the title conveyed had only been to the superiority (I.e. it had made it clear that the dominium utile was not included) then the title would not have been sufficient in its terms (under s1(1)(b) of the Prescription and Limitation (Scotland) Act 1973) to found the prescriptive possession necessary to acquire title to the dominium utile.

Outer House case relating to a development at Watling Street in Motherwell which was alleged to have been built on contaminated land. The McManuses sought damages from City Link Development Company (the Developer), Scott Wilson Scotland (which the McManuses claimed had been environmental consultants on the development project) and Lanarkshire Housing Association (from whom the McManuses had leased properties on Watling Street) after suffering illness which they said had resulted from vapour given off by the contamination.

Arguments
The McManuses sought damages from City Link and Scott Wilson on the basis:

1. that their illness had been caused by the fault of City Link and Scott Wilson in terms of the common law; and
2. that City Link and Scott Wilson had breached the Environmental Protection Act 1990 (s33(1)(a)).

The McManuses also argued that the Housing Association had breached an implied term of their tenancy agreement, and were later in breach of certain provisions of the Housing (Scotland) Act 2001.

Decision
City Link
Common law fault
In terms of the common law, the McManuses argued that City Link knew or ought to have known that the property had not been properly investigated for contamination and had not ben remediated so as to be fit for residential development. However, the court found that reports produced by Scott Wilson were such that a layperson would have understood that the site was suitable for residential development. As such, City Link would only have been liable (1) if they had sufficient expertise to ascertain that Scott Wilson’s investigations had not been sufficient to determine that the site was fit for residential development or (2) if City Link owed a non-delegable duty of care (which can arise in respect of particularly hazardous operations) to the McManuses. The court found that, in the circumstances, neither applied in this case and City Link’s duty did not extend to checking Scott Wilson’s work meaning that City Link were not at fault.

Scott Wilson
Common law fault
Scott Wilson argued that it had not been employed as environmental consultants on the project and pointed to other contractors involved in the project who may have fulfilled that role. As such they argued that the McManuses’ case against them was irrelevant. However, Lord Jones found that the McManuses’ case against Scott Wilson was not bound to fail. It was noted that other contractors involved had been subordinate to Scott Wilson and that it would be possible for the McManuses to prove that it was Scott Wilson’s responsibility to investigate the contamination and to advise on the remediation necessary to make the site suitable for residential development. Further proceedings were allowed in that regard.

City Link and Scott Wilson
The 1990 Act
The MacManuses also argued that City Link and Scott Wilson had been responsible for depositing controlled waste on the site (contrary to s33(1) of the Environmental Protection Act 1990) when materials were redistributed around the site during remediation works. However, Lord Jones accepted arguments made by City Link and Scott Wilson to the effect that the works had taken place prior to the relevant provisions of the 1990 Act coming into force and could not give rise to liability under the act.

The Housing Association
The first property was held under an assured tenancy (in terms of the Housing (Scotland) Act 1987)  until September 2002 and a secure tenancy (under the Housing (Scotland) Act 2001) thereafter. The second property was also held by virtue of a secure tenancy. The court found that, in both situations, the Housing Associations obligations and duties related to the fabric of the let property itself and the McManus’s arguments which were based on the location and construction of the properties were irrelevant.

Time bar
The court also considered arguments to the effect that the McManuses case was time barred but the McManuses were given an opportunity to amend their pleadings and no decision was reached in that regard.

 The full judgement is available from Scottish Courts here.

My main interest concerns Diploma tutoring.

I hope to be able to publish an article on this in a couple of months time.

I have already spoken to a number of tutors at a number of Scottish universities about their experiences.

If you would like to contribute to this article, on a confidential basis, please contact me.

If you think your firm may require a private client locum solicitor, short or long term, or consultancy input please contact me at james@legalknowledgescotland.com

If you have had any difficulties in registering a death over the last few months and in particular since the new rules came into force can you please contact me.

I am intending to meet with an MSP to discuss these issues.

Issues include being unable to get an appointment with a Registrar for a number of days which then leads to delays.  Inverclyde for example. Doctor fails to sign the medical certificate.  The relative meets with the Registrar but he or she cannot cannot register the death until a signed medical certificate is produced.  A second appointment is then needed.  It is also not clear if a crematorium can make a provisional booking without a death being registered.