Family left out of the will

Family left out of the will

Legal rights claims

Who can claim?

In Scotland, a deceased's spouse or civil partner have rights to his or her estate as do the deceased's children, now including adopted children (for wills executed after 10 September 1964) and illegitimate children (for wills executed after 8 December 1986), but not step-children. In the case of illegitimate children, different rules may apply if the will was executed before 25 November 1968 and different rules again if it was executed between that date and 8 December 1986. In these cases, legal advice should be sought.

When making a will, these legal rights should always be borne in mind, although there is no requirement that any provision is made in the will for any of these people. If no provision is made, however, legal rights can be claimed after the testator's death by the omitted individuals.

When must a claim be made?

Claims can be lodged for up to 20 years after death (or longer if the claimant was under the age of 18 at the date of the testator's death).

What is the effect of a claim?

For wills executed after 10 September 1964, claiming legal rights will imply forfeiture of any benefit provided for the claimant in the will. For example, if a testator leaves his son £1,000 in the will and the son claims his legal rights, the legacy of £1,000 is forfeited. What happens to the legacy at that point will depend upon the terms of the will, but in many cases, it will fall into residue. If a legal rights claim is made, it is important that appropriate legal advice is sought as early as possible.

For the purposes of calculating legal rights, Scots law recognises a distinction between different types of assets, heritable and moveable. Although there are a number of anomalies and the issue is complex, generally heritable assets are houses, land, etc. and moveable assets are things like bank accounts, stocks and shares, furniture and personal effects, motor cars, cash and investments. The proceeds of life policies are generally moveable, unless the policy has been formally assigned to a lender in security for a heritable debt (like a loan secured on a house), due by the deceased in which circumstances the proceeds of the life policy may be treated as partly heritable and partly moveable for the purposes of succession.

A legal rights claim only lies against the net moveable estate i.e. after payment of certain debts. Before valuing the legal rights, there has to be deducted from the moveable estate the funeral expenses, the inheritance tax appropriate to that portion of the estate and the expenses of winding up the estate up to the point of obtaining confirmation. Interest runs on legal rights from the date of death until payment.

Where a deceased left a spouse or civil partner and children, the legal rights fund for the spouse or civil partner is one third of the net moveable estate and the legal rights fund for the children is one third of the net moveable estate. For example, if a deceased man leaves a widow and three children, and makes no provision for any of these in his will, the widow is entitled to claim one third of his net moveable estate and each of the children is entitled to claim a one ninth share of his net moveable estate.

Where a deceased leaves either a spouse or civil partner and no children on the one hand, or children but no spouse or civil partner on the other hand, the legal rights fund increases to one half of the net moveable estate. For example, if the deceased leaves a widow but no children, the widow is entitled to claim one half of the net moveable estate. Likewise, if the deceased leaves four children but no spouse or civil partner, the four children are each entitled to claim a one eighth share of the net moveable estate.

Legal rights are treated like other debts due by the estate and if claimed must be paid out by the executors.

Note that the foregoing explanation of legal rights applies where the deceased left a will. For somebody who leaves no will, a spouse or civil partner and children have these legal rights, but there are also other rules on intestacy which may apply (See 'Dying without a will').

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