What are ‘Legal Rights’ in Scotland?

Posted on By Louise Polcaro
legal rights,family,inheritance

Legal Rights are a distinctive feature of Scots Law, protecting certain family members from disinheritance. They entitle a spouse or civil partner and any children (or the descendants of a predeceasing child) to claim a portion of a deceased person’s estate, even if the deceased left a will leaving nothing to them. Legal Rights apply automatically, without a claim to the court having to be made.

Cohabitees do not have an entitlement to Legal Rights. Under certain circumstances, a surviving cohabitee can raise an action through the courts, but this is not an automatic right.

How much can be claimed?

The value of a Legal Rights claim is calculated by reference to the value of the net ‘moveable property’ in the deceased’s estate. Broadly, moveable property comprises any assets that are not land or buildings. Any debts and certain expenses (such as inheritance tax and funeral costs) are deducted to leave the net value.

The value of the Legal Rights claim depends on whether the deceased left:

  • a surviving spouse or civil partner and children;
  • a surviving spouse or civil partner alone; or
  • children alone.

A widow, widower or surviving civil partner can claim one-third of the deceased’s moveable estate if there are also surviving children, or one-half if there are not.  Surviving children are entitled to one-third of the moveable estate, equally between them, if there is a surviving spouse or civil partner. This increases to one-half if there is no surviving spouse or civil partner.

A child’s entitlement is not increased by his or her siblings choosing not to claim their respective shares. For example, if two surviving children are collectively entitled to a third of the net moveable estate, each child would be entitled to one-sixth. If only one child wishes to claim Legal Rights, the claim remains one sixth – it is not increased to a third as a result of the other child deciding not to make a claim.

If a family member is also a beneficiary under the will, he or she must choose to claim either his or her entitlement under the will, or Legal Rights. It is not possible to claim both Legal Rights and an entitlement under the will.

What happens if someone does not wish to claim their Legal Rights?

There is no obligation to claim Legal Rights. Anyone who is entitled to Legal Rights may renounce them at any time – either before or after the death of the person in whose estate they have the entitlement.

Asking relatives to renounce their Legal Rights during your lifetime can be a useful estate planning tool. However, a person can never be forced to give up their entitlement, nor can they be paid to do so.

If you are concerned about Legal Rights being claimed on your estate, or if you would like more information on making a claim, it is important that you seek the advice of a qualified advisor.

Kirsten Anderson TEP is a Partner in the private client team at Stronachs, Aberdeen, Scotland

Divorce and the effect on wills in Scotland

Posted on By admin
divorce, will

Finalising a divorce is a vital time to bring your personal affairs up to date – particularly your will, power of attorney and potentially your title deeds.

Many people assume that divorce will automatically invalidate a will, power of attorney or Survivorship Destination, but that is only part of the story.

Although the law has tried to accommodate the likelihood that people will not wish their ex-spouse or civil partner to benefit from their estate, the legal treatment of existing arrangements can potentially give rise to a further set of complications, which can easily be avoided by carrying out a review with a qualified advisor.

Changes to Scots Law

Under Scots Law prior to November 2016, a divorce had no impact on a will, but recognition of the change in families and relationships has resulted in recent changes to modernise Scots Law and bring it more in line with other parts of the UK. Now, like the rest of the UK, an ex-spouse or civil partner is treated as though they have died before the granter of the will. In other words, the will is not automatically revoked but instead it is read as it stands, but ‘missing out’ the former spouse or civil partner.

Why do you need to review your will?

Although a step in the right direction, this can leave your will in a bit of a mess, for example:

  • an appointment of your former spouse or civil partner as executor, trustee or guardian of children will fail, unless the will specifically states otherwise;
  • if the will does not provide for an alternative executor, an appropriate person (usually another beneficiary) will have to apply to the Court so that the estate can be administered;
  • if you have made legacies solely to your ex-spouse or civil partner, these will fail and they will fall into the residue of estate; where there is no substitute beneficiary, the estate may be intestate and will have to be claimed by eligible family members.

As a result, you will need to undertake a review of your personal affairs on divorce or you run the risk of a complex estate, which is not administered as you would have wished.

Dara Richards is a Private Client Associate, Notary Public and Solicitor for the Elderly at Ledingham Chalmer