Mon 23 Dec 2019

Legal Rights

In Scotland, despite what your Will says, it is still possible for certain people to claim a share of your estate after your death, even if they have not been included in your Will. This share is known as “Legal Rights”.

This is because the law of Scotland does not allow a spouse or child to be wholly excluded from benefit.

Who can claim?

  • The spouse/civil partner of the deceased (unless they have signed an agreement waiving their entitlement).
  • Children, including adopted and illegitimate children, but not including stepchildren.
  • The issue of a child who has died before the person who made the Will.

How much can they claim?

Legal rights can only be claimed on the deceased’s moveable estate. Moveable estate can be generally defined as anything which does not comprise land or buildings. Thus the value of your house would not be taken into account but money in your bank, stocks and shares, life policies etc are all vulnerable to a claim. Likewise if you own shares in a business and that business owns a property, then in those circumstances the value of that property will be taken into account in calculating legal rights, since you own shares in the company which owns the building, rather than owning the building outright.

The amount of the claim depends on whether the person making the Will died leaving both a spouse and children, only a spouse, or only children. Interest accrues on the claim from date of death until date of payment.

If the deceased is survived by a spouse and children (or the issue of a predeceasing child), the spouse can claim one third of the net moveable estate, and the children (including issue of a predeceasing child of the deceased) can claim one third of the net moveable estate between or among them.

If the deceased is survived by only a spouse, or only children, that spouse or the children (including issue of a predeceasing child of the deceased) can claim one half of the net moveable estate. In the case of children this one half is split between or among them, so if there were two children they could claim one quarter each.

Is there a time limit for claiming legal rights?

Yes- 20 years. If the potential claimant cannot be traced, the amount they could claim should be set aside for them on an interest bearing account for that period. Potential claimants may choose not to claim legal rights, particularly when they have a better entitlement under the Will, or believe that claiming will adversely affect the other beneficiaries or surviving parent. If this is the case they can sign a formal discharge giving up the right to claim.

Can someone claim legal rights and benefit from the Will?

No – unless the Will says otherwise they must choose either legal rights or their entitlement under the Will – they cannot have both.

If I wish to, how can I minimise a possible legal rights claim?

There are steps you can take which are designed to minimise your personal moveable estate so that any claim on your death is likewise minimised. Care should however be taken as these may not be advisable depending on your circumstances. If this is of interest to you advice can be provided on the possibilities open to you.


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