Personal Law

To mark Burns night, I have taken a look at three of the more obscure lessons we can learn from the life and legacy of the ‘National Bard’.

1      Make sure you have a will

When Robert Burns died aged 37 in 1796, he did not have a will. That meant that his widow had to apply to the local court in Dumfries to be appointed as executor dative.

The law has moved on in many ways in 260 years but, if you die without a will, your family still have to petition the court to be appointed executor. If you appoint them in a will, then this process is not required.

We can only speculate about why Burns did not have a will, but he may have fallen foul of these common misconceptions.

      “I don’t need a will, I’m only 37!”

This argument may admittedly have (only slightly) more credibility in 2020 than it would have in the eighteenth century but you are never too young to put a will in place, particularly if you have young children and want to control who will look after them if anything happens to you.

      “I don’t need a will – I don’t have any assets!”

Even if you do not have substantial savings or investments, you may own your home, have a pension, or have death benefits payable by your employer. You might even be a poet and have copyright in your work. All of these things are assets. The only way to control what happens to them when you die is to make sure you have an up to date will and, if relevant, death benefit nomination forms.

2      Consider legal rights

Burns is said to have had twelve children in total, to four different mothers. Whether he died with or without will, all of his surviving children would have had a claim on his estate. That is because Scotland has forced heirship rules which guarantee children a minimum share of their parent’s estates on death.

These rules apply irrespective of what the parent’s will says and irrespective of the nature of their relationship with their child. They also extend to anyone who dies domiciled in Scotland, regardless of where they live – so they can have an unexpected impact for international families.

3      Investigate your domicile

At one stage, Burns is believed to have been planning to emigrate to the Caribbean. I blogged this time last year about the importance of considering the international aspects of your affairs. As I explained then, even if you have said “Farewell to the Highlands, Farewell to the North”, if your heart is still “in the Highlands, a-chasing the deer” then you should take advice on how Scottish law applies to the succession of your estate.

4      The lessons

If you think any of these issues are relevant to you, then please get in touch so that we can help you make sure that, unlike the best laid schemes o’ mice an’ men, your estate planning does not gang aft a-gley.

Stewart Gibson