Personal Law

It has been widely reported that Heather Ilott from Hertfordshire, England went to court after her mother Melita Jackson left her £486,000 estate to animal charities (RSPCA, RSPB and Blue Cross) when she died in 2004. The Court of Appeal has decided she should receive a third of the estate- £164,000 – despite her being “cut out” of the will.

Many will be surprised that the apparently clear terms of a will can be altered by a court after death. After all, Melita Jackson wished to leave her estate to charities after her relationship with her daughter had broken down.

Could this happen in Scotland?

The answer is that Scotland has a system in place to deal with “protection from disheritance”. Some might call it “forced heirship”, but it would place a barrier on a Scottish court “changing” a will in similar circumstances to Melita Jackon’s estate because Heather Ilott would already have some form of “protection” under Scots law.

In summary, if a deceased has left a will, there are certain automatic entitlements that children and surviving spouses/civil partners have called “legal rights”. These cannot be avoided in the will itself (lifetime planning can make some in-roads). So, rather than being able to apply to a court, a child who has been “cut out of a will” has the fall-back under Scots law of their “legal rights”. Apart from “legal rights”, there is no scope to apply to the court on the basis that a child believes they have “not got enough” in the will. We should mention that “legal rights” do not extend to land and buildings- so these can be passed on through a will to whomever you wish.

There may be challenges available to set aside a will if there was, for example, evidence that the deceased lacked capacity or was subject to undue influence.

It was of note that the Court of Appeal mentioned, with reference to English law, that a deceased should make it very clear why they wish to exclude a family beneficiary. We agree that it is important to make wishes clear and in some cases a “letter of wishes” to accompany a will can be helpful to explain why family have, for example, been cut out.

Cut out of a will or an executor facing a challenge from a beneficiary?

Individuals can find out they have been cut out of a will or be in the position of being an executor facing a challenge from a beneficiary. In legal terms, dealing with such situations involves a thorough understanding of private client, wills and executry (probate) law and litigation and court processes. Brodies is the only Scottish firm ranked by Chamber & Partners in Band 1 for both private client and litigation work.

This blog was written by Alan Eccles- 0141 245 6255 or alan.eccles@brodies.com

For more on wills or disputes about wills and estates please contact your usual Brodies’ contact or any of the following:-

Alan Barr- 0131 656 0103 or alan.barr@brodies.com

Susanne Beveridge- 0131 656 0218 or susanne.beveridge@brodies.com

Mark Stewart- 01224 392 282 or mark.stewart@brodies.com

Norman Kennedy- 0141 245 6265 or norman.kennedy@brodies.com

Alan Eccles- 0141 245 6255 or alan.eccles@brodies.com

Christine O’Neill- 0131 656 0286 or christine.oneill@brodies.com

 

Alan Eccles

Partner at Brodies LLP
Alan is a Partner specialising in private client (succession, incapacity and asset protection) matters as well as the charities, third and impact sectors.
Alan Eccles