Personal Law

My previous blog discussed why it is a sensible idea for everyone to have a will.

This blog highlights and dispels 6 common misconceptions about wills, in the hope that those who believed them will either instruct a new will or ensure that their current will is up-to-date.

Misconception #1: If I die without a will, everything will pass to my nearest and dearest

Wrong! People often believe that when they don’t have a will there is no need to worry, as their estate will pass to their spouse, civil partner, partner, or children. However, this is not always the case.

The Scottish laws of intestacy (i.e. those which apply when someone dies without a will) dictate how an estate is distributed on death. Your “nearest” in terms of bloodline may not be your “dearest”, and it is highly possible that the intestate rules may not accord with your wishes, meaning that a more distant relative could inherit in place of someone closer to you.

If you want to control the distribution of your estate on your death, you should have a will, and this should always be updated to take account of changing personal circumstances.

Misconception #2: I have a strained relationship with my children and don’t want to include them in my will which means they won’t receive anything on my death

Wrong! The starting point is that you don’t need to make provision for your children in your will. However, in Scotland, even if children are excluded from their parents wills, they will still have a fixed claim to legal rights in their parents’ estates. These are known as ‘legal rights’.

If you want to mitigate the extent of a legal rights claim on your death, steps can be taken during your lifetime. However, as with all estate planning, it is important that professional advice is sought at the earliest opportunity.

Misconception #3: I have separated from my spouse/civil partner and I have updated my will to exclude them. This means that they have no claims on my estate on my death

Wrong! Your will might exclude your spouse or civil partner, but for as long as you remain married (even if you are separated), your spouse/civil partner (like children) will also be able to claim legal rights from your net moveable estate amounting to either one half or one third of your net moveable estate, depending on whether you are also survived by children.

If you have separated from your spouse/civil partner, the only way to remove their legal rights claim altogether is to either (a) divorce/dissolve your civil partnership; or (b) put in place a formal separation agreement that discharges these rights.

Misconception #4: I have been living with my partner for a number of years, but we aren’t married. I don’t have a will, but my partner will still have a right to some/all of my estate on my death

Wrong! In Scotland, unmarried couples (known legally as ‘cohabitants’) have no automatic legal rights when their partner dies either with or without a will.

However, where their partner dies without a will, cohabitants can apply to the Scottish courts for financial provision from their deceased partner’s estate. There are, however, strict rules about the timescales involved (the application must be lodged within 6 months of the date of death), and there is no guarantee that the surviving cohabitant will actually receive anything from their deceased partner’s estate – this is a matter for the court to decide. Therefore, if you want to make provision for your unmarried partner on your death, you must do so in a will.

Find out more about cohabitants’ rights on death.

Misconception #5: My spouse and I are divorced but they are still included in my existing will. However, I don’t need to update my will as my ex-spouse is automatically excluded from my will on divorce

Wrong! Unlike in England and Wales, in Scotland, divorce or dissolution of a civil partnership does not automatically revoke a clause in a will under which assets pass to your ex-spouse/civil partner on your death.

If your existing will makes provision for your ex-spouse/civil partner and this is not updated following your divorce/
dissolution, they will still benefit in your estate on your death which could lead to some unintended and undesirable outcomes.

If you don’t want your ex-spouse/civil partner to receive anything on your death, you will need to update your will to exclude them.

As an aside, if your power of attorney appoints your spouse/civil partner as your continuing and/or welfare attorney, divorce/dissolution of a civil partnership will revoke this appointment.

Misconception #6: Preparing a will is complicated and expensive

Wrong! Ultimately, it is your wishes, the nature of your assets and the size of your estate (amongst other things) that will dictate the terms of your will. However, the vast majority of wills need not be complicated or lengthy, and even with a ‘less straightforward’ will, you will have peace of mind that your estate will be distributed in accordance with your wishes on your death. What is more, putting a will in place now will almost certainly save your estate expense (including inheritance tax) on your death.

If you would like to discuss instructing a new will, or updating an existing one, or have any queries regarding the matters raised in this blog, please get in touch with Nicola Neal on 0131 656 0176 or at nicola.neal@brodies.com or any member of our Personal and Family team based in each of our Edinburgh, Glasgow or Aberdeen offices.

 

Nicola Neal

Associate at Brodies LLP
Nicola is an Associate in the Private Client department. She is involved in a broad range of work within the Wills Executry team. Nicola has experience and a particular interest in contentious Private Client matters, including challenges to the validity of wills by disappointed beneficiaries, claims by cohabitants on death and administering judicial factories.
Nicola Neal