Drafting a will is a task that many of us find difficult to get around to, especially for those who have complex relationships with family members. It is a common occurrence that when drafting a will, people feel very strongly about who they wish to inherit or exclude from inheriting their estate on death. It may be that you feel very strongly about specific charities or family members and wish for them to benefit on your death. Similarly, you may be estranged from certain family members and wish to exclude them from your estate.

Many would think that whatever they include in a will would be binding and distributed exactly as drafted. However, in Scotland, there are laws in place to prevent children or spouses from being disinherited under a will - this is known as legal rights. This means that you cannot expressly exclude any spouse, civil partner, or children from receiving some of your estate on death.

What are legal rights?

Legal rights are a type of forced heirship which operates in Scotland. This means that certain family members have an automatic entitlement to claim a portion of the estate, regardless of the contents of the will.

Legal rights can be claimed by the surviving spouse or civil partner and children of the deceased. The right extends to adopted children but does not extend to stepchildren. On death, if a person is survived by both a spouse or civil partner and children, each are entitled to a one third share of the moveable estate. This captures assets such as bank accounts and investments but excludes property or land. If there are multiple children, the one third share is divided equally among them. It is also the case that where a child predeceases their parent, if that predeceasing child was survived by children, their children (the person's grandchildren) can claim the share of the legal rights that would have gone to their parent if they had survived. Where there is only a surviving spouse or civil partner, or only surviving children, they are entitled to a half share of the moveable estate. Again, that share is divided if there are multiple children and passes to any descendants of a predeceasing child.

It is important to note that if you leave these family members anything under your will, they have to decide if they wish to accept the legacy or claim legal rights, but they cannot claim both.

How could legal rights impact me?

There are many different instances where legal rights can impact how your estate would be distributed on death which is dictated by what you include in your will. The most common instances are where:

- Your will leaves your whole estate to your spouse or civil partner, whom failing your children. If your spouse or civil partner survives you, this means that your children will not receive an inheritance on your death. Whether they will choose to claim their legal rights will depend on the overall circumstances. If the surviving spouse inheriting the whole estate is also the children's parent, it is common for children to discharge their legal rights as they recognise that they will inherit the estate on the death of their other parent and want to ensure their surviving parent is provided for. However, if this is a second or subsequent marriage, if the entire estate is left to the new spouse, without provision for the children from the first marriage, the children may seek to claim their legal rights as the surviving spouse could disinherit them if they chose to, and there would be nothing the children could do about it.

- Your will leaves a small legacy to your children which is less than they would be entitled to under a legal rights claim. In this instance, many children may seek to renounce the legacy they are left under the will and instead claim their legal rights as this is a larger sum.

- Your will does not include your children. Here, your children would have a claim to legal rights and would likely make this claim as they are not included in the will. They would either have a claim to half or one third of the moveable estate, depending on there being a surviving spouse or civil partner.

What can I do to plan for legal rights?

There are several ways you can plan for legal rights. Perhaps the simplest planning method is to reduce your moveable estate and have more heritable assets as legal rights can only be claimed on the moveable portion of your estate. However, that is not always feasible or practical.

If the application of legal rights to your will is a concern for you, we can provide advice on this. Please contact your usual Brodies contact for more information on this subject.


Rae Anderson