Details of Matthew Perry's will have been revealed five months after the star's death. Among his beneficiaries are his parents, sister, and ex-girlfriend. However, notably, his will includes a provision specifically excluding any children which he may have fathered. While he is not known to have had any children, his intention was presumably to avoid a child of which he was unaware subsequently making a claim on his estate.
However, if a will was made in Scotland which included a similar provision, readers may be surprised to learn that this would not allow the individual to completely disinherit their offspring.
Legal rights in Scotland
The concept of "legal rights" holds significant importance in Scotland. Legal rights entitle certain family members to a share of an individual's estate, regardless of the terms of the deceased's will. The intention is to ensure there is some provision for close relatives and dependents even if they are not explicitly named as beneficiaries in a will.
Unlike England where a person can, on the whole, distribute their estate freely through a will, Scots law imposes certain limitations to protect family members who may have been overlooked or inadequately provided for in the will.
Who is entitled to claim legal rights?
Those entitled to claim are the surviving spouse or civil partner and the children of the deceased. If a child has predeceased their parent their own children stand in their shoes for these purposes.
The entitlement is to a share of the deceased's net moveable estate. The net moveable estate is essentially everything except land and property after the payment of any debts. Therefore, moveable estate includes money, investments, and personal belongings. However, it is important to understand a share in a business such as company shares or a partnership interest is also classed as moveable notwithstanding that the entity itself may own land and property.
The share which can be claimed by a surviving spouse is one-third of the moveable estate if the deceased left children, and one-half if there are no children. Similarly, the children can claim a one third share if there is a surviving spouse and one half if there is no spouse. Notably if there is more than one child the third share must be split between them. Hence if there are two children, they will each receive one sixth.
The claimant is entitled to a cash payment rather than to any particular assets in the estate. Therefore, assets may require to be sold in order to settle the claim. If the estate includes business interests, this could jeopardise the continued viability of the business.
It does not matter if the children are estranged from their parent or even if the parent did not know of their existence! If they can prove they are a child of the deceased, they are entitled to make a claim. The one exception relates to adopted children. At the point of their adoption, they can no longer claim in relation to the estates of their natural parents but only those of their adopted parents.
To claim, or not to claim?
The surviving spouse and children do not however get to have their cake and eat it. If provision has been made for them in the will, they must decide whether to take their entitlement in terms of the will or make a legal rights claim. They cannot take both. Therefore, individuals will often weigh up which is the more valuable of the two options.
It is also common for a parent to leave everything to their spouse or civil partner in their will. Notwithstanding, their children still have a right to make a legal rights claim. When relations are good, children will often opt not to claim as they do not wish to deprive the surviving parent of those assets. However, a legal rights claim can be used to divert assets away from the estate of a surviving parent if care home costs are likely to be an issue.
The right to make a claim subsists for 20 years after the death of a deceased. Therefore, there is a danger that a prodigal son may surface many years later and seek to claim their legal rights. Where a child cannot be found at the point of distributing the estate, executors have the option of obtaining a policy of insurance to protect them against any future claim.
Planning for legal rights
When faced with a potential adverse legal rights claim, what are options available to defeat such a claim? Unfortunately, legal rights are enshrined in law so they cannot be entirely defeated. However, the claim can be minimised by reducing the size of your moveable estate. Options range from the obvious which are to spend it or give assets away. Other options include investing in heritable property or an annuity. However, whether these options are suitable or practical will depend upon the individual circumstances.
Legal rights must be discussed when advising a client in relation to a will – firstly to make the individual aware of their existence and secondly to discuss what options may be available if the individual wishes to minimise a potential claim. This advice is particularly important when the estate includes the interest in a business. Therefore, it is essential to take professional legal advice.
However, the moral of the story is clear. In Scotland you can still chose your "Friends", but you can't disinherit your family.
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