Dealing with the death of a loved one is hard enough, but matters can become even more challenging if you have been excluded from the will.

The starting position in Scots law is that, when making a will, you are free to leave your estate to whomever you wish. However, this is subject to certain exceptions. In particular, it may be possible for you to claim your "legal rights". Alternatively, there may be grounds for you to challenge the validity of the will and have this "reduced" i.e. treated as though it did not exist.

Legal rights and exclusion from a will

In Scotland, it is not possible to disinherit your spouse/civil partner ("cp") and children (including adopted children). Where an individual dies domiciled in Scotland at the date of death, whether testate (i.e. with a will) or intestate (i.e. without a will), the deceased's surviving spouse/cp and/or children will have automatic legal rights in the estate.

Legal rights are limited to the extent that they can only be claimed against the deceased's net worldwide moveable estate (i.e. everything aside from land and buildings), but in some cases, the claim could be substantial.

The extent of the legal rights claim will depend on who survives the deceased. The surviving spouse/cp will be entitled to one third (if there are surviving children) or one half (if no surviving children) of the net moveable estate. Similarly, the children collectively have a right to one third (if there is a surviving spouse/cp) or one half (if not surviving spouse/cp) of the net moveable estate.

If you have been excluded from a will and think that you have a legal rights claim, the executor(s), or the solicitor acting on behalf of the executors, should contact you and provide you with a legal rights calculation which provides you with a breakdown of your legal rights entitlement. You will likely be asked to confirm whether you want to claim or discharge your legal rights. We would strongly advise that you seek independent legal advice before making a decision regarding your legal rights.

When can you make a claim on an estate using legal rights?

Although legal rights apply automatically and should, therefore, always be considered and addressed by executors, in some instances they may be overlooked. However, legal rights can be claimed at any point within 20 years of the date of death, and so there will still be scope for you to claim legal rights, even if the deceased's estate is fully distributed and wound up by the executors. However, from a practical perspective, there are undoubtedly better prospects of you recovering your full legal rights entitlement if a claim is made as soon as possible after the deceased's death.

More information on legal rights and potential planning to mitigate a legal rights claim can be found here.

Excluded from a will: How to challenge a will in Scotland

If you have been excluded from a will unexpectedly, then in some limited circumstances, you may also be able to raise a court action to have the will reduced (known as a 'reduction action'). You can find out more about the grounds for challenging a will here.

However, even if there is evidence to support a formal challenge on the will, there are other important considerations when deciding whether to raise a reduction action, including:-

  • The associated costs are likely to be considerable, so affordability is a factor. If your court action is successful, you should be able to recover a proportion of your legal expenses from the defender. However, conversely, if you are unsuccessful, you could find yourself having to pay for your own legal costs, and also a significant proportion of the defender's legal costs.
  • It is also important to consider the cost of raising a court action against the potential value of your interest in the estate if you are successful – on a basic costs/benefits analysis, it may not be in your interests to incur the costs of challenging the will, particularly if prospects of success are limited.
  • The effect of a successful reduction action is to treat the will as though it did not exist, and any earlier will revives. Alternatively, if there was no earlier valid will in place, the estate would be "intestate" and distributed in accordance with the Succession (Scotland) Act 1964. Before any action is raised, it is therefore important to confirm that you would fare better if the will was reduced.

If you have been excluded from a will and would like to discuss a possible legal rights claim, or if you would like to discuss the pursuit or defence of a reduction action, please do not hesitate to contact me or your usual Brodies contact.