If you, or your children, were living with or married to and/or financially dependent on someone who has died, you may be able to make a claim against his/her estate. This could be where a person has died without making a will (which is known as dying ‘intestate’) or has made a will but has not made suitable provision.
A child whose parent has died may also have a claim, even if they were not financially dependent on that parent at the time of their death.
In England and Wales, the court can make such financial provision as it judges reasonable having considered the criteria set out in the Inheritance (Provision for Family and Dependants) Act 1975 and having regard to all the circumstances of the case. If the claim is successful, this may result in cash payments being made from the estate or an order that property is transferred to the applicant including for their housing needs.
Claims need to be brought within a strict time limit. It is therefore essential to seek expert advice as soon as it becomes clear that insufficient financial provision has been made.
This is also important as in some cases interim cash can be awarded to meet immediate financial needs.
If you are:
contemplating bringing a claim against an estate, on behalf of yourself or your children;
an executor facing a claim against an estate;
a beneficiary whose inheritance is at risk if a claim is successfully brought against an estate; or
looking to draft a will when you feel that someone could make a claim against your estate
we can provide you with robust advice as to whether the claim is likely to succeed and a strategy that protects you and that you are comfortable with in a dispute that may well involve close family members.
Our approach includes using alternatives to contested court proceedings including mediation, where appropriate, and not losing sight of the emotional impact the involvement of lawyers can have at such a difficult time.
Inheritance Act proceedings can cover several areas of the law and we can draw on the expertise of our family, private client, corporate, employment and civil litigation teams to produce the best possible outcome for you.
Advice on inheritance claims in Scotland
Scotland has specific legislation governing inheritance. There are three principal ways in which one person can inherit from another in Scotland.
By legacy (also called a bequest) in a testate case (ie. where there is a will in place);
By intestate succession (specific rules governing who can inherit an estate when there is no will in place); and
By Legal Rights.
If there is a will in place, that will usually cover arrangements in respect of the estate and how it should be distributed. However, legal rights can operate in both testate and intestate situations and are indefeasible rights that a spouse and children of the deceased are entitled to against the 'moveable' part of the estate whether there is a will in place or not.
In Scotland property is either 'moveable property' (for example money, shares, belongings, and anything else that can be moved around) or 'heritable property' (which is fixed property such as land or a house). Legal rights do not apply to heritable property and only apply as a claim for money on the moveable parts of the estate.
Legal rights for a spouse are called 'relict’s rights' and for a child, they are called 'bairn’s rights' or 'legitim'. There is no need to go to court to assert these rights as they apply in every case unless the person entitled to them agrees to waive their entitlement.
Intestacy in Scotland
If there is no will in place or the will has not been drafted well enough to cover all of the deceased's assets (known as partial intestacy) then the net estate after debts are paid will be distributed in a certain way.
Firstly, a spouse has additional rights known as 'prior rights' to a certain proportion of the net intestate estate (after funeral costs and debts have been paid off) which takes priority over any other claims on an intestate estate. This is an entitlement to a certain cash proportion of the value of any dwelling house, plenishings and money in the intestate estate and is taken before legal rights then will apply.
If there is no will and there is still some estate left after prior and legal rights have been taken then the Succession (Scotland) Act 1964 provides a list of who is entitled to the residue of the estate with an order of entitlement for various relatives like children, parents, siblings, and so on.
Until 2006, cohabitants had no succession rights, unless they were left legacies from their partner. Now, only in an intestate case (ie. where there is no will) a cohabitant can apply to a court for a cohabitant claim under the Family Law (Scotland) Act 2006. The court can make a discretionary award of a capital sum to a cohabitant from the estate. In some cases that can be as much as a spouse would have been entitled to under intestacy. There is a very strict time limit of six months from the date of death to make such a claim.
Where there is will in place, the cohabitant will not be entitled to make any claim so will have to hope that they have received a bequest instead. Cohabitation and succession are currently under review in Scotland and the rules may change in the near future. As this is a complex area of law advice should be sought as soon as possible. See also below for more information on cohabiting claims.
Cohabitation claims on death in Scotland
Scotland has specific legislation providing certain rights to protect cohabitants in the event of death.
If one of the cohabitants dies without a will in place, the other cohabitant will have a right to make a claim for a share of their intestate estate but that claim must be made within six months of the date of death.
If there is a will in place, currently there is no provision for the cohabitant to be able to make any claim. The Scottish government are looking at whether to change the law to provide for claims even if there is a will in place.
Such cohabitation claims on death can be quite significant in value. In certain cases, a cohabitant might receive as much as a spouse would receive on death and other family members might not receive as much inheritance as they expected.
Given that there is a strict six month time limit to make such a claim, it is important that you do not delay taking advice.
An unmarried partner in England and Wales has no automatic right to their partner's estate if they die without making a Will. It is therefore essential that unmarried couples make a Will.
There are however certain circumstances in which you could make a claim against your partner's estate if you can show that you are being maintained by them prior to their death or you have lived with your partner as husband and wife for two years prior to their death. This provision also extends to same-sex partners who are not in a civil partnership.
In addition to this, there are special guidelines for the court to consider such as your age, the length of your cohabitation and the contributions that you have made to the welfare of the family. We can advise you of your rights if your partner predeceases you and the appropriate course of action to achieve the best possible outcome for you.
If your partner died without a will (intestate) in Scotland, you can make a claim as a cohabitant for a share of the estate in terms of the Family Law (Scotland) Act 2006. You may be entitled to as much as a spouse would have received under normal inheritance laws. However, you must make such a claim within six months of the date of death otherwise you will be time-barred from doing so.
This will depend largely on what assets were left in the estate of your father and the type of assets. Your stepmother will have certain prior rights for a claim on the dwelling house that they lived in, the furnishings of the house and any money he held.
There are, however, strict limits on how much that can be and thereafter you as a child will have legal and succession rights to a certain proportion of the estate. It is important you seek legal advice to establish your proper entitlement.
If there is any movable estate, i.e. any assets other than heritable property, you will be entitled to your "legal rights".
This means you are entitled to a cash sum representing a certain proportion of the moveable estate. The proportion will depend on whether your mother had any living spouse and also on how many siblings you have.
The will cannot defeat this entitlement. Whoever administers the estate will need to contact you to provide you with details of your entitlement under the legal rights provisions.
The court will take into account as part of the evidence why your father chose not to include your brother in his will but ultimately the court does have the power to make an order that would be contrary to your father's wishes.
The court's decision will turn on the extent of your brother's financial need, the extent, if any, to which he was dependent on your father, combined with his conduct and your father's reasons for excluding provision for him.
It is therefore essential to obtain specialist legal advice early to understand the strength of his claim. If your brother were successful in his application his legal costs could end up being paid by either you or the estate.
In Scotland, your brother will be entitled to his "legal rights" if there are moveable assets even without having to bring a claim.
In your capacity as executor, your role within the proceedings is limited to providing the relevant information concerning the assets and liabilities of the estate. You are expected to take a neutral and risk an application to remove you as executor if you do not.
If you feel unable to act neutrally, or that you risk damaging your relationship with the other parties, you may want to take advice on stepping down as executor.
There is no obligation to register a will in England and Wales. You can check with local solicitors, ask your step-mother if you can search for a will among your father’s things and contact the Principal Registry of the Family Division to check that neither he nor his solicitor took the step of registering it there.
Not necessarily. You will need to establish where your uncle was domiciled at the date of his death and whether he made a will in England or Wales. If he did, you can carry out a standing search at the probate registry to find out whether probate has been obtained. If probate was obtained more than six months ago, we would need to assess the merits of your claim carefully to see if an application was justified outside of that time limit.
It would be for the person making the claim to evidence the nature of their relationship with your mother and any dependency he may have had upon her. This would include evidencing he knew her and the relationship between them whether through letters or cards exchanged, emails photographs, joint invitations, witness statements of friends or financial transactions. On receipt of his evidence, we could help you assess whether his claim had merit.
You may have rights to the property, or it may be possible to reach an agreement with your partner's children that you should not need to move out straight away.
The first thing to consider would be whether you have any right to a beneficial interest in the property under property law by, for example, making a direct financial contribution towards the property or relying on a promise your partner had made you. The next would be to assess your income and assets to establish the extent of your dependency on your partner.
Yes, it is possible to reach an overall agreement but it is important that it is recorded in the correct way to deal with both the Inheritance Act claim and satisfy the requirements of a settlement agreement under employment law.
In this scenario, we would work in tandem with our specialist employment law colleagues to ensure that the business was protected as well as your son's estate.
Yes, it would be possible to bring a claim against his estate. Before doing so, however, it would be important to assess the extent to which he supported you, look at your assets and income in your own right and also look at the competing needs of his family and the extent of any dependency individual family members had upon him.