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Advice on inheritance claims

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.

  1. By legacy (also called a bequest) in a testate case (ie. where there is a will in place);
  2. By intestate succession (specific rules governing who can inherit an estate when there is no will in place); and
  3. 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.

Frequently asked questions

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Emma Collins
Emma Collins

Partner

+44 (0)345 073 9900 Email Emma

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