An Edinburgh legal firm is urging people to consider reviewing the provisions of their wills to ensure both that their wishes are made crystal clear and that they understand any limitations on leaving assets.
The advice from Pagan Osborne comes in advance of proposed changes to the law of Succession in Scotland and after a ruling at the Court of Appeal in London which threw the spotlight on disinheritance and people’s right to leave money and assets to whom they wish.
Although Scots Law differs on a number of points, the landmark English case – in which a mother’s stipulation that she left nothing to her daughter was overruled – has highlighted how crucial it is that the legal ramifications are understood and wishes are clarified. It will also have implications for how people need to draw up their wills.
The case centred on a woman who left her £500,000 estate to animal charities and stated that she did not want her estranged daughter to receive anything. The daughter was eventually granted a third of the money, £164,000, on the grounds that her mother did not leave “reasonable provision” in her will to ensure her future maintenance. Charities are concerned that the decision might affect the number and value of legacies bequeathed to them in the future.
In Scotland the principle of Legal Rights – the idea that every child and spouse has a claim on the deceased’s estate, despite the terms of any will – has been enshrined in Scots Law for years. Claims can only be made against the deceased’s movable property – generally everything excluding ‘bricks and mortar’ – and do not currently extend to heritable property such as buildings and land.
However the Scottish Law Commission has suggested that there is no justification for continuing to make such a distinction and proposes its removal. The Commission suggests that Legal Rights would apply to both the deceased’s heritable and moveable estate but it’s proposed that, instead of the current rule that allows all children to make a claim, claimants might be restricted to dependent children deemed to require maintenance – a scenario similar to the English case although likely to amount to a much smaller percentage of the estate.
The issues have now been put out for consultation by the Scottish Government.
Tessa Till, partner at Pagan Osborne, said: “The proposal is intended to help promote fairness and prevent disinheritance. However, in certain instances, it might mean that farms and country estates would have to be broken up or sold in order to settle the claims.
“Whilst changes will not happen overnight, they may significantly affect planning for the future and we are advising clients to speak to an advisor early to find out how these proposals might impact them so that they can adapt their plans for succession if necessary.”