2.26 In the case of legal succession, the surviving spouse receives a significant share of the deceased`s estate and the calculation depends on whether dependants, biological or adopted children, a parent or siblings born or born naturally or adopted are present. It may be surprising that these rights can be enforced regardless of the content of a will. If you have any concerns about how legal rights may apply to your estate, please do not hesitate to contact us. The remaining half or third of the estate is dealt with either in accordance with the will or the inheritance laws. You may be surprised to learn that your closest family members can claim your estate in the event of death, whether or not you have made a will and whether they are included as beneficiaries or not. This is due to the long-established concept of Scottish law, known as statutory rights, which essentially prevents you from disinheriting your life partner and children. In turn, this quirk can have a significant impact on the distribution of your estate, and it`s something you need to be aware of, especially when making your will. Under current law, life partners and stepchildren have no legal rights to their partner`s or step-parent`s estate. For wills made after September 10, 1964, the assertion of legal rights means the loss of all benefits granted to the plaintiff in the will. For example, if a testator leaves £1,000 to his son in the will and the son asserts his legal rights, the legacy of £1,000 will be forfeited. What happens to the inheritance at this point depends on the terms of the will, but in many cases it will fall behind.
When a legal claim is filed, it is important that appropriate legal advice is sought as soon as possible. Legal rights transcend the will and are a claim. This may prevent you from fulfilling your wishes, but you can minimize it through planning. If the legal rights are neither recognized nor respected, a long negative limitation period applies, which means that they are automatically time-barred after twenty years18. Legal rights only apply to your net movable property in the event of death, i.e. your bank accounts, investments, furniture, paintings, personal effects, jewellery, etc., but not to land and property, such as your house. Note that the above Statement of Legal Rights applies if the deceased left a will. For a person who does not leave a will, a spouse or civil partner and children have these legal rights, but there are other rules about intestate successions that may apply (see “Dying without a will”). A legal claimant is therefore only entitled to a cash amount equal to his ius relicti or his share of the legal protection fund. An applicant is not entitled to a specific asset in the testator`s movable estate17. An exception for land that is not net personal property is when it is held in partnership.
The testator`s share in the partnership can be claimed under legal rights. One of the most common situations where this happens is when farmland is held in partnership. In order to avoid having to dissolve a company to deal with legal claims, it is advisable to draft a partnership agreement. 2.64 The article examined the consequences of the Peters Estate (Re),[20] in which Ileen Peters died in 2013. Her husband of 43 years, Lester, had died before her in 2009. They had a biological son together and Lester had four daughters from a previous relationship. It was noted that “the children (by marriage and biologically) all helped maintain Lester and Ileen Peters, both financially and otherwise. They functioned as a family unit for many years and the five adult children worked together to care for Ileen. They helped Lester and Ileen when they went bankrupt. When Lester Peters died, the five adult children agreed that Ileen Peters would receive her father`s entire estate. By considering your personal and family circumstances, you can plan according to your needs, face the risk of a claim under legal rights, and ultimately ensure that your estate goes to the one you wanted.
2.33 According to this status, the term “spouse” covers not only persons who are legally married, but also persons who have lived together for at least 2 years. (Living together is discussed in chapter three). 2.43 The threshold approach has some similarities to our current intestate succession regime. What is called a “preferential share” in the Canadian example is similar to the concept of prior rights. In both cases, the amount of the preferential share or the monetary value of the prior rights is higher if there are no children. You have twenty years after your death to assert your legal rights. If you do not want to claim them, you will probably be asked to refuse them. 2.7 However, there were differences of opinion on what an appropriate division of the estate should be if there was both a surviving spouse or partner and the children of the deceased. In this situation, there is an inherent tension, because the more a spouse/partner is entitled, the fewer children there are (biological or adopted).
It has been suggested that if the proportion of parents is high in relation to the average value of property in Scotland, many children may be effectively disinherited. Cameron`s Trustees v Maclean15 confirmed that the legal rights under this payment order must be respected and that a party cannot demand payment solely out of the personal property.16 Chapters 5 to 12 of this book deal in more detail with the determination of net movable heritage and the questions that may arise in this context. 2.18 We recognize that it would not be possible to examine the “quality” of a relationship on a case-by-case basis and take it into account when deciding on the distribution of legal assets, which would require valuable time before the courts and would also be costly. Some natural children are separated from their parents, some stepparents have a very close relationship with their stepchildren, others do not. 5. If the Washington State model (“Community of Conquest”) is your preferred model, do you think the financial provisions of the Family Law (Scotland) Divorce Act 1985 could easily be applied to legal successions? 2.57 Once Brad`s preferred share of the estate has been withdrawn, there will remain an estate of £284,000, which will be transferred to Cosima and David. “We remain convinced that no distinction should be made between different types of surviving spouses or life partners.