Latest blog entries All blog entries from http://www.wilsonandfish.co.uk/ http://www.wilsonandfish.co.uk/Blog/Latest.html Sun, 29 May 2016 03:46:14 +0000 en-gb Disinheritance in the UK: The difference between Scotland and England & Wales http://www.wilsonandfish.co.uk/Blog/contesting-wills/disinheritance-in-uk.html http://www.wilsonandfish.co.uk/Blog/contesting-wills/disinheritance-in-uk.html How much, and what, we are left in a Will can cause great distress if it doesn’t marry with our expectations or understanding of our relationship with the deceased. Earlier this year, BBC Radio 4’s Analysis examined what our powerful emotional responses to inheritance say about our attitudes to family, society and the state (the programme is available here). Interestingly, it raised, amongst many other things, the different approaches to disinheritance in Scotland and England & Wales. In this blog post, we take a closer look at these fundamental differences in the law and how disinheritance can be challenged in Scotland.

Different Approaches to Disinheritance in the UK

In the Radio 4 programme, University of Glasgow law lecturer Dot Reid noted the radically different traditions in Scotland and England & Wales. In Scotland, you cannot completely disinherit a spouse or children. This is because Scotland’s approach in law is based on a community of property within the family, which the spouse and children have a stake in. In England & Wales, however, the law is based on the owner as an individual, the overarching principle being that we are free to do with our property what we want.

Although it’s possible, in certain circumstances, to challenge a Will on the basis of need in England & Wales, especially in the light of recent developments in case law south of the border (see our previous blog on the landmark judgment from the English & Welsh Court of Appeal here, although also note that the charities in that case have been granted permission to appeal the ruling to the UK’s Supreme Court), there is a much greater level of protection against disinheritance under Scots law.

Claiming Legal Rights in Scotland

As the presenter noted in the Radio 4 programme, it isn’t only money and property we can expect to inherit from our spouse or parents – we inherit many other things – however, should we find that they haven’t made sufficient provision for us in their Will, the law in Scotland grants some protection.

In Scotland, the fundamental freedom to make a Will is limited by certain restrictions. The concept of legal rights is one such restriction. These are granted to spouses, civil partners and children and entitle them to inherit proportions of the deceased’s moveable property. This entitlement partially overrides the provisions of the Will, in that those entitled to legal rights can claim them over what they have been left in a Will.

Crucially, a spouse, civil partner or child cannot claim both their legal rights and what they have been left by the deceased. They must choose which entitlement they wish to claim. If they claim the legacy in a Will, they renounce (give up) their legal rights. Conversely, if they claim their legal rights, they renounce their entitlement to the legacy in the Will. Further, if a hen claiming legal rights, it isn’t possible to demand

The entitlements under legal rights are prescribed by law. It’s therefore important for surviving spouses, civil partners and children to be aware that if they choose to claim their legal rights over what has (or hasn’t) been left them in a Will, they cannot claim specific assets. It’s also important to be aware that legal rights can only be claimed against the deceased’s moveable estate, which is valued at the date of the death, and does not include the deceased’s heritable property, which is any land or building such as the family home. What they are entitled to, however, is listed directly below.

  • If the deceased has surviving children or descendants, then the surviving spouse or civil partner is entitled to one-third of the deceased’s moveable estate
  • If the deceased has no surviving children or descendants, then the surviving spouse or civil partners is entitled to one-half of the deceased’s moveable estate
  • If the deceased has a surviving spouse or civil partner, then the surviving children of the deceased are entitled, collectively, to one-third of the deceased’s moveable estate
  • If the deceased has no surviving spouse or civil partner, then the surviving children are entitled, collectively, to one-half of the deceased’s moveable estate
  • According to the principle of representation, where a child would have had a claim had they not died before their parent, then that deceased child’s descendants may claim their parent’s share

Legal rights are calculated only once all the deceased’s debts and liabilities have been paid out of the estate, such as funeral expenses and inheritance tax.

it’s important to keep in mind that the Scottish law of succession is going through a process of reform. Earlier this year, the Succession (Scotland) Act 2016, aimed at revamping and updating the law, received Royal Assent. Although legal rights are not affected by the new Act, there may be changes in the future in light of the Scottish Law Commission’s recommendations. However, due to the inherent controversy over disinheritance, any proposed changes to legal right entitlements are likely to be subject to heated debate. At Wilson & Fish, our succession law experts are closely following developments. If you would like to know more about how this area of law operates, please contact us.

Wilson & Fish – Specialist Wills Lawyers in Scotland

If you are interested in knowing more about the law as it applies to disinheritance in Scotland, or any other issue relating to a Will that is is causing a dispute or concern, please speak to the team at Wilson & Fish. We are regularly involved in advising on the terms of Wills. Our many years of experience affords us considerable insight into how the law operates, and ensures that we will be able to provide comprehensive assistance to our clients. At Wilson & Fish, we believe that every client is different and take pride in providing truly bespoke legal advice. No matter how complicated or superficial you believe your question may be, the team at Wilson & Fish are here to help you. To find out more, please contact us.

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markwilson@wilsonandfish.co.uk (Mark Wilson) Contesting Wills Mon, 09 May 2016 10:12:14 +0000
Prince Had No Will – How Would the Law Apply in Scotland? http://www.wilsonandfish.co.uk/Blog/executries-and-probate/prince-had-no-will.html http://www.wilsonandfish.co.uk/Blog/executries-and-probate/prince-had-no-will.html Last month, the unexpected death of multi-millionaire musician Prince hit headlines across the world. Iconic landmarks including the Eiffel Tower, New Orleans Superdome and LA City Hall were cast in violet light in tribute to his song, album and film Purple Rain. Even NASA paid tribute to the visionary artist by releasing an image of a purple nebula.

As the world mourns the loss, it’s been recently revealed that Prince’s sister has petitioned Minnesota's Carver County Court to open a probate case (the process of applying for legal permission to wind up a deceased’s estate, which is known as Confirmation in Scotland), claiming that her brother died without a Will. Prince has left behind a vastly complex estate that has been estimated to be worth up to $300 million and is only survived by a sister and half-siblings, all of whom are named as heirs in the petition to the court.

When a loved one dies without a Will, their next of kin will usually be appointed to act as executor and administer the estate. Understandably, this can be a particularly traumatic experience, especially when there is no indication of how the deceased wished their property to be distributed – so it perhaps comes as no surprise that Prince’s sister has requested that a special administrator be appointed to help handle the musician’s estate. No matter the size or complexity of the estate, this is a common way of ensuring the deceased’s affairs are properly handled and their property legally distributed.

In this blog post, we take a brief look at how the law in Scotland treats the estates of those who have died without a Will (intestacy) and how this affects the executry process. If you require any legal advice or assistance with probate or executry, please get in touch.

Winding up an estate when there’s no Will

When a loved one dies without a Will, it can lead to complications for those they leave behind. In Scotland, this situation is governed by a detailed legal framework contained in the Succession (Scotland) Act 1964 known as the intestacy rules.

The administration of an intestate estate is subject to different rules and procedures than when the deceased left behind a valid Will. First, an executor, who is the legal representative of the deceased responsible for handling the deceased’s affair and winding up their estate, will need to be appointed. This involves applying to the Sheriff Court and usually results in either the next of kin or an executry solicitor being appointed the executor.

Once an executor is appointed, it will be necessary to acquire Confirmation (also known as probate), which is a court document confirming that the executor has legal authority to act on the deceased’s behalf. It involves compiling an inventory of all the deceased’s assets and liabilities (valued at the date of the deceased’s death), as well as obtaining a Bond of Caution. A Bond of Caution is an insurance policy that protects executors should the estate be distributed incorrectly, such as to the wrong beneficiaries.

Following Confirmation, the executor can begin collecting (also known as ingathering) all the deceased’s assets. This involves dealing with all relevant third parties in order to cash in all investments and assets, paying for the funeral, satisfy all the deceased’s debts and liabilities, including utility bills, as well as calculating and paying inheritance tax. Only once all these aspects and more have been settled, can that remains of the estate be distributed to surviving loved ones according to the intestacy rules.

According to Scotland’s intestacy rules, the deceased’s estate is to be distributed as follows:

  • First, the prior rights of the surviving spouse or civil partner are satisfied. These rights rank above all other entitlements, including the rights of surviving children. According to these rights, the surviving spouse or civil partner is entitled to the dwelling house in which they live up to the value of £473,000, furniture and furnishings in the house up to the value of £29,000 and a cash payment of up to £89,000 if there are no surviving children. This amount falls to £50,000 if there are surviving children;
  • Secondly, legal rights of surviving children and other descendants are satisfied. These rights only apply to the deceased’s moveable estate (i.e. they do not apply to the deceased’s house). According to these rights, surviving children are entitled to either a half share or a third share of the estate, depending on whether there is a surviving spouse or civil partner. All the children must share the sum between them equally;
  • Finally, what remains is called the free estate, which is distributed according to a list contained in the 1964 Act.

Crucially, cohabitants must be quick to act if they want to make a claim on their deceased partner’s intestate estate. They only have six months to make a claim and how much, if any, of the estate is to be transferred to them is at the discretion of the court.

Future changes to Scotland’s intestacy rules

it’s important to bear in mind that the law of succession in Scotland is going through a process of reform. Earlier this year, the Succession (Scotland) Act 2016, aimed at revamping and updating the law, received Royal Assent. Although the law of intestacy is not affected by the new legislation, changes should be expected in the future in light of recommendations made by the Scottish Law Commission, particularly in respect of prior rights, legal rights and the rights of cohabitants. At Wilson & Fish, our succession law experts closely follow all developments. If you would like to know more about how the new and proposed changes may affect you, please get in touch.

Wilson & Fish – Specialist Executry and Probate Lawyers in Scotland

If you are interested in knowing more about intestacy laws and executry process in Scotland, please speak to the team at Wilson & Fish. We regularly advise and guide executors through the process of administering estates where the deceased didn’t leave a Will. Our many years of experience affords us considerable insight into how the law operates, allowing us to provide comprehensive assistance to our clients. At Wilson & Fish, we believe that every client is different and take pride in providing truly bespoke legal advice. No matter how complicated or superficial you believe your question may be, the team at Wilson & Fish are here to help you. To find out more, please contact us.

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markwilson@wilsonandfish.co.uk (Mark Wilson) Executries and Probate Tue, 03 May 2016 09:21:22 +0000
Speculation Grows over Prince’s Estate http://www.wilsonandfish.co.uk/Blog/executries-and-probate/speculation-grows-princes-estate.html http://www.wilsonandfish.co.uk/Blog/executries-and-probate/speculation-grows-princes-estate.html Following the death of music superstar Prince, speculation has been growing in the media over the size of the estate Prince left behind, and whether or not he had written a will.

According to Prince’s sister Tyka Nelson, who is his only full sibling, there is no will and she has applied to court to have an executor appointed, reports the Guardian. An executor is the person who has the responsibility of organising a deceased person’s estate. They may be named in the deceased person’s will or appointed by the court. Ms Nelson has asked that this be done as a matter of urgency to ensure her brother’s business interests are looked after.

The exact size of Prince’s estate isn’t yet known, with reports varying wildly from $150 million to $800 million, reports the Telegraph. Both his parents are deceased and although he was divorced twice he had no surviving children, making his sister Tyka his closest relative.

However, his father had remarried and Prince had five half-siblings from this second marriage, raising speculation about the possibility that they might try to make a claim on the estate.

Contact Us

Wilson & Fish Solicitors based in Glasgow, Scotland, offer a better service at a better price. Contact us today to find out how our executry services can help you.

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markwilson@wilsonandfish.co.uk (Mark Wilson) Executries and Probate Thu, 28 Apr 2016 12:52:51 +0000
Dispute Develops over Late Actress’s Will http://www.wilsonandfish.co.uk/Blog/contesting-wills/dispute-late-actresss-will.html http://www.wilsonandfish.co.uk/Blog/contesting-wills/dispute-late-actresss-will.html Following the death of Lynda Bellingham in 2014, a bitter dispute looks set to develop over the late actress’s will, reports ITV news.

In her will, Mrs Bellingham left her estate to her third husband, Michael Pattemore. However, her two sons are reportedly unhappy with the way he is handling her estate and plan on contesting their mother’s will. The brothers accuse Mr Pattemore of denying them their inheritance, forcing them to leave the family home and wasting money from the estate.

However, Mr Pattemore has now spoken out in response to these claims, describing the situation as “frustrating”. He says that Lynda Bellingham’s estate is still going through probate and therefore all of the assets within the estate are frozen until this process is complete, reports the Daily Mail.

Contact Us

Wilson & Fish Solicitors based in Glasgow, Scotland, offer a better service at a better price. Contact us today to find out how we can help you.

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markwilson@wilsonandfish.co.uk (Mark Wilson) Contesting Wills Thu, 14 Apr 2016 08:48:57 +0000
Contesting a Will in Scotland http://www.wilsonandfish.co.uk/Blog/contesting-wills/contesting-a-will-scotland.html http://www.wilsonandfish.co.uk/Blog/contesting-wills/contesting-a-will-scotland.html When a loved one dies, most of us will hope to be able to carry out their last wishes as they intended. In most instances, this will involve carrying out the terms of a loved one’s Will, the document that allows a deceased to communicate how their property is to be distributed to those they have left behind. Unfortunately, there are occasions when there may be reasons to doubt the validity of a Will or whether its terms truly reflect the deceased’s intentions.

We recently blogged on a judgment delivered by the Court of Session earlier in the year that found that the gifting of property by a mother to her sons, prior to her death and contrary to the terms of her valid Will, was the result of facility and circumvention as well as undue influence – two of the grounds for challenging a Will in Scotland. You can read our article here. In this post, we take a closer look at these and the other general grounds for challenging a Will.

The Grounds for Contesting a Will in Scotland 

It is important to bear in mind that a Will cannot be contested simply because its terms are objectionable or strange. The freedom to make a Will and have its contents adhered to (known as testamentary freedom) is strongly protected in Scotland and only subject to a few narrow limitations. The grounds for challenging a Will are therefore very precise and must be established with clear evidence.

The Wills that might be challenged and the legal grounds for challenging them can be subdivided into two general categories: voidable Wills and void or invalid Wills.

Voidable Wills

Voidable Wills are those that are technically valid but have been created by the deceased by questionable means. In these circumstances, the courts have the power to reduce the Will, despite it meeting formal requirements as to its form. If a Will is reduced, whether or not the deceased’s estate will be distributed according to the intestacy rules depends on whether any other valid Will exists.

The grounds for having a Will reduced include:

  • Undue Influence – the essential elements of undue influence are: the existence of a relation between the deceased and a beneficiary of the deceased’s Will which created a dominant or ascendant influence; confidence and trust arising from that relation; a material and gratuitous benefit given to the beneficiary to the prejudice of the deceased; and, the deceased made the Will without the benefit of independent advice or assistance. Each of these elements must be met with sufficient evidence to justify reduction of a Will – the beneficiary must have abused or exploited a relationship of confidence or trust with the deceased for their own self-interest.
  • Facility and Circumvention – the essential elements of facility and circumvention are: weakness and facility of mind on the part of the deceased at the time of making the Will; an unfair loss or great disadvantage to the deceased in making the Will, such as divesting themselves of property for no consideration (known as lesion); and, circumvention, which is where the deceased was misled or induced to make the Will. As above, each of these elements must be met with sufficient evidence to justify reduction of a Will – simply averring that the deceased was in a weak and facile state of mind will not be enough.

Invalid Wills

Invalid Wills are those where the deceased lacked capacity to make a Will or Wills that don’t meet the legal requirements as to the form they are required to take (as set down in the Requirements of Writing (Scotland) Act 1995). If a Will is invalid, it is taken to have never existed, and the deceased’s estate will be distributed according to the intestacy rules.

The grounds for contesting a Will on the basis that it is invalid include:

  • Capacity – in order to make a Will, the person making it (the testator) must have the capacity to do so. This means that the testator must be 12 years old or over and of sound mind (fully aware of the nature and substance of the document, both in respect of the property included in it and the identities of beneficiaries).
  • Intention to make a Will – the document must show an intention as a Will bequeathing all or part of their estate, which must be made voluntarily and without pressure.
  • Execution – the document must not only be made in writing but each page signed by the testator in front of a witness.

Legal Rights

In this post, we have focused on the grounds for contesting a Will - we haven’t touched on the issue of challenging the distribution of assets in a Will on the basis of legal rights, which is a distinct matter. If you are a surviving spouse, civil partner or child who is looking to claim your legal rights and forfeit any benefit left to you under a Will, you can find more information here or please contact us.

Wilson & Fish – Specialist Succession Law Solicitors

If you would like to know more about contesting a Will in Scotland, one of our specialist solicitors is ready to help. At Wilson & Fish, our expert lawyers have vast experience assisting and representing clients who wish to contest a Will. We regularly carry out technical reviews of Wills and the circumstances surrounding their creation on behalf our clients. If you are considering a challenge to a Will, please contact us for specialist legal advice and assistance.

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markwilson@wilsonandfish.co.uk (Mark Wilson) Contesting Wills Wed, 30 Mar 2016 15:25:22 +0000