In a recent Canadian case (Pascuzzi v Pascuzzi), a father excluded his daughter from a previous marriage in his Will and left his entire estate to his new wife. After his child raised a court action, the Court intervened to vary his Will and awarded the child 30% of his million dollar estate.
If this scenario were to happen in Scotland, the child would have an automatic - not subject to court discretion - claim on his estate. This is due to the existence of Legal Rights.
What are Legal Rights?
Succession Law in Scotland gives children and spouses/civil partners of the deceased an automatic entitlement to claim a portion of the estate, even if one’s will excludes them.
As legal rights only apply to the moveable estate, property or land is excluded in this regard but children will be able to inherit the share of bank accounts and investments.
Legal Rights – Will/No Will
A child has the right to a share of one third of the deceased’s moveable estate which increases to a one half share of the moveable estate if the deceased is unmarried. If there are multiple children then the one third share will be divided equally between them.
When a Will exists and they have been included in the will, the child will need to decide if they wish to claim legal rights or to accept the legacies left to them in the will. It is not possible to claim both.
When a person dies without a will, the law of intestacy operates and the spouse will have first call on the estate under Prior Rights. Currently, these are:
- The family home (up to a value of £473,000)
- The family home furniture (up to a value of £29,000)
- A sum of money (up to a value of £50,000 if there are children and £89,000 if there are no children)
The child will then be entitled to a share of the remaining moveable estate under Legal Rights.
Varying Parent-Child relationships
Since this ancient principle has come into force, family dynamics have evolved. A step-child and parent relationship may be stronger than one with a biological child. However, the law does not yet recognise the importance of these relationships and provide step-children with legal rights.
If you wish for your step-child to inherit from your estate upon death, it is important to have a discussion with your solicitor about honouring these types of relationships in your estate plan.
Legal Rights Planning
There are limited ways to affect the value of a legal rights claims. As they only apply to moveable estate, one method is to turn all your moveable estate into heritable estate thus there are no assets to be claimed against. However, this is impractical and complicated.
We understand that you have unique needs and desires when planning your estate. That is why we take a personalised approach to offer you the best possible advice and support. Our team of experts is dedicated to providing you with compassionate and tailored solutions. We aim to make a real difference while ensuring the necessary protection and security for you, your partner, and your family.
We invite you to reach out to us today at 0141 473 6783 to discuss how we can help you plan according to your specific needs and desires. Our team is always here to help.
