Legal Rights - Valuable Protection or Undue Interference?

Whether or not you make a Will, in Scotland it is almost impossible to disinherit your immediate family.  Scottish law, unlike English law, entitles your children to claim either one third or one half of your moveable estate between them depending on whether your spouse has also survived you (moveable estate being virtually everything other than land or buildings).  These Legal Rights cannot be avoided and apply regardless of your relationship with your children.

The Scottish Government has taken some steps towards bringing Scottish inheritance law more into line with current social norms and more legislation is anticipated, particularly dealing with the allowing children to claim from a parent’s estate whether or not a Will exists.  Whether or not there should be a fixed provision made for children has been the subject of much debate and here, our Private Client Trainees discuss their opposing views.

Peter: A Will is one of very few legal documents that most people understand; you write it while you are alive and it directs what will happen to your assets when you die.  Legal Rights means that’s not necessarily true and most people are surprised to find that their wishes can be overridden if their children claim Legal Rights.

Rachel: But surely that’s not really an argument for abolishing Legal Rights but for promoting a better understanding of everyone’s rights under the law.  Most laypeople don’t understand the intricacies of say, copyright law but that’s not a reason to get rid of intellectual property protections.

Peter: What is the reasoning behind Legal Rights?  It stems from the idea that you have a duty to look after family members, even after your death.  Of course there are tragic situations where a young child is left behind but life expectancy in Scotland is around 80 years so the average person will be around 50 when their parents die.  That’s far beyond the point where their parents have any legal duty to support them.

Rachel:  If you acknowledge that there should be some provision made in “tragic circumstances” who gets to decide what circumstances are tragic enough?  It can’t be based only on age – there are plenty of vulnerable people who are looked after by their parents well into adulthood and what about those who have spent most of their adult life caring for ill or elderly parents.  If provision is made on the basis of age alone there will be cases where older children who have lost a parent will be deemed to deserve less protection than their younger siblings simply through accident of birth.

Peter:  You have to agree that Legal Rights are a blunt instrument.  There is no recognition of the fact that families can, and often do drift apart or fracture.  Nor that people might have perfectly reasonable wishes for their estate which don’t include their children, for example giving to charity.

Rachel:  If your children agree that the terms of your Will are perfectly reasonable then they are entitled not to claim their Legal Rights.  They can allow your will to stand and support those wishes; in fact that is often what happens in practice.  So far as not recognising individual family circumstances, every family will have its own unique history, composition and values.  The law simply cannot cater for every eventuality and viewpoint and so if there is to be provision for anyone unfairly cut out of a Will that provision has to be the same for all.

Peter: If the law can deal with nuance in other areas it can manage here. If a Will is truly unjust then we could allow children to challenge it in Court where a judge will consider the family’s particular circumstances, seeing the big picture.

Rachel:  If we allow discretion we lose certainty.  With fixed legal entitlements everyone is aware of what they or their children are entitled to claim.  Following the English model of allowing a family member to claim and leaving the amount awarded to them up to the Court means that no one putting in place a Will which excludes a child can properly plan for the rest of their estate.  The fairly recent case in England of Ilott v Mitson exemplified how unpredictable these cases can be.  In that case, if the testator had known that £164,000 from her estate would be passed to her daughter she might have chosen to make different provisions in her Will.

Peter:  Legal rights don’t give certainty either – as you said, there’s no guarantee that your children will claim them.

Rachel: No, but at least you can predict how much of your estate they will be entitled to if they do make a claim and can plan around that eventuality.  Having a fixed entitlement also means that an estate won’t have to go through a lengthy court process to determine a child’s entitlement, saving money for the child, the estate and the whole court system.

Whether or not you agree that the law should make provision for children disinherited by their parents the debate is likely to continue until the next Succession (Scotland) Bill is published.  If you would like to discuss your estate planning or putting a Will in place we would be happy to advise you.  Please get in touch with your usual contact, or anyone in our Private Client team.