Thinking about writing a Will isn’t something that most of us are keen to do. But when we do get around to it, many of us assume that we have complete freedom to choose who our estate passes to once we die. However, as three charities in England recently discovered, this is not always the case.
While putting a Will in place is essential to ensure your money and assets go where you want them to, there are certain complexities to be aware of.
Last week, the Telegraph reported that three animal welfare charities are lodging an appeal under English law in the Supreme Court following a judge’s decision to overturn the Will of Melita Jackson. Mrs Jackson had expressly stated in her Will that her estranged daughter was to inherit nothing from her estate, and that her £500,000 fortune was to be passed on to charity.
However, relying on the terms of the Inheritance (Provision for Family & Dependants) Act 1975, a judge in the Court of Appeal ruled that the daughter could not be disinherited and awarded her £160,000.
This ruling may come as a shock to those who assumed that the terms of a person’s Will cannot be challenged. However, under the 1975 Act, in England and Wales, family members and people who rely financially on the deceased can apply to the Court to make a claim on the estate. Perhaps even more surprising is that in Scotland, rules preventing disinheritance apply automatically to all estates.
Under Scots law, spouses, civil partners and children have the right to claim either one third or one half of their family member’s estate (excluding land or buildings) depending on the family’s circumstances. This right, known as a ‘legal right’, applies to all children, spouses and civil partners, regardless of their financial position.
Further changes are being discussed in the Scottish Parliament which would also bring land and buildings in the claimable estate. This would effectively remove the protection that is currently in place which prevents houses from being sold and would allow up to half of an individual’s entire estate to be claimed by a disgruntled family member.
It is therefore vital when drafting your Will in Scotland to consider Legal Rights and how they may affect the distribution of your estate if claimed by a spouse, civil partner or child. It is also important to know that there are measures that you can take now to minimise the claim that can be made on your estate.
If this is something you are would like to find out more about, email partner Sue Arrowsmith Rodger or call 01334 468 8622.