Many people do not realise that they do not have unlimited freedom to pass on their estate at death exactly as they wish. At the moment, the law states that spouses, civil partners or children have the legal right to claim part of a deceased person’s estate, regardless of what your Will says.
Now the Scottish Government is proposing changes to the law which would see this legal right extended to cover a bigger share of your estate.
Background – tackling disinheritance
The Scottish Government has recently launched a consultation paper regarding their intention to change the Scots law of Succession. One of the key issues being consulted on concerns the protections that the law should provide so as to prevent spouses (or civil partners) and children from being disinherited under the terms of a Will.
At present, the limitation imposed by the law on your freedom to pass on your estate as you wish is that a spouse or civil partner, as well as each of the children, is given the right to claim a part of the deceased person's estate – no matter what a Will says. This claim, however, is only able to be made against the deceased's moveable estate and does not include the value of any house or land.
Under the new proposals, however, there would be no distinction made between heritable and moveable property. This could result in spouses/civil partners and children becoming entitled to a much more significant share of the deceased person's whole estate.
Where there’s a Will
In terms of the proposals a distinction is to be drawn between estates where there is a Will and those without a Will.
Where a Will is left, a calculation is to be carried out and the spouse/civil partner and children are each to become entitled to receive 25% of what they would have received had the deceased died without leaving a Will.
Should someone die without leaving a Will, leaving a spouse/civil partner and children, the proposals are that the spouse/civil partner will be entitled to a lump sum and a 1/2 share of any estate remaining. The children would then be entitled to the remaining 1/2 share.
Is this a good thing?
The current system of Legal Rights has been described by the Scottish Law Commission as being flawed. The proposed reforms, however, have already been criticised as being too extreme in that they seriously restrict every individual’s right to determine who inherits their estate.
The government state in their consultation paper that it is necessary to strike a balance between, on the one hand, the autonomy of individuals to determine what should happen after their death to their property and possessions and, on the other, giving protection from disinheritance to the deceased's family.
Whose right is more important will be a matter of personal opinion, but changes to the law seem certain to be made. Anyone who is in any doubt as to what these changes will mean for them, or who wishes to explore ways of managing the effects of the new rules, should seek professional advice.