Unlike the law of England, which you will see in the following example does allow you to disinherit a child, Scots law does not allow an individual to completely disinherit a child.
Background to the case
The High Court in England has recently issued its ruling in an interesting case involving the disinheritance of Christopher Gosden, whose mother left the bulk of her £1.25 million estate to her civil partner.
Dr Jean Waddell was a wealthy woman who prepared a Will in 2003 leaving her entire estate to her son, Mr Gosden, and his wife. Alongside her Will, her London home was put into a Trust for Inheritance Tax mitigation purposes, to preserve the £1.25 million property, again for the benefit of her son and his family.
This all changed when Dr Waddell entered into a civil partnership with Wendy Cook in 2007. During the course of their relationship, Dr Waddell not only changed her Will to favour Miss Cook, but also sold her house from the Trust. She then gifted the bulk of the proceeds to her lover. By the time Dr Waddell died in 2013, her estate was worth only around £5,000, which also passed to Miss Cook in terms of her Will.
Mr Gosden accepted the terms of his mother's Will, but raised a negligence action against the firm of solicitors his mother had used to draw up the Trust Deed in 2003. This was on the basis that he, as the beneficiary of the Trust, should have been informed of the decision to sell the Trust assets, being his mother's house.
He was, however, unsuccessful in this action as the court held that Dr Waddell was free to dispose of her estate as she wished and at the time of selling her property from the Trust, Dr Waddell had full capacity and understood the implications of doing so. The court ruled that whilst it may have been difficult for Mr Gosden to understand, it is entirely reasonable that his mother would have wanted her civil partner to inherit her entire estate.
What are the rights of children that appear to have been disinherited?
Mr Gosden's case is probably not all that unusual, and we are seeing more and more instances of parents disinheriting their children in favour of new partners, for example.
Scots law does not allow an individual to completely disinherit a child
Unlike the law of England, Scots law does not allow an individual to completely disinherit a child. Irrespective of the terms of the Will, a child or children of a deceased person who was domiciled in Scotland can claim a one third share of their late parent's net moveable estate where there is a surviving spouse. This increases to a one half share of the net moveable estate when there is no surviving spouse. This is known as the child's Legal Right. How much a child will receive from such a claim will depend on the assets the deceased parent owned a so it is perfectly possible that this would amount to nothing at all – particularly where the main asset in the parent's estate is their house (as heritable property is excluded from a Legal Rights claim).
Wills should be kept up to date
Mr Gosden's case is a good reminder that Wills should be kept up to date, and proper legal advice should be taken in relation to your wishes and current circumstances to ensure the appropriate people benefit from your estate. It may also be wise to have open discussions with family members about your intentions on death however difficult this may be, as it could prevent a protracted legal dispute arising in the future.