HM Insights

What can your children do if you get "Cold Feet" over updating your Will?

Warning – this article contains spoilers! - Fans of the TV series "Cold Feet" might have felt that, with Pete's role as a juror and Adam's recent employment issues, legal matters have been at the forefront of the latest series.

The passing of Jenny's mother Barbara in a recent episode also demonstrated what can happen when someone passes away and the terms of their Will cause disputes among the family.

last-will-testament-old-updated-scotland-legal-rights-deed-of-variation-law-lawyer-solicitor-beneficiary-dispute-challenge-tax.jpg

 

Barbara, who had lived with Jenny for some time prior to her death, had died suddenly and was survived by her two daughters - Jenny and her elder sister Sheila. While clearing out their mother's room following her death, the sisters found Barbara's Will – and were left shocked by the contents.

The terms of the Will, written around eight years ago (at a time when Barbara had lived with Sheila) provided that everything was to be passed to Sheila, with Jenny due to receive nothing from her mother's estate. Jenny was understandably upset although her sister, pointing out that their mother had perhaps simply not gotten round to updating her Will and would not have wanted to exclude Jenny when she passed away, seemingly offered to share her inheritance with her sister.

As can unfortunately happen, the question of how the estate would be split caused some disagreements and risked tearing the sisters apart, but thankfully all seemed well by the end of the episode.

Succession law in Scotland

Cold Feet is of course set in Manchester – and succession law differs on either side of the Border. In Scotland, if someone passes away and the beneficiaries of their estate feel that the terms of the Will are out of date and are not reflective of the person's latest wishes, they can seek to vary this. A Deed of Variation (sometimes referred to as a Deed of Family Arrangement) can be entered into by a beneficiary varying what is left to them and passing their inheritance (or part thereof) on to someone else as they wish.

If the Deed is prepared within two years of the date of death (and worded appropriately) then the Deed will be effective for tax purposes. In other words, the passing on of the inheritance will not be a disposal for tax purposes by the original beneficiary, but rather the Deed will effectively amend the terms of the Will, with the Will read for tax purposes as if it had always been written according to the terms of the Deed of Variation.

Anyone who is losing out as a result of the Deed of Variation must be a party to it and so, if the original beneficiary is not as willing as Jenny's sister was to reduce her share of her mother's estate, then this would not be an option.

Legal rights – protection from disinheritance

"Legal Rights" are a part of Scottish succession law and act as a protection from disinheritance for spouses, civil partners and children (or their own children in their place, if they have predeceased). Those entitled to Legal Rights have a right to a share of the net moveable estate (i.e. everything other than land or buildings) even if there is a Will in place providing otherwise (although they can only take their Legal Rights or anything left to them under the Will).

If Jenny's mother had died domiciled in Scotland, Jenny could have claimed her Legal Rights in her mother's estate and would not have had to rely on her sister's willingness in order to receive a share of the estate.

Of course, regardless of whether you are north or south of the Border, the story of Barbara's Will demonstrates the importance of making sure your arrangements are up to date. Although there may be options for those left behind to vary this after your death (and/or those left out might still have an entitlement in your estate) there is no guarantee that your up-to-date wishes will ultimately be reflected in this way. The only way to ensure that your estate is ultimately left as you wish is not just to put a Will in place, but also to keep your arrangements under review.

We're here to help

If you would like to discuss making or updating a Will or to ask what could happen in your own situation, please contact our team using the form below or call one of our offices on:

Glasgow: 0141 227 9344                           Inverness & Highlands: 01463 795 035

Edinburgh: 0131 247 2500                         Shetland01595 695 583 

Elgin: 01343 542623

We have solicitors and offices across the country in Glasgow (next to Glasgow Central Station), Edinburgh (next to Haymarket Station), Inverness, Thurso, Elgin and Shetland, ready to help in person or over the phone. 

We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.

Useful Links

MAKING A WILL IN SCOTLAND

POWER OF ATTORNEY IN SCOTLAND