HM Insights

What happens if my spouse excludes me from their Will?

In Scotland, you cannot disinherit your spouse or child therefore even if there is no provision for a spouse and/or child to inherit in your Will, they would have a right to a share in the moveable estate. This is an automatic right and is very different to the position in England and Wales, which you will see in the following example.

Harper-Macleod-legal-updates-for-individuals-and-families-FB-violet.png

Is there an automatic right to share in a spouse's estate in England and Wales?

The Inheritance (Provision for Family and Dependents) Act 1975 affords a six month time limit for a dependent family member to raise a claim against the estate of a deceased, after the date of the grant of Probate. There is no automatic right to a share of your spouse's estate.

The Court of Appeal upheld an appeal by Suriya Begum against the estate of her late husband, Mohammed Yousaf Khan to extend the six month time limit, which expired in October 2016. Ms Begum and Mr Khan were married in 1991; the only asset in the estate is a property in Dudley, where Ms Begum has resided since 1993. Ms Begum, who is disabled, was entirely financially dependent on Mr Khan at the time of his death. Mr Khan made a Will in February 2014 appointing his daughter, Shakila Ahmed, as his executor and leaving his entire estate to her. Probate was granted in April 2016. Solicitors acting for Ms Ahmed wrote to Ms Begum in June 2016 demanding possession of Lombard Avenue. Ms Begum's Solicitor responded with a counter claim of financial provision under the 1975 Act and to challenge the 2014 Will on the grounds that Mr Khan lacked testamentary capacity at the time of making his Will (he had made a Will in 2004 appointing both Ms Begum and Ms Khan as his executors; a copy of which could not be found).

In November 2016 Ms Khan's solicitor raised possession proceedings. In October 2017 solicitors for Ms Khan lodged a counterclaim re the validity of the 2014 Will and for financial provision under the 1975 Act, with an extension to the time limit. The court does have discretion to extend the time limit but they will consider the following material factors before doing so:-

  • How promptly and in what circumstance the permission of the court was sought after the time limit expired;
  • Whether negotiations were entered into within the time limit;
  • Whether the estate had been distributed before the claim was made;
  • Whether a refusal to extend the time limit would leave the claimant without redress.

Despite the fact that the 2014 Will made no financial provision for Ms Khan and the effect of its implementation would leave Ms Khan homeless the District Judge rejected Ms Khan's claim. This decision was overturned by the appeal court and an extension to the time limit was allowed.

The position in Scotland?

If Ms Begum lived in Scotland there would be no requirement to raise a court action to receive a share of Mr Khan's estate. However, she would only be entitled to claim in the moveable estate e.g. cash or bonds etc. and would have no entitlement to a share of the property in Lombard Avenue.

Am I bound to leave a share of my estate to my spouse?

It is not unusual for spouses not to leave a share of their estate to each other. There are various reasons for doing this, perhaps for inheritance tax planning or if it is a second marriage and they each wish their children to inherit their estate. Legal advice should always be taken when making a Will to ensure that your wishes are met.

Get in touch

If you wish to put a Will in place or discuss what would happen in your circumstances, please do not hesitate to get in touch with a member of our Private Client team and we will be more than happy to assist:

Edinburgh: 0131 247 2500                          Inverness & Highlands: 01463 795 035

Glasgow: 0141 227 9344                            Shetland01595 695 583 

Elgin: 01343 542623

We have solicitors and offices across the country and are ready to help. 

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

CORONAVIRUS ADVICE