Legal Rights in Scotland: Why You Cannot Simply Disinherit Your Children

Most people sit down to make a Will believing they can leave their estate to whoever they choose. In Scotland, that is not quite the case. Scots law protects close family from being written out altogether, through a long-standing set of entitlements known as Legal Rights.

Almost all the inheritance guidance people find online is written for England and Wales, where nothing equivalent exists. So it is easy to arrive at a solicitor’s office with expectations the law will not meet. This article explains how the rules actually work north of the border, and what you can do about them. If you are starting from the beginning, our guide to making a Will in Scotland is a useful companion piece.

Legal Rights are automatic entitlements that certain family members can claim from your estate when you die. They come from Scots common law and are now regulated by the Succession (Scotland) Act 1964. Importantly, they apply whether or not you leave a Will.

Two groups can claim. Your surviving spouse or civil partner has a right known as jus relictae or jus relicti, depending on whether the survivor is a wife or a husband. Your children have a right called legitim, sometimes still described as the bairn’s part.

These entitlements are not paid out automatically, however. Someone entitled to claim must actually make the claim, and the executor must account for the possibility before distributing anything. For a fuller picture of what an executor does, see our guide to executry in Scotland.

One group is left out entirely. A cohabiting partner has no Legal Rights at all, no matter how long the relationship lasted. Unmarried couples who want protection need to make their own arrangements, which our article on cohabitation agreements in Scotland explains in more detail.

Sheriff Stuart Reid found the mother in contempt of court. He described her disregard of the order as deliberate and prolonged, and her conduct as, in his words, “protracted, brazen and entrenched”. Because a financial penalty was considered insufficient, he ordered that she be imprisoned for seven days. You can read the full judgment on the Scottish Courts website.

Scots law splits everything you own into two categories, and the distinction does most of the work here.
Heritable property means land and buildings, so your house, a holiday cottage or a plot of ground all fall into this group. Moveable property means everything else: bank accounts, savings, shares, ISAs, cars, jewellery and personal possessions.

Legal Rights bite only on the net moveable estate. Your home is therefore outside the calculation altogether, which surprises a great many people. The word net matters too, because debts, funeral expenses and other liabilities ranking ahead of the claim come off first.

Worth knowing as well: the claim extends to your worldwide moveable estate, not simply what sits in Scotland. A Spanish bank account counts. As a rough illustration, someone who leaves a house worth £220,000 and £60,000 in savings has a moveable estate of £60,000, and the Legal Rights fund is calculated from that smaller figure rather than the £280,000 total.

Take that £60,000 of savings again. If a widow and three adult children survive, the widow can claim £20,000 and the children share £20,000 between them, so roughly £6,666 each. The remaining third passes under the terms of the Will.

Grandchildren can also feature. Where one of your children dies before you do, that child’s own children step into their place and share what their parent would have received. Lawyers call this representation, and it can run down through the generations.

Here is the heart of it. Saying nothing about a child in your Will does not remove that child’s entitlement. Neither does an express clause stating that they are to receive nothing. The right exists independently of the Will and survives it.

Every child qualifies, regardless of age or circumstances. An adult child of sixty has the same claim as a young child. Estranged children qualify. So do children from an earlier marriage, and adopted children, although adopted children claim against their adoptive parents rather than their birth parents.

Stepchildren are the exception. Unless you formally adopted them, they have no Legal Rights in your estate, which is a point blended families often miss when planning.

For executors, this creates a real duty. Distributing an estate without accounting for a possible claim can leave an executor personally liable to make good the shortfall. Disputes of this kind are not rare, as our article on challenging a Will in Scotland illustrates.

An heir cannot have it both ways. Where a Will leaves something to a child, that child must choose between accepting the legacy and claiming legitim. Taking both is not an option, unless the Will expressly says the legacy is in addition to Legal Rights.

The election is permanent, and the sums involved can differ significantly. Suppose a Will leaves a daughter £5,000, while her share of legitim would come to £18,000. Claiming Legal Rights is plainly the better outcome for her, though it reduces what everyone else receives.

Conversely, a generous legacy will usually be worth far more than a claim, particularly where most of the estate is tied up in property. Accepting any part of the legacy is generally treated as discharging the Legal Rights claim, so nobody should cash a cheque before taking advice.

One further wrinkle catches families out. Substantial gifts made to a child during the parent’s lifetime may have to be brought into account when the legitim fund is divided, so that the children are treated fairly against each other. Records of significant lifetime gifts are therefore worth keeping.

Conversely, a generous legacy will usually be worth far more than a claim, particularly where most of the estate is tied up in property. Accepting any part of the legacy is generally treated as discharging the Legal Rights claim, so nobody should cash a cheque before taking advice.

One further wrinkle catches families out. Substantial gifts made to a child during the parent’s lifetime may have to be brought into account when the legitim fund is divided, so that the children are treated fairly against each other. Records of significant lifetime gifts are therefore worth keeping.

Pomphreys has been advising families across Wishaw, North Lanarkshire and the surrounding area since 1897. Over that time we have seen how much distress a Will can cause when Legal Rights have not been thought about properly.

Our private client team drafts Wills with the whole picture in view. That means looking at the shape of your estate, not simply writing down your wishes, and telling you honestly where a claim could disrupt them. Where a discharge, a trust or a change in how you hold assets would help, we will say so.

We also act for people on the other side of the question. If you have been left out of a parent’s Will, or you are an executor facing a claim, we can explain where you stand and what your options are. Our executry and estate administration service covers the full process from valuation through to distribution

The usual period is twenty years from the date of death, which is considerably longer than most people assume. Special rules can apply where the person entitled to claim was a child at the time, so it is worth checking rather than guessing. Because of that long window, executors are generally advised to obtain a written discharge from anyone who is not claiming.

The claim does not disappear simply because the money has gone out. An executor who distributes without properly accounting for Legal Rights can be held personally responsible for putting matters right. Beneficiaries who received more than they should have may also be asked to repay the difference. Sound advice at the start of an executry avoids this entirely, and our article on what happens if you die without a Will in Scotland explains how the order of distribution works.

Joe Rowan is an Assistant Solicitor at Pomphreys, Solicitors, Wishaw, based in our Kenilworth Avenue office. After years as a legal advisor with a football club, Joe decided it was time to get back into mainstream law, preferably in a conveyancing or private client role, areas of law he's always enjoyed. Happily, for Joe, such a position became available at Pomphreys around the same time, and he was delighted to become part of the firm.

Tel: 01698 373365

Email: jr@pomphreyslaw.com