Legal Rights - Update

 

Under Scots law, a surviving spouse, civil partner and children are entitled to certain legal rights when an individual dies with (testate) or without (intestate) a will.  These rights are known as Legal Rights and are intended to ensure that a person be bound to leave something on death to those with whom he or she had the closest ties. This may not be what the grantor of the will wished and is a legal concept, peculiar to Scots Law, and sometimes difficult to comprehend.

Legal Rights are based on the principle of family protection for the benefit of the surviving spouse and children of the deceased and are regardless of the content of the will.

At present, a Legal Rights claim is calculated as a proportion of the value of the deceased’s net moveable estate and includes things such as jewellery, vehicles, cash, shares, etc. To date, heritable estate, which includes land and buildings, has been excluded from Legal Rights claims but The Scottish Law Commission had recommended that the law should be changed so that Legal Rights could be calculated from a deceased’s entire estate, including land.

The Scottish Government has, however, decided that land (and buildings) will continue to be protected from Legal Rights claims by children when a parent dies.  This is especially important for land and business owners who can continue to leave their lands to their intended heir, safe in the knowledge that another child cannot make a claim, potentially forcing the land, and also the business, to be broken up to pay the claim.

The Scottish Government have therefore concluded that land will continue to be excluded from a Legal Rights calculation because

1   of concerns about the negative impact on land and rural business, and

2  it was believed individuals should be able to manage their affairs as they wish.

Assets other than land and buildings will therefore continue to form part of a Legal Rights claim on a person’s death but planning can be done to mitigate that.

For further information please contact our Private Client team

Patricia Gray, Partner