Scottish will - legal rights

[majesticallyopposite]

Hello

This is a Scottish law question.

My step mother (Anika) has recently passed away, with my DF (Bob) surviving her. Second marriage for both Anika and Bob. Anika had two children (Charles and Diana), and Bob has one child (me). No joint children. They lived together (long marriage) but the house was/is in Bob's sole name.

Anika had a will (Charles and I are executers) which provides for some specific items to go immediately to Charles and nothing immediately to Diana. Remainder of the estate goes to Bob. Then after Bob's death there are some additional specific items going to Charles and some to me, but nothing specific ever going to Diana. In Anika's will, residual estate is specified as being split three ways post Bob's deal (me/Charles/Diana). And Bob has a mirror will will the same specific items being bequeathed (none to Diana) and estate split three ways.

I'm a bit confused on the wills as my (google) understanding is that there are legal rights in Scotland that mean that Charles and Diana are entitled to (collectively) 1/3 of Anika's movable assets and have up to 20 years to claim. There's no mention of this in the will. Will was prepared by a reputable Scottish solicitors firm.

Is it correct that Charles and Diana are entitled to 1/3 of movable assets or have I misunderstood and that's only if Anika died intestate? If they are, how does this normally get dealt with - does payment get delayed until post the spouse's death or does she need to put money aside/pay them now?

Background is that Diana's relationship with Anika was acrimonious and we are anticipating the will being challenged, if it doesn't give her everything she's entitled to. Even if it doesn't happen now, I want to make sure Bob doesn't end up in a position where he's spent all of his money on whisky and golf and then gets a claim for money that he now doesn't have from Diana (or Charles).

I will of course speak to the solicitors, but trying to get an idea of whether I've just completely misunderstood and am worrying about nothing.

A beneficiary can claim either their legal rights or what they have been bequeathed. They (the legal rights) exist and can be claimed regardless of whether or not there is a will, and whether or not they have been bequeathed anything. It's basically impossible to write your children out of your inheritance in Scotland as their legal rights continue to exist.

A solicitor will help you and the other executor work out what needs to be paid out if Anika makes a claim using her legal rights. I suspect their advice would be to make the payment to her from her mother's estate now before the rest of the estate goes to your father.

I don't specialise in this area, but your situation isn't uncommon and a normal executry solicitor will handle it no problem.

Thanks. I suspect there's enough money in the estate now to pay both Charles and Diana out without Bob being too badly financially hit and my preference would be to do that (and draw a line under it all) rather than waiting around for this to hit later. Even if Diana never claims.

Will talk to the solicitors - just a bit difficult when Charles is an executer and this impacts him too.

Bob should probably update his will to reflect new circumstances.

I couldn't fully understand your description of the will entitlement.
Anika’s will cannot impose conditions on Bob’s death. Bob’s estate is dealt with on the basis of Bob’s will alone.
House is in Bob’s name so is not part of Anika’s estate.

Legal rights operate regardless of what is contained in a will. Bob also has legal rights (jus relicti) (⅓ rd of the net moveable estate) and can either take this or the legacy contained in the will.
Charles and Diana have legal rights (legitim) and can take either this or any legacy specified in the will. Each has entitlement to 1/6th of the net moveable estate (1/3rd collectively).

The value of the estate is important. If the net value of Anita’s moveable estate is less than £50,000, then Bob can disclaim his legacy and put the estate into artificial intestacy, and take it all.

The process is that persons entitled to legal rights need to be proactively asked by the executors whether they wish to claim their legal rights or renounce them.

Thanks. I have no idea why the will goes on about what happens after Bob's death if Bob survives Anika! It's odd as I'm aware that's completely unenforceable if Bob chooses to change his will (nothing suggests Bob is only being given a lifetime interest) but that stuff is small beer (pictures and actual family heirlooms, nothing of enough value I'd think we'd be fighting over it).

So the issue is that there's no legacy to Diana so no ability for her to take this instead of her legal rights. Am I reading it right that if Charles chooses to take his legacy he can no longer claim his legal rights? Or can he still change his mind.

I think we're going to have to take legal advice independent of the solicitors' that drafted the will as it seems like the executors interests (Charles and me) might not be the same.

No intention of trying to screw anyone out if anything they're entitled to. I just want to make sure I understand fully.

Diana and Charles should be written to about their mother's death and asking them if they wish to claim as a matter of course.

This happened when my husband died and when my mil died

My husband had left money directly to my children (then teenagers) which was less than the 1/3 of the moveable estate together and they chose to accept that and waiver their legal rights so I as a young widow received it.

With my mil(of my 2nd marriage) she left her estate all to her husband. They had 3 boys (my 2nd husband and his 2 brothers)

With the 2 brothers one chose to claim his legal rights the other decided to make a decision later once his father dies and he sees what his dad's will says and the legal rights money has had to be put in an interest earning bank account until he decides so the money has to be kept from the estate.

The solicitor will need Charles to make a decision on the legacy or legal rights

Thought I'd come back on just to say that we managed to get this all sorted (well in that we are confident of the position now it's a long way off 'done') and C and D will get paid out their legal rights from A's estate (or it be put in trust if they won't take them and won't sign them away). The legal advice given to A and B at the time was pretty terrible though - when I spoke to B he had not understood what was happening at all and the written advice provided by the solicitors at the time was very hard to understand (I say this as a lawyer - legalese at its best!), and didn't mention some of the key risks.

But for anyone else looking - yes children are entitled to 1/3 of immovable assets even if the will says everything's to go to the spouse initially. I am sure there are ways this could have been structured to have less of an impact had the y had strong legal advice at the time, but nothing major lost here thankfully.