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  • FIRST POST
    • iwilson16
    • By iwilson16 9th Oct 17, 2:14 PM
    • 27Posts
    • 13Thanks
    iwilson16
    Scottish law, legal rights claim, and deed of variation
    • #1
    • 9th Oct 17, 2:14 PM
    Scottish law, legal rights claim, and deed of variation 9th Oct 17 at 2:14 PM
    I am executor of my late step-mothers will. Her two children (both adults) are not named in the will, but plan to claim 50% of the estate as is their right under Scottish law (my father passed away 5 years ago, so there is no surviving spouse). Only two out of three grandchildren are named in the will.

    Can one of the children use a deed of variation to pass on their portion of the 50% to someone else (the grandchild missed of off the will, in this case)?

    Thanks
    Ian
    Last edited by iwilson16; 09-10-2017 at 2:15 PM. Reason: spelling error
Page 2
    • Keep pedalling
    • By Keep pedalling 10th Oct 17, 8:54 PM
    • 4,074 Posts
    • 4,436 Thanks
    Keep pedalling

    Keep-peddalling - Why do you think the situation is worse because everything has become a moveable estate? To my mind that simplifies everything.
    Originally posted by iwilson16
    Because it puts all of the estate up for grabs rather than a small part of it, so will depart even further from her wishes.

    I think you are wise just to leave this to a professional to sort out.
    • spock007
    • By spock007 11th Oct 17, 11:47 AM
    • 105 Posts
    • 38 Thanks
    spock007
    I have a question relating directly to this topic!

    Wife leaves everything to husband in will.
    Husband is to divide money afterward.
    Money to one estranged child is less than legal rights claim would allow.

    How do you work around this? The house is in husband's name only - should wife put her name on the mortgage and put her money completely into the house so that it is not "moveable" ? This seems the only way...?
    • spock007
    • By spock007 11th Oct 17, 12:15 PM
    • 105 Posts
    • 38 Thanks
    spock007
    Forgot to add:

    If wife gifts husband 20k and one daughter 10k one year prior to passing, what are the tax implications?
    • Yorkshireman99
    • By Yorkshireman99 11th Oct 17, 12:20 PM
    • 3,371 Posts
    • 2,734 Thanks
    Yorkshireman99
    I have a question relating directly to this topic!

    Wife leaves everything to husband in will.
    Husband is to divide money afterward.
    Money to one estranged child is less than legal rights claim would allow.

    How do you work around this? The house is in husband's name only - should wife put her name on the mortgage and put her money completely into the house so that it is not "moveable" ? This seems the only way...?
    Originally posted by spock007
    Putting a name on a mortgage is not as easy as you think. Your question really just illustrates the need to get proper professional advice before making a will or taking out a mortgage. It is not as though the law of succesion in Scotland, or anywhere else in the UK, is obscure. If someone makes a will without proper advice then they have only themselves to blame.
    Last edited by Yorkshireman99; 12-10-2017 at 12:07 PM.
    • spock007
    • By spock007 11th Oct 17, 1:03 PM
    • 105 Posts
    • 38 Thanks
    spock007
    A will was made but this topic wasn't made aware.. wife arranging meeting on Monday.
    • Keep pedalling
    • By Keep pedalling 11th Oct 17, 1:33 PM
    • 4,074 Posts
    • 4,436 Thanks
    Keep pedalling
    A will was made but this topic wasn't made aware.. wife arranging meeting on Monday.
    Originally posted by spock007
    Do they actually reside in Scotland?
    • spock007
    • By spock007 11th Oct 17, 1:35 PM
    • 105 Posts
    • 38 Thanks
    spock007
    Yes, all in Scotland.
    Will was made but legal right wasn't made aware of.
    The only way wife can see to reduce the amount of moveable asset, is to make it non-moveable... which means paying into the house. But that's not in wife's name so not sure of the tax implications for husband. It is essentially a gift but if gift is within 7 years of passing, is it subject to IHT (or any other tax)?
    • getmore4less
    • By getmore4less 11th Oct 17, 1:58 PM
    • 30,783 Posts
    • 18,391 Thanks
    getmore4less
    Yes, all in Scotland.
    Will was made but legal right wasn't made aware of.
    The only way wife can see to reduce the amount of moveable asset, is to make it non-moveable... which means paying into the house. But that's not in wife's name so not sure of the tax implications for husband. It is essentially a gift but if gift is within 7 years of passing, is it subject to IHT (or any other tax)?
    Originally posted by spock007
    Husband dies first, then what.

    Gifts between spouses don't count for the 7y rule you are thinking about.


    Is there a mortgage need lender to agree, if not easy to change owners.
    • spock007
    • By spock007 11th Oct 17, 2:18 PM
    • 105 Posts
    • 38 Thanks
    spock007
    Are you saying a gift between spouses is "allowed" and not subject to IHT or CGT within the 7 years?

    If mortgage stays in one persons's name only other half is allowed to pay a chunk off that person's mortgage without that money being considered as estate?

    And is that "gift" counted as total estate when it comes to legal right, or since it has already been gifted, is that money that isn't touchable?



    ---> I just rung HMRC.

    - Wife can gift spouse as much money as she wants and it incurs no tax.

    - If wife gifts all her estate away then there is no estate with which to place a legal right claim upon.

    So let's hope that is correct!
    Last edited by spock007; 11-10-2017 at 3:01 PM.
    • maximumgardener
    • By maximumgardener 12th Oct 17, 11:36 AM
    • 259 Posts
    • 109 Thanks
    maximumgardener
    to OP

    how was your meeting with solicitor?

    did it clarify the position?
    • Yorkshireman99
    • By Yorkshireman99 12th Oct 17, 12:17 PM
    • 3,371 Posts
    • 2,734 Thanks
    Yorkshireman99
    Are you saying a gift between spouses is "allowed" and not subject to IHT or CGT within the 7 years?

    If mortgage stays in one persons's name only other half is allowed to pay a chunk off that person's mortgage without that money being considered as estate?

    And is that "gift" counted as total estate when it comes to legal right, or since it has already been gifted, is that money that isn't touchable?



    ---> I just rung HMRC.

    - Wife can gift spouse as much money as she wants and it incurs no tax.

    - If wife gifts all her estate away then there is no estate with which to place a legal right claim upon.

    So let's hope that is correct!
    Originally posted by spock007
    You really have confused matters by not starting a separate thread. Please be more considerate in future.
    • spock007
    • By spock007 12th Oct 17, 7:08 PM
    • 105 Posts
    • 38 Thanks
    spock007
    I'm sorry
    • Yorkshireman99
    • By Yorkshireman99 12th Oct 17, 8:13 PM
    • 3,371 Posts
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    Yorkshireman99
    Accepted with thanks. It just makes it easier to follow. No hard feeelings.
    • spock007
    • By spock007 12th Oct 17, 8:46 PM
    • 105 Posts
    • 38 Thanks
    spock007
    No hard feelings, I definitely jumped in there..! Thanks for saying it nicely!
    • Yorkshireman99
    • By Yorkshireman99 12th Oct 17, 9:28 PM
    • 3,371 Posts
    • 2,734 Thanks
    Yorkshireman99
    You are very welcome. I hope you get your problem resolved.
    • maximumgardener
    • By maximumgardener 15th Oct 17, 10:23 AM
    • 259 Posts
    • 109 Thanks
    maximumgardener
    I am executor of my late step-mothers will. Her two children (both adults) are not named in the will, but plan to claim 50% of the estate as is their right under Scottish law (my father passed away 5 years ago, so there is no surviving spouse). Only two out of three grandchildren are named in the will.

    Can one of the children use a deed of variation to pass on their portion of the 50% to someone else (the grandchild missed of off the will, in this case)?

    Thanks
    Ian
    Originally posted by iwilson16
    hope you are making some progress?
    further thoughts........
    1. The will exists and says what it says. That was the deceased's last will and testament and
    if all legally in order , then it should be followed.
    2. Any variations on above are a separate matter
    3. Any challenges by those "left out" are also a separate matter and would incur legal costs and may fail . careful thought required here. Its good you know about this but important that you say focussed on your duty as executor.

    good luck
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