Legal Rights in Scotland

anguk

sleepless_saver wrote: »

The Scottish government website does go on to say what happens if there is a will. If you have "legal rights" as well as being a beneficiary under the will, you have to choose which one you want to benefit from, you can't have both.

"Where a will has been left, the prior rights described in note 1 above do not apply. However, the legal rights described in note 2 may be claimed by a surviving spouse or civil partner or a child, although any person who has rights under a will as well as legal rights has to choose between them; he or she cannot have both. Thus, for example, if a man dies leaving his widow a bequest of £2,000 in his will, she can choose to accept it,
or alternatively claim the one-third or one-half of his moveable estate which is her legal right."

What would happen if the man died leaving a bequest of everything to his one remaining child? Could they choose to take everything or claim the 1/4 of moveable estate? And if they chose everything then the grandchildren wouldn't be able to claim their 1/8 because the beneficiary had claimed everything?

It really is very confusing and I think you need a Scottish lawyer who specialises in wills.

sleepless_saver

anguk wrote: »

What would happen if the man died leaving a bequest of everything to his one remaining child? Could they choose to take everything or claim the 1/4 of moveable estate? And if they chose everything then the grandchildren wouldn't be able to claim their 1/8 because the beneficiary had claimed everything?

It really is very confusing and I think you need a Scottish lawyer who specialises in wills.

He won't have any legal right to deprive the 2 grandchildren of their rightful share - in this case a quarter each of the moveable estate. So the maximum he could get would be the whole of the immoveable estate (property etc) which was left to him in the will, and half the moveable estate. The point about the choice is that he couldn't have both half the moveable estate (the bit left over after the legal rights have been met) as well as exercising a legal right to have a half share of the other half (to be distributed according to legal rights).

I agree it's confusing - most Scottish solicitors should be familiar with wills - it's where the non commercial practices make their money!

lilymay1

So even though the OP's father specified in his will that he wanted all of his estate to go to the OP, the 2 grandchildren are entitled to some of the estate anyway?

Have I understood that correctly?

sleepless_saver

lilymay1 wrote: »

So even though the OP's father specified in his will that he wanted all of his estate to go to the OP, the 2 grandchildren are entitled to some of the estate anyway?

Have I understood that correctly?

Yes. It's quite hard to disinherit offspring and spouses in Scotland at least as far as moveable estate is concerned.

lilymay1

sleepless_saver wrote: »

Yes. It's quite hard to disinherit offspring and spouses in Scotland at least as far as moveable estate is concerned.

Wow. Another reason never to move there then

sleepless_saver

lilymay1 wrote: »

Wow. Another reason never to move there then

You'd better not move to France either as it works in a very similar way there.

geoiain

So there appear to be two views. This one:

anguk wrote: »

It does sound very confusing. I'm guessing the other bit goes to whoever is actually named in the will.

So, assuming the OP's father didn't have a spouse, it sounds to me like the moveable estate would be split into two, one half would then be split in two, the OP would get one part and the other part would be split between the grandchildren. So the OP would get 1/4 and the two grandchildren would get 1/8 each.

...which is what the lawyer (co-executor) told me....

geoiain

...and this one, which the literature seems to support:

sleepless_saver wrote: »

He won't have any legal right to deprive the 2 grandchildren of their rightful share - in this case a quarter each of the moveable estate. So the maximum he could get would be the whole of the immoveable estate (property etc) which was left to him in the will, and half the moveable estate. The point about the choice is that he couldn't have both half the moveable estate (the bit left over after the legal rights have been met) as well as exercising a legal right to have a half share of the other half (to be distributed according to legal rights).

I'm seeing the lawyer in 10 days, so no doubt he'll confirm what he said previously or contradict what he said previously.

rpc

geoiain wrote: »

So there appear to be two views. This one:



...which is what the lawyer (co-executor) told me....

This one sounds right to me. The grandchildren would not have any legal rights if your brother was still alive. They gained his legal rights and are entitles to a share of the estate per stirpes.

Two children have (together) legal rights on half the estate, i.e. 1/4 each. Brothers children share that 1/4 so have legal rights of 1/8 each. You have legal rights of 1/4.

Once legal rights are taken out of the estate, the rest follows the will.

geoiain

Thank you very much for that explanation. As I've obviously stated above, that is exactly how the lawyer explained it to me. However, as I couldn't find an example to back up what he said, and other examples seemed to contradict him, I began to wonder if I had mis-heard him.