Wills under Scottish Law

belcam

My wife was widowed with a married adult son when I married her. Her will had left everything to her son obviously. Can anyone tell me what the position is now regarding that will (Scottish Law) as she has now remarried. If she dies, will the son get everything? It is a worry for me that I could be homeless if this should occur as the step son is the type who would grab all if he can and leave me with nothing. I don't want to bring it up with her for obvious reasons.

Kore_Arabin

Crikey - what a minefield! Marriage does not invalidate a Scots Will, as it does an English Will, so the Will may well still be valid. I believe that there is also 'forced heirship' to some extent under Scots law.

My advice would be to take the advice of a specialist lawyer who can advise on Scots inheritance law, and also the very possible conflict of laws if your wife has acquired an English (rather than a Scots) domicile.

littleredhen

some info here
A very key difference exists in the effect of marriage on a will.!!In England a will is invalidated by marriage
(unless it is made in anticipation of marriage) whilst in Scotland a will is not invalidated by marriage or
divorce.!!So a divorced spouse in Scotland must alter the will or the former spouse could inherit if that is
what the old will said.!!!Scottish divorcees beware!!!Similarly the birth of a child in Scotland after the testator
has made a will and that child is not provided for has the effect of making the will potentially voidable.
Children seem to be rather more fairly treated perhaps in Scotland.! !No matter what a will says children
always have the right to claim their “Legal Rights”.!!It is virtually impossible to completely disinherit children
in Scotland – unless the whole estate of the deceased comprises land and buildings.!!It is difficult to imagine
many estates comprising this type of property only.!!In Scotland a child left out of a will, or where his or her
parent has died without leaving a will, still has an automatic claim to a proportion of all the estate which is
not land and buildings.!!The child’s need is not an issue which is a clear contrast to England where children
can make claims if left out of a will but only based on need or proof of maintenance of the child.!!
Widows in Scotland can also elect to claim “Legal Rights” rather than the entitlement set out in the will.!!!So
again it is almost impossible to disinherit a spouse.!!In England if a spouse were left out she would have to
litigate or seek to settle with the beneficiaries to obtain a share.!!!

getmore4less

If you have seen the will why can't you talk about in the context of what happens to your assets when you die.

AUI the will stands but you do have legal rights under scottish law.
here is a summary but it may not be 100% upto date so look for something newer.
http://www.scotland.gov.uk/Publications/2005/12/05115128/51285

Kore_Arabin

Further thoughts:



Scots law only applies to the estates of people who die domiciled in Scotland. If your wife is domiciled in England, a new English will should be sufficient to pass her entire estate, including property in Scotland.

However, if your wife has retained a Scots domicile, she can still have one Will but this would need to take account of the Scottish forced heirship provisions I referred to above. These laws give certain relatives, mainly spouses and children, the right to claim a proportion of your moveable estate (anything apart from land), in both England and Scotland or anywhere else. If her Will does not make provision for you as her husband, you would be able to exercise your right to inherit under the heirship laws.

I would defnitely get this sorted out whilst your wife is able to update/make a new Will.

rpc

You have legal rights, which mean you are entitled to one-third the moveable estate and no will can remove these legal rights. You do not have to enforce these, but if you choose to do so then a court would have no choice but to grant them.

The legal rights do not include heritable property, so the wife can leave the house to the son as long as it is only in her name. You have prior rights over heritable property, but these are nullified by the will.

However, if you are living in the house as the marital home then the Matrimonial Homes Act may apply and you may have a right to occupy. Son could not sell the house without (probably) committing fraud and his solicitor would probably not let him get away with it. The solicitor would ask why he signed the matriomonial homes declaration when there is a surviving spouse and would probably require you to sign off on the sale, waiving your rights.

It would be messy (very messy) and potentially expensive at a time when you are both grieving. You need to have that talk and resolve it now.