Advice regarding Succession: Scottish Prior and Legal rights

justwhat

Keep_pedalling said:

Trout69 said:

Keep_pedalling said:

It seems clear that your GF only owned half the house, the other being the beneficiary of his late sister. As this person has died then their share formed part of her estate so now belongs to the beneficiaries of that estate. I am pretty sure this is not a legal rights claim the house was willed to someone it is not someone who was excluded from a will trying to make a claim.

You should take legal advice on how to handle this.

However, there has not been a claim made by the beneficiary for over 20 years which is why I'm questioning it.

No claim is required, ownership passed with the sisters will, your GF never owned the house outright so his late sister’s share does not form part of his estate. The beneficiary may have been happy just to let GF carry on living there but obviously they had kept records and now that GF has died they are making sure that his sister’s bequest is going to the rightful owner.

That's also how i understand it, unless there is any further info.

Trout69

No claim has been made until now so legal rights, from what I have found indicate that as the beneficiary did not claim the inheritance in 1999 or anytime after that, his rights are now lost?

Legal rights (IHTM12221) must be claimed within 20 years of the date on which they first became enforceable. If they are not claimed within this period they are lost completely. (They ‘prescribe’ under the Scottish 20 year negative prescription period.) This also means that, under the general law, the potential claimant has 20 years in which to decide whether to claim or discharge (IHTM12229) their legal rights. Normally the starting date will be the date of the death that gave rise to these rights. But, in the case of potential claimants under the age of 16 at that date, it seems that the 20 year period will run from the date on which these claimants attain age 16, Age of Legal Capacity (Scotland)

comeandgo

But they did not have to claim it, legal rights are for when you are not mentioned in the will to stop children being disinherited and legal rights do not include property.

justwhat

Trout69 said:

No claim has been made until now so legal rights, from what I have found indicate that as the beneficiary did not claim the inheritance in 1999 or anytime after that, his rights are now lost?

Legal rights (IHTM12221) must be claimed within 20 years of the date on which they first became enforceable. If they are not claimed within this period they are lost completely. (They ‘prescribe’ under the Scottish 20 year negative prescription period.) This also means that, under the general law, the potential claimant has 20 years in which to decide whether to claim or discharge (IHTM12229) their legal rights. Normally the starting date will be the date of the death that gave rise to these rights. But, in the case of potential claimants under the age of 16 at that date, it seems that the 20 year period will run from the date on which these claimants attain age 16, Age of Legal Capacity (Scotland)

Was the sisters Will executed? And how did they not claim the inheritance.

Do you mean there is no evidence of them forcing a sale or changing the deeds? That does not mean the never claimed inheritance.

buddy9

As others have said, prior rights and legal rights are not relevant here and neither is the limitation period. It is not a claim scenario, it relates to ownership, vesting and entitlement.

I have read your posts on this issue on the ‘House Buying Board’.

The issue is a bit more complex than described in your current posts, though I am not sure that I fully understand the situation.

Here is my understanding.

The house was owned by Grandad and sister jointly in 50% pro indiviso shares. (I note from your other posts that you have eliminated the potential for there to be a survivorship special destination).

GD’s sister dies and her house share is left by will to B. The house share therefore vested in B. (GD’s sister’s executor should have (and may have) applied for Confirmation and recorded the house share in the Confirmation inventory).

Grandad dies and his will leaves the house to A, even though Grandad does not own the whole house. This mistake is not picked up and the whole house is listed in the inventory to GD’s estate in the Confirmation, in error. 

B dies intestate and the house share devolves under the rules of intestacy to C (this must be intestacy otherwise a bond of caution would not be required). C’s executor requires Confirmation but because there is no will, C’s executor needs insurance (a bond of caution). The cautioner (insurer) is looking for reassurance about the destination of the house sale before issuing a bond.

Shortcomings here have been by:

• the person who drafted GD’s will (misunderstandings about house ownership are not uncommon and title should have been checked).

• the person who drafted the Confirmation for GD (title should have been checked)

The request from the potential cautioner seems naive. This is a jointly owned house and requires both joint owners to agree to a sale. That said, the cautioner is looking for a response and it is necessary to resolve the situation for a bond of caution to be issued.

It strikes me that you need to do a number of things:

1. Arrange for something to be passed to the potential cautioner so that they will issue a bond of caution to C’s executor.

2. Agree with the owner of the other share of the house (or their solicitor) for a strategy to sell the house

3. Correct the error in GD’s Confirmation (if not already done). This should be easily achieved by the executor DIY.

Trout69

Sarahspangles said:

Is there a reason that your GF's sister's Will wasn't executed when she passed away?  Surely they don't 'time out'?

Apologies, it was my Grandads Aunty not sister who left her half to her Nephew.

Trout69

buddy9 said:

As others have said, prior rights and legal rights are not relevant here and neither is the limitation period. It is not a claim scenario, it relates to ownership, vesting and entitlement.

I have read your posts on this issue on the ‘House Buying Board’.

The issue is a bit more complex than described in your current posts, though I am not sure that I fully understand the situation.

Here is my understanding.

The house was owned by Grandad and sister jointly in 50% pro indiviso shares. (I note from your other posts that you have eliminated the potential for there to be a survivorship special destination).

GD’s sister dies and her house share is left by will to B. The house share therefore vested in B. (GD’s sister’s executor should have (and may have) applied for Confirmation and recorded the house share in the Confirmation inventory).

Grandad dies and his will leaves the house to A, even though Grandad does not own the whole house. This mistake is not picked up and the whole house is listed in the inventory to GD’s estate in the Confirmation, in error. 

B dies intestate and the house share devolves under the rules of intestacy to C (this must be intestacy otherwise a bond of caution would not be required). C’s executor requires Confirmation but because there is no will, C’s executor needs insurance (a bond of caution). The cautioner (insurer) is looking for reassurance about the destination of the house sale before issuing a bond.

Shortcomings here have been by:

• the person who drafted GD’s will (misunderstandings about house ownership are not uncommon and title should have been checked).

• the person who drafted the Confirmation for GD (title should have been checked)

The request from the potential cautioner seems naive. This is a jointly owned house and requires both joint owners to agree to a sale. That said, the cautioner is looking for a response and it is necessary to resolve the situation for a bond of caution to be issued.

It strikes me that you need to do a number of things:

1. Arrange for something to be passed to the potential cautioner so that they will issue a bond of caution to C’s executor.

2. Agree with the owner of the other share of the house (or their solicitor) for a strategy to sell the house

3. Correct the error in GD’s Confirmation (if not already done). This should be easily achieved by the executor DIY.

Thank you for your insight Buddy, I've been corrected and the house was put in my Grandads and his Aunty's name. She then left her 50% to her Nephew, who was the executor of her will. He did not request a Grant of Confirmation on her passing and he then passed in 2021. His executor then neither filed for a Grant of Confirmation.

I'm sure as you can imagine it's quite a bit more complicated, I'm trying to simplify as much as possible. We have enlisted a Scottish solicitor. I'm just eager to maybe find others that have found themselves in a similar situation.

Keep_pedalling

¡OTrout69 said:

buddy9 said:

As others have said, prior rights and legal rights are not relevant here and neither is the limitation period. It is not a claim scenario, it relates to ownership, vesting and entitlement.

I have read your posts on this issue on the ‘House Buying Board’.

The issue is a bit more complex than described in your current posts, though I am not sure that I fully understand the situation.

Here is my understanding.

The house was owned by Grandad and sister jointly in 50% pro indiviso shares. (I note from your other posts that you have eliminated the potential for there to be a survivorship special destination).

GD’s sister dies and her house share is left by will to B. The house share therefore vested in B. (GD’s sister’s executor should have (and may have) applied for Confirmation and recorded the house share in the Confirmation inventory).

Grandad dies and his will leaves the house to A, even though Grandad does not own the whole house. This mistake is not picked up and the whole house is listed in the inventory to GD’s estate in the Confirmation, in error. 

B dies intestate and the house share devolves under the rules of intestacy to C (this must be intestacy otherwise a bond of caution would not be required). C’s executor requires Confirmation but because there is no will, C’s executor needs insurance (a bond of caution). The cautioner (insurer) is looking for reassurance about the destination of the house sale before issuing a bond.

Shortcomings here have been by:

• the person who drafted GD’s will (misunderstandings about house ownership are not uncommon and title should have been checked).

• the person who drafted the Confirmation for GD (title should have been checked)

The request from the potential cautioner seems naive. This is a jointly owned house and requires both joint owners to agree to a sale. That said, the cautioner is looking for a response and it is necessary to resolve the situation for a bond of caution to be issued.

It strikes me that you need to do a number of things:

1. Arrange for something to be passed to the potential cautioner so that they will issue a bond of caution to C’s executor.

2. Agree with the owner of the other share of the house (or their solicitor) for a strategy to sell the house

3. Correct the error in GD’s Confirmation (if not already done). This should be easily achieved by the executor DIY.

Thank you for your insight Buddy, I've been corrected and the house was put in my Grandads and his Aunty's name. She then left her 50% to her Nephew, who was the executor of her will. He did not request a Grant of Confirmation on her passing and he then passed in 2021. His executor then neither filed for a Grant of Confirmation.

I'm sure as you can imagine it's quite a bit more complicated, I'm trying to simplify as much as possible. We have enlisted a Scottish solicitor. I'm just eager to maybe find others that have found themselves in a similar situation.

Don't be too eager, with two estate intertwined with a single property and two sets of Scottish solicitors involved prepaid yourself for a very long wait for completion. I also doubt many people (if any) on here have had to deal with a situation like this.

Although there is no time limit on applying of confirmation (or probate in the rest of the UK) it is no easy task to do after so many years so that no doubt will slow things down even more. 

sheramber

Is aunty's name still on the deeds as one of the owners?