Can I Exclude Someone from My Will in Scotland?

When writing a Will, one of the most common questions people ask is: “Can I leave someone out?” Whether it’s an estranged child, a former partner, or simply someone you don’t want to benefit from your estate, the short answer is yes – but in Scotland, it’s not quite that simple.

Testamentary Freedom – With Limits

Scots law gives you a significant degree of freedom to decide who inherits your estate when you die. However, this freedom is not absolute.

Scotland has a unique system called “legal rights”, which means certain people cannot be completely disinherited – even if you try to leave them out of your Will.

What Are Legal Rights?

Legal rights are automatic entitlements that apply regardless of what your Will says. They are available to:

• Your spouse or civil partner, and
• Your children (including adopted children, but not stepchildren unless adopted)

These rights apply only to your moveable estate – that’s everything except land and buildings (heritable property). Moveable assets include things like money, shares, cars, jewellery, and other personal belongings.

How Much Can They Claim?

The amount depends on who survives you:

• If you leave a spouse/civil partner but no children, they are entitled to one-half of your moveable estate.
• If you leave children but no spouse/civil partner, your children are entitled to one-half, split equally between them.
• If you leave both a spouse/civil partner and children, each group can claim one-third.

For example, if your moveable estate is worth £90,000 and you’re survived by both a spouse and two children, your spouse could claim £30,000, and your children could share £30,000 between them – even if your Will says otherwise.

Can Legal Rights Be Given Up?

Yes, legal rights can be discharged, but only voluntarily. This often happens during lifetime estate planning, such as when a child receives a substantial gift or support in exchange for agreeing not to claim on the estate later. However, any discharge should be done properly, in writing, with independent legal advice.

What If Someone Wants to Challenge the Will?

In Scotland, a Will can also be challenged on grounds such as lack of capacity, undue influence, or improper execution, but this is separate from legal rights. Excluding someone from your Will doesn’t stop them from exercising legal rights or, in rare cases, making a legal challenge.

Key Takeaway

You can exclude someone from your Will in Scotland, but you cannot always stop certain people from claiming part of your estate. Legal rights ensure that spouses, civil partners, and children receive a minimum entitlement from your moveable estate.

If you’re thinking about excluding someone – or you’re unsure how legal rights might apply to your situation – it’s important to get tailored legal advice. The right planning can help avoid family disputes and make sure your wishes are respected as far as the law allows.