My Will, my choice – or is it?

Today’s news has featured reports of a recent court decision in England concerning the terms of a lady’s Will as challenged by her daughter. The case which revolves around testamentary freedom has left advisers re-evaluating the guidance given to clients in the wake of the decision.

The Will in question left the lady’s entire estate to animal charities, with which she had no obvious connection, and made no reference to her daughter from whom she had been estranged for many years.

Her daughter raised an action seeking an inheritance from her mother’s estate and has been awarded a substantial sum with the Court ruling that the daughter should receive one third of her late mother’s estate because the Will had not left “reasonable provision” for her daughter.

Those analysing the case have suggested that the case might well change the testamentary freedom position in England and Wales in that while people may still be able to disinherit their children they may have to justify why and explain the connection to the beneficiaries they do choose to inherit their estate. This ruling has prompted discussion over a person’s right to deal with their estate as they see fit including, the right to disinherit their own children and leaves a level of uncertainty for testators in England & Wales.

What is the position in Scotland?

While the ruling will no doubt prompt many a discussion north of the border we can take comfort in the fact our law in this area promotes certainty in that providing you have capacity to make a Will you can disinherit your children and leave your estate to whomsoever you please regardless of whether or not you have any connection to that individual or charity.

That said it must be borne in mind that Scotland has the concept of Legal Rights and these entitle the children of a deceased individual to claim one third of the deceased’s moveable estate where there is a surviving spouse or civil partner, or one half, where there is not. Moveable estate is essentially assets excluding land and property and the right to make such a claim subsists regardless of the terms of the parent’s Will.

There has long been a moral debate about whether or not a parent is obligated to provide for their child in their Will and while the debate will continue at least the position in Scotland remains clear.

[info]

For More Information Contact:
Julie McMahon
Mobile: 07841 920094
Direct Dial: 0141 530 2037
Email: jmcmahon@gilsongray.co.uk

[/info]

[info]

For More Information Contact:
Laura King
Mobile: 07841 920095
Direct Dial: 0131 516 5359
Email: lking@gilsongray.co.uk

[/info]

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.