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The importance of making a Will

31st May 2018

The death of a loved one is always very difficult for those left behind. Unfortunately grieving for the loss of a loving partner can be even more difficult to deal with if the person you have been sharing your life with has died without leaving a Will.

If you were married to, or in a civil partnership with, your lost love you will have automatic rights to inherit from their estate, even if they died without leaving a Will, under the Succession (Scotland) Act 1964 by what are known as “prior rights” and “legal rights” (unless you discharged those rights prior to their death). Those rights will not necessarily entitle you to the whole estate depending on the nature and value of the estate.

For many years many couples have lived together in a loving relationship, just like spouses and civil partners, but have chosen not to marry or enter a civil partnership. Until 4 May 2006 the Law made no provision for the surviving partner of such a couple to make a claim on their partner’s estate if their partner died without a Will, no matter how long they had lived together. Thankfully the Family Law (Scotland) Act 2006 now makes provision for such couples who have lived together as if they were husband and wife or civil partners, known as “cohabitants” in the Act, to make a claim on their deceased cohabitant’s estate. However, unlike spouses and civil partners, a cohabitant’s right to inherit from the deceased’s intestate estate is not automatic and there is no statutory provision as to how much they will receive.

A cohabitant must raise a Court action against the deceased’s executors within six months of the deceased’s death. This is a very tight timescale for someone grieving the loss of their partner, and who may have no idea who the executors could be or the exact extent of their cohabitants assets and liabilities at the time of their death. If the deceased had children they will be the “automatically” entitled beneficiaries under the Succession (Scotland) Act 1964. As the entitled beneficiaries the children, or their surviving parent if they are under 16 years old, should be appointed as executors to the deceased’s estate on intestacy.  If the surviving cohabitant is also the surviving parent of the children the surviving cohabitant could find themselves raising a Court action against their own children, or even against them self as their children’s representative. If the children under 16 years old the Court could appoint an independent Solicitor to look after the children’s best interests in the Court action.

The Family Law (Scotland) Act 2006 gives the Court the power to pay a capital sum and/or to transfer property to the surviving cohabitant.The property transferred and/or capital sum awarded by the Court cannot be more than the surviving cohabitant would have inherited had they been the deceased’s spouse or civil partner.

The Act gives the Court very little guidance as to what factors to take into account when deciding on the award that should be granted to a surviving cohabitant. The Court has such a wide discretion that depending on the facts of the case the award could be anywhere between nothing and the maximum award, being what a surviving spouse or civil partner would have been entitled to inherit from that estate.

If your loved one has died you must contact a Solicitor as soon as possible for urgent advice. The Solicitors in Morisons’ Family Law Team have experience in acting for cohabitant’s whose partners have sadly died without leaving a Will.

It is in everyone’s best interests to make a Will to ensure, to the best of their abilities, that their loved ones will benefit from their estate after their death. The Solicitors in our Private Client Department all have extensive experience in drafting Wills.


*The content of this webpage is for information only and is not intended to be construed as legal advice.

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