Contesting A Will In Scotland - Disputed Grant of Confirmation in probate

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Contesting A Will In Scotland - Disputing Distribution

Contesting A Will:
Sometimes there are issues in Scotland when one or a number of people wish to contest a will or dispute the grant of confirmation of executors (the same as a grant of probate in England and Wales). If someone raises objections to how an estate is split between those named in the will – or they have been left out of the will altogether and feel they should have been included – or if they object to the way the duty of executors is being carried out then the situation will be a contentious one and may result in contested will litigation before a Scottish court.

Legal Dispute:
If you feel that to contest a will in Scotland is the only way to resolve a dispute you will need to call on the services of a disputed wills solicitor who has extensive experience of dealing with these contentious issues. Unfortunately this can be easier said than done. Firstly not all solicitors in Scotland take on work that involves going to court and of those that do only a small number get involved with contesting a will. It is difficult to find a Scottish solicitor who handles disputed wills cases and sees them right through the law courts in Scotland without handing them over to a litigation lawyer part way through.

Specialist Lawyers:
For that reason alone it is important that you find the right person to deal with contesting a will in Scotland. It is tempting to select your family solicitor who has dealt with you before but this can be a mistake. The problem is that the firm may be highly experienced in some other areas, but they have never dealt with contentious issues relating to a will before. Our panel solicitors also deal with Scottish inheritance tax issues including deeds of variation to minimise any tax liability to beneficiaries.

No Win No Fee:
It’s clear that you need a specialist solicitor to help you in a case involving contesting a will in Scotland. To get free help regarding the legal issues of a contentious will all you need to do is call the 24/7 helpline on 0845 218 0152 or complete the form to the left and a no win no fee solicitor experienced in dealing with the issue of disputed wills will provide free initial advice with no further obligation.

Important Facts You Should Know

Spouses:
In Scotland, a spouse cannot easily be disinherited. If you make a Will then you can limit your spouse's claim to a share in your moveable property. If you make a Will you can leave your heritable estate to whoever you want but note the survivorship exception to that general rule. If you have made a Will, your spouse still has the right to make a claim. This claim is to a share in your moveable estate only. The share amounts to 1/3rd of your moveable estate after debts, expenses, etc. are paid. Your spouse cannot accept what is in your Will and make a claim. Your spouse must choose to do one or the other. Under present Scots law, the fact that you are cohabiting with (living with) another person whilst still married does not affect your spouse's claims upon your Estate at your death. Contesting a will in regards to a spouses rights is common litigation in the Scottish courts.

Children:
In Scotland, children cannot easily be disinherited and are as a result there are numerous disputed wills each year. If you make a Will then you can limit their claims to a share in your moveable property. If not mentioned in a Will, children have the right to claim a share (they don't have to claim but, if under 16, a claim will likely be made for them) in your moveable estate only.

Follow these tables to find out what your child is entitled to claim:-

You are married at your death
Your family Share claimable
One child 1/3rd
2 children 1/6th
3 children 1/9th
4 children 1/12th
5 children 1/15th
And so on, each child being entitled to an equal share in one third of your moveable estate.

You are unmarried at your death
Your family Share claimable
One child 1/2
2 children 1/4
3 children 1/6th
4 children 1/8th
5 children 1/10th
And so on, each child being entitled to an equal share in one half of your moveable estate.

Relatives:
You may cut most other relatives out of a Will. If it is a spouse (someone you are still married to) or child this is not entirely possible under Scots law, but, by making a Will, you can limit their claims.

Business Partners:
Many testators do not realise that a Scottish partnership is a separate legal person and can own property. If you are 1) in a Scots partnership and 2) that partnership owns heritable property then, since a share of a partnership is moveable property that heritable property is treated as moveable for the purposes of inheritance. For example, a widowed shop-keeper has a daughter and two sons. He is in a shop-keeping partnership with his daughter - the partnership owns the shop. In his Will he leaves his share of the shop to his daughter. Unfortunately, the sons claim their share in the partnership and the daughter has to sell up in order to pay them out. Had the shop not been part of the partnership assets, his sons would have been unable to claim a share in it. Contesting a will in these circumstances is not uncommon.

Assets In Joint Ownership:
You may need legal advice if you want your share of any jointly-owned assets to be inherited by someone who is not the other joint owner.

Assets Owned Outside Scotland:
What happens to your property abroad when you die depends on the law of that country and we would recommend that you make a Will there to cover the foreign property. If you have already made a Will abroad and no reference is made to it in a Scottish Will then it is quite possible that the foreign Will would be deemed to be superseded by the Scottish Will and of no worth. To avoid this a clause should be inserted to say that this Will only relates to property in Scotland. However, please note that this area can be very complicated and very much outside the scope of a simple Will. There may also be taxation implications. Even if you make a Will now it is very much in your interests to see a lawyer with experience in this area.

Ratifying Your Will:
A Will drawn up by you is, as the Law Society of Scotland agreed when asked by the BBC, in all respects, valid so a lawyer is not necessary to ratify a Will.

Cohabiting:
Under present Scots law, the fact that you are cohabiting with (living with) another person does not affect your children's claims upon your Estate at your death.

Same Sex Relationships:
Only children, spouses (husband/wife) and those in a registered Civil Partnership can, of right, contest a Will in Scotland to a limited degree. Other relatives have no claim if you make a Will unless you were of unsound mind at the time you signed your Will.