Whilst many people understand that Scotland and England have different legal systems, very few know what the differences between the two actually are. Jones Whyte Law an Edinburgh based family law firm has investigated the significant, yet lesser known, difference between Scots and English law. The two jurisdictions that regulate disinheritance. This article will therefore compare the different legal positions of individuals deliberately leaving their spouse, civil partner or children out of their validly created will, in Scotland and England.
Under English law, when individuals make their will, they benefit from testamentary freedom. This means that individuals are completely free to decide who inherits what from their estate (the deceased’s collective assets and liabilities). This technically gives people the choice to leave their family with nothing and give everything to somebody else or to charity.
The right of testamentary freedom also applies in Scotland, but is heavily restricted. This is because spouses, civil partners and children have legal rights which can override their family member’s will. The legal rights entitle these relatives to a portion of the deceased’s estate, even if the will expressly states otherwise.
These legal rights only apply to those types of relatives mentioned, and includes adopted and adult children, but excludes step-children. Ex-spouses and civil partners do not have these rights, but if the separated couple have not legally terminated the marriage/civil partnership, these rights remain.
The amount these relatives are entitled to depends on several factors, including who else has legal rights. If the deceased is survived by a spouse/civil partner or children, but not both, the relative will be entitled to half of the deceased’s moveable estate. If there is both a spouse/civil partner and children, they will each get one third of the estate. When referring to children, the half or third is divided up equally between them. For example, if a man is survived by his wife and two children, his wife would be entitled to one third of the estate, whilst his two children would each be entitled to one sixth.
However, this only applies to the net moveable estate, which importantly excludes property, such as family homes. Because of this, it technically could be possible to disinherit family members by investing all assets into property (although would likely be challenged in court). Also, if the relative is left something in the will, they must choose between their legal right or what they have been left, they cannot accept both.
These legal rights do not exist in England, and so testamentary freedom does allow people to disinherit their spouses, civil partners and children, contrasting the Scottish position. However, disinheriting relatives often has repercussions resulting in some family members, especially young children, getting some of the estate. In England a deceased’s will can be challenged in court. This can also be done in Scotland, but for disinheritance purposes this plays a much more significant role in England.
If a family member has been disinherited under English law, the Inheritance (Provision for Family and Dependants) Act 1975 allows them to challenge to have the will amended so that they are given some of the estate. To challenge using the 1975 Act, which does not apply in Scotland, the family member must have scope to do so. Scope is given to all children, including adults, adopted and even step children (who don’t qualify for legal rights in Scotland). It is also given to spouses, civil partners, former spouses and civil partners, anyone financially dependent on the deceased, and anyone living with the deceased for at least two years immediately before their death.
If the challenger convinces the courts that the will did not leave them “reasonable financial provision”, the court will order for them to be given a reasonable sum of the estate. The courts will consider two prominent factors; whether the challenger was financially dependent on the deceased, and if it was reasonable for the deceased to disinherit the challenger.
The financial dependence factor makes it is extremely rare for young children to be successfully disinherited from their parents, even if living elsewhere. It is slightly more difficult for adult children to make successful challenges, contrasting with the Scottish rules, where children are automatically entitled to an equal share of at least one third of their parents’ estate, regardless of their age.
The financial dependence criteria also make it difficult to disinherit spouses and civil partners, seemingly aligning the Scottish and English positions. However, whereas the termination of a marriage/civil partnership enables disinheritance in Scotland, disinherited ex-spouses/civil partners could also succeed in challenging disinheritance in England. This can be avoided if, upon separating, the two formally agree to be financially independent.
The main way to prevent disinherited family members from successfully challenging the will is by providing a reasonable explanation as to why the estate is going elsewhere. A recent leading case found that an estranged disinherited daughter was entitled to a portion of her mother’s estate because the mother had left the entire estate to charities she had no clear connection to. It is widely believed that if the mother had regularly donated to these charities and explained that as the reason for leaving her daughter with nothing, she would have successfully disinherited her daughter.
One final difference between Scots and English law is that whilst in Scotland the minimum amount the relative receives is predetermined, the English courts have great flexibility to award relatives anything they deem appropriate. This can be a small fraction of the estate, the entire estate, or indeed, nothing.
The rules on disinheriting are therefore deceptively different either side of the border. In Scotland it is virtually impossible to disinherit spouses, civil partners and children, but this only applies to those relationships, and the amount they are entitled to cannot be inflated or reduced. In England it is technically possible to disinherit anyone, including spouses, civil partners and children, but there is a chance they, and a wider range of relatives, could challenge the decision to disinherit them, and the amount they receive could range from nothing to the entire estate. Briefly put, the Scots position on disinheritance is more rigid and more certain, whereas in England the position is more flexible but far less predictable.
Please note, this post was written in collaboration with Greg Whyte from Jones Whyte Law.