I have been left out of a parent's will - what can I do?

The contents of a person’s will are often private and sometimes controversial, especially if their wishes come as a shock to their family. Family dynamics can be complex, particularly when it comes to issues of estrangement, and sometimes people can leave unexpected bequests or omit a person from their will altogether.

However, it may come as a surprise that in Scotland it is not possible for a person to completely disinherit their children, even if this is explicitly stated in their will.

A child has the legal right to inherit from their parent’s estate regardless of the terms in the will, so even if you have been omitted as a beneficiary, you still have the right to claim against it, even as an adult.

What does the law provide for?

If you have been left out of a parent’s will, then you have 20 years from the date of their death to make a claim. This includes adopted children, but not stepchildren.

Scottish law gives spouses, civil partners and children a fixed share of the deceased person’s property. When there is a surviving spouse or civil partner, Scottish law states that a child’s claim amounts to one-third of the net moveable estate, which is shared equally between siblings. However, if there is no surviving spouse or civil partner then the child(ren) would be entitled to one-half of the net moveable estate collectively.

For example, if the deceased person leaves a wife but no children, the widow is entitled to claim one-half of the net moveable estate. However, if they leave four children but no spouse or civil partner, the four children are each entitled to claim a one-eighth share of the net moveable estate.

Moveable estate includes things such as money, shares, cars, jewellery and other personal possessions, but does not include land or property, such as the family home. This provision for spouses or children is paid before any other legacies are made as directed by the will.

If a person has been provided for in a will, they cannot claim both legal rights and also take the entitlement left to them in the will, they must opt to choose one or the other, they are unable to claim both.

My parent died without making a will

When a parent dies without leaving a will (known as dying ‘intestate’) a child may still have the legal right to inherit from the estate, depending on the extent of the estate and if there is a surviving spouse or civil partner. However, it can be time-consuming, costly and a drawn-out process to administer an intestate estate, which requires a court-appointed executor to ensure it is wound up correctly.

There is a detailed statutory scheme for when someone dies intestate, which favours spouses and civil partners and provides allowance for children and other relatives in particular circumstances. It also allows a claim to be made by cohabitants, but this claim is through an application to the court so can lead to great uncertainty for the surviving partner.

Dying without leaving a will can cause distress and uncertainty for those left behind and can also mean that the deceased person’s estate is not divided up as they may have wished, especially if the family structure is complex.

Drawing up a will and getting advice

It’s not always easy to think about what will happen after your death, but drawing up a will is often a straightforward process that doesn’t take long and can provide essential protection to your estate and assurances for loved ones.

McSherry Halliday’s team of expert executry lawyers can advise on all aspects of a will, from succession rights and interpreting the terms of a will, to intestacy and helping guide beneficiaries during what can be an emotional and sensitive time.