Kirk Douglas, who passed away earlier this month at the ripe old age of 103, chose charity over his son Michael when deciding how to divide up his $61 million fortune, giving it away to various charities through the Douglas Foundation. Whilst this may be extreme, and Michael Douglas is unlikely to be short of a penny, in many other cases children may not be happy with the snub.
So what if a Will doesn’t go your way, or the way you expected it to be?
Making a Will allows you to express your final wishes clearly, and without one you are leaving it up to the law to decide how your estate (your money, possessions and property) is passed on. It is important therefore that everyone has a Will, and equally as important that you discuss your intentions with your family. It may well be an awkward conversation, but talking about your plans for what you leave in your will should mean fewer squabbles and less resentment when you are gone.
With endlessly complicated efforts to settle the legendary musician Prince’s estate and Aretha Franklin’s sons in a dispute over the Queen of Soul’s will, it is not uncommon to think that you can contest a will.
The situation may be different in Hollywood, but despite contrary belief, contesting a will in Scotland is a very difficult process.
While it is accepted that a person is entitled to decide how their property is distributed after they die, there are specific circumstances when the contents of a will can be challenged. In order for a will to be valid, the person making the will must have testamentary capacity – they must be old enough (over the age of 12), be in ‘sound mind’, and not under undue influence.
Assuming this is the case, and the Will is deemed as valid (and not thought to be a fraud), then the only “come back” would be for a child or spouse to claim their Legal Rights.
Legal Rights in Scotland are an automatic entitlement enjoyed by the surviving spouse, civil partner and any children (including any adopted and illegitimate children), and sometimes grandchildren, of the deceased. A spouse will continue to have a prospective entitlement to Legal Rights even during separation before a divorce has been finalised.
A surviving spouse/civil partner or children can make a claim on the estate of a deceased person using their Legal Rights up to twenty years from the death. These Legal Rights are calculated against ‘moveable’ property which means that your spouse and children are entitled to a share in your estate, excluding the value of land and buildings owned by you as an individual. In other words, they can make a claim on bank accounts, share portfolios, savings, personal belongings, cars etc.
If someone claims their Legal Rights this will usually reduce the intended shares of other parties and can lead to family conflict.
However, just because your sibling decides to contest the will doesn’t mean he’s going to actually overturn the will. Not only is contesting a will expensive and time-consuming, it is very difficult to do, therefore it is important to lay it out in black in white at the beginning and ensure all the family are on board.