The importance of making a will for property owners


9 December 2011 

When someone dies without a will, their possessions - or ‘estate’ as it is legally known -  falls into ‘intestacy’, which can have far reaching consequences for any family members left behind who were expecting to benefit from their relatives assets. The majority of Scots do not have a will, and failure to make one can leave chaos in the wake of bereavement.
The rules surrounding succession law – which regulates how a person’s estate is distributed after they have died – is complex and understandably, little understood by most people. For example, children have an automatic legal right to claim from their parent’s estate, but this claim can only be made on what is known as ‘moveable’ property – money, furnishings, shares, motor cars etc., but not land or other ‘heritable’ property, such as houses, flats or commercial buildings. This seems unusual and is an area that is ripe for legal reform, as for the vast majority of people their major and most valuable asset will be their home. And because of Scottish succession laws, there is nothing to stop an individual using all their moveable assets (for example, money and shares) and converting it into heritable property. This is significant as that individual is free to leave their heritable property to whoever they choose both within and outwith the family and family members have no legal rights over it. This seems like it could potentially create very unjust outcomes, and in reality it does.
Where an intestate estate occurs, the heritable property may be accessible to the children as part of the free estate, once debts and any rights of the spouse have been met. However, another issue can prevent the children from benefitting from their parents house, and that is if the person who has died intestate placed something in the deeds of the house known as a ‘special destination’. What this means is that on death, their share in the house goes to a designated named person. It could be a third party who made a contribution to the price of the house, and it could be a third party completely unconnected to the family. In the absence of a will, this acts as a kind of testamentary disposition, even though it is not classed as a will. Problems can arise as a special destination may have been inserted into the deeds on purchase of a house, and then forgotten about until many years later. The person then dies without a will but may have fully intended their children to benefit from the value of their house. By not specifying this in a valid will, their wishes will not be carried out.
Under section 30 of the Succession (Scotland) Act 1964 a will only ‘evacuates’, or trumps a special destination where the will makes specific reference to the destination and a declared intention that it is to be evacuated. If not, the special destination may stand. So even an attempt at a will may not evacuate the special destination if it does not follow the stipulations in section 30.
Because of the complexities involved, proper advice should always be taken when you own property and wish to make a will. Inksters deal with both property and succession law and will be able to assist you to make a will to suit your circumstances and your wishes.

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