Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.
May I trouble you for the wording from your mothers will if you have it to hand please?
How old was your son on your mothers passing?
The will states ''to be paid on his reacing the age of 18 years''. The will further says ''my executor shall be the sole judge and any bequests so made shall be free of interest''. I am the sole executor. He was 31 when she died.
based on the above wording, the legacy given in your mother's will is due to your son. The wording of the will provides that your son may not receive his legacy until he reaches the age of 18 years. this is known as a contingent gift whereby a gift is made subject to an age contingency being reached - in this case 18.
Once the contingency is satisfied, the legacy is due absolutely - i.e. without condition.
Is there anything above I am able to clarify for you?
Do you have any other questions on this or does the above answer everything you needed to know for now?
Can I help you with anything else or has the above answered your questions satisfactorily?
My son had the money when he was 18. As my father had already died she would never think to have changed her will. I was unaware of this being in the will.
Do I understand correctly from what you say that your son was paid the money referred to in the will when he was 18 and the issue is that the will provides for a further payment which you believe was not intended?
Yes it is exactly what you say.
This does present a problem as you fear.
Either the will would need to contain a double payment guard clause - this is a clause that prevents a second payment being made to a legatee if an earlier payment has been made either in another will - e.g. a spouse that has pre deceased - or a payment made by the testator during their life or your son would need to voluntarily give up his legacy.
I assume from what you say that your mothers will does not contain any provision that prevents the duplicate payment being made - though do double check it. This being the case you could ask your son if he is willing to surrender his legacy. If he is willing then a simple deed can be drawn up to record this and you can continue to administer the estate without payment of the legacy to him.
The only other approach is if your mothers will were either lost or defective, for example it was not correctly signed, in which case your mother would have passed away intestate in which case (if she was widowed) her estate would be divided between any natural and adopted children she had in equal shares.
Is there anything above I can clarify for you or does the above answer all your questions for the present?
I would not know on the legality of the signed will. I am the only child of my parents.
In Scotland in order for a will to be valid it must comply with the following:
If any of the above are not satisfied the will may either be defective or open to challenge or both.
If the will were found to be defective or lost and the intestacy rules applied instead based on what you say you would inherit your mothers estate in full
Have I been able to help you with allo your questions for now?