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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11695
Experience:  30 years as a practising solicitor.
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Under Scottish law -my husband recently died and has left a

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Under Scottish law -my husband recently died and has left a will written in June this year. I have 3 adult children and am a pensioner but still working as my pension is very small. (we spent many years working overseas so little accrued here). My husband worked in Shetland and purchased a house there in partnership with a housing association - his share is paid, not sure if 50% or 75%. The house will have to be sold back to the housing association, no-one can inherit it as I understand. He had a couple of company pensions in addition to small state pension. he died of cancer and has been on morphine and other opiates since Dec 2012. In the will he has appointed my oldest child as executor and instructed his estate to be divided among the three children. He makes no mention of me. When I contacted the solicitor (to ask about burial arrangements) he was shocked and said he knew nothing of me, but that I have no right to see the will. What are my rights? My husband & I lived apart but were on good terms. I attended hospital appointments with him and we conversed regularly up to the day of his death although rapid deterioration meant I did not reach Shetland before he died.
Submitted: 4 years ago.
Category: Scots Law
Expert:  JGM replied 4 years ago.
Thank you for your question.

If you are not mentioned in the will but were still married to your late husband you have the right to claim one third of his moveable estate as was at the date of his death. That is one third of any money he had in bank accounts, any insurance policies, any shares or other non heritable property. You may have a right to widow's pensions depending on the pension schemes.

You have no right to see the will.

You have no right to any heritable property.

You should intimate a claim to the lawy for legal rights.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 4 years ago.

I already understand much of this but will the money from the sale of the part ownership back to the housing association count as heritable or non-heritable? My husband's debts will in any case use up any other money, unless we find they will be resolved by his death.

Expert:  JGM replied 4 years ago.
That will form part of his heritable estate.
Customer: replied 4 years ago.

So, in other words, after 44 years of marriage I am entitled to nothing?


 


Several people have queried whether he made the will with full understanding of what he was arranging. It is likely it was done on the advice of the MacMillan staff although could aso be other parties. He was taking two forms of Morphine at the time and questions have been raised about his memory and decision-making.

Expert:  JGM replied 4 years ago.
Whether he had capacity to make the will is a matter of fact and would have to be considered relative to the available medical evidence.

The will could be challenged if it was proved that your husband was incapable of understanding what he was doing and was encouraged to do something that he would not otherwise have done.

That is called facility and circumvention, ie, undue influence of someone who can't make up their own mind.

A challenge on such grounds is expensive and difficult, particularly where you were separated and it might be thought normal to leave the estate to children rather than the spouse.

Happy to discuss further.
Customer: replied 4 years ago.

It is a complicated situation. When we came back to the UK I came first and set up a home for the younger two. My husband and eldest followed some 9 months later. My husband was to be posted to Edinburgh but temporarily to Shetland. I could not find work in Shetland and after another contract abroad came to Edinburgh to be near my parents who needed my help near the end of their lives and my younger daughter who had severe kidney problems and was attending hospital on the mainland. When my husband went to Shetland all the property from my base in Scotland and everything from our home overseas had been taken to Shetland - much of it originally my property, and things I inherited from my family. My husband was a non-uk national although he later too UK citizenship. He previously had nothing here. I started from scratch again when I returned to the UK while he built on the base I had established earlier. The children are all independent professionals, one married, one in a long term relationship, already owning their own homes. Only the youngest - aged 35 does not own a house, he rents in London where he works.

Expert:  JGM replied 4 years ago.
Thank you for explaining that but it makes no difference to the answers I have already given, I'm afraid.
Customer: replied 4 years ago.

I really don't understand - can you explain why the money from the house would be heritable estate and only available to adult children who never lived there? Surely my husband had some responsibility to provide for me from his estate - as I say, my pension rights are minimal and I could never survive on them. I have spent so much time in recent years coping with elderly and sick relatives that my income has been very erratic. He is making a pauper of me while the money is given to my children who are relatively well off. If I raise a legal challenge it runs the risk of causing a permanent rift between me and my children when we have always had a good relationship. Above all I do not understand why he has done this to me, We always had a good, open relationship.


 


What can I do?

Expert:  JGM replied 4 years ago.
He has left a will.

The only challenge you can make to that will, apart from trying to prove facility and circumvention, is to claim legal rights. Your legal rights under the law of Scotland amount to one third of moveable estate.

Funds from a house are heritable.

That is the law. Why your husband has done what he has done is not something I can answer.
Customer: replied 4 years ago.

How do I keep a copy of this to look at later? It is late and I am tired with travelling up and down to Shetland - I have to travel back up again tomorrow.

Expert:  JGM replied 4 years ago.
You can just log back in or you can print out the pages I presume. I'm really not too sure. I am a legal expert on the site but I'm not acquainted with the technical side.

Please leave positive feedback so that I am credited for my time.
Customer: replied 4 years ago.

So, on re-reading, early in the converstion you said I could intimate a claim. Is this to the lawer who drew up the will or another lawer?

Expert:  JGM replied 4 years ago.
You would need your own legal representation and the claim would be against the executors of the estate.
Customer: replied 4 years ago.

OK thanks. Can't afford to.

Expert:  JGM replied 4 years ago.
Noted. Happy to help further but please leave positive feedback so that I am credited for my time.
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