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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9983
Experience:  30 years as a practising solicitor.
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Can you please advise me, I have received two different pieces

Resolved Question:

Can you please advise me, I have received two different pieces of information from two different lawyers! I don't understand the two completely different opinions & whom would be correct.

Problem: We lost our Father just a year ago, he left his estate to myself, brother & sister.
His partner (the executor) made a claim against the estate relating to work carried out that she paid half with my father.

Advise 1:
I mentioned a claim that a claim had gone into my late Fathers estate & was causing my family a great deal of stress.
The lawyer spoke about part of a law: section 29, subsection 6. And assured me a time period had lapsed & the claim is now invalid. As the claim had not been placed in court and hoping for a settlement.
I was hoping to clarify if he was talking about: Succession (Scotland) Act 1964 or another Scots law.

Advise 2:
There is no rule that the claim must come to court within 6 months. #### has five years to raise an action. You may have been advised that funds can't be released from the estate until 6 months after the date of death. This is to allow any creditors who have a claim on the estate to make it. It does not however stop a creditor pursuing their claim after this although clearly there would be difficulties in recovering funds which may have been distributed to beneficiaries. In this case however the claim has been made and we will have to wait and see how far it is pursued. The big problem is however that since #### XXXXX XXXXX executor she can instruct herself to be paid from the sale proceeds and would not have to go to court.

The biggest problem is how can an executor make a claim on an estate & pay themselves that payment although the beneficiaries have refused the claim without going to court??
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.

The two pieces of advice you have received approach the issue in two different ways. Technically there are two different remedies.

Advice 1. Section 29 of the Family Law (Scotland) Act 2006 allows a cohabitant to go to court within six months of the date of death and claim a capital payment for contributions made during the relationship. The six month time period cannot be extended:

"The section is as follows:

29 † Application to court by survivor for provision on intestacy
(1)† This section applies where
(a) † a cohabitant (the deceased) dies intestate; and
(b) † immediately before the death the deceased was
(i) † domiciled in Scotland; and
(ii) † cohabiting with another cohabitant (the survivor).
(2)† Subject to subsection (4), on the application of the survivor, the court may
(a) † after having regard to the matters mentioned in subsection (3), make an order
(i) † for payment to the survivor out of the deceased's net intestate estate of a capital
sum of such amount as may be specified in the order;
(ii) † for transfer to the survivor of such property (whether heritable or moveable)
from that estate as may be so specified;
(b) † make such interim order as it thinks fit.
(3)† Those matters are
(a) † the size and nature of the deceased's net intestate estate;
(b) † any benefit received, or to be received, by the survivor
(i) † on, or in consequence of, the deceased's death; and
(ii) † from somewhere other than the deceased's net intestate estate;
(c) † the nature and extent of any other rights against, or claims on, the deceased's net intestate
estate; and
(d) † any other matter the court considers appropriate.
(4)† An order or interim order under subsection (2) shall not have the effect of awarding to the
survivor an amount which would exceed the amount to which the survivor would have been entitled
had the survivor been the spouse or civil partner of the deceased."

If no application to the court has been made within six months of the date of death the section 29 claim is time barred.

Advice 2. This is the other option open to the cohabitant and that is to claim as a creditor on the estate. She has to prove that your father owed her the money, ie, that the money she expended was a loan as opposed to a contribution by her to the relationship. I think she may have some difficulty with this.

She can instruct the solicitor to pay her but the executor is responsible for winding up the estate in accordance with the law. You can forget a section 29 claim if it is time barred. The second route open to her is to claim her contribution as a debt. If it is not a genuine debt then the beneficiaries can ask the executor for an accounting and if necessary go to court for that purpose.

So the two bits of advice you have had are both correct but approach the issue from different perspectives. The first appears to be time barred. The second is a question of is there a debt to be repaid by the estate or not. That is a matter of evidence.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9983
Experience: 30 years as a practising solicitor.
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