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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10652
Experience:  30 years as a practising solicitor.
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In Scotland is it possible for my son who is 16 to claim obligation

Customer Question

In Scotland is it possible for my son who is 16 to claim obligation of aliment as provision in the will is inadequate for him to go to University
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.

No, there's no obligation on an estate to pay aliment to a child. Only the legacy under the will or legal rights can be claimed.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

The Family law act 1985Scotland mentions the right of dependent child to claim aliment from executors or persons enriched by the estate .Please explain in more detail thanks

Expert:  JGM replied 2 years ago.
What the Family Law (Scotland) Act 1985 actually says is that the Act doesn't alter any other rule of law whereby a dependent child has right to claim aliment from the estate or persons enriched by the estate.

However the rule of law, which was common law, has not really been exercised in recent times and indeed there was a proposal to abolish it as far back as 1976 because of the legal rights position as laid down in the Succession (Scotland) Act 1964.

See the Scottish Law Commission Report here:

http://www.scotlawcom.gov.uk/download_file/view/798/125/

That having been said I cannot say with certainty that the law was ever specifically abolished. I can say that there are no recent authorities or examples of it having been used as generally it is accepted that legal rights are there to afford some protection to those who are left out of a will or where inadequate provision is made.

The court would have to balance the interests of all the beneficiaries and would have to be satisfied that it is equitable to make the estate pay aliment for your son to the detriment of the others.

So an application to the court is possible in theory but I'm reluctant to tell you that it will be successful because of the lack of authority on the subject.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10652
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.

Please can you find out if act is still current. This involves a life policy which was taken out by husband when he became self employed to replace death in benefit. However the policy was not written in trust in error and has fallen to estate , leaving inadequate provision for my son and I. The 2 other beneficiaries are non dependent adults who are provided for in terms of my husbands share of our heritable property, they are from 1st marriage and are 30 and 32 thanks

Expert:  JGM replied 2 years ago.
I'll have a look at this tomorrow for you.
Expert:  JGM replied 2 years ago.
I've had a look at this for you. Whilst it is real and unusual, there does not appear to be any rule of law which would prevent your son from claiming maintenance from the estate.

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