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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11129
Experience:  30 years as a practising solicitor.
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My uncle died recently in Scotland leaving a valid Will. He

Resolved Question:

My uncle died recently in Scotland leaving a valid Will. He only had 2 living relatives- myself and brother who are each entitled to one half of the residuary estate. I am also one of the executors. During uncles lifetime he made numerous gifts to me from his bank account and these are recorded therein.
He continued to make these gifts after POA was given to me.
The other executor has now written to me asking me to repay one half of the gifts he made to me over the last 7 years as it has come to light that the POA did not allow me to make gifts on his behalf. My brother has indicated that for various reasons -possibly to do with IHT- he does not wish to benefit from his uncles estate and wishes me to receive the full amount of the residuary estate. I cannot afford to repay all the gifts that uncle gave to me . I am sick with worry what suggestions would you have. Many thanks in advance
Submitted: 10 months ago.
Category: Scots Law
Expert:  JGM replied 10 months ago.

A powner of attorney would normally allow the Attorney to make payments from bank accounts and the payments would normally be anything that the person would have done himself if he were able. I can look at the power of attorney for you if you scan it to me. However you say that your brother doesn't want to benefit from the estate and wants it to go to you. All that has to happen here is that he renounces his legacy, it will revert to you and presumably that would mean that the request for repayment by the executor would be withdrawn, depending on whether there are other specific beneficiaries or not and if so what they have been left. Happy to discuss further. I hope that helps. Please leave a positive rating so that I am credited for my time.

Customer: replied 10 months ago.
Thank you for your reply. I should have mentioned previously that both my brother and I live in England . Uncle lived in Scotland . I am just concerned that the Succession (Scotland) Act 2016 may come into play if my brother makes a Deed of variation to the will to pass over to me his share of the residuary estate. The will says referring to him"whom failing to his spouse whom failing to his great-nephew". Am I right in thinking that this means he could not go ahead with a Deed of Variation as this would not achieve the desired result. Thank you
Expert:  JGM replied 10 months ago.

Can you clarify what your concern is about a Deed of Variation? The spouse and great nephew only inherit in the event of a predeceasing beneficiary. If the brother simply renounces then he would be treated as predeceasing. A Deed of Variation is the correct way to proceed to enable you to inherit.

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