Resolving Disputes over Estates: Insights from Scottish Law

When someone passes away, their estate, that is everything they owned either in their sole name or jointly with a third party, needs to be distributed. Ideally, this process runs smoothly. Unfortunately, disputes over estates can arise, adding stress during an already emotional time. In Scotland, there are clear legal rules to resolve these disagreements, whether they involve a Will, legal rights, or disagreements over how an executor is handling matters. This article explores common estate disputes, your rights, and the options for resolving them.

Common Types of Estate Disputes

Disputes can arise for several reasons, including:

• The Validity of a Will: Concerns might be raised about whether the Will was properly signed, whether the deceased had the mental capacity to make the Will, or if they were pressured by someone else.
• Legal Rights Claims: Under Scots law, certain family members—such as a spouse, civil partner, and children—are entitled to claim a share of the deceased’s net movable estate (e.g., money, investments, or personal belongings), even if the Will says otherwise. In particular, this would also include the values of any legacies of monies or bequests of certain items i.e. jewellery.
• Executor Disputes: Executors are responsible for administering the estate, but disputes can arise if beneficiaries believe the executor is acting unfairly, too slowly, or not at all.
• Division of Assets: Families sometimes disagree about how assets are to be split, especially when there are sentimental items involved.

Resolving Estate Disputes

 If a dispute arises, there are several ways to address it. Here are the main approaches:

Negotiation

The simplest and often least stressful way to resolve a dispute is through open and honest discussion. This could involve the executor and the beneficiaries sitting down to clarify misunderstandings or negotiate a fair solution.

Mediation

Mediation involves an independent third party helping everyone reach an agreement. It’s less formal than going to court and can be quicker and cheaper. For example, siblings disputing the division of sentimental items like jewellery might find mediation particularly helpful.

Legal Rights Claims

If someone is entitled to claim legal rights but is being excluded, they can formally raise a claim against the estate. For instance, if a Will leaves everything to one child and excludes the other, the excluded child can still claim their share of the net movable estate. It is worth noting that Legal Rights claims do not expire until 20 years after the date of death and until then will remain a debt against the estate if not dealt with.

Court Action

When other options fail, disputes may need to be resolved in court. Examples include challenging the validity of a Will or asking the court to remove an executor who isn’t fulfilling their duties. While this is often a last resort, the courts provide a clear, enforceable decision.

Examples of Estate Disputes in Practice

Example 1: A Questionable Will

John’s father made a Will just before passing away, leaving everything to a new friend he’d met shortly before his death. John believed his father lacked the mental capacity to make the Will and suspected undue influence. After seeking legal advice, John raised a court action to have the Will declared invalid. The court ultimately ruled in his favour, and the estate was distributed according to an earlier Will.

Example 2: Legal Rights Claim

Mary’s husband passed away, leaving everything to charity in his Will. Mary, as his spouse, was entitled to claim her legal rights to a share of his money and investments. By making a formal legal rights claim, Mary secured the portion of the estate she was entitled to under Scots law.

Example 3: Disagreement over Executors

Sarah and her brother were named joint executors of their mother’s estate, but Sarah felt her brother was delaying progress and withholding information. She sought advice and eventually petitioned the court to have him removed as executor. A replacement was appointed, and the estate was settled without further delay.

Preventing Estate Disputes

 While disputes aren’t always avoidable, there are steps you can take to reduce the risk:

• Make a Clear Will: Ensure your Will is properly drafted and signed, leaving no room for doubt about your intentions.
• Communicate Your Wishes: Let your family know your plans in advance to avoid surprises later.
• Seek Legal Advice: Executors and beneficiaries alike can benefit from professional guidance to ensure the estate is administered according to the law.

Conclusion

 Disputes over estates can be challenging, but Scottish law provides a range of remedies to resolve them. Whether it’s through negotiation, mediation, or court action, there is always a path forward. If you find yourself facing a dispute, seeking advice from a solicitor experienced in executry estates can make all the difference. Remember, the goal is to honour the wishes of the deceased while ensuring fairness for all involved.

If you are looking for an experienced Executry solicitor, would like to discuss matters or gain a greater understanding of dispute resolution options with an estate, then please contact our experienced Private Client Team on 01324 622 888 or contact help@randa-fa.co.uk and we would be delighted to assist.