The English case of Harbans Kaur v The Estate of Karnail Singh (Deceased) concerned the estate of the late Karnail Singh who died in 2021. In accordance with his Will, his estate (estimated between £1.2-£1.9 million) was to be passed down the male line to his sons.
Due to the wording of Mr Kaur’s Will, his wife, Harbans Kaur was effectively disinherited, and found herself at the age of 83 having to leave the family home and support herself on an income of £12,000 (which consisted of state benefits).
Under English law, Mrs Kaur’s only option was to raise court proceedings to ask that the court intervene and award her sums from her husband’s estate (despite the terms of his Will).
In coming to its decision, the court considered that;
- Mr Singh’s wealth had accrued during their 66-year long marriage.
- Mrs Kaur had contributed equally and fully throughout the marriage having even worked in the family business.
Taking (1) and (2) into account the court found that Mr Singh had failed to reasonably provide for Mrs Kaur in his Will and irrespective of his wishes, she was entitled to 50% of the net value of his estate (this being a sum considered appropriate by the court to meet her needs).
Legal Rights in Scotland
Had the above case been subject to the law of Scotland, Mrs Kaur (and their daughters who were also effectively disinherited) would have been entitled to sums from Mr Singh’s estate irrespective of what his Will said and without having to go to court.
‘Legal Rights’ is a distinct feature of Scot’s Law aimed at preventing spouses/civil partners and children from being disinherited.
Where an individual dies (with or without a Will) their spouse/civil partner and children can claim a proportion of that individual’s ‘net moveable estate.’
Broadly speaking, the ‘net moveable estate’ is the value of any assets owned by the deceased which are not heritable in nature (i.e. are not land/buildings etc) minus any debts due to be paid by the estate.
The proportion of the estate that spouses/civil partners and children are entitled to differs depending on the specific family set-up. Where a person dies leaving;
- a surviving spouse/civil partner and children, the surviving spouse/civil partner is entitled to claim one third of the net moveable estate with any children being entitled to share between them a further one third of the net moveable estate.
- a surviving spouse/civil partner only, the surviving spouse/civil partner is entitled to claim one half of the net moveable estate.
- children alone, those children are entitled to share one half of the net moveable estate between them.
For the purposes of legal rights, ‘children’ are only taken to include biological and adopted children. Stepchildren are therefore not entitled to claim legal rights.
It does however extend to pre-deceasing children. For example, if a person’s own biological child/adopted child died before them, and had died leaving their own children (the person’s grandchildren), those children could claim their parent’s legal rights.
In circumstances where an individual is entitled to legal rights but is also named in a person’s Will, they must choose to claim their legal rights or their entitlement under the Will. They cannot claim both.
Where litigation may be necessary?
Legal rights disputes
Legal rights are an entitlement under Scots law. With this in mind, you should not need to go to court to receive your legal rights entitlement.
The above said, for one reason or another legal rights disputes do arise (most frequently where a solicitor has not been instructed in the estate administration).
From experience disputes typically occur where;
the executor has not made those entitled to claim legal rights aware of their right.
the executor (often a close family member of the deceased) refuses to pay out any legal rights as they believe the deceased would not have wanted a particular individual to receive sums from their estate.
In most instances legal rights disputes can be resolved without going to court. Indeed, we recently secured a significant sum for a client who had been unaware of their legal rights and who had been wrongly told that there were no funds to distribute.
Challenging a Will
Whilst you may be able to claim legal rights, it may be that you do not believe that the deceased would have executed a Will disinheriting you in the first place and/or you believe that the deceased would have left you more than you would be entitled to in accordance with legal rights. If this is the case and you have reason to believe the Will is not valid, you may be able to challenge the Will. Please see: Lindsays | Challenging a Will - FAQs]
Conclusion
The above case is a reminder of the difficulties which can arise after a loved one’s death, including the possibility of disinheritance.
In Scotland, legal rights serve to protect a surviving spouse/civil partner and children from disinheritance. It is therefore important to know your rights.
Whilst legal rights is an entitlement in Scotland, it can result in disputes between those concerned. It may also not solve the problem if you dispute the validity of the Will disinheriting you.
If you require assistance in connection with legal rights, or have concerns regarding the contents of a Will, our Dispute, Resolution and Litigation team would be happy to assist.
This article was published on 4 September 2023.
