A recent case in the England and Wales High Court has ruled in favour of an ex-wife over the widow of the deceased’s son.
The Will of the deceased lady directed that in the event that her son Don died before her, then his share of her £840,000 estate was to go to “his wife Cindy”. The Will was written 10 years before the lady passed away and in the intervening years her son had divorced Cindy, remarried, and subsequently died.
Don’s new wife contested the Will with her legal representative claiming that, as she was Don’s wife at the time of his death, the money should go to her.
Don’s ex-wife refuted this and claimed that, as she was specifically named in the Will and had continued to enjoy a mother-daughter relationship with the deceased, even after the divorce, she was entitled to the legacy in the Will. Her claim was supported by the deceased lady’s surviving son.
In this scenario, the judge ruled in favour of Cindy as the ordinary meaning of the Will was that the relevant share was to go to her.
However, if the same set of circumstances had occurred in Scotland, the outcome may have differed slightly. Scotland’s unique set of laws around succession mean that children and the spouse of a deceased person have an unbeatable claim to the moveable portion of the deceased’s estate through a legal rights claim. The moveable portion relates to anything that is not land or buildings; such as bank accounts, shares, and jewellery.
In these circumstances, although Don had passed away before his mum, there is a concept called representation whereby the children of a predeceasing child can claim their parent’s entitlement to a share of their parent’s estate. As Don had a daughter with his second wife, that child would have been entitled to step into Don’s shoes and claim his portion of the estate.
Although this would not have helped the second wife’s claim, it would have meant that, whether the deceased wished for it or not, Don’s daughter from his second marriage would have a claim to the moveable part of her estate.
We would always recommend putting a Will in place to ensure that your wishes are carried out. In addition, if you are worried about a legal rights claim being made, there are practical steps that can be taken to limit exposure to such claims and help to ensure that your wishes are fulfilled.
