Living Together – Why A Will Is Essential

By Author: D McFadzean
Total Articles: 4
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Do I really need a Will? Won’t my next of kin inherit anyway?
One of the main reasons for having a Will in place is to ensure that your assets will pass to your chosen beneficiaries. Our experience is that many people believe that their next of kin will inherit anyway and that having a Will is therefore not too important.

This is of course not the case. The Scottish rules of intestacy (ie inheritance where there is no Will) are not well understood and there are many cases where parties may well be shocked at the outcome. For example, where a spouse or civil partner dies and there are no children, then siblings and parents may take a significant part of the estate in preference to the surviving spouse or civil partner.

Particular issues for couples living together (co-habiting).
The matter becomes even more problematic if you are not married but are living with your partner at the time of your death. In the absence of a Will the law is clear about the rules regarding spouses/civil partners and blood relatives, and if you take legal advice you can find out how your estate will be distributed amongst ...
... them if you do not have a Will. However, for co-habitees the outcome is very uncertain.

Under Section 29 of the Family Law (Scotland) Act 2006 a co-habitee has the right to apply to the Court within six months of the date of death to ask for financial provision from their deceased partner’s estate. The Court will consider the circumstances (for example, the length and nature of the relationship, the size and nature of the estate, any other claims on the estate and any other provision made for the co-habitee), and then can make such award as it thinks fit up to the amount of any award which would have been made to a spouse on intestacy.

This is a very awkward situation. While the nature of marriage or civil partnership is clearly defined (in legal terms at least) the nature of co-habitation is probably as varied as the lives of the 150,000 couples who live together in Scotland at present. Co-habitation can take many forms and can involve many different levels of commitment and obligation, with the true nature of the relationship only being understood by those involved. In the absence of a Will the Court will have to decide what is a “fair” distribution of your estate looking only at external factors and having no idea of your actual wishes.

Consequences for your partner, children and family if you die without a Will
If you wish your partner to be provided for from your estate but you die without leaving a Will, then your partner will be left essentially having to negotiate with your family to see if they will agree to give your partner assets which are due to them under the law of succession in Scotland. If agreement cannot be reached, your partner will then have to decide whether to raise court proceedings, effectively against your family, within a very short time of losing their life partner, with all the stress and expense that this will inevitably involve.

If children are involved things become even more problematic. The children are the legal beneficiaries, so your partner will be applying to court to receive funds which would otherwise pass to the children (who may be your partner’s own children or their step-children), and the children will require separate legal representation. This is not a situation you would wish to leave your partner in if the unexpected happened.

Conversely, you may wish your partner not to inherit any of your estate should you pass away, though this may not necessarily be the understanding between you. Perhaps, for example, it was always understood between you that your estate would pass to your children, or perhaps this was your assumption albeit that it had never been discussed. However, if you do not leave a Will your partner can apply to the Court for provision and, depending on the circumstances, might take a significant part of your estate from your children or next of kin.

Conclusion: a Will is essential for cohabitees
The conclusion is clear: while everyone should have a Will, it is even more essential for those in cohabiting relationships. This is the only way you can be sure that your own wishes will determine how your estate will be dealt with. Simply expecting that things will work out okay in the end, is a risky strategy and one which can lead to heartache – certainly not the legacy you would wish to leave for your loved ones.

The Solicitors at ELP Arbuthnott McClanachan in Edinburgh, are experts in this field and can provide further help and advice about Wills and Estates.

Duncan is an employment law solicitor at ELP Arbuthnott McClanachan, Solicitors Edinburgh.