Lorna Goodfellow: Even with Scotland’s ‘fairer’ laws, intestate deaths can leave behind a bitter legacy

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Anyone who has been to the cinema to see The Girl with the Dragon Tattoo may be aware that the author of the book, Stieg Larsson, was a prolific writer, his Millennium crime trilogy turning him into an international phenomenon.

But there was one thing that Larsson, who died in 2004, failed to write and that was a witnessed will. (In May 2008, a will from 1977 was found, in which Larsson said he wanted to leave his assets to the Umeå branch of the Communist Workers League.)

Therefore, the lack of any legally binding will in his native Sweden has left his long-term partner locked in battle with his estranged family who, under the laws of intestacy, have inherited his whole estate. But would such an outcome would have arisen had he been living in Scotland.

Unlike Swedish Law, cohabitees in Scotland do have certain rights on the death of their partner, if their partner dies without a will.

Following a partner’s death, a cohabitee has a six-month period in which to make a claim on their partner’s estate, provided their partner, of course, has died intestate (without a will) and that they were cohabiting at the time of the death.

A court will determine which assets should pass to the surviving partner.

Accordingly, under such provisions, introduced in 2006, Stieg Larsson’s partner would have received a share of his estate although, interestingly, any payment awarded would not have exceeded that which a surviving spouse or civil partner of the deceased would have been entitled to on intestacy.

When no will can be found the law dictates how the estate is to be divided. These “intestacy rules”, updated on 1 February, cover the distribution of the estate to spouses and civil partners, as well as children.

Where someone dies without a will, their spouse or civil partner will now receive the family home if its value is less than £473,000, or cash of that amount, if the house is worth more, together with furniture within the house to a value of £29,000.

Where the deceased leaves children, the spouse or civil partner will also receive cash of £50,000 upon which interest of 7 per cent is now to be paid.

Where there are no children the cash element increases to £89,000 and the interest element also applies.

This, of course, could mean that in larger estates the amounts laid down by the law might not exhaust the total estate left, while in smaller estates the spouse or civil partner might scoop the lot, leaving nothing for the children.

From this, it is easy to see that the main consequence of dying intestate is that the law, and not the deceased, determines who inherits and the amounts of that inheritance.

What also becomes perfectly clear is the importance of a will and the certainty that it can bring, whether a person be married, in a civil partnership, cohabiting, or several times married.

In Larsson’s partner’s case at least, it seems there may be no fairy-tale ending to the story.

Lorna Goodfellow is a private client solicitor at Russel + Aitken.