When a person dies, the surviving spouse, civil partner and children have certain legal rights in his or her estate, whether or not the deceased had made any provision in his or her will. But should that entitlement be classified as a debt due by the estate or a right of succession in the estate. At first blush it might not seem important to the onlooker; the survivor(s) has/have entitlement in either case.
There is, however, an important distinction. If the entitlement is in the nature of a debt, the executor of the deceased has a duty to find such survivors and make payment of the legal rights. However, if the right is one of succession, payment has to be claimed and, in the absence of a claim, the executor has no such duty and any unclaimed rights in the estate go to increase the shares of other persons entitled to the estate. One immediately thinks of young children who, having lost a parent, have no idea they are entitled to claim a share in the estate of that parent. Is there an obligation upon the executor to inform such children of their entitlement? And, if so, can such children be relied upon to make sensible decisions as to whether or not to pursue claims which would reduce the estate of the bereaved, surviving parent? Would it be better to leave such children in ignorance of such entitlements which they shall, in any case, most likely receive at more propitious times in their lives, on the demise of the second parent?
Some time ago a solicitor was instructed by an executor in the estate of a deceased person where certain surviving relatives had legal rights. However, for her own reasons, the executor, on being advised of these rights, elected not to inform those survivors of their legal rights, so no claims were forthcoming and the legal rights would not be paid.
The solicitor gave his executor client written advice as to the legal position but continued to complete the administration of the estate in accordance with the instructions of that client without making payment of the legal rights. When these circumstances came to light in the course of a Law Society inspection, that solicitor was charged with professional misconduct and appeared before the Scottish Solicitors Discipline Tribunal (SSDT), which has power to strike off solicitors guilty of professional misconduct.
Approximately four years after these events had first come to light, the SSDT decided there had been no professional misconduct and that it was unclear in law whether legal rights were debts upon the estate which should have been paid or were rights of succession which did not require to be paid, unless claimed.
In the course of this debate, much research has been carried out and one distinguished authority has suggested that, in certain circumstances, a legal right may be regarded as a debt but in other circumstances may be regarded as a right of succession.
The huge difficulty facing solicitors is whether to follow client instructions not to inform persons of their legal rights and risk the wrath of the Law Society or override their client’s instructions and seek out claims for legal rights and risk receiving complaints – and possibly legal action – by their clients. There is always the option of withdrawing from acting in some cases, but, while that may solve a solicitor’s immediate predicament, it does not assist the client; it merely pushes the problem down the line. This might be too important an issue to be left to lawyers; reader views are invited to firstname.lastname@example.org
Michael Sheridan is Secretary, Scottish Law Agents’ Scoiety