Agnes Mallon: Your Will could lead to longstanding family friction

As we head into the holidays and families get together, people are reminded of long-held traditions and special memories. But this time of year can also bring family tensions to the surface.

Agnes Mallon is a Partner, Gillespie Macandrew

Every parent wants to know that when they die, they leave a strong family behind them to see each other through the good times and the bad. Unfortunately, sometimes a death in the family can cause families to never meet around the Christmas table again.

There are three main areas families often argue about when things don’t go to plan.

The Process

Ensuring your affairs are in order on death can make things easier for your family at a difficult time by removing stress, and ultimately cost. Having an up-to-date Will which sets out clearly who you wish to inherit is important, particularly as you are no longer there to explain your affairs. This can be as simple as being clear on your assets, debts, creditors and any gifts you may have made to your children or other family members during your lifetime. This is a difficult time for beneficiaries who do not necessarily understand the process involved in winding up an estate, which is reliant on responses from third parties including courts, other assets holders and HMRC. Executors have to administer the estate and it is important to agree how communication will be made to beneficiaries, in order that they understand the process and why it takes time.

Claiming your Legal Rights

This is an automatic right in Scottish law whereby someone domiciled cannot disinherit their spouse/civil partner or children. Depending on who survives the deceased will determine what they can claim from the net moveable estate. Where a parent’s Will is not what the child or the surviving spouse/civil partner expected, there is potential for that person to claim their Legal Rights instead of accepting the terms of the Will. Often such a claim is not made, but there can be disagreement where there are large sums involved and/or second marriages, where the children or spouse feel they have been short-changed.

Talking to your family and explaining your thoughts behind your Will is best. It may be difficult for you, but far easier for them to hear it from you rather than a solicitor explaining it to them when you have gone.

“Challenging the Will”

This is often the cry of an unhappy beneficiary. It can be as simple as explaining their entitlement under Legal Rights, however, there are also a number of other grounds when attempting to challenge a Will.

With individuals living longer, clarity on whether they understood the Will they signed is an increasingly common question. Individuals with a diagnosis of dementia or Alzheimer’s may still have the capacity to give instructions on a Will, depending on the stage of their illness. Challenging the Will on this ground requires strong evidence from the time the Will was signed so it can be difficult to substantiate such a claim.

There is also the situation where one person has influence over another. This could be over an elderly parent and here we need to establish a position of influence to better their position in an individual’s Will.

A similar situation is where the individual is suffering from a weakness of the mind, whether as a result of physical or mental illness, so that they can be easily imposed upon and pressurised into making a Will in a certain way.

As a solicitor, my starting point is always to be pragmatic as to how families resolve this through discussion, and we are seeing an increase in the use of mediation to resolve complex family fallouts. This is generally preferred, as legal challenges of this nature involve lengthy court processes and costs.

Ultimately, the family member making the Will is the best person to ensure that, when they have gone, their family continue to meet round the Christmas table. Therefore, make sure you have a clear and up to date Will in place. Ensure that your solicitor and executors have an understanding of your assets and any complications. And finally, talk to your family so there are no surprises when they find out what is in the Will. You do not want to leave a legacy of a resentful family at Christmas.

Agnes Mallon is a partner, Gillespie Macandrew