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Scottish Law Help Please.

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alinic | 02:43 Sat 12th Sep 2020 | Law
4 Answers
My mil has three sons,my mil signed over her house to my husband in 2015, the older son is just horrible very much money orientated, mil has been in hospital with broken ribs etc she's 88 but really well for her age. My husband and her youngest son are power of attorney for her. We have no contact with the oldest brother but he has being horrible to his mother saying that he will contest the Will and that a third of the house is rightfully his, his mother's house is approx worth 75,000. She not even dead and he's telling her this! Shocking!
My question is can he do this ? Once she has passed?
Thank you


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To successfully contest your MIL's will, her son would need to prove that
(a) she didn't have the mental capacity to make a valid will ; or
(b) that someone exerted undue influence over her when she was making her will (either under the provisions of 'undue influence' or 'facility and circumvention') ; or
(c) that a beneficiary had benefited from fraud.
I can see nothing in your post which would present him with a valid reason.

In England and Wales it's possible for a child of the deceased to challenge the provisions of a will on the grounds that the will failed to 'make reasonable financial provision' for them. (NB: That's NOT the same as a child of the deceased having an AUTOMATIC right to benefit from the estate of their parent. They have to show that there's a valid reason why they should have been included in the will or have had greater entitlement under it). The relevant legislation does NOT apply in Scotland though, so if the son is relying upon it, he's clearly wasting his time.

However, under Scottish law the son DOES have an AUTOMATIC right to receive part of his mother's moveable estate. (Nothing his mother writes in her will can change that). Assuming that your MIL hasn't got a surviving spouse or civil partner, that means that the three children have an AUTOMATIC right to share half of your MIL's MOVEABLE estate between them. So the son would end up with ONE SIXTH of the MOVEABLE estate.

'Moveable' estate though includes only things such as money, shares, cars, furniture and jewellery. It does NOT include 'heritable property' (such as land or houses).

So, even if your MIL hadn't signed the house over to your husband, there would appear to be no way that he son could make a claim upon it. As she's already assigned title to the property to your husband though, the house won't form part of her estate anyway so the chances of the son getting hold of any part of it after her death would seem to be even less (if that's actually possible).
no, she does not own the house so how can it be in her legacy?
// but he has been horrible to his mother saying that he will contest the Will and that a third of the house is rightfully his. //

If the full title has been signed over to your husband, then he is the legal owner. The house will not even be included in her Estate. Make sure the next time the elder brother spouts forth about 'The Will' make it clear the house no longer belongs to his mother therefore it will not be included in her Estate.
Question Author
Good evening lovely people!
Thank to all of you for your input to my question it has eased my husband's mind.
I do feel very sorry for my mil as no son should treat their mother like this he has taken so much money off her and various aunts and uncles over the years and we are talking thousands. He is very much a sleak talker. But I know we will have problems when the sad time comes, he will crawl out of his shell and read his ugly head.
Many thanks again for your input and knowledge and if there is anything else I need to know am sure I will get the expertise from your kind selfs.

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