Right to challenge will

[EricanErnie]

A Scot has made a will leaving everything to only daughter. Only son died over thirty years ago and his children have been forcibly estranged to their grandfather, so he does not have, and does not want, any contact with his son's children. He is concerned that when he dies, these grandchildren could challenge his will. Given that the will is valid / watertight in its content, does his grandchildren have any right to challenge his will?

[factor-fiction]

Is this a request for help with your homework/coursework or is it an issue you genuinely need advice on?

[EricanErnie]

No, this is nothing to do with coursework. Yes, would like advice.

[dzug]

Not to challenge the will - no, no rights.

But close relatives in Scotland have what is called legal rights - they can demand that the executors pay them this regardless of what the will says. They don't have to fight it in court, it's their right.

But I don't know if grandchildren count as sufficiently close. His son certainly would if still alive. Whether his children 'inherit' his right I can't tell from the limited reference books at my disposal.

[Buenchico]

Scottish law separates the estates of testators into 'heritable estates' and 'moveable estates'.

'Heritable estate' refers to land and buildings. The testator can leave this to whoever he likes; his descendants have no 'legal rights' in respect of heritable estate.

The rest of the estate (such as cash and savings) forms the 'moveable estate'. Assuming that the testator does not leave a surviving spouse (who would have 'prior rights'), his children (including, for the purposes of this calculation, the deceased son) have collective 'legal rights' over one third of the moveable estate. (Where a child is named as a beneficiary, he/she must choose between accepting what is offered under the terms of the will or exercising his/her legal rights. He/she can't have both).

So the daughter and the deceased son each have legal rights to one sixth of the moveable estate. Since the deceased son can't claim his part of the moveable estate , his children have legal rights to equal shares in his entitlement. (e.g. if the deceased son had two children, each of them would have legal rights to one twelth of the testator's moveable estate).

So the testator's grandchildren can claim a total of one sixth of the moveable estate by exercising their legal rights. (They simply have to inform the executor that they wish to do so). The daughter will still receive the whole of the heritable estate. She will also receive five sixths of the moveable estate.

If the testator wishes to keep the amount received by the grandchildren as small as possible, he should invest most of his savings by buying land or property. This will increase the value of his heritable estate and decrease the moveable estate.

Chris

[EricanErnie]

Many thanks for the response. Grandchildren are not Scots, they are Canadian. Does this make any difference??

[Buenchico]

Thanks for the reply.

The nationality of the grandchildren is irrelevant.

Chris

[EricanErnie]

Many thanks. Cleared that up nicely!