Contentious Executries
We are increasingly consulted about contentious or complex executry matters.
Any dispute or disagreement is painful for those involved, but this can be doubly so when the dispute has arisen following a bereavement. Seeing the distress which can be caused often makes me consider how best to prevent such problems or at least minimise the potentially disruptive effects.
Home made or altered Wills can prove a fertile ground for ambiguities which can give rise to uncertainty or even bring about an effect quite other than that which the writer was hoping to achieve. A Will is such an important document that it is worth taking time and care to ensure that it fully and accurately records the testator’s wishes. A solicitor drafting a Will needs to recognise the possible implications of its provisions and draw a client’s attention to these.
The structure and make up of society has changed enormously over the last 50 or 60 years. Second marriages or new relationships highlight potential problems in succession. People have different feelings about their freedom to deal with their assets as they wish and any responsibility to children or other family members. Anxiety on the part of children or nephews and nieces about their expectations may be felt to be inappropriate or wrong – nevertheless it does occur and can sour relationships within a family.
A pre-marriage contract with thoughtfully prepared Wills can go a long way to removing some of the anxiety and potential distress. Evidence to children that their parent considered the implications and made clear and informed decisions can make it easier for children to accept the situation – even if they do still think it might have been unfair.
The whole question of legal rights, which exists in Scotland, can also create difficulties and sometimes bad feeling. In Scotland, it is not possible completely to disinherit children and/or a spouse. The Scottish Law Commission has recently presented recommendations to the Scottish Government for a new Succession Act and the nature and extent of legal rights is one of the aspects of succession law in which they are recommending change.
One of the areas which will be most affected by the proposals, if adopted, is the whole area of intestate succession i.e. when someone dies without leaving a Will, or leaves an incomplete Will. The rules on intestacy can only ever be a broad brush approach. The rules take no account of the personalities or personal relationships of members of the family and this can sometimes cause resentment and frustration.
There is no easy answer or quick fix which can ensure that problems will never arise. Thinking carefully about the content of your Will and the implications is a very good start. If, however, difficulties do arise in an estate, the best advice is probably to keep talking, to be prepared to see matters from other points of view and, if at all possible, to avoid costly and lengthy litigation. In many cases there is no right or wrong answer and the solution lies in arriving at an agreement or a compromise which everyone can live with in the future.
Carole Hope
carole.hope@murraybeith.co.uk