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How a change in circumstances can affect your Will


How a change in circumstances can affect your Will

Sir Mick Jagger has led a Rock and Roll life style for over 50 years with his life regularly being documented in the press. Whether it is about his career, lifestyle or latest romantic relationship, the tabloids never fail to provide the gossip.

But when the Rolling Stones Star hit the headlines last month at 73 years’ old, not many of us were expecting to read that he had become a father for the 8th time.

With 7 other children, 5 grandchildren and a great grandchild, Mick Jagger has a large family to provide for, and with the success of his career over the many decades there is little doubt he is likely to have a substantial estate to leave when he dies.  But could the birth of his youngest son cause some issues for the star in terms of his Will and intentions upon death?

What if he had no Will?   

Scots law of succession means that where a person dies without a Will (intestate) their entire estate is distributed by the laws of intestacy consisting of “Prior Rights”, “Legal Rights” and “Free Estate”.  Prior Rights can only be claimed by a living spouse or civil partner and entitle them to your marital home (except in certain circumstances including if it has a value above £473,000), up to £29,000 of furnishings and either the first £50,000 of the estate where you have children, or £89,000 where there are no children. For a large number of people, there would be little or no estate left following Prior Rights.  

Where there is no surviving spouse or civil partner, or where there are assets left over after Prior Rights, the estate falls to Legal Rights.  This entitles your Spouse to one third of the remaining estate where you have children or one half of the remaining estate where there are no children.  Any children would share a one third share of the assets between them all. 

Finally, the remaining estate would fall into the Free Estate which is then distributed down a chain of relatives until it is claimed by one category.  It starts with any children of the deceased at the top of the chain, and in certain circumstances where there is no family or remote relatives, the estate falls to the Crown.   

As you can see, if you die without a Will then you are removing all control over where your assets go upon your death. Executors will be appointed by the Court to deal with your estate whether they would be your likely choice or not and the winding up of your intestate estate becomes an expensive and prolonged process.  It is therefore highly recommended that everyone have a Will in place to ensure that their wishes are expressed formally and your assets are dealt with appropriately.

What if he did have a Will and hadn’t mentioned his new son?

In Scotland, however, a material change in personal circumstances such as the birth of a child can, in some situations, revoke your Will altogether.  A doctrine known as conditio si testator sine liberis decesserit allows a Will that does not make provision for future children to be presumed to be revoked following the birth of a further child.  In other words, if you write a Will leaving your estate to specified beneficiaries and later have a child who has not been provided for in that Will, that child is permitted to apply to the court to have your Will reduced.  It is then presumed that you did not intend to omit that child from the Will, and as such your Will is revoked meaning the laws of intestacy apply. 

For example, if Sir Mick Jagger were to have a Will leaving his estate in equal shares to his current wife and 7 children, naming them individually, this would not make provision for his most recently born son.  As such, upon his death, the Will is presumed to be revoked as it is assumed that Mick Jagger would not intentionally fail to provide for his child in his Will.  His estate would then be divided by the laws of intestacy to allow the 8th child to have a claim on the estate. 

The conditio is a presumption and the presumption can be rebutted in circumstances which show that you intended for the Will to stand despite the birth of the child. But that puts a burden on the executors and possibly the beneficiaries to overcome the presumption which depending on the circumstances could be difficult. Given the potential consequences, careful drafting of a Will and keeping its provisions up to date is paramount.

Although you may envisage your life taking a certain route, it is important to remember that time can change your plans and cause unexpected material changes of circumstances.  We may not be having children at the age of 73, but it is important to consider the effect our current decisions may have on our future circumstances.  As such, we recommend that you review your Will every 5 years or when you have had a material change of circumstances to ensure that your Will still meets your wishes. 

Graeme Dickson is a Solicitor in our specialist Private Client team. If you wish to discuss or amend the content of your Will or arrange to have a Will drafted, please contact a member of the Private Client Team on 01382 229111.

Posted by Graeme Dickson

Associate

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