The eldest children of French rocker Johnny Hallyday, who died in December last year, have sought a court order in France with a view to freezing his assets, including the album which he was working on at the time of his death.
Johnny Hallyday’s last Will, drawn up in America (where his younger, adopted children attend school), leaves his entire estate (estimated at £89 million) to his fourth wife, Laeticia Hallyday, and excludes his elder children, David Hallyday and Laura Smet.
Questions have been raised over the validity of the American Will, and whether Hallyday’s estate should fall under the stricter French inheritance laws, which do not allow children (or a spouse) to be disinherited. If Laura and David are successful in their claim then Laeticia would be entitled to 25% of the estate, with his four children (biological and adopted) sharing the remaining 75% equally among them.
In Scotland the right to make a Will is viewed as a fundamental freedom. However, as in France, it is not possible to completely exclude a spouse/civil partner or children. This concept is known as legal rights. Therefore, no matter what provisions you have in your Will with regard to the division of your estate on your death, or if you die without a Will (intestate), your spouse/civil partner and your children will always be able to claim legal rights from your estate. In addition, if any of your children have died before you, leaving children of their own (your grandchildren), then those grandchildren are entitled to make a legal rights claim on behalf of their deceased parent.
There are some restrictions on the amount which can be claimed, as legal rights are only claimed from what is known as the moveable part of your estate (assets which are not land and buildings).
Where an individual dies leaving a spouse/civil partner and children then the spouse/civil partner is entitled to claim a 1/3rd share of the moveable estate and the children are entitled to claim a 1/3rd share of the moveable estate, which is then further divided by the number of children. So if the person who has died had a wife and three children their wife would be entitled to claim 1/3rd of the moveable estate and the children would get 1/9th each (being 1/3rd of the moveable estate divided three ways).
If there is no surviving spouse/civil partner then any surviving children can claim ½ of the moveable estate (this half being further divided if there is more than one child) and if there are no children but a surviving spouse/civil partner, then that spouse/civil partner is entitled to claim ½ of the moveable estate.
Any person entitled to make a legal rights claim has 20 years to do so from the date of your death. Although, just because they are entitled to make this claim, does not mean that they have to. In many family situations children are perfectly accepting of one parent’s estate passing wholly to the surviving parent on first death (other than the sound Inheritance Tax reasons for this), as they wish for their surviving parent to have a comfortable lifestyle, and anticipate that on the death of their second parent they will inherit the remainder of the combined estates. On that basis, they can Discharge their right to make a legal rights claim against your estate. However, cases of second or subsequent marriages and children from previous relationships are more and more common and so the question of inheritance, particularly say for children of the previous marriages, can become an issue. As borne out by the case of Johnny Hallyday’s elder children.
If you are in a situation where you are concerned about an estranged spouse/civil partner or a child making a claim on your estate then you should seek legal advice.