Not completely. In Scotland, children and a surviving spouse or civil partner have legal rights, a fixed share of the deceased's moveable estate that they can claim whatever the will says. A parent can leave a child nothing in their will, but the child can still claim their legal rights. What a parent can do is limit the value of that claim, because legal rights do not apply to land and buildings.
This is a major difference from England and Wales, where there is freedom of testamentary disposition. This guide explains how legal rights work.
What are legal rights?
Legal rights are a share of the net moveable estate: everything except land and buildings, after debts are paid. Moveable estate includes bank accounts, savings, investments, shares, cars, jewellery and household belongings.
- Children share one third of the moveable estate if there is a surviving spouse or civil partner, or one half if there is not.
- A spouse or civil partner is entitled to one third if there are children, or one half if there are none.
- Grandchildren can claim the share their parent would have had if their parent has died.
Legal rights belong to children of any age, including adult children, and to adopted children. Stepchildren and cohabiting partners have no legal rights.
Example: a widowed mother leaves her whole estate to charity. She owned a house worth £300,000 and £90,000 in savings. Her two children cannot claim anything from the house, but they can share legal rights of one half of the £90,000, so £22,500 each.
The child must choose
A child cannot have both legal rights and a legacy under the will. If the will leaves them something, they must choose between accepting the legacy or giving it up and claiming legal rights instead. Executors usually write to anyone entitled to legal rights to explain the choice. It makes sense to take advice before deciding, because the right choice depends on the values involved.
Can a parent avoid legal rights?
Legal rights cannot be removed by a will, but their value can be reduced lawfully. Common approaches include:
- Holding wealth in heritable property, such as land or buildings, which legal rights do not touch.
- Lifetime gifts, which reduce the estate available at death, subject to tax and other rules.
- Trusts, set up during the parent's lifetime, which can remove assets from the estate.
Each approach has tax and practical consequences, and some can be challenged, so they must be planned carefully with a solicitor.
How long does a child have to claim?
A claim for legal rights must be made within 20 years of the date of death. If it is not made in that time, the right is lost. Although the time limit is long, it is best to claim early, before the executor distributes the estate.
Is reform coming?
The Scottish Law Commission has previously recommended reforming legal rights, including changes to how they apply to heritable property. Those wider reforms have not been taken forward, so the current rules continue to apply.
What if a will is unfair in other ways?
Apart from legal rights, a will can be challenged if the person lacked capacity when they made it, was under undue influence, or the will was not signed properly. These are separate claims with their own evidence requirements.
Planning your own will
If you want to leave your estate differently from the default rules, a solicitor can explain how legal rights affect your plans and how to structure your estate. Compare the leading wills, trusts and executry solicitors in Glasgow. See also our guide to what happens if someone dies without a will in Scotland.
Frequently asked questions
Can I leave my child nothing in my will in Scotland?
You can, but your child can still claim legal rights: a share of your moveable estate that cannot be removed by a will.
How much can a child claim under legal rights?
Children share one third of the net moveable estate if there is a surviving spouse or civil partner, or one half if there is not.
Do legal rights apply to the house?
No. Legal rights apply only to moveable estate such as money, investments and belongings, not land or buildings.
Can an adult child claim legal rights?
Yes. Legal rights apply to children of any age, including adopted children, but not stepchildren.
How long do I have to claim legal rights in Scotland?
Twenty years from the date of death, but it is best to claim before the estate is distributed.
Can I take a legacy and legal rights?
No. If the will leaves you something, you must choose between the legacy and your legal rights.
Conclusion
So, can a parent disinherit a child in Scotland? Not entirely. Children can always claim legal rights in the moveable estate, whatever the will says, although a parent can limit the value of that claim through how they hold their assets.
For advice on making a will or claiming legal rights, compare the leading wills and executry solicitors in Glasgow.