Challenge will if removed - Scottish Law

[notsure]

Hi

I have been the executor of my parents will for last 15 years (neither deceased) but there has been a recent fall out for something out with control. There are threats from my parents that if I don't agree to resolve something on behalf of a sibling they will remove from any inheritance. If that happens (they are 78 and in decent health so this isn't a mental health judgment) can I challenge the will once they pass. I am the older of two siblings and current executor. My guess is they will try to move everything to go to my younger sister. Could I have some advice on ability to challenge a wills contents please

[PallasAthena]

Tagging sederunt who may be able to assist.

I don't know about Scottish law but I would be very surprised if there is a law that lets you challenge the contents of a will of someone who is still alive and in good health (so presumably still with full mental capacity).

[notsure]

Thanks Pallasathena

I think I worded badly. I meant could I challenge a will contents after they have passed if I have been removed “relatively” recently before they passed?

[sederunt]

You would be unable to challenge a will because you have been omitted.

But you may have some entitlement to legitim regardless of what the will said, depending on the extent of the estate. Briefly, legitim is an entitlement (between children) to 1/3rd of the net moveable estate (where there is a surviving spouse)

[Pezza54]

Children of a deceased person who died domiciled in Scotland have legal rights over the moveable part of the estate (money, shares, possessions such as cars etc, but not property)
If there is no surviving spouse or civil partner the children are entitled to one half of the moveable part of the estate shared between them
The childrens entitlement reduces to one third if there is a surviving spouse or civil partner
There is no necessity for the children to take court action to make a claim on the estate

[Pezza54]

Assuming your fears are realised and your parents draft new mirror wills eventually leaving the entire estate to your sibling, and assuming they also remove you as executor
Your sibling is content to let sleeping dogs lie
When your first parent passes you can claim one third of the moveable part of their estate
When your surviving parent passes you can claim one half of the moveable part of their estate

Clearly your sibling would benefit significantly if the major part of your parent's estate is in property

But if your surviving parent had to sell the property to fund care home fees, the property would change to moveable estate

[notsure]

Thankyou Pezza54

if my understanding is correct you are saying that if I am removed and my other sibling is named in the will to get the house there is nothing I can do but without need for court I would get 50% of remaining assets (once they had both passed)?

[Pezza54]

Yes you are right.
I can envisage your sibling trying to keep the parents in their house whilst you are trying to move them out so the property can be sold

[Pezza54]

[QUOTE=Pezza54;n1700294]Assuming your fears are realised and your parents draft new mirror wills eventually leaving the entire estate to your sibling, and assuming they also remove you as executor
Your sibling is content to let sleeping dogs lie
When your first parent passes you can claim one third of the moveable part of their estate
When your surviving parent passes you can claim one half of the moveable part of their estate

Clearly your sibling would benefit significantly if the major part of your parent's estate is in property

[notsure]

Thanks to all the contributors. I guess I can work through the % specifics on the moveable part of their estate on the sad day that this happens. Can I ask one last question please. It appears from the advice offered that the terms of a will are largely irrelevant when it comes to children. Is that roughly what being said here ie. if my Mum says in her will; "I'm leaving it all to the cat and dog home" i would still be due part of the estate as per the terms outlined in the advises above? Thanks again all

[Pezza54]

Yes you are right. Your mother would have to move and spend the rest of her life in England to ensure all of her estate went to a cat and dogs home

[sederunt]

Just to reaffirm, and as stated earlier in the thread, the legitim aspect of legal rights applies only to the net moveable estate and not to heritable.

Without going into detail, legitim is not guaranteed, in some cases it can be overcome if there is a surviving spouse, but depending on the size of the estate.

[notsure]

Thanks Sederunt. I wouldn't be interested in a challenge while their is a surviving spouse. I'm actually surprised you are allowed to take money from a money from an estate with a parent alive (I just assumed everything defaulted to the remaining spouse). My challenge is if that remaining updates a will and says upon their death I get nothing. Based on all the feedback, the will appears irrelevant, its just whether I can challenge the property if it's left entirely to my sister or just a % of the liquid estate

[HariSeldon]

its just whether I can challenge the property if it's left entirely to my sister or just a % of the liquid estate

One option for your parents might be to start gifting assets (such as cash and property) to your sister while they are still alive if they feel that strongly about who gets what when they're gone...