Living Together? Why a Will is Necessary!

Aren't Wills just for old people?

All being well, you will live a long and happy life and your Will won't come into effect until that time. Unfortunately, life is not always like that and some people do die younger due to accidents or ill health. Having a Will in place when you are young means you can protect your family and loved ones no matter what happens in your life.

In Scotland, any person can write a Will from the age of 12.

Do I really need to bother writing a Will? Won't my next of kin inherit everything anyway?

One of the main reasons for having a Will in place is to ensure that your assets will pass to your chosen beneficiaries. Our experience is that many people believe that their next of kin will inherit anyway and that having a Will is therefore not too important.

This is of course not the case. The Scottish rules of intestacy (ie inheritance where there is no Will) are not well understood and there are many cases where parties may be shocked at the outcome. For example, if a civil partner dies and there are no children then siblings and parents may take a significant part of the estate in preference to the surviving partner.

Particular issues of intestacy for couples living together.

Being married provides more security than for those who chose to cohabit.

Under Section 29 of the Family Law (Scotland) Act 2006 a cohabitee has the right to apply to the Court within 6 months of the date of death to ask for financial provision from their deceased partner’s estate. The Court will consider the circumstances (for example, the length and nature of the relationship, the size and nature of the estate, any other claims on the estate, and any other provision made for the cohabitee), and then can make such award as it thinks fit up to the amount of any award which would have been made to a spouse on intestacy.

This is a very awkward situation. While the nature of marriage or civil partnership is clearly defined (in legal terms at least) the nature of co-habitation is probably as varied as the lives of the 150,000 couples who live together in Scotland at present. Co-habitation can take many forms and can involve many different levels of commitment and obligation, with the true nature of the relationship only being understood by those involved. In the absence of a Will, the Court will have to decide what is a "fair" distribution of your estate looking only at external factors and having no idea of your actual wishes.

This is also a costly process for the bereaved partner at a very stressful time when a Will could have saved this pain, stress, and cost.

Consequences for your children if you die intestate.

The children are the legal beneficiaries, so your partner will be applying to court to receive funds that would otherwise pass to the children (who may be your partner’s own children or their step-children), and the children will require separate legal representation. This is not a situation you would wish to leave your partner in if the unexpected happened.

Consequences for your estate if you didn't wish your partner to inherit.

You may wish your partner not to inherit any of your estate should you pass away. Perhaps, you were happy that your children would inherit under Scottish Law so felt you didn't need a Will. However, if you do not leave a Will your partner can apply to the Court for provision and, depending on the circumstances, might take a significant part of your estate from your children or other next of kin.

As experienced solicitors in Scotland who deal with Wills and Estates on a daily basis, we always highly recommend people living together to write a Will. The cost of a simple, straightforward Will is far less than having to apply to Court. This means that in the event of the worst happening, the people you love and care for will benefit from your Estate in the way that you wanted.

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