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Living
Together?
E L P A R B U T H N O T T M C C L A N A C H A N
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Why a Will is Essential

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Do I really need a Will?
Won’t my next of kin inherit
anyway?
E L P A R B U T H N O T T M C C L A N A C H A N
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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
well be shocked at the outcome. For example, where a
spouse or 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 spouse or civil partner.

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Particular issues for
couples living together
(co-habiting)
E L P A R B U T H N O T T M C C L A N A C H A N
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The matter becomes even more problematic if you are not
married but are living with your partner at the time of your
death. In the absence of a Will the law is clear about the rules
regarding spouses/civil partners and blood relatives, and if
you take legal advice you can find out how your estate will be
distributed amongst them if you do not have a Will. However,
for co-habitees the outcome is very uncertain.
Under Section 29 of the Family Law (Scotland) Act 2006 a
co-habitee has the right to apply to the Court within six
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
co-habitee), 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.

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Particular issues for
couples living together
(co-habiting)
E L P A R B U T H N O T T M C C L A N A C H A N
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.

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Consequences for your
partner, children and family
if you die without a Will
E L P A R B U T H N O T T M C C L A N A C H A N
If you wish your partner to be provided for from your estate
but you die without leaving a Will, then your partner will be
left essentially having to negotiate with your family to see if
they will agree to give your partner assets which are due to
them under the law of succession in Scotland. If agreement
cannot be reached, your partner will then have to decide
whether to raise court proceedings, effectively against your
family, within a very short time of losing their life partner,
with all the stress and expense that this will inevitably
involve.

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Consequences for your
partner, children and family
if you die without a Will
E L P A R B U T H N O T T M C C L A N A C H A N
If children are involved things become even more
problematic. The children are the legal beneficiaries, so your
partner will be applying to court to receive funds which
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.
Conversely, you may wish your partner not to inherit any of
your estate should you pass away, though this may not
necessarily be the understanding between you. Perhaps, for
example, it was always understood between you that your
estate would pass to your children, or perhaps this was your
assumption albeit that it had never been discussed.
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 next of kin.

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Conclusion:
A Will is essential for
co-habitees
E L P A R B U T H N O T T M C C L A N A C H A N
The conclusion is clear: while everyone should have a Will, it
is even more essential for those in co-habiting relationships.
This is the only way you can be sure that your own wishes
will determine how your estate will be dealt with. Simply
expecting that things will work out okay in the end is a risky
strategy and one which can lead to heartache – certainly not
the legacy you would wish to leave for your loved ones.
If you have any queries in relation to anything in this article,
or any other matter relating to Wills, Powers of Attorney or
Executry Estates then please do not hesitate to contact the
private client solicitors at ELP Arbuthnott McClanachan in
Edinburgh.