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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9973
Experience:  30 years as a practising solicitor.
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My brother recently died. He has children who are obviously

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My brother recently died. He has children who are obviously entitled to his estate.He was separated from their mother for 20 years. From 2003 he cohabited for 5 years with the woman who was his current partner at the time of his death. She moved from the house, which belonged to my brother, because she had to take care of her son. There is proof that she invested in the fabric of the house. Does she have a claim on the estate?
Thank you for your question.

No she doesn't. Had they been cohabiting at the date of death she could have made a claim under section 29 of the Family Law (Scotland) Act 2006 within six months of the death.

However, that section only permits a claim by a cohabitant and from what you say they weren't cohabiting.

Here is the section:

"29 † Application to court by survivor for provision on intestacy
(1)† This section applies where
(a) † a cohabitant (the deceased) dies intestate; and
(b) † immediately before the death the deceased was
(i) † domiciled in Scotland; and
(ii) † cohabiting with another cohabitant (the survivor).
(2)† Subject to subsection (4), on the application of the survivor, the court may
(a) † after having regard to the matters mentioned in subsection (3), make an order
(i) † for payment to the survivor out of the deceased's net intestate estate of a capital
sum of such amount as may be specified in the order;
(ii) † for transfer to the survivor of such property (whether heritable or moveable)
from that estate as may be so specified;
(b) † make such interim order as it thinks fit.
(3)† Those matters are
(a) † the size and nature of the deceased's net intestate estate;
(b) † any benefit received, or to be received, by the survivor
(i) † on, or in consequence of, the deceased's death; and
(ii) † from somewhere other than the deceased's net intestate estate;
(c) † the nature and extent of any other rights against, or claims on, the deceased's net intestate
estate; and
(d) † any other matter the court considers appropriate."

The only possible way she could claim for any investment value in the house is to claim for repayment of the sums expended by her by way of compensation as a debt on the estate. There is no automatic entitlement to claim on the estate.

I hope this helps. Please leave a positive response so that I am credited for my time.
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