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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9911
Experience:  30 years as a practising solicitor.
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My father and step mother separated a few years ago but remained

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My father and step mother separated a few years ago but remained married. My father died in March 2013, changing his will and leaving everything to a neighbour. There is a very small amount of money in his bank account. ther are also joint savings and a joint property that is subject to a survivorship clause. There is outstanding debts of my fathers, including care home and solicitors fees. My fathers solicitor has informed my step mother that she is entitled to the property and savings (after the debts have been cleared). However, she has been informed today that the neighbour is going to contest the will. Does the neighbour have a case?
Thank you for your question.

If there is a will then the position is as follows:

1. The joint heritable property goes to her by virtue of the survivorship clause.

2. She is entitle to one third of the remaining moveable property irrespective of the terms of the will by virtue of legal rights.

3. You and any siblings also have a joint claim for a third of moveable property by virtue of legal rights.

4. The rest goes to the neighbour.

The neighbour will only be able to challenge the will if the neighbour can establish that the will was not valid or your father was incapable of making the will through incapacity.

However, it has to be remembered that if the will is successfully challenged by the neighbour and the court reduces the will, the estate is likely to fall to intestacy in which case your stepmother could inherit the whole estate under spouses prior rights on intestacy.

Certainly the neighbour would get nothing as the will would be set aside.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.
Thank you for that, can I just clear up a couple of points.

1). Who is liable for my fathers debt?
2). I take it the joint savings (NS and I income bonds) are part of his moveable estate and therefore subject to division amongst spouse, children and neighbour?
1. Your father's estate has to pay off his debts.

2. Joint savings are deemed to be owned equally u less provide otherwise. In the absence of evidence to the contrary it is assumed that half of the savings form part of the estate. However if it is the case that one or other of the parties to the joint savings contributed to the account then there would have to be an adjustment on the estate inventory.
Customer: replied 3 years ago.
Thank you, XXXXX XXXXX one more point!

If the property is subject to the survivorship clause, does this remain as part of my fathers estate or does it pass wholly to my step-mother.
I am assuming the debt will need to be paid out of his share of the joint savings prior to division?

If there is a survivorship clause then the property automatically passes to your stepmother. If there is a mortgage then she has to take that on unless there is sufficient monies left in the estate after payment of legal rights.

You can't use moveable estate to pay off a heritable debts unless the will provides for payment of debts and funeral expenses.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9911
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.
Thank you so much for your help. My step mother is 79 and she has been very worried.

There is no mortgage on the property but they have joint savings of £25,000. I assume that £12,500 of this is safe as this is seen as her assets. The remaining £12,500 therefore is to be used for his care home and solicitor fees leaving nil to be divided between my step-mum, me and the neighbour
It depends what proportion is owned by you stepmother. Assuming half then the estate gets the remainder, debts to be taken further the anything left is divided between the family as described above.

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