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Making a will is one of those "grown up" jobs that never seems to be a priority - something you'll get round to at some point. Give yourself a pat on the back if you have made a will, but make sure that you keep it up to date. It is so important that you review what your will says every so often, so that it keeps abreast of changes in your life. In short, if you have a significant life change - update your will! 

As we've seen over the last few months, not making a will, or not keeping it up to date, can have unintended consequences.

The Family Law (Scotland) Act 2006 did introduce the potential for a cohabitant to make a claim on their partner's estate on death, but only if (a) they were living together at the time of the partner's death, (b) the partner died intestate (i.e. without a will) and (c) only if the cohabitant makes a formal claim within 6 months of their partner's death. Six months can pass very quickly in the midst of processing a death and dealing with grief, and therefore the opportunity to make a claim where there is no will can evaporate quickly.

In one case, a couple had been living together for more than 30 years. One partner passed away, leaving a will which was 35 years old, and made no provision for the partner. Because there was a will, albeit out of date and which had been written before the couple ever met, the partner had no basis to make a claim under the 2006 Act. 

Another case saw a partner dying suddenly, again with an old will which had been written in England. The will provided that the estate should pass to their former spouse, from whom they had divorced many years ago. The way the Will was drafted provided that, under English law, in that situation, the former spouse's share would pass to their mother, so the deceased estate was due to pass, in large part, to their former mother-in-law.

Also be aware that even if you are separated, and have been for a number of years, if either spouse dies, then a claim can still be made on their estate. The risk or impact of this can be minimised by making a new will after your separation, but if there is no will, then legal and prior rights mean that, unless the surviving spouse feels particularly charitable (perhaps unlikely in a separation situation) then they will be able to claim on the estate, potentially to the detriment of any children (sometimes up to the value of the entire estate).

A will also serves as an opportunity for parents to nominate a person (or persons) to whom their parental legal rights and responsibilities will transfer on death. If this is not done, then it may well be only the surviving parent (from whom the children may be estranged) left with parental rights and responsibilities. This can also lead to social work involvement which otherwise could have been avoided.

It is for these reasons that, when instructed to assist with a client’s separation, as well as the terms of any separation agreement, we will also recommend the client speak with one of our solicitors within the firm’s Private Client team to take advice on their Will and any other succession issues (e.g. pension death benefits and other death in service nominations).