About McLennan Adam Davis

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How Should Solicitors Deal With The Question of Legal Rights?

The Law Society of Scotland have recently provided guidance with respect to how solicitors/firms should deal with the question of Legal Rights in relation to an executry estate. Legal Rights are akin to the Law of Scotland whereby it will not allow a situation to arise whereby a spouse or a child can be wholly disinherited.

There is judicial authority indicating that Legal Rights are akin to a debt on an estate. An Executor’s duties in respect of his/her management of an executry estate are in simple terms to gather in the estate, pay the deceased’s debts and distribute the estate in terms of the Will, or in terms of intestacy.

As a Legal Rights claim is therefore treated as akin to a debt on the estate, it is self evident that Executors will have a duty to inform a potential legal right claimant of their entitlement.

Executors therefore having a duty to settle all of the deceased’s debts, (and as Legal Rights being included as a debt), all debts should be discharged before the estate is complied with in terms of the deceased’s Will to the residuary beneficiaries.

Executors require to inform potential claimants of their entitlement. Whereby a solicitor is instructed and is only acting as an agent on behalf of the executors, the position in terms of Legal Rights must be explained to the Executors and their duties and potential personal liability therein clarified.

If the Executors instruct the solicitor as Law Agent not to contact any potential Legal Rights parties then the solicitor as Law Agent requires to consider his position and whether it is appropriate to continue acting if Legal Rights are not being addressed. 

The practice which our firm will adopt in terms of this Law Society guidance is that in the above scenario if instructed as Law Agents we would have a duty to resign and not be able to assist further with regard to the estate administration if an individual or individuals as an Executor or Executors advise us not to contact any potential Legal Rights claimants.

Contact our Executry Lawyers Ayr, Scotland

For more information on Legal Rights in relation to an executry estate, contact our expert team of lawyers on 01292 844 873 or fill out our online enquiry form.

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