claiming against a will in Scotland

[hocake]

My grandfather died and left everything in his will to his remaining children which would be my two uncles as my father died a few years ago. After my grandfather died they sold his house. Would I be right in thinking that my brother and I have no claim to what would have been my father's share of the sale as the money was not part of the movable estate when he died? (We are in Scotland.)

[dzug]

A legacy to a child of the testator, who dies before the testator, goes to the issue of that child, unless the will specifies very clearly that this is not to happen.

I think you have a case. The moveable estate aspect doesn't come into it.

[hocake]

Sorry, I should have said 'surviving children' instead of 'remaining children'. Atleast my mother reckons that is what was written in the will.We haven't heard from either uncle since the funeral, one of whom is the executor. Although all our families are on agreeable terms we haven't been in contact that much, especially since my dad died. The last link was my grandfather but now he's gone there isn't really any reason to contact them and to ask them about the will seems awkward since at the funeral they gave the impression to my mother that our family wouldn't get anything.

I suppose my next question is; if the will does indeed say 'surving children' would that mean we don't have a case? And if it actually says everything is to go to the children with no mention of them being alive or not is it likely that the executor (my uncle) would have informed us?

I find this all rather tricky because I definitely don't want to unnecessarily offend or upset anyone in my famly!

[dzug]

If it says surviving children or words to that effect then you don't have a case. It has deliberately excluded deceased children and hence their offspring.

If it's unspecific then you do. Your uncles should have informed you but it's possible that either though ignorance or (hopefully not) fraud they decided you were not entitled and didn't need to be told.

You can get a copy of the will without bothering the family to find out the actual wording - from the Probate Office. That's probably the best next step.

[Barmaid]

I am sorry, I disagree with dzug, but I do not know enough about Scottish Rights to advise in full - hopefully there is a scottish legal bod out there who can help.

I understood that whether the testator dies testate or intestate, the spouse and children (and this includes remoter descendants) had automatic rights to share in the movable property of the deceased. In the case of children and remoter descendents, I understand the "Legitim" share is one half of the movable estate. Furthermore, you can only take either under Legitim or under the will.

I would be inclined to take legal advice asap.

[dzug]

We are not talking about moveable property, barmaid - but the house, or heritable estate.

Agree that once OP has a copy of the will he should seek advice

[ladyalex]

I think you would be well advised to take proper legal advice.
I do not think the Probate Office is appropriate for Scotland. I would try the Commissary Department, Edinburgh Sheriff Court, 27 Chambers Street, Edinburgh, EH1 1LB.

Good luck.