Reasons to have a Will – Case Study

We never know how our life will unfold.

There are many compelling reasons for making a Will and sometimes others’ misfortune can inform our own decisions. In this sad case a family would have been spared unnecessary distress had the deceased person, Mr McNair, had a Will.

In a recent Glasgow Sheriff Court case, the Sheriff refused to allow children to be appointed as executors in place of their mother.

The facts of this case are that Mr William McNair had passed away without making a Will. His wife, Mrs Mary McNair was entitled to his whole estate under the Prior Rights provisions in the Succession (Scotland) Act 1964 and because of that, she was the only person who could make an application to be appointed as her late husband’s executrix.

Mrs McNair has applied to the court to be appointed her late husband’s executrix and her petition was granted. That meant she held the position of Executrix Dative to her late husband’s estate and was therefore entitled to wind it up and ingather the funds and assets due to it.

Unfortunately however, before she could obtain Confirmation, she became incapacitated and her daughters made an application to Glasgow Sheriff Court to be appointed executors to their late father’s estate in place of their mother in view of the fact she was now incapacitated.

They explained to the court that whilst the proper course of action would be to have a guardian appointed for their mother, that course of action was lengthy and expensive and that it would benefit all concerned if they were to be appointed in place of their mother.

Following the letter of the law

The Sheriff did not agree. He reviewed the law in this area and, in part of his judgement said “it must be remembered that the statutory provisions on intestacy are the default position where there is no will. They do not cater for every scenario. Indeed, they may not even be consistent but we are bound by them.”

This situation would not have arisen if Mr McNair had made a Will. Always remember that the best way to ensure that the administration of your estate goes smoothly is to make a Will.

We believe it’s important to make a Will. This case highlights why not having a will can cause unnecessary distress for your family.Hastings Legal Lab

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