Legal rights, second families and siblingship

Legal rights claims against an estate can throw up some difficult familial situations. As many private client practitioners will testify, family relationships can be tested and become strained during the process of administering a deceased’s estate and, as such, a degree of sensitivity is often required to keep the administration of the estate on track and to ensure that executors discharge their duties ethically and appropriately. The question of legal rights is one aspect which can introduce familial discord and, consequently, a challenge for the practitioner – this may be more acutely the case where the claim comes from outside the family unit and from a previously unknown party.

“Legal rights”, of course, is the automatic right in the estate of a deceased which arises and vests, on death, in favour of the deceased’s spouse and/or issue. That is applicable whether the deceased died testate or intestate, and remains an aspect of Scots law which divides opinion.

There is no equivalent principle to legal rights in English law (there is provision which allows a claim against an estate for financial provision, but no automatic right). Nevertheless, the tenet is not unique to Scots law, as evidenced by the Code Civil Français and provisions of civil law in several other countries and many US states.

The restriction on testamentary freedom is considered by some to be balanced by the protection afforded to the family. Lord Salvesen notably opined that “I regard the right that the law gives to children in their father’s estate, in common with the laws of most civilised countries except England, as a very important check on capricious or unjust testaments” (Hutton’s Trustees v Hutton’s Trustees). In the writer’s opinion, there remains some considerable force to the view that an equitable principle lies at the heart of legal rights, and it might be suggested that this is quite widely recognised even where individual practitioners do not necessarily agree that its effect is truly just.

Where legal rights are not discharged as part of the estate administration (as they often are), most claims will involve known children of the deceased relative to whom there is little doubt as to parentage. Whilst the election to take legal rights may cause some familial issues for the practitioner to contend with, the procedure and calculation of quantum is largely uniform and (notionally, at least) easily applied. However, when purported children of the deceased, of whom the executors have no prior knowledge, emerge, matters can be a little more difficult.

As an aside, where parentage of a child is presumed under s 5 of the Law Reform (Parent and Child) (Scotland) Act 1986, the onus will be on the estate to challenge the veracity of legal rights, possibly by seeking declarator of non-parentage through the courts, but that is a separate discussion and is outside the scope of this article.

Unexpected legal rights claims

It is never an easy subject to broach, either in spoken word or in print, but the increasingly global aspect of the lives that clients live, as well as the often international work that clients may be involved in, can beget complex legal and sensitive personal matters during our lives that are not always resolved before death. These may relate to property, to business interests or to personal relationships. One such example of the latter might be where the existence of a purported child or a second family of a deceased (whether in the UK or overseas) comes to light after the date of death. Clearly, this is something very capable of creating emotional upheaval and considerable difficulty for family members both acting as executors and contending with such a revelation. Part of the difficulty for the practitioner can lie in how best to ascertain the veracity of the claim whilst ensuring that executors are kept right.

The decision of whether parentage is held to be established and, accordingly, whether a legal rights claim is to be accepted by the estate, is properly one for the executors. In circumstances analogous or similar to those outlined above, it would be understandable to encounter reticence, even resistance, on the part of family members as executors where a claim is intimated. In such circumstances it is, of course, appropriate that the executors seek appropriate evidence of parentage, and this can be a particularly uncomfortable piece of diligence for family members.

When advising executors in such circumstances, a practitioner might wish to consider two key issues: (i) that legal rights will be subject to the long negative prescription period of 20 years; and (ii) that lurking in the background is the capacity for the claimant to seek declarator of parentage through the courts. By focusing on these, it might be possible to deal practically and pragmatically with such a claim.

Having regard to the first of these considerations, a potential issue for the estate will be that under the Inheritance Tax Act 1984 a potential claim to legal rights will be deemed to have been made where it has not been discharged within two years of the date of death. It may, however, be of more immediate concern to the family that it may take years rather than months to resolve the administration of the estate.

The second consideration, it is suggested, might provide guidance to the practitioner and the executor regarding how evidence should be appraised and, possibly, a useful means of fostering objective reasoning towards that purpose. The standard of proof in an action for declarator of parentage under the 1986 Act is on the balance of probabilities. The onus is on the applicant or pursuer. Evidence introduced by claimants (be it in the form of birth certificates, affidavit evidence or otherwise) ought to be considered against this backdrop.

Of course, the executor is not bound by the 1986 Act in terms of administration of the estate. However, if considerable doubt exists about parentage it may be useful to consider any evidence in terms of what may be the claimant’s ultimate recourse. This ought to focus the minds of practitioners and executors alike as to how the evidence might be viewed by an impartial judge. It should be noted that the estate may be liable for some of the cost of defending such an action, particularly where the defence is unsuccessful.

Nevertheless, executors are also bound to carry out their office in accordance with certain prescribed duties. Very clearly, this obligation extends to establishing the veracity of claims made against the estate and paying debts of the estate (which, on one view, is the character of legal rights). The result is that executors must consider the question of the validity of a legal rights claim in terms of the evidence before them in an objective manner and having regard to those obligations incumbent upon them.

DNA testing: siblingship analysis

Of course, advancements in DNA profiling have generally precipitated the principal form of evidence in parentage matters being the paternity test. In circumstances where parentage is at issue in a deceased’s estate, matters can be a little more complicated. Unless appropriate samples have been taken prior to death, it may not be possible to profile the deceased. Where paternity testing is not possible, and where familial structures allow, it can be possible to perform a siblingship test, although this too throws up certain difficulties.

Under the 1986 Act, the court can ask that DNA testing be introduced to help resolve issues of parentage. No individual can be compelled to give DNA samples for this purpose; however, an adverse inference can be drawn by a refusal to do so: s 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. It is, of course, possible (even preferable) for DNA profiling to be undertaken by agreement and not as part of litigation.

In order for siblingship to be tested, a known child of the deceased will need to be tested along with the applicant. It is preferable for the other parent of both “children” also to be tested, to isolate certain genetic markers relative to those individuals and to provide a more accurate test result. Unfortunately, whereas a paternity test will generally render a very clear positive/negative result, siblingship is a great deal less exact, and the “probability of relatedness” results tend to be on more of a sliding scale. Results criteria may vary between laboratories, but what appears to be the case is that a small percentage at either end of the scale (e.g. 0-10% and 90-100%) will provide “negative” or “positive” results. That leaves a considerable spectrum where the result will be “inconclusive”, irrespective of how high (or otherwise) the probability of relatedness may be.

One possible means of circumventing this anomaly is for the practitioner to discuss the probability of such a result with the executor before the instruction and receipt of results. In circumstances where emotions are likely to be fraught in any case, it might be considered prudent to avoid any further letdown where possible and to pre-agree parameters for taking matters forward. To take a view early on of how the executor is likely to interpret the results (against the backdrop of how a court might consider the same, and cumulatively with any other evidence procured), might facilitate using the results to resolve matters even where doubt still exists. This clearly, is a matter of judgment for the professional adviser and will depend on all the circumstances of the case.

Where sufficient doubt remains and the executor remains unsatisfied that parentage is established, it may be that seeking counsel’s opinion on such an issue might provide an avenue capable of anticipating how the court might decide. This might equally represent a viable alternative where there is no prospective half-sibling against whom to profile. Such a route is likely to be costly, but can represent a means of avoiding litigation whilst providing the executor with some comfort and security of position.

Summary

The reader might consider that cumulatively this constitutes a potentially expensive outlay for the estate (and for the legal rights applicant), and it almost certainly is that. Challenging an application for legal rights can be costly – as can accepting an application without due diligence or inquiry – and whether to do so is a decision for the executor and the practitioner to consider in all of the circumstances of the case. Managing the executor’s understanding of their duties to the estate will become of paramount importance in such a scenario, as will having some understanding of the emotional and subjective impact of unexpected news on the bereaved.