Grandchildren hold an interesting place in the Scottish law of succession. There can be various situations in which they are not mentioned in a will, but can still claim an inheritance from the grandparent’s estate.

The main word for our purposes is Representation. 

Put shortly this means that if a grandparent dies leaving son(s) and/or daughter(s), then if no will is made those children will inherit the estate or part of it equally amongst themselves. 

If any of those children (i.e. grown-up children) dies before their parent, then the grandchild or grandchildren of that deceased child can step in and claim their parent’s share. 

You may have to read that slowly again, as the use of the words ‘grandparents’, ‘parents’, ‘children’ and ‘grandchildren’ can be confusing depending on where you start in the family tree. But fundamentally, if one generation dies before the previous generation, the next generation down is there to claim what would have gone to the prematurely deceased.

Nothing in law is ever completely straightforward, so there are exceptions to the Representation rule.

If the grandparent makes a will, then he/she has options as to how to deal with the death of his/her own child. The will can provide that the immediate children will inherit a share or a fixed amount.  It can then be specified that if a child predeceases – i.e. dies before the (grand)parent making the will – then that share will go to the predeceasing child’s own children. We use a Latin phrase – ‘Per Stirpes’, which means ‘By Branch’, so that if the will maker’s child dies leaving three grandchildren, those grandchildren each receive a third of what the child, their parent, would have had from the estate. 

However, the person making the will can instead elect to cut off the grandchildren from that bequest, by stating that if their child (the grandchild’s parent) predeceases, that bequest is not to go down the generational line, but be shared out among the remaining surviving children, i.e. the brothers and sisters of the predeceasing beneficiary.

The grandchild has no way of contesting that provision. However, the principle of Representation can come in again, by the back door. In Scotland, all children have a claim to Legal Rights, a guaranteed share of the money in the estate. If a will does not include provision for a child – or thus the grandchild of a predeceasing child – then the grandchild can claim legal rights in place of his or her disinherited parent. Legal Rights cannot be quashed by the terms of a will.

The moral of the story is to get detailed legal advice when making a will, as there can be unforeseen consequences in a family of several generations.