Cohabitants, wills and the six-month clock — untangling Section 29

Dylan Mitchell and Donde Thiam, senior solicitors at Blackadders LLP, explore challenges to wills and how they interact with a cohabitant’s claim for financial provision on intestacy.

Many of us will be all too familiar with the strict six-month time limit that presently applies to applications to the court by a survivor for provision on intestacy. The importance of such claims is growing, along with the rising number of cohabiting households in Scotland. According to the 2022 Scotland Census, the number of cohabiting households is up 25.2% since 2011 and 80.8% since 2001[1]. Alongside that, there seems to be a growing feeling among practitioners that challenges to wills and the administration of estates generally are also on the rise.  Some have cited two main reasons: an increase in wealth in society generally (ie there is ‘more to play for’ in challenging an estate and people have the means to do so); and the ‘death of deference’, with people more willing to challenge solicitors dealing with estates.[2] So how can we deal with a scenario where a cohabitant seeks to challenge the validity of a will, which if successful would then render an estate intestate?

Section 29 of the Family Law (Scotland) Act 2006 allows a surviving cohabitant to apply for financial provision from the deceased’s net intestate estate. The section applies only where the deceased died intestate, whether wholly or partially. Of course, a prima facie testate estate would preclude such a claim. A ‘cohabitant’ is defined in section 25 of the Act, as either (a) a man and a woman who are (or were) living together as if they were husband and wife, or (b) two persons of the same sex who are (or were) living together as if they were civil partners. Although the time limit is due to be increased to 12 months under the Trusts and Succession (Scotland) Act 2024, presently an application must be warranted and importantly, served within six months of the date of death.

The court’s discretion in section 29 cases is broad. If satisfied that the applicant was the surviving cohabitant, the court may order a capital sum to be paid or property transferred from the deceased’s net intestate estate. The court must have regard to several statutory factors, including the size and nature of the net intestate estate, any benefit the survivor has received or will receive from elsewhere as a result of the death, any competing claims and any other matter the court considers appropriate. However, the legislation imposes a cap on any award that cannot exceed the amount to which a surviving spouse or civil partner would have been entitled under the laws of intestacy.

The practical effect of section 29 is to give a potential financial remedy to cohabitants who are otherwise excluded from the statutory scheme of intestate succession. The provision recognises the reality of long-term, marriage-like relationships that do not carry legal recognition through marriage or civil partnership. However, the interaction of section 29 with other areas of succession law, particularly where the validity of a will is in dispute, can produce difficult consequences in practice.

The key limitation in section 29 cases is that the deceased must have died intestate. Where a prima facie valid will exists, the provision is not engaged. However, in some estates, there is doubt about the validity of a testamentary writing. In such cases, it is not clear until that litigation concludes whether the deceased died testate or intestate.

Reduction remedy

The usual remedy for a person with an interest seeking to challenge the validity of a will is one of reduction. An action for reduction of a will is typically brought on one or more of the following grounds: (1) that the testator did not have, at the material time, capacity to execute the will; (2) that the testator’s wishes were circumvented by another as a result of their facility (weakness of mind) resulting in an adverse effect to their estate; and (3) that the testator was unduly influenced by another to their prejudice.

An action seeking to reduce a will is a complex and time-consuming one. Actions of this type typically require voluminous medical records and expert medical witnesses to provide opinion retrospectively as to the capacity or otherwise of the testator. There can be wide disparity among witnesses as to the factual circumstances surrounding the execution of the will sought to be reduced. Where the will has been professionally prepared by a solicitor, the actings of a professional colleague in preparation of that will must be tested. And, while following the introduction of the Courts Reform (Scotland) Act 2014 it is now possible to bring a reduction action in the sheriff courts, if confirmation has been granted in terms of the will being challenged, the action must still be brought in the Court of Session to reduce not only the will, but also the grant of confirmation. Taking this in the round, it is not uncommon for such actions to take years to see a conclusion.

This creates a procedural dilemma for the surviving cohabitant. If they wait for the court to reduce the will, they will inevitably find that the six-month period for making an application under section 29 has expired. On the other hand, if they raise an application under section 29 immediately, they may face a plea to the relevancy or competency on the basis that the deceased has not, at that stage, died intestate.

There is no statutory mechanism to extend the time limit or to pause it while a reduction action is ongoing. The six-month period is strictly applied and the risk of being time-barred remains significant.

Raising section 29 with uncertainty

The most practical way to address this difficult scenario is to raise the section 29 application within the six-month time limit, with averments explaining the uncertainty around the deceased’s testamentary status. The writ should set out that there is a live dispute as to the validity of the will, and on that basis the estate may ultimately fall into intestacy. A motion would then require to be made for the action to be sisted to await the outcome of the reduction proceedings. If the will is ultimately reduced, the estate becomes intestate. Thereafter, a petition for the appointment of executor(s)-dative will be necessary and likely the instance of the section 29 claim will need to be amended to reflect the change in executors before the cohabitant can proceed with their application. Alternatively, if the will is upheld, the section 29 claim can be dismissed.

The action may be at risk of a claim that the wrong defenders have been called, resulting in an incurable competency point being taken. Care should be taken to reduce the risk of this as far as is possible. As was highlighted in the case of X v A (No.2) 2016 S.L.T. (Sh Ct) 411, an executor can only be sued if there is an executor to be sued. The court held that where there is no executor, the debt requires to be constituted against the estate and those with an interest to oppose it must be given an opportunity to do. If an amendment to reflect the change in executors following a successful reduction was not allowed, then the pursuer would be denied access to a key statutory remedy simply as a result of the unusual circumstances. In short, this approach is not without risk, but it preserves the applicant’s position and gives the court a procedural route to manage both actions effectively.

Unjustified enrichment

What happens if no section 29 claim has been raised within the strict six-month time limit? Where does this leave a cohabitant who has successfully challenged the validity of a will rendering the estate intestate, or one who is contemplating such a course? In such circumstances, it may be possible that an action based on unjustified enrichment provides a remedy, but such claims can be problematic and uncertain.

Unjustified enrichment is an equitable remedy at common law. It has been described as a remedy of last resort, to be employed only where no other legal remedy is or has been available which seems to have restricted its scope in recent years. Such an action allows a claim for recompense where it can be shown that one party has gained a financial advantage, at the expense of another, to which they have no legal entitlement. Unjustified enrichment claims have been raised in the courts where the 12-month time limit for a claim for provision following the breakdown of a cohabiting relationship (under section 28 of the 2006 Act) has expired. However, the courts have not looked favourably on such claims in recent years. 

The door for unjustified enrichment claims was considered in Pert v McCaffrey 2020 SC 259. In Pert, the Inner House of the Court of Session stated at paragraph [24] of its judgment that “[t]he failure to exercise the right to make an application under section 28 timeously does not bar the use of such remedies”. This was because the statutory remedy was viewed as ‘additional’, not ‘alternative’, to other remedies that might be open to a claimant at common law. It was accepted in Pert, under reference to Lord Fraser in Varney (Scotland) Ltd v Lanark Town Council 1974 SC 245, that it is not an essential requirement to bring an unjustified enrichment claim that “the pursuer should not have, and should never have had, any possibility of raising an action under the ordinary law, but … it would at least require special and strong circumstances to justify an action of recompense where there was, or had been, an alternative remedy open to the pursuer”. More recently in McGunnigal v Pollock [2025] SC FAL 15, the Sheriff emphasised that Pert should not be taken as displacing the long-standing principle that unjustified enrichment is a remedy of last resort. On the facts of McGunnigal, the pursuer’s enrichment claim was found to be essentially the same as the time-barred section 28 claim and so was not permitted.

Faced with the scenario we are considering here, and given the complexities involved, it might be possible to persuade the court that special and strong circumstances apply, even where there was an alternate or additional remedy available due to the particular circumstances. However, due to uncertainty and unpredictability that comes with litigation, it is suggested that this possible remedy should only be explored as a last resort.

Lastly, it should also be borne in mind that a successful claim under section 29 and a claim in unjustified enrichment will not produce the same result. One is not an alternative to the other, particularly in relation to quantification. In the former, the court has a discretionary power as to the value of any capital sum awarded, whether the claimant contributed towards it or not. In the latter, only what the claimant has actually contributed can be recovered if such contribution is held to be unjustified.

Act within the time limit

Cohabitants already face a narrow and discretionary route to financial provision on death. Where the deceased has left a will, but its validity is in question, that route becomes even narrower. The six-month time bar in section 29 does not accommodate the delay that often arises in succession disputes, particularly where a reduction action is raised. Without careful management, this could leave a surviving cohabitant unable to pursue a claim that would otherwise have been open to them.

Solicitors acting for surviving cohabitants in such cases should ideally consider raising protective proceedings under section 29 within the time limit, supported by appropriate averments. A sist can then be sought to await the outcome of any will challenge. While far from a perfect solution, this offers the best available means of preserving the claim and ensuring that the surviving cohabitant is not procedurally disadvantaged by the timing of related litigation. If the strict time limit has expired before proceedings can be raised, it may be possible to raise an action based on unjustified enrichment arguing that special and strong circumstances apply, but this should be treated as a remedy of last resort.