And the local sheriff – who is handling what is believed to be the first case to be tripped up by the new law – has alerted lawyers about problems they are likely to face.

Sheriff Kevin Drummond says the public too must be made aware of hidden pitfalls in the Family Law (Scotland) Act 2006.

Part of the act deals with how estates of people living together are dealt after one dies without having made a will.

Until the legislation was brought in a surviving partner had no legal claim on the estate.

That has now changed. But what was being seen as a step forward is creating an expensive headache for one family in the Borders.
And there are fears that this difficulty will be repeated across Scotland.

The live-in partner of SL, who cannot be identified for legal reasons, was killed in an accident last year. He had not made a will. SL, the mother of his children, then made a claim under the new act, but that same legislation also states that if a death is intestate – that is, without a will – the estate passes to the children.

And that has led to a protracted and expensive civil court battle in which the mother has been forced to employ a lawyer both for herself and the two children because one lawyer could be seen as having a conflict of interest.

It is understood that the estate of SL's partner could be worth up to £200,000 – though it is still being evaluated by lawyers.

And lawyers have admitted that the cost of a lengthy court action – which the family did not want or expect – will eat into the inheritance.

Galashiels solicitor Iain Burke, who is acting for the surviving partner, told TheSouthern: "There are sections of this act which are some of the poorest legislation I have seen for a long time.

"It has been drafted without proper thought to the consequences and has the potential for messy and lengthy court procedures which will minimise the value of an estate."

Sheriff Drummond believes that with this case he is dealing with the first consequences of Section 29 of the Family Law Act – and he is understood to have alerted all of Scotland's sheriffs to the problem.
And he told his court in Selkirk on Tuesday that the public too should be aware of the problem.

Sheriff Drummond declared: "Where one member of the couple dies, the survivor is entitled to apply to the court for an order that a payment be made out of the estate of the deceased to the surviving cohabitant.

"The statute provides that the amount of that payment will not exceed the amount which could have been paid if the parties had in fact been married or had actually entered into a civil partnership.Perhaps by reason of that provision, an impression may have been formed that the survivor has some form of entitlement to a share in the estate. It should be clearly understood that if there is no spouse in existence and there are children of the cohabiting relationship, those children will be entitled – as a matter of law – to succeed to the estate of their deceased parent.

"The only right which is conferred upon the surviving cohabitee is to make a claim against the estate, the grant of which is in the discretion of the court."

Sheriff Drummond stressed: "One consequence of making such a claim may be to give rise to a serious conflict of interest where the claiming survivor is also the guardian of the minor children who have become entitled to the estate.

"That is a situation which may well, as has arisen in this case, require the instruction of an additional firm of solicitors by the family in the winding up of the estate. And that could lead to a lengthy legal process."

The sheriff said he was making his comments to alert the public and the legal professions of difficulties which lay ahead.

The court has yet to reach a decision and talks continue between the lawyers.

Mr Burke suggested the Scottish Executive has pushed through the Family Act without proper consultation with the profession which would have to deal with it.