The law of succession - what next?

John Kerrigan, member of our Trusts and Succession Law Sub-Committee, summarises the Scottish Government's response to the consultation on the law of succession.

The Scottish Government recently published the outcome of its consultation on the law of succession. The publication details the government’s decisions in relation to the Scottish Law Commission’s recommendations on changes to substantive succession law, and indicates the government’s attitude on other changes that will not be made, or will be subject to further consideration or consultation. So, what has the government taken into consideration?

Intestacy

In its 2019 report on succession, the Scottish Law Commission (SLC) made various suggestions and recommendations in relation to the reform of our law of intestate succession. These included a proposal that, firstly, the spouse should receive the whole estate if there are no descendants, and if there was no spouse but there are descendants, then the latter should inherit the whole estate. The Scottish Government has noted its intention to adopt these proposals. However, the remaining SLC proposals have been found to be fairly controversial and the government intends to consult further to determine if it is possible to identify intestacy reform which would deliver outcomes more in line with the expectations of modern day Scots and their families.

Legal rights

The government’s suggestion that legal rights might be replaced by a concept known as legal share proved to be highly controversial. The government has indicated that it does not intend to reform the law on legal rights.

As a result of the decision on legal rights, the government has also decided that it will not remove the distinction between heritable and moveable estate with succession rights coming from the whole estate. This means that legal rights will be calculated as currently– from the deceased’s net moveable estate at date of death only.

Cohabitation

In relation to section 29 of the Family Law (Scotland) Act 2006, the government has decided that the time limit for making a claim on the part of a surviving co-habitant will be extended from six to 12 months from date of death. The view of the government is that this extension of the time limit will allow a grieving bereaved co-habitant more time to make a claim. However, there are some who would disagree with this view and the government has decided to 'consult on a fresh approach to co-habitants rights'.

One of the more controversial suggestions made by the SLC in its 2009 report was that the provisions of section 29 of the 2006 Act should be extended to testate cases also. The government has stated that they will make no changes in this area.

Other matters

• The government has indicated that they will legislate to provide that the capacity to make or revoke a will should be determined by the law of the testator’s domicile at the time of making or revoking a will.
• Despite the apparent longstanding opposition of the SLC to its retention, the government has indicated that they will not legislate to abolish the conditio si testator sine liberis decesserit (whereby a will may in certain circumstances be held to be revoked by the subsequent birth of a child to the testator) on the basis that the rule may still serve a useful purpose in certain circumstances.
• The government has also indicated that they will legislate to abolish the right to aliment during jure representationis (where a person entitled to aliment from the deceased person becomes entitled to aliment from a person inheriting the deceased’s estate). However, the right to temporary aliment will be retained but the government will consult further on this issue.
• The government has considered whether the concept of equitable compensation should be abolished. The government also indicated that there will be further consultation about the ongoing retention of the concept of equitable compensation.
• The government has indicated that it does not plan to make changes to provisions regarding executors who are appointed in a will but has indicated it will consult further on a variety of other matters including the position of executors to their murder victim’s estate.

We have welcomed the government’s response to the consultation on the law of succession and comments on cohabitants’ rights. We would expect further consultation before any significant overhaul of the law of succession takes place.

John Kerrigan is a Consultant at Morisons LLP and one of Scotland’s foremost authorities on will drafting. Further information on the work of the Trusts and Succession Law Sub-Committee can be found here.