Intestacy law proposals could work against children, Society argues
Proposed succession reforms could work against children's interests so far as relating to estates where there is no will, according to the Law Society of Scotland.
In its response, released today, to the Scottish Government consultation on radical proposals to change the rules on inheritance rights, the Society supports the approach taken but suggests that the threshold for the surviving spouse’s share in cases of intestacy is too high.
The proposals include replacing the current entitlement of the surviving spouse and children, even where there is a will, to a share of the moveable estate (excluding land and buildings), with a fixed share of the whole estate, set at 25% of what would be received under the proposed new rules of intestacy.
The Society believes that the sum payable to a surviving spouse on intestacy, ahead of the remainder of the estate being shared out, should be lower than the £335,000 which would be the value in today's terms of a recommendation by the Scottish Law Commission, otherwise in practice the surviving spouse will often take the whole value of the estate. It does not agree that there should be a qualifying period of marriage before the spouse could claim such a right, since marriage may take place following cohabitation and when one partner has been diagnosed with a terminal illness.
Irt also supports the continuation of the right of dependent children to aliment from the estate.
Gordon Wyllie, convener of the Society’s Trusts & Succession Committee, said: “Succession law affects everyone regardless of what they own and whether or not they have made a will prior to their death. It is therefore essential to ensure that any changes will work in the best interests of people in Scotland.
“The Scottish Government’s intention is to balance the rights of spouses and children but we think that in practice, the proposed new rules could result in little or nothing being left for children once the spouse has taken his or her share. We believe that lowering the proposed threshold levels would achieve a fairer outcome.”
Mr Wyllie said the Society agreed with the proposed removal of the distinction between heritable and moveable property, and also supported the introduction of a fixed share for a spouse or children excluded from a will. "Greater clarity and protection against disinheritance in this area of law are welcome outcomes, which we think can be achieved provided further consideration is given to the proposed threshold levels", he commented.
He added: “We would also recommend that given the fundamental nature of these proposed changes, if and when they are implemented it will be vital to launch a high-profile public information campaign to make sure that people are fully aware of the changes and are encouraged to plan for how their property is distributed after their death.”