Succession rights go out to public views in latest consultation

The Scottish Government's promised public consultation on fundamental issues in the law of succession was launched today.

Historic legal rights, particularly of children, and further protections for cohabitants are among the issues covered in the Consultation on the Law of Succession, which is based on recommendations made by the Scottish Law Commission in its Report on Succession published in 2009. 

Underpinning the proposed changes is that rights in succession should no longer depend on the type of property in the estate but will be able to be claimed from the whole estate. Whereas at present the "legal rights" of the surviving spouse and children – those that cannot be overridden by a will – relate only to moveable property and not the house or other land, this distinction would be abolished. However it is proposed that a surviving spouse or civil partner will be able to retain the family home.

Where the deceased has not made a will, the Commission’s key proposal are that:

• A spouse/civil partner should inherit the whole estate if there are no issue, meaning children (including adopted children but not stepchildren) or further descendants.
• If there is no spouse/civil partner, any issue should inherit the whole estate.
• Where there is a spouse/civil partner and issue, the spouse/civil partner should receive up to a threshold sum (£300,000 was suggested, worth £335,000 at today's values) out of the whole estate, with the remainder being divided in two, half to the spouse/civil partner and half shared by the children. An interest in a house which passes to the spouse or civil partner by a survivorship destination would count towards the threshold sum.
• Separation would not by itself affect a surviving spouse or civil partner's rights; and a subsequent spouse or civil partner who was not the parent of the children would have the same rights to inherit.

Regarding legal rights where there is a will, the recommendation is that a spouse or civil partner should be able to claim a fixed share from the whole estate, equal to 25% of what he or she would have been entitled to if the deceased had died intestate (under the proposed new scheme above). Children owed an obligation of aliment would have a further claim for a capital sum, but not in relation to any property passing to an individual with an obligation to aliment them. An alternative would be to allow the latter type of claim only.

Further questions ask whether special provision should be made for certain business or agricultural property.

For cohabitants, it is proposed that whether or not there is a will, a cohabitant should have a right to apply to the court for a financial payment from the estate. If the court determines that the person making the claim was a cohabitant, it would then fix the "appropriate percentage" that the cohabitant is entitled to receive of what they would have received had they been a surviving spouse or civil partner. Relevant factors would be:

• how long the couple have cohabitated;
• the nature of their interdependence during that time; and
• what contribution the surviving cohabitant made to their life together.

The court would not be able to take account of, for example, the size of the estate or of the other beneficiaries.

Other subjects covered in the paper include private international law issues, the effect of the birth of a subsequent child or children, the common law right to claim temporary aliment, appointment of executors dative, the requirement for executors to obtain a bond of caution, and whether a subsequent marriage or civil partnership should have the effect of revoking an earlier will.

Launching the paper, Minister for Community Safety and Legal Affairs, Paul Wheelhouse, explained: “The Scottish Law Commission has highlighted that succession law in Scotland is now over half a century old, and because of the way society has changed and evolved over that time, it no longer provides adequate protections for a range of individuals and families in 21st century Scotland. The Commission’s recommendations seek to update the law on succession in a number of areas.

“Succession law affects us all – and we all have different views coloured by our own circumstances and life experiences. I would encourage as many people as possible to give their views during the consultation period and help us evaluate the potential impact of the Commission’s proposals and, indeed, to shape how these proposals are taken forward.

"We are particularly keen to engage with those stakeholders involved in agriculture to understand the potential impact of the Commission’s proposals upon their businesses, to ensure any concerns are taken into consideration, and I will look to discuss these matters with relevant stakeholders before determining our approach.”

The 12-week consultation closes on 18 September 2015.