Consultation on the Law of Succession 2019

As a general aside, we note the non-consideration of the distinction between heritable property and moveable property in the law of succession, with particular reference to entitlement to legal rights. We are of the view that this distinction should be removed in the context of legal rights. Any further analysis of this area would, however, need to take particular account of pensions in succession law (as they can often be the most valuable asset). We are of the view that a wider examination of the division between heritable and moveable property in Scots law (including succession law) would be merited. We acknowledge that this does have wider implications than simply in relation to succession; for example, land reform and agricultural land use, as considered in a recent article in the Juridical Review – Malcolm I Rudd, ‘Reform of Legal Rights in Succession: Retaining Viable Agricultural Units’ 2018 Jur. Rev. 172 – and digested in this blog post – Malcolm Combe and Malcolm Rudd, ‘Landlocked: the continuing separate treatment of moveable and immoveable property by the law of succession in Scotland’ (17 December 2018) at https://www.abdn.ac.uk/law/blog/landlocked-the-continuing-separate-treatment-of-moveable-and-immoveable-property-by-the-law-of-succession-in-scotland/.

In response to question 1 specifically, we would answer "yes" but, despite problems with the existing model, that model could be moderately reformed or adapted rather than completely overhauled or replaced.

The alternative models outlined in chapter two of the consultation document seem more complicated, cumbersome and potentially expensive to utilise. Step-children can, of course, be provided for within a will, if necessary. In the intestate succession context, a discretionary element (see e.g. California Code) regarding step-children could be introduced with reference to indicative factors that are restrictive. However, there are obvious complications and difficulties that may arise from this. See also our comments below at question 8.

The aim identified in the question is just one potential aim of the reforms. The reforms should conform to what people would generally consider acceptable; however, each individual and family would have a different, subjective view of what they would expect from intestate succession law. Such subjective views can instead be given effect to using a will. The problems identifying what a particular individual or family would want (without a will) mean that the law should not be expected to deal with this by default.

See answer to question 1 above.

See answers to questions 1 and 2 above.

See answers to questions 1 and 2 above.

See answers to questions 1 and 2 above.

But see our comments above at question 1 (e.g. on the discretion point) and below. A step-child could also be made a legatee under a will or adopted (where that is appropriate in the circumstances).

It seems appropriate that step-children, as part of the step-parent’s extended family, should be able to inherit in preference to the Crown receiving the estate. There are different possibilities to achieve this. One of these would be to allow for a discretionary mechanism regarding legal rights and free estate rights (under the Succession (Scotland) Act 1964, s 2) for step-children (including to determine where exactly they would rank against other competing rights in s 2). An alternative would be to find an appropriate automatic position for step-children within the ranking ladder of s 2 – but there are problems identifying where these individuals would rank by default due to a wide range of potential circumstances (e.g. adult step-children living independently compared to step-children living within the deceased step-parent’s household). Therefore, the discretionary approach is likely to be preferable as it can take account of this.

Cohabitation covers a wide range of circumstances and this does not fit well with automatic entitlements. Consequently, applying to the courts seems appropriate, so that the amount of appropriate financial provision (if any) can be determined. (As an aside, it can be noted that there is a fixed rule prior right for cohabitants as regards crofts – Succession (Scotland) Act 1964, s 8(2A).)

There are certain ways in which the position of cohabitants in intestate succession ought to be improved. The six month time limit for cohabitants making an application under the Family Law (Scotland) Act 2006, s 29, should be extended. A period of 12 months would generally be appropriate, with the possibility of a late lodging of an application upon cause being shown. We refer approvingly to the recommendations in the Law Society of Scotland’s report on Rights of Cohabitants: Family Law (Scotland) Act 2006, ss 28 and 29 (March 2019) in this area.

See the comments above in response to question 9.

See the comments above in response to question 9.

Yes, in some circumstances – a discretionary element can take account of this.

We would also note the fact that separation agreements between spouses often make provision for succession – this will frequently be the case where a deceased was still married or in a civil partnership but was cohabiting with someone else. A new will could be drafted to deal with the circumstances too.

The answer to this depends on the situation. Respect should ordinarily be given to the priority status of the spouse.

The parties can agree the relevant shares if they so wish (under the present law). It should continue to be the case that the law gives effect to what the parties agree regarding their entitlements.

Discretion could be given to the courts as regards the prior right of financial provision where there is a surviving spouse and a cohabitant. The cohabitant could receive the financial provision right up to the total amount of the share that would otherwise go to the spouse. There should be protection of the spouse’s prior rights to the dwellinghouse and plenishings in the dwellinghouse. In some cases, of course, where the spouses are living apart prior to the deceased’s death, there will be no spousal entitlement to these rights.

It is an interim measure.

One other point we would like to note here is the apparent discrepancy between the consultation document, which refers to the temporary alimentary claim being “treated as an ordinary debt on the estate” (para 4.1.1), and the Scottish Law Commission’s Report on Succession (Scot Law Com No 124) (1990), in which it is stated that “the prevailing view is that temporary aliment is not a true debt of the estate and that it cannot be paid if the estate is clearly insolvent” (para 9.6).

However, it would be wise for it to match the time period for cohabitants making a claim. Therefore, if the cohabitants’ claim time period is increased, e.g. to 12 months, then the time limit for temporary aliment should be 12 months too.

See answer to question 17 above.

We consider that the doctrine is highly complicated and there is a strong case for its abolition.

There is already provision for this in the law – see Smith Petr 1979 S.L.T. (Sh. Ct.) 35.

There is, however, some value in statutory clarification to put the issue beyond doubt. But such statutory intervention should be without prejudice to the common law, as this will support flexible solutions in the area.

As a default position, they should be excluded from being an executor. However, introducing possible court discretion analogous to the position for the “unworthy heir” (haeres indignus) would be appropriate (see Forfeiture Act 1982, s 2).

The position here should match up directly with the position of a potential beneficiary/legatee who has been convicted.

No, this would be too extreme. If, however, the relevant crime is directed towards the victim (e.g. sexual offences or domestic violence), then it should be possible for the executor to be removed from that position by exercise of the discretion of the court.

In this context, human rights issues, regarding matters like rehabilitation of offenders, will need to be considered.

Yes, they should be disqualified in the meantime.

This seems appropriate.

We have no knowledge of particular difficulties here.

Not as far as we are aware – but see points below.

We see no good reason to disclose certain information in the documentation, such as bank account numbers. Redaction is sensible to avoid the disclosure of this information.

See answer to question 28 above.

See above answer to question 28. Redaction should be carried out as appropriate.

Practical steps could be taken by the executor. Indeed, it is the executor’s duty to secure the estate.

It is very important that the relevant information is preserved. However, one possible appropriate step would be to introduce a lengthy time period before the information is easily and freely available online (e.g. 30 years). In the meantime, perhaps only the name of the beneficiary could be revealed, with further information only to be made available upon application to the court and showing just cause.

Attention should be given to the potential overlap with the register of persons holding a controlled interest in land.

There should be a mechanism to do this – there needs to be consideration of data protection, GDPR, privacy issues, as well as protection of people from abusers, fraudsters etc.

Redaction should not, however, result in destruction. We stress the importance of preservation from an archival, history-focused perspective.

In some circumstances it will help but not always.

This is a wider issue regarding contracts that are (allegedly) in perpetuity. An executor has to be allowed to disclaim such contracts. Nevertheless, there are difficulties from a private international law perspective regarding contracts governed by foreign law (e.g. timeshares in Spain).

Such contracts in this area (including time shares) often feature company law elements. A company may have issued shares that were purchased by the deceased, and the shareholder can have ongoing monetary (or other) obligations deriving from holding the shares. These obligations may mean there is unlikely to be much of a market for the shares and if the company has no obligation or wish to buy the shares back then this can give rise to (allegedly) perpetual obligations affecting the deceased’s estate.

There are a number of issues, including the potential exhaustion of estate due to having to pay these debts or, at least, delay in paying the estate out to beneficiaries.

There is the potential for significant (and even unlimited) personal liability. In addition, there is the complexity of negotiating solutions, and private international law issues.

Introduce statutory provision which puts a cap on liability for contracts that are allegedly in perpetuity (e.g. timeshares). There could be a specific time period for the duration of such contracts after a party’s death, which would allow for the liability cap to be determined.

See answer to question 37 above.