Andrew Paterson: Government in move to clarify areas in law on succession

Andrew Paterson is a Partner with Murray Beith Murray

By way of background, for over half a century, the Succession (Scotland) Act 1964 has determined a number of critical legal issues on the death of a Scot. The Succession (Scotland) Act 2016 implemented a number of more technical legal changes and addressed a number of anomalies. However, that Act did not address more substantive issues such as:-

• How an estate should be divided when the deceased did not leave a will;

• What protection from disinheritance is provided to spouses/civil partners and children; and

• The entitlement of someone cohabiting with but not married to the deceased.

The Scottish Government undertook a consultation exercise in respect of these issues in 2015 but only published their formal response to that consultation last month.

When someone dies without a will the government intends to change the law regarding the distribution of the estate in more straightforward situations. In particular, the change will mean that if the deceased is survived by a spouse or civil partner but no children then the spouse or civil partner will inherit the entire estate (this is not always the case with the current law). Conversely, if there is no will and the deceased is survived by children (or grandchildren etc.) but no spouse or civil partner then the children will inherit the entire estate. These changes will be introduced in future succession legislation.

In the situation where there is no will and a spouse/civil partner and children all survive the government cannot find consensus on the appropriate division of the estate and intends to undertake a further consultation exercise. The current law will therefore still apply in those circumstances.

Turning now to protection from disinheritance the government has announced that they do not intend to make any changes to the current law. In particular (and of relief to many) the government no longer intends to extend the scope of “legal rights”, which currently grant children and spouses/civil partners some protection from disinheritance.

There is a long-standing distinction in Scots succession law between heritable property (land, houses, etc.) and all other types of property (known as moveable property). Legal rights currently only extend to moveable property. In other words, someone can leave his house to the Cat and Dog Home without any subsequent claim by his spouse or children.

A few years ago, the Scottish Government had proposed that this distinction between heritable and moveable property should be removed from Scots succession law as part of the Scottish Government’s plans for land reform. That would have meant that in the example above the deceased’s spouse and children would be entitled to claim a share in the house reducing the entitlement of the Cat and Dog Home. The government has stated that it no longer intends to pursue this change.

Finally, the government confirmed that it does not intend to change the law that a cohabitant has no protection from disinheritance if the deceased left a will. Where there is no will, a cohabitant is currently entitled to claim a share in the estate through the courts and the government intends to consult on possible changes to the rules regarding such claims.

Last month’s announcement from the government has removed some of the uncertainty that has existed for the past few years. However, Scots succession law still needs to be modernised and progress remains slow and intermittent.

Andrew Paterson is a partner with Murray Beith Murray