Rules on deaths without a will are outdated

Calculation for dividing assets differs between English and Scottish law. Picture: TSPL
Calculation for dividing assets differs between English and Scottish law. Picture: TSPL
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Younger widows and widowers are likely to be the biggest beneficiaries of changes planned to the law of succession – but only those who are resident in England and Wales.

Under the present law, when a husband or wife without children dies intestate (ie without a will), the assets of the deceased are shared between the widow or widower and the deceased’s parents and/or siblings.

The new rules in a bill going through Westminster (and applying only south of the Border) will provide that, in the above circumstances, the deceased’s assets will automatically pass to the surviving spouse, effectively cutting out parents and siblings.

The most likely beneficiaries will be a younger wife or husband whose spouse has been killed in an accident or dies after a short illness, because the deceased person is less likely than someone older to have got round to making a will, and his/her parents and any siblings are also more likely to still be alive.

A similar situation applies in Scotland, although the calculation for dividing the assets among the various parties is different. However, don’t expect Westminster-inspired changes at Holyrood any time soon.

A draft bill (on changes to succession law) was presented to the Scottish Government almost five years ago, but in response to a January 2010 parliamentary query the relevant minister referred to the complexity of the issues and indicated the need to “make haste slowly”. 

Since then, little if any progress appears to have been made at Holyrood. My view is that the government fears the negative press and public scrutiny which any legal changes will attract, and that there is little public pressure to proceed.

Nevertheless, the current law is already 50 years old and is simply no longer appropriate for modern Scottish society.

Meanwhile, the Westminster bill will also be likely to simplify the sharing of assets where a married deceased (who dies intestate) is also survived by children. However, contrary to recommendations, the bill contains no provisions regarding unmarried cohabitants.

• Andrew Paterson is a senior associate with the law firm Murray Beith Murray


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