The Succession Reformation? Perhaps Not Yet!

Succession law in Scotland moves slowly, as evidenced by the fact that the current legislation was enacted in 1964. It has been 10 years since the Scottish Law Commission published its Report on Succession and it wasn't until 2015 that the Scottish Government consulted on the recommendations made in that report. It was clear then that there was insufficient consensus on a significant number of the recommendations for the Government to take any of them further. It appears, therefore, that the blame for lack of progress cannot be laid entirely at the door of the politicians.

Where public views are split on an important matter, a decision to maintain the status quo is often necessary. This is what happened with testate succession, where the deceased left a valid will. Although the current scheme of Legal Rights attracts criticism, the Scottish Government took the decision not to bring forward reforms. It concluded from the public's responses that the current Legal Rights scheme does have the benefit of striking a balance between testamentary freedom and the limited protections for spouses and civil partners, and children. To the relief of the farming community in particular, the legal position remains that a distinction is made between heritable property (land and buildings) and moveable property (everything else). Spouses or civil partners and children still have an automatic entitlement to a share of the deceased's moveable assets, whether or not they were included as a beneficiary in the will. However, where they were included in the will, they have to decide whether to accept the will bequest or accept their legal rights (whichever is more advantageous).

The Scottish Government recently consulted again, this time on matters of intestate succession, where the deceased died without leaving a will. The key area of focus was how an estate should be split where there are both a surviving spouse or civil partner and children. Views on a fresh approach to reform were sought, with reference to alternative regimes found in other parts of the world. The consultation also sought views on extending an alternative approach to cohabitants and their rights on intestacy. The 'Consultation on the Law of Succession' closed for responses on 10 May 2019 and the Government's Report is awaited with interest. It can still be found on the Scottish Government's website.

At present under the Scots law of intestacy, a surviving spouse or civil partner is entitled to...