The Inheritance and Trustees' Powers Bill currently before the Westminster Parliament has not attracted a great deal of attention in Scotland, dealing as it does with English intestacy rules and family provision legislation. The Bill implements the recommendations of the Law Commission's Report on Intestacy and Family Provision Claims on Death. The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of persons to apply to court for provision out of the estate of a person who dies domiciled in England and Wales, where the applicant considers the deceased has not made reasonable financial provision for him or her. England, in contrast to Scotland, does not have any fixed rights of inheritance such as legal or prior rights, and this scheme of discretionary judicial awards gives some protection to the"deserving disinherited".
One of the amendments made by the Bill would have extended the category of persons eligible to apply for financial provision, to those habitually resident in England and Wales, regardless of the domicile of deceased. The effect would have been to allow applications to be made against the estates of persons domiciled anywhere in the world if the applicant was habitually resident in England and Wales. This would have had a major impact on Scottish estates, the closest jurisdiction to England and Wales, as claims would have been competent where the deceased died domiciled in Scotland. This raised many issues, including the potential for multiple claims (under the family provision legislation and legal rights), conflicting claims, increased costs and complexity in administering Scottish estates and, more fundamentally, restriction on testamentary freedom under Scots law.
Following representations on behalf of the Scottish Government, this particular amendment has been dropped entirely. While the policy behind the proposed change, namely to protect family and dependants living in England who have been insufficiently provided for by a deceased domiciled elsewhere, was laudable, the potential for conflict with other legal systems could not be accommodated. Scots law does, of course, already confer protection on the spouse and children of a deceased in the form of legal and prior rights. Recent legislation has extended financial provision to co-habitants in cases of intestacy, and consideration is being given to extending these rights to testate cases.