The Scottish Government’s Consultation on the Law of Succession https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati) considered recommendations made by the Scottish Law Commission on changes to succession law dealing with three key areas: intestacy, disinheritance and cohabitation.

 We have published a separate blog here: discussing the possibility of reforming the law applicable to disinheritance and cohabitation rights where the deceased person left a will.

 This blog will consider the proposed reforms to:-

*the law of intestate succession for spouses and family members; and

*the rights of cohabitants where the deceased was intestate.

Intestacy

 The law of intestacy applies where a deceased person has not left a will which fully distributes his or her estate.

The current law of intestacy uses a three stage process to identify who should benefit from a deceased person’s estate. Following a previous review of the law of intestate succession, the Scots Law Commission concluded that the system was too complex, and recommended that the existing system be replaced with the following simplified scheme:-

  1. If the deceased was survived by a spouse but not by descendants, the spouse should inherit the entire estate;
  2. If the deceased was survived by descendants but not by a spouse, the descendants should inherit the entire estate;
  3. Where the deceased is survived by a spouse and by descendants, the spouse should receive a portion of the estate (known as the “threshold sum”) and the rest of the estate should then be split between the spouse and the descendants.

 The responses to the Government’s consultation demonstrated that there was broad support for the proposals in points 1 and 2. The Government therefore intends to implement these changes in due course.

Although there was agreement that an estate should be divided where there was a surviving spouse and descendants, there was no consensus on how the division should operate. The intestacy rules effectively operate as a fallback set of rules which apply where a person has not left a valid will. As a result of this, the Government’s policy is that the rules should apply in a manner that people would expect them to apply and that any changes should be based on consensus.

Given the lack of consensus to the proposed simplified scheme, the Government’s intention is to consult further to identify how a consensus is achieved. In particular, the Government indicated its willingness to consider the approaches adopted by other countries to identify a solution which would be appropriate taking into account the complexities of modern family relationships.

Cohabitants’ rights on intestacy

If an individual dies without leaving a will, a cohabitant is presently only entitled to apply to the Court for a discretionary award from the deceased’s estate. The Court has discretion as to the level of the award, taking account of specified factors set out in legislation. A claim must be brought within six months of the date of death.

These provisions have been subject to a great deal of criticism since they were introduced in 2006.  In particular, there is considered to be insufficient guidance to the Court as to the purpose of the award and what factors should be taken into account. 70% of respondents to the Scottish Government’s consultation agreed that the provisions should be repealed

As with the law of intestacy, the Scottish Government consulted on a new system proposed by the Scots Law Commission. The Commission suggested a two-stage process to firstly identify whether two parties were “cohabitants” for the purposes of making a claim and secondly to assess the “quality” of the cohabiting relationship. These factors together would fix the portion of the estate which the surviving cohabitant would be entitled to receive.

In their consultation, the Government asked respondents for feedback on the possible factors which should be used to assess the outcomes of the two-stage test. The feedback was mixed, and the responses identified a number of potential issues with the proposal. Due to the lack of consensus, the Government resolved to consult on a fresh approach to cohabitants rights in the future.

The responses which the Government received, although not unanimous, did present sufficient support for the Government to conclude that the time limit during which claims must be brought should be extended from six months to twelve months. Whether this amendment is incorporated in the proposed reform of intestate succession, or is delayed pending further consultation on cohabitants’ rights, remains to be seen.

 Further consultation

To date, there has been a demonstrable lack of consensus as to how reform should be approached. The Scottish Government carried out a further consultation focusing on intestate succession in 2019. The consultation’s purpose was to try and identify consensus on the issues which were not resolved in the previous consultation.

The Government published a brief response to the 2019 consultation which can be accessed at: https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/pages/1/.  

The Scottish Government’s policy is that any reform to intestacy should be based on consensus and predictability. The outcome of their 2019 consultation indicates that consensus on substantial changes to intestacy is still not available. Although the Government has undertaken to continue to explore ways to reform the law of intestacy, it may be some time before consensus is reached.