The Scottish Government’s Consultation on the Law of Succession considered recommendations made by the Scottish Law Commission on changes to succession law dealing with three key areas: Intestacy, Disinheritance and Cohabitation. Here we look specifically at Disinheritance and Cohabitation from the perspective of testate succession (“testate” generally meaning where a person dies leaving a Will).
The estate of the deceased should be distributed in accordance with their Will. However, the current Scots law of succession protects spouses, civil partners and children from disinheritance. This protection is referred to as “legal rights”.
Under legal rights, the spouse, civil partner or child can claim from the deceased’s “moveable” estate (“moveable” generally meaning anything other than directly owned land and buildings which are classified as “heritable”). The Scottish Law Commission described this system as flawed and noted that an individual may be able to convert the majority of their estate into heritable property in order to prevent, or at least limit, legal rights claims.
The Scottish Law Commission recommended the removal of the distinction between heritable and moveable estate. Instead, the Commission proposed that a spouse or civil partner should be able to claim a fixed legal share from the whole estate rather than just a share of the moveable estate.
There was little consensus on whether a surviving spouse, civil partner or child should continue to receive protection from disinheritance and in what form. The Scottish Government concluded that the current system successfully strikes a balance between protecting spouses, civil partners and children and enabling a person to dispose of their estate as they wish. For that reason, although the current system has been the subject of criticism, the Scottish Government does not currently intend to reform the law in this area.
A cohabitant only has the right to apply for provision from the deceased’s estate where the deceased cohabitant died without leaving a Will. The Government consulted on whether a cohabitant should be able to claim where the deceased did leave a Will under which they were excluded. Respondents to the survey expressed concerns about testamentary freedom and many believed that such a claim should not be allowed. The Government was persuaded by these responses and indicated that it intends to preserve an individual’s right to dispose of their estate as they wish and does not propose to bring forward any reforms in this area at present.
These areas of succession law are subject to ongoing criticism but there seems to be a real lack of consensus in terms of how reforms might be made. It is unlikely that any Government will wish to make reforms until support can be identified. For that reason, we expect to see further consultation in these areas before any reforms take place.