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Reform of Succession Law in Scotland

The Succession (Scotland) Act 2016 has already made certain changes to the Laws of Succession in Scotland, and the Scottish Government has issued its response to further proposals for law reform, which might form the basis of further legislation.  One significant proposal is a change to intestacy rules i.e. what happens where a person dies without a valid Will.  The current law is criticised because of its complexity, and because the distribution of the estate can vary dramatically depending on the types of assets in the estate.  The Scottish Law Commission has proposed a new method of distributing an intestate estate amongst beneficiaries.  The proposal that a spouse or direct descendant should inherit an intestate estate is not controversial, but how the deceased person’s assets are split between a surviving spouse/civil partner or children is not a matter where agreement has been reached.  The Scottish Law Commission proposed that a spouse/civil partner should receive a suggested threshold sum of £300,000 and the remainder split into two parts.  One part for the spouse/civil partner, and the other part to be split amongst children.  Given the lack of consensus amongst the various respondents to the consultation, there will need to be further consultation on reform before any legislation is introduced.

Where there is a Will the existing legislation provides protection for the spouse/civil partner and the deceased’s children from disinheritance.  The Scottish Government does not intend to reform the law in this area, and it was acknowledged that the current system has the benefit of striking a balance between an individual’s ability to manage their own affairs as they wish, with limited protection for their spouse/civil partner and their children.  Currently such rights are largely exercised over moveable property and not heritable property.  The Scottish Law Commission has proposed that the current distinction between heritable and moveable property is abolished, but public responses to that proposal have been mixed, and concerns raised in particular in relation to certain estates such as those that contain a business interest where heritable property might compromise the viability of those business interests.

One further area for reform may be the rights of a co-habitant on death.  Currently a surviving co-habitant can apply to a court for provision from the estate where the deceased died intestate (without a Will) and an application to the court is made within 6 months of the death of the deceased co-habitant.  The current law, particularly the relatively brief time limit for raising of court proceedings, has received significant criticisms since its introduction in the Family Law (Scotland) Act 2006, and the Scottish Law Commission has recommended the introduction of a new process for establishing co-habitants rights.  The proposed process would identify whether a couple was “co-habiting” and then assess the quality of that co-habitation to identify what provisions should be made.  The consensus of the consultation was that the 6 month time limit should be extended to a period of 1 year and the Scottish Government has indicated its support on that point.  As a co-habitant can only apply for provision when the deceased co-habitant died intestate, the Government must also ask to consider whether a co-habitant should be able to claim where the deceased left a Will which excluded them.  A significant proportion of respondents to the consultation believed that such a claim should not be allowed, and the Scottish Government has indicated that it does not propose to bring forward any reforms to the existing legislation for the time being.