Law of succession: consultation

Chapter 1 Introduction

Introduction

1.1 The Scottish Government consulted on the law of succession in 2015^[1]. That consultation focussed on recommendations in the Report on Succession produced by the Scottish Law Commission (the Commission)^[2] on changes to substantive succession law, some of which were controversial. The recommendations were based on the removal of the distinction between heritable and moveable estate with rights coming from the whole estate and included those relating to:

• the law on intestacy (no will)
• protection from disinheritance, for spouses, civil partners and children
• cohabitants' rights

1.2 The Commission criticised the current rules because of their complexity and because the types of assets in the estate affect the outcome. They proposed a simplified scheme for dealing with intestate estates which, amongst others, included the following two recommendations:

• A spouse/civil partner should inherit the whole estate if there are no issue;
• If there is no spouse/civil partner, issue should inherit the whole estate;

1.3 As part of the earlier consultation process, the Scottish Government sought views on these recommendations. There was agreement to the proposal that, if there was a surviving spouse/civil partner and no children, the survivor should inherit the whole estate. Views were similar where there were children and no spouse/civil partner, so that the children should share the whole estate. The Scottish Government has already committed in its response^[3] to that consultation to legislating to make these necessary changes at the next opportunity. This should be borne in mind when alternate schemes for intestate succession are considered below.

1.4 In terms of intestacy, the key area which remained unresolved by the consultation is how an estate should be split if there is both a surviving spouse/civil partner and children.

1.5 There was little consensus around protection from disinheritance and on what share a surviving spouse/civil partner should receive and a clear split on whether or not children should have a right to a share of a parent's estate in testate succession.

1.6 There was also a lack of consensus on the factors to be used to determine if a couple should be regarded as cohabitants in order to attract inheritance rights.

1.7 In addition to the consultation, given that the Commission's Succession Report was informed by a public Attitudes Survey carried out in 2005, that exercise was repeated to gather current opinion on attitudes towards succession law and to identify shifts in attitudes between 2005 and 2015. The survey questions for both 2005 and 2015 covered three key areas related to succession law, namely:

• Intestacy - how an estate should be distributed when there is no will
• Disinheritance - whether a spouse or civil partner or children should have the right to claim part of the estate even if any will does not provide for them
• Cohabitation - what protections should be in place for cohabiting partners.

1.8 Across the three themes of intestacy, disinheritance and cohabitation, a consistent pattern of reduced support for legal protection emerged along with greater uncertainty about what should happen.

1.9 The Scottish Government also ran a 'Survey Monkey' poll to which over 800 people responded. The survey asked four questions about whether an individual should be able to disinherit a spouse/civil partner, adult children, dependent children and a cohabitant

1.10 Apart from dependent children, the Survey Monkey indicated there was significant support for testamentary freedom and the ability to disinherit others, including spouses/civil partners.

1.11 The Scottish Government's view^[4] is that whilst the current scheme of legal rights as a protection from disinheritance attracts criticism it does have the benefit of striking a balance between testamentary freedom and limited protections for spouses/civil partners and children. Further encroachment on the autonomy of individuals would undermine their ability to manage their affairs as they wish. No changes will therefore be brought forward in the area of testate succession nor will the distinction between heritable and moveable property be removed. This paper will therefore focus primarily on an intestacy scheme and cohabitants' rights.