Law of succession: consultation response

We Did

We have already published those responses where consent was given to do so alongside the consultation paper on the consultation hub:https://consult.gov.scot/justice/law-of-succession-2019/consultation/published_select_respondent

We understand the reservations and concerns expressed by respondents to both alternative models of intestate succession proposed in our consultation. We recognise, however, the overwhelming view that intestate succession should generally reflect individual expectations about how a deceased person's estate should devolve.

We accept, however, that this measure is both ambiguous and inconclusive. As a number of respondents said, expectations about how a deceased person's estate devolves is difficult to define and apply. There will be areas where individuals and families have differing expectations.

We will seek, therefore, to explore whether the views of the wider general public regarding intestate succession can be better understood. We will look at ways to facilitate or carry out research and analysis that can be used to inform future reform on this matter. Understanding the presumed intent of the general testator will help to form a pathway for any future reform.

As part of an earlier consultation process, we committed to legislating in order that, when an intestate deceased is survived by a spouse or civil partner and no children, the survivor inherits the whole estate. We remain committed and will make the necessary changes at the next legislative opportunity.

We will consider further how to take forward reforms on the discrete issues (outlined above) for which there was a measure of consensus among respondents. Where required, this will be undertaken at the next legislative opportunity. In addition, we will look at the issue of consulting on the prior right thresholds.

Once we have the benefit of completing further research and evidence gathering, we will consider whether the issue of intestate reform, including the issue of cohabitants rights in succession, should be referred to the Scottish Law Commission. The Scottish Law Commission are currently undertaking a reform project on aspects of family law. As part of this project, the Commission recently published a discussion paper on the cohabitation provisions in the Family Law (Scotland) Act 2006.^[2] Any proposed reform on these matters is likely to have a bearing on the shape of any future reform proposals for the succession rights of cohabitants so we will consider carefully any future recommendations. We will also continue to consider this matter in light of any new legislation and any impact it might have on this issue.

We will prepare and promote a campaign to raise awareness of how the current intestate regime operates and how, if these default rules are not suitable to an individual's circumstances, they should make a will to give effect to their wishes.