The Law Society of Scotland have now issued their response to the Consultation on the Law of Succession. In this blog we shall focus on the response to potential amendments to intestacy (when a person dies without a Will) and claims made by an individual who was living with the deceased but not married.
The Law Society’s full response can be found at: https://www.lawscot.org.uk/media/362634/19-05-10-ts-consultation-succession-law-reform.pdf
See also our previous blog regarding the Scottish Government’s position with regard to the Consultation (https://www.thompsons-scotland.co.uk/blog/33-main/2958-scottish-government-s-response-to-the-consultation-on-the-law-of-succession_)
When a person dies without a Will, their estate is primarily regulated by the Succession (Scotland) Act 1964.
It was proposed that the current rules could be replaced with a much simpler scheme for distribution. It was suggested that when a person was survived by a spouse or civil partner and no children, then the spouse or civil partner could inherit the full estate. If a person was survived by children only, then the children could inherit the full estate. These proposals were considered to be uncontroversial, and the Scottish Government has proposed to implement them in future legislation.
The Law Society noted that where an individual is survived by children, but no spouse or civil partner, then the children would already inherit the estate under current law.
The position with regard to a surviving spouse or civil partner inheriting the full estate if there are no children would be very different from current law. The current intestacy rules are set out in our previous blog. A surviving spouse or civil partner is entitled to prior rights and legal rights only, with the remainder of the estate going to another member of the deceased’s family. In reality, a large volume of estates are exhausted by prior and legal rights.
The Law Society noted that there are circumstances where individuals are separated at the time of death. The proposal to amend the law to allow a surviving spouse or civil partner to inherit the full estate without taking into account the state of their relationship at the time of death would be unlikely to reflect the deceased’s wishes. They suggested the use of a “living together as spouses/civil partners” test before the surviving spouse or civil partner could inherit.
Given the difficulty and complexities surrounding intestate estates, we would always strongly advise that clients prepare a Will to set out who they wish to inherit their estate.
A cohabitee has 6 months from the date of death to make an application to the Court for a share of the estate, but only if the deceased did not have a Will. The Court has discretion as to what should be awarded to the cohabitee who makes a claim. The Law Society welcomed the intention to extend the time limit for making a cohabitee claim from 6 months to 12 months, however they suggested that the time limit could be potentially linked to the application for Confirmation. They suggested that the time limit could be up to 12 months from the date of death, or in cases where Confirmation is obtained after the expiry of 12 months from death, up to 6 months from the date of Confirmation. Given that there may still be some practical difficulty in raising cohabitee claims within these proposed periods, it was suggested that legislation be introduced to allow applications to be accepted “late” by the Court “on cause shown” or “on special cause shown”. At the moment, if a cohabitee claim is not raised within the strict 6 month time limit, the Court does not have any discretion to allow the claim to continue.
The Law Society agreed that cohabitants should continue to have to apply to the Court to establish whether or not they were cohabiting at the time of death. They noted that there could be an automatic entitlement for a cohabitee to inherit if cohabitation was established (by the Court or by agreement) and that the Court could determine how much that entitlement should be in the event that an agreement cannot be reached.
The above proposals are in relation to estates where the deceased did not make a Will. Of interest were certain comments made by the Law Society in relation to Wills. They believed that there should be a greater promotion of the importance of making (and regularly updating) a Will. They considered that it may be beneficial to take into consideration the current Will making process, and how this process may be improved, for example by digital means. Thompsons are already assisting clients in making the preparation of a Will as simple as possible by offering an online service which allows them to prepare their Will from the comfort of their own home at any time.
Blog by Amy Wardrop, Solicitor