Consultation on the Law of Succession

Overview

In August 2014, the Scottish Government published a consultation on technical issues relating to succession law. That paper set out that it would be followed by a further consultation on more fundamental changes to succession law to inform their policy development. This paper fulfils that commitment.

The Scottish Law Commission (the Commission) reviewed the law of succession and issued a Report in 2009 - Report on Succession (Scot Law Com No 215) (the Report). For information on the project including the Commission’s Discussion Paper and Report see here. 

The Report made wide ranging recommendations:

• for a new scheme for intestate succession;
• on protection from disinheritance for spouses/civil partners and options for protection of children;
• on further protections for cohabitants;
• on choice of law and jurisdiction in international law matters;
• on testamentary writings and special destinations; and
• on a number of miscellaneous matters including the requirement for executors dative to obtain bonds of caution.

The Scottish Government carried out a period of informal pre-consultation dialogue with stakeholders on a number of the Report’s key recommendations. That exercise revealed that there was no clear consensus about some of the recommendations and that further consultation would be needed.

As noted above, the August 2014 consultation focussed on the technical recommendations addressing a number of anomalies within the current legislative framework as opposed to the more fundamental changes of the wider Report. That consultation covered those recommendations described in the last 3 bullet points above which related to jurisdiction and choice of law; wills and survivorship; rights of succession in limited circumstances; bonds of caution and in addition the timescale for a surviving cohabitant to make a claim on a deceased cohabitant’s intestate estate, some of which were carried forward from an earlier Report on succession law, published in 1990. Further to the consultation, the Scottish Government announced a Succession Bill in its Programme for Government on 26 November 2014. The consultation closed on 7 November, and a summary of the responses can be found at: http://www.scotland.gov.uk/Topics/Justice/law/damages/succession.