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Succession

[Project now completed]

Commissioner
Professor Joseph Thomson

Team members
Charles Garland, Project Manager
Rebecca Reid, Legal Assistant
Dr David Nichols, Consultant

The final Report was published on 15 April 2009.

The Scottish Government gave their initial response to the Report in July 2009.

We published a Discussion Paper on Succession (DP 136) in August 2007. It took into account views expressed in a public opinion survey published in mid-2005 and comments made on preliminary drafts by our Advisory Group of practitioners and academics. The paper looks at two main issues, viz:

1. The division of an intestate estate (an estate which is not disposed of by a will or any other testamentary document) where the deceased is survived by a spouse or civil partner and by other close relatives such as children, parents, or siblings. The existing rules where a spouse or civil partner survives are complex. The surviving spouse or civil partner has prior rights in relation to the house and its contents and a cash sum. He or she is also entitled to a proportion of the remaining net moveable estate. But the surviving spouse or civil partner ranks below the deceased's children, parents, or siblings (or descendants of predeceasing siblings) as regards the remainder. A surviving spouse or civil partner who cannot claim the housing prior right may receive only a small fraction of the intestate estate.

2. The claims which immediate relatives, such as a spouse or civil partner, cohabitant or children, should have to the deceased's estate where left little or nothing by will. Protection against disinheritance currently takes the form of a fixed share of the deceased's net moveable estate. Where the deceased is survived by both a spouse or civil partner and descendants, each is entitled to one third. The remaining third plus any heritable estate will be disposed of according to the deceased's will. If only a spouse or civil partner survives he or she can claim one half, as can the descendants if there is no surviving spouse or civil partner. The protection may be considered as inadequate if the deceased's estate contains little moveable property or as over-generous to wealthy grown-up children. At present cohabitants are not protected and this is also being addressed.

We published our final Report on Succession (Scot Law Com No 215) in April 2009. The news release summarises our recommendations.

The Scottish Government gave their initial response in July 2009, and on 8 December 2009 Fergus Ewing gave further information in reply to a written question in the Scottish Parliament (which may be viewed under “Scottish Law Commission” at http://www.scottish.parliament.uk/business/pqa/wa-09/wa1208.htm). This was followed by an oral question, from Rob Gibson, SNP, on 21 January 2010: http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-10/sor0121-02.htm#Col23016. Separately, the Succession Report was the subject of a seminar at Edinburgh University in November 2009 (http://www.law.ed.ac.uk/centreforprivatelaw/symposium.aspx)

Page archive date: 3 February 2010