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Consultation on fairer succession law opens

19 February 2019 Written by Davidson Shirley Solicitors Category: Wills & Estates

The Scottish Government launched a public consultation on the 17th February 2019, asking how the law covering succession could better reflect 21st century Scotland.

The consultation seeks the public’s view on two main points:

  • how an intestate estate should be split when there are both a surviving spouse and children left, and
  • what rights cohabitants should have regarding succession, including whether stepchildren should be given the same rights to inheritance as biological and adopted children.

Additionally, the consultation includes the possibility of changing the law to remove anyone who was convicted of murder and other crimes from being executors of their victims’ wills.

The Scottish Government last consulted on the law of succession in 2015. It was clear from the responses that there was insufficient consensus on a significant number of the recommendations to allow them to progress any further at the time.

The key area which remained unresolved following the 2015 consultation was how an estate should be divided when there is both a surviving spouse/civil partner and children. This current consultation, therefore, hopes to take on a fresh approach to reform intestacy law and asks the respondents whether Scotland should model that change on regimes which operate elsewhere, such as British Columbia and Washington State. The British Columbia model, for example, makes provision for those who are children of the deceased but not the surviving spouse, and reduces the value of the survivor’s share in intestacy and increases that available for the children.

Community safety minister, Ash Denham, urges people of all ages and backgrounds to respond to the consultation to get a fair and representative conclusion of the proposals. Ms Denham explained:

“The make-up of families in Scotland is vastly different today than it was when these laws were passed over half a century ago, including significantly more families made up of cohabiting couples and an increased number of step-families.”

Gordon Wyllie, Convener of the Law Society of Scotland’s Trust and Succession Law Sub-Committee, concluded:

“We believe that changes to inheritance rules are required and we look forward to engaging with the government on this issue.”

The consultation, which closes on 10 May 2019, can be accessed here.

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