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Analysis

Document Cited authorities 4 Cited in Related
Vincent
AuthorGordon D L,Zheng Tang,Jill J Robbie,Robert Goddard,Laura Macgregor,Peter Duff,Greg Gordon,Paul Beaumont,Claire McDiarmid,Hilary Hiram,Navraj Singh,Anne-Michelle Slater,Martin Hogg
Date01 January 2007
Published date01 January 2007
Pages77-149
DOI10.3366/E1364980908000218

It is traditional to characterise the law of succession as part of property law: the teaching of succession within property classes at Scottish universities, which is more or less ubiquitous, creates a mindset from which it is difficult to escape. The practice is understandable because, after all, succession law provides the rules for the transmission of property and it invariably requires deeds and conveyances to be drawn up and sometimes involves conditions, burdens and different forms of title. But at least in relation to intestate succession, it would be equally, or more, apt to characterise succession as a part of family law. For the rules that have always applied in Scotland are designed to identify the closest family relationships, and to strike an appropriate balance between family members with differing relationships to the deceased. Succession rights have always, literally, legitimated family relationships.

The Scottish Law Commission's recent discussion paper on Succession1

Scot Law Com DP No 136 (2007); available on www.scotlawcom.gov.uk.

is timely, not because of any fundamental changes to the law of property, but because of shifting understandings in the concept of “family”. Social changes such as increased levels of divorce, second marriages and step relationships, and legal changes such as the introduction of civil partnership and the recognition of the legitimacy of claims of cohabitants, have rendered the carefully constructed complexities of the Succession (Scotland) Act 1964 more and more out of touch with how family life in Scotland operates today. The response of the Scottish Law Commission to the increased diversity and complexity of family life is to seek a simpler set of rules, for only thus, it believes, can anomalies and inconsistencies be avoided. The Commission does not seek to challenge the principle of family-based intestate succession – indeed it is difficult to envisage any practical alternative – but instead to recalibrate the balance of interests between potential claimants. In the part of the discussion paper concerned with intestate succession (part 2), the Commission limits its consideration to the situation of a deceased who is survived by a spouse or civil partner. The clear winner in its proposed recalibration is the spouse or civil partner; as we will see, it will usually be the issue of the deceased who are the losers. It may be noted in passing that this will be the second time in recent years that issue lose out in law reform, for the share that cohabitants might now claim under section 29 of the Family Law (Scotland) Act 2006 will come from the portion that would otherwise have gone to issue A. OUTLINE OF THE PROPOSALS

Currently, when a person dies...

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