Concluding Reflections

Author
Date01 January 2020
Publication Date01 January 2020
DOI10.3366/elr.2020.0613
Pages147-152
INTRODUCTION

The contributions to this Symposium have shown that, as compared to other jurisdictions, Scotland has in some ways been ahead of the curve. This is certainly true with regards to the protection of the rights of the surviving spouse. Already in 1964, the Scottish legislature decided to award the surviving spouse most or, usually, all of the deceased's estate albeit, as we have seen,1 without careful deliberation. In addition, Scotland is one of the very few European jurisdictions to protect the interests of cohabitants, though, unlike in the case of surviving spouses/civil partners, the protection has arguably not gone far enough.

We have also learned something about the dangers inherent in law reform and the role historical accidents can play in bringing about change.2 The contributions further reveal that reform can prove difficult partly because the starting point for deliberations is usually the law that is already there so that some of the important questions are no longer expressly articulated or addressed. In other words, the legacy of the immediate past is not always the best basis from which to proceed. As the contributions illustrate, sometimes it is necessary to take a step back to be able to see new (or old) solutions and, importantly, to be able to ask what is it that we are trying to fix and why.

THE STATE OF THE ART

The contributions confirm that dissatisfaction with the current state of the law in Scotland is not without justification. Several of them highlight instances of incoherencies and inconsistencies that can lead to irrational and arbitrary results. Kenneth Reid shows, for example, that due to the lack of coordination between intestate succession laws and legal rights, a surviving spouse may be better off under intestacy than as sole beneficiary under the deceased's will, and thus may be inclined to create an artificial intestacy, at the expense of the deceased's children. Another inconsistency discussed by Jan Peter Schmidt3 illustrates that although the approach of giving most or even all of the estate to the surviving spouse on intestacy rests on a sound foundation, it is problematic in some cases, particularly where the surviving spouse/civil partner is not the biological parent of the children of the deceased. As Kenneth Reid and George Gretton highlight, some of the absurd results here are caused also by the fact that legal rights are currently only based on the moveable estate.4

In addition, focusing on the lack of alignment between the consequences of...

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