Death the Leveller – Happy and Unhappy Family Succession
| DOI | 10.3366/elr.2020.0612 |
| Pages | 143-147 |
| Date | 01 January 2020 |
| Published date | 01 January 2020 |
Intestate succession is by its very nature a default system. If on death a person wishes to regulate the succession to their estate, by far the most effective way of doing this is of course by making a will. This is true even in systems with a degree of forced inheritance, such as Scotland. But in the absence of testamentary instruction what is to happen? The law of intestate succession is designed to provide the answer. That answer cannot be what the deceased, subjectively, would have wanted, because by definition that is not known and will vary to the extent of almost infinite possibilities. Rather, the law of intestate succession provides objectively for what society, in the form of its legal levers, considers that most deceased persons would – or perhaps should – wish to happen.
The Scottish Law Commission and latterly the Scottish Government have been wrestling with reform of intestate succession for well over thirty years. Certain relatively minor matters were resolved in the Succession (Scotland) Act 2016; but the fundamentals of intestate succession remain open to question and the possibility of further reform. Somewhat surprisingly, the Scottish Government took the rather brave decision to leave unchanged the law on legal rights, including the restriction of their effects to moveable property.
Perhaps the most contentious issues arise from that increasingly rare nuclear family, where a deceased is survived by both a spouse/civil partner and children. The question is the balance to be struck between succession based on “bed” or that based on “blood”; and whether one should dominate the other. Where this balance should lie is a question which will get a multitude of answers depending on numerous factors, including in particular the parentage of the immediate children and the size and make-up of the estate. This fundamental issue of “bed” against “blood” is addressed in other notes in this issue of the
The purpose of this paper is to look in a little more detail at a much simpler proposition – and one that appears to require no further consultation, according to the Scottish Government. This relates to the position where the deceased is survived by either a spouse/civil...
To continue reading
Request your trial