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From the Cradle to the Grave: Politics, Families and Inheritance Law

Document Cited authorities 11 Cited in Related
Vincent
Date01 September 2008
Pages391-417
AuthorDot Reid
Published date01 September 2008
DOI10.3366/E1364980908000632
INTRODUCTION

Property is political. The extent to which a society restricts or encourages freedom of ownership and the accumulation of wealth reflects the values of that society, whether they spring from a Marxist ideology at one end of the political spectrum or from a commitment to liberal individualism and the operation of a free market at the other.1

This is not to overlook the influence of religious belief in the formation of cultural values, but the focus of this article is on the political ideology prevalent in western secular democracies.

Property ownership is the foundation stone of a capitalist economy2

C B MacPherson, “Property as means or end”, in A Parel and T Glanagan (eds), Theories of Property (1979) 3; H de Soto, The Mystery of Capital (2000) ch 1.

 and the spread of home ownership a core philosophy of all modern political parties

The extent to which the law should interfere with individual choice in relation to family behaviour is an issue which elicits a range of views across the political spectrum, closely related to preference for “big” or “small” government and sympathy (or lack of it) for a degree of social engineering. Modern British governments tread warily in this territory, reluctant to create controversy or to risk accusations of being a “nanny” state. But none has completely eschewed policy initiatives which affect the institution of the family.

Inheritance straddles these core institutions of property and family, for it involves the transfer of wealth between family members. Whatever legal framework is adopted to govern inheritance involves political choices. First, and on the assumption that ownership includes the freedom to dispose of property as we wish in life or in death,3

This appears to be the basis on which the law currently operates. This article does not seek to contribute to the wider debate about the morality of inherited wealth and its potential for widening the inequality gap. The starting point is an assumption that inheritance as a concept is unlikely to be challenged and that future debate will focus on reduction of the tax burden on inherited wealth: see A Mumford, “Inheritance in socio-political content: the case for reviving the sociological discourse of inheritance tax law” (2007) J Law & Soc 567.

a position has to be adopted on the extent to which the state will limit that freedom. Secondly, because creating inheritance rules involves conceptualising family life, choices must be made about the merits of particular forms of “family” and of particular relationships within that family. The law selects winners and losers on the basis of those political choices. The Scottish Law Commission's recent discussion paper on Succession4

Discussion Paper on Succession (Scot Law Com DP No 136, 2007; available at www.scotlawcom.gov.uk) (henceforth DP).

 contains proposals for a radical reform of inheritance law. This discussion paper is, therefore, inherently political

This article does not claim to provide a solution to the complexities of creating a satisfactory set of rules to govern inheritance. Rather it seeks to evaluate the reform proposals in terms of the Scottish Law Commission's own stated objectives of creating “a fair and rational system that adequately reflects majority views”.5

DP para 2.2.

Those views will be examined in the light of recent research studies and of wider policy implications. And on a more profound level, the underlying ideology of the discussion paper will be explored in order to assess whether the proposals represent an appropriate inheritance model for Scots law in the twenty-first century THE REFORM PROPOSALS

The discussion paper reviews two important aspects of succession law: the default rules governing intestacy and the regime of “legal rights”,6

The umbrella term “legal rights” includes the legitim of children and the jus relictae or jus relicti of female and male spouses respectively.

a term of art in Scots law which denotes the centuries-old mechanism preventing the deceased from disinheriting a spouse or civil partner7

With the introduction of (same-sex) civil partnerships by the Civil Partnership Act 2004, the positions of a surviving spouse and a surviving civil partner are equalised in succession law. See 2004 Act s 131. To avoid repetition, “spouse” is used in this article to include both a spouse and a civil partner.

 or a child.8

In this article the term “children” is used to denote the wider concept of issue, i.e. children or their descendants, for a predeceasing child can be represented by her descendants for most purposes in intestate succession (Succession (Scotland) Act 1964 s 11).

 These issues are separate but related, for both affect the allocation of the deceased's property to immediate family members. The overall trend in the discussion paper is to prioritise the rights of spouses: where there is a surviving spouse the inheritance rights of all other family members, including children, are either diminished or removed entirely. It is important to examine the underlying reasons for a change which will have a significant impact on Scottish families Rationale for the rules of intestacy

The current rules of intestacy need reform, according to the discussion paper, because they “sometimes fail to provide a fair result”.9

DP para 1.8.

One example of unfairness is that where a deceased leaves behind a spouse but no children, the deceased's parents and siblings could in some cases inherit a “substantial proportion”. In those circumstances, the proposal is to give the whole estate to the spouse – one of the less controversial measures in the discussion paper. Matters are more complex and “difficult”10

DP para 2.27.

 where the deceased is survived by both a spouse and by children. Again it is claimed that the current rules sometimes produce “unjust and anomalous results”,11

DP para 2.28.

 in that the children may get too much and the spouse too little. The proposals aim therefore to give the surviving spouse all of a “modest” estate and to allow children to share in a “substantial” estate.12

DP para 2.38.

 These terms are not defined, but, as will be demonstrated, the proposals only achieve this objective if “substantial” is taken to refer to the estates of a small and wealthy minority.13

On the most recent statistics, only 2% of intestate estates are worth more than £300,000, the proposed threshold at which children will be able to make a claim on an intestate estate: see D.(4)(a) below.

 It is interesting how often the discussion paper appeals to “justice” or “injustice”. These terms are left unexplained but, broadly speaking, in relation to intestacy the Law Commission appears to deem it “fair” when a spouse gets more or less everything and “unfair” when anyone else gets much. Protection from disinheritance and ideology

In relation to legal rights, the Scottish Law Commission's reasoning is more explicit, in acknowledgement of the radical nature of its proposals. A new concept of “legal shares” is proposed, whereby spouses can claim 25% of what they would be entitled to on intestacy if they are not (or not generously enough) provided for in the deceased's will.14

25% of the value of an estate up to a £300,000 limit, plus a further one-eighth share of any balance.

For the deceased's children the proposal is to remove the right of legitim currently available to all children and to replace it, for dependent children only, with a new discretionary claim.15

See H Hiram, “Reforming succession law: legal rights” (2008) 12 EdinLR 81.

 Discretionary rights are treated inconsistently in the discussion paper.16

Hiram (n 15) at 85-86.

 They are rejected for spouses,17

DP para 3.39.

 on the basis that court-based awards are uncertain, inconvenient, expensive, and likely to provoke litigation at a time of bereavement,18

DP para 3.34.

 but are retained both for cohabitants19

To mirror a cohabitant's discretionary claim on intestacy, for which see Family Law (Scotland) Act 2006 s 29.

 and for dependent children20

I.e. children whom the deceased had an obligation to aliment: DP para 3.80.

 on the ground that a fixed rule would not take account of “need”.21

DP para 3.81.

 Hilary Hiram argues that this shift from “a kind of deferred community of property” towards “need” as an inheritance criterion “[denies] to children legal recognition as family members”.22

Hiram (n 15) at 84.

 Importantly, the Commission accepts that a child's right to legitim does not derive from need but “from the parent-child relationship itself”.23

DP para 3.92.

 The proposed removal of legitim, therefore, logically implies that the Commission no longer regards the parent-child relationship as a sufficiently strong reason in itself to confer a right of inheritance.

The removal of legitim is likely to prove the most controversial proposal in the discussion paper. Indeed in view of the public support for protecting children from disinheritance, discussed below,24

See C.(4) below.

and the fact that Scotland, together with most other European jurisdictions, has a long tradition of doing so, it is not clear why the Commission regards this as a “difficult and controversial”25

DP paras 1.3, 1.10, 3.78.

 question. The same issue has vexed the Commission for almost 20 years. In its earlier, and unimplemented, report on Succession, it was similarly “attracted” to the idea of limiting legitim to dependent children but abandoned the proposal on the grounds that it was out of line with both public opinion and the consultation responses.26

Report on Succession (Scot Law Com No 124, 1990) paras 3.10, 3.11.

This second attempt to convince is more robust. A range of philosophical arguments is marshalled to support the exclusion of adult children. I make no apology for quoting these arguments in detail, for they illuminate the way in which families are conceptualised and, more importantly, they reveal the ideology underlying the proposals.

The moral argument...

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