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Why is it so Difficult to Reform the Law of Intestate Succession?

Document Cited in Related
Vincent
DOI10.3366/elr.2020.0607
Pages111-118
Date01 January 2020
Published date01 January 2020
INTRODUCTION

When those interested in the law of succession look back in time, the current period of its history may be perplexing. Scotland has been attempting to reform the law of succession for over thirty years, and although minor “technical” changes have been made1 the substantive law remains as it has been since 1964. Despite three Consultative Memoranda,2 one Discussion Paper (and accompanying consultation)3 and two Reports4 from the Scottish Law Commission (“SLC”), followed by four consultation processes by the Scottish Government,5 there has been no consensus about the way forward. Unless the most recent consultation process defies all expectation, we appear to be deadlocked. The issue that has proved most difficult is the division of an intestate estate between a spouse or civil partner and children of the deceased,6 a difficulty aggravated where there is competition between a first family and a second family.7 In view of the fact that the consultation generated “widely divergent views”,8 the Scottish Government now wishes to take a “fresh approach”.9 It is hoped that the observations below may constructively inform the next stages of the process.

 THE SHADOW OF PRIOR RIGHTS

One explanation for the difficulties we currently face lies in the fact that all the attempts to change intestate succession have taken place in the shadow of “prior rights”, the statutory entitlement of a surviving spouse or civil partner created by the 1964 Act.10 Prior rights were intended to allow the surviving spouse to have a roof over his or her head by acquiring the family home and its contents up to specified values, as well as a cash payment. However, the Act was careful to balance the claims of an intestate's spouse and children. Between 1964 and 2005 the sums that could be claimed for prior rights were raised by statutory instrument in a fairly modest way with the result that the spouse was likely to inherit all of a small to medium size intestate estate and the children would benefit most in a large estate.11

However, in 2005 that balance was significantly altered when the values of prior rights were uprated. The housing entitlement was increased by around 230% from £130,000 to £300,000,12 and then raised again in 2011 by a further 58% to £473,000.13 The Scottish Executive originally intended the 2005 increase to be a modest one, from £130,000 to £160,000. However, despite the fact that the average net value of heritable property in the whole of the UK was less than £153,000, “the Succession Committee of the Law Society of Scotland did not consider these increases to be substantial enough” and recommended a figure of £300,000.14 Since the family home is usually the most valuable asset in the average estate, the net result of these increases is that in almost all cases the entire estate will pass to the surviving spouse or civil partner. Since 2005, therefore, Scottish children have been likely to inherit little or nothing from a married parent who is intestate, although it is doubtful if many members of the public have noticed.

The history of prior rights has exerted significant influence on the reform proposals.15 When the SLC published its Discussion Paper in 2007, the housing right had already reached £300,000. It is, therefore, no coincidence that the proposed “threshold sum” for the surviving spouse or civil partner (the first slice of the intestate estate) was £300,000. There is a good deal of discussion of housing market trends, but in the end the SLC was reluctant to propose a figure lower than the existing housing entitlement. They were chasing the value of prior rights, but without taking account of the limitations imposed within the current law: for instance, the statutory housing entitlement is a maximum figure which...

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