It is almost half a century since the laws governing inheritance in Scotland were given a thorough overhaul - now it would seem another is overdue.
It is almost half a century since the laws governing inheritance in Scotland were given a thorough overhaul - now it would seem another is overdue.
While the Succession (Scotland) Act 1964 was groundbreaking in its day, it needs updated to reflect a nation where gay couples can marry, many more people divorce and remarry, and the numbers co-habiting are at record levels, according to the Scottish Law Commission (SLC).
Michael Meston, emeritus professor of Scots law at the University of Aberdeen, wrote the book on the law of succession in Scotland.
He said: "The 1964 act was a huge change on what had gone before; in fact it really should have been passed 50 years earlier. It did all sorts of things such as bringing the mother in for the first time, giving spouses a decent share and such like. Even then, it could have gone further."
The SLC is attempting to strike a balance between the wishes of the dead person against their responsibilities in death to close relatives left behind.
One of the key proposals is to provide protection from disinheritance for children ignored in parents' wills.
The protection envisaged by the SLC would not, however, be universal and only cover dependent children and not extend to adult offspring.
"The proposals regarding the protection from disinheritance are where the SLC is proposing fairly substantial changes", said Alan Barr, a partner with Scots law firm Brodies LLP.
"The notion is that whether there is a will or not, you should still have to provide for those who are close to you, and the biggest change proposed is in relation to adult children.
"At the moment, there is no upper-age limit on which children can claim, so if you have an 80-year-old dying with children in their fifties who are no longer dependent at all and the 80-year-old wishes to leave the money elsewhere, then those children can still claim to a limited extent.
"The proposal is whether that should now be restricted to dependent children only, which will probably be based on age and educational status.
"If it was to be restricted to dependent children, they would have to be defined, probably as under 16, under 18 or in full-time education."
The other major proposal is to put in place provisions to prevent a person evading any protections against disinheritance by simply giving away their estate before their death.
Possible changes
When there is not a will
- Surviving spouse or civil partner, no children:
Current - Surviving spouse is main beneficiary, but a substantial proportion may go to the deceased's parents, siblings, and children of dead siblings.
Proposal - The spouse or civil partner should be entitled to the whole estate.
- Surviving spouses or civil partner and children:
Current - A measure of priority is given to the spouse.
Proposal - To continue, but simplify the way it is calculated and give the spouse the entire estate up to £300,000 and half of any excess.
- Stepchildren:
Current - Stepchildren do not inherit when a step-parent dies without a will.
Proposal - Status quo, otherwise a stepchild would be able to inherit from their step-parent and natural parent.
When there is a will (but a close relative has been disinherited)
- Surviving spouses, civil partners and children:
Current - Entitled to a fixed proportion of the deceased's moveable estate (everything other than land and buildings).
Proposal - With children, only dependents should have protection and adult children should not.
- Co-habiting partners:
Current - Co-habiting partners entitled to apply to court for a share of the estate only when there is no will.
Proposal - Extended to when there is a will.
