Inheritance law in Scotland

Author: Sarah Harvie-Clark

PDF Published: Wednesday 24 Apr 2019 (SB 19-23)

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Overview
Report

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Overview
Report
- Executive Summary
- What this briefing does
- Practical matters
  - Making a will
  - Funeral arrangements and registering a death
- The current law and practice
  - Overview and key terminology
    
    The basics
    
    The authority to deal with the estate
    
    Leaving someone out of a will
    
    Where there is no will
    
    Different types of property
  - How common is it for people to make wills in Scotland?
  - Where someone dies without leaving a will
    
    The Succession (Scotland) Act 1964 and the Family Law (Scotland) Act 2006
    
    The stages of distributing an intestate person’s estate
    
    Prior rights
    
    The legal rights of the surviving spouse or civil partner
    
    The legal rights of the surviving children
    
    The free estate
    
    What is the free estate?
    
    Categories of relatives who can potentially inherit
    
    The cohabitant's claim
    
    Where there is both a cohabitant and a spouse and civil partner
    
    The cohabitant's claim compared to the rights of children and other relatives
    
    Where somebody dies and leaves a will
    
    Requirements for a valid will
    
    Capacity
    
    Writing and signature
    
    Other possible grounds for challenge
    
    Common aspects of wills
    
    Cancelling or changing a will
    
    Protection from disinheritance
    
    Legal rights partially override a will
    
    Legal rights are restricted to moveable property
    
    The proportions of the moveable estate to which the beneficiaries are entitled
    
    Beneficiaries must choose legal rights or a legacy under the will
    
    The practical effect of the restriction of legal rights to moveable property
  - Reform of inheritance law
    
    The case for reform - and difficulties for policymakers
    
    Reform efforts so far - an overview
    
    Protection from disinheritance
    
    The SLC's proposals
    
    The response of the farming community
    
    The fate of the SLC's report
    
    Protection from disinheritance
    
    Where no will been made
    
    Cohabitants
    
    Where a will has been made
    
    Where no will has been made
    
    The time limit for making a claim
    
    The Government's position
    
    The Law Society's view
    
    The Scottish Government's 2019 consultation
    
    Where no will has been made - general proposals
    
    Where there is a spouse or civil partner and children
    
    The approach in Washington State
    
    The approach in British Columbia
    
    Providing for a cohabitant
    
    The task ahead
Sources

Scottish Government. (2019, February 17). Consultation on the Law of Succession. Retrieved from https://consult.gov.scot/justice/law-of-succession-2019/

Scottish Government. (2015, June 26). Consultation on the Law of Succession. Retrieved from https://www2.gov.scot/Publications/2015/06/7518 [accessed 23 March 2019]

Scottish Government. (2018, October 18). Scottish Government response to the Consultation on the Law of Succession. Retrieved from https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati [accessed 23 March 2019]

Scottish Government. (2016, November 16). What to do after a death in Scotland. Retrieved from https://www.gov.scot/publications/death-scotland-practical-advice-times-bereavement-revised-11th-edition-2016-9781786522726/

Scobbie, E.M. (2011). Currie on Confirmation. Ninth Edition, para 11-11. Edinburgh: W Green.

Scottish Courts and Tribunals Servic. (n.d.) Small Estate Guidance Notes. Retrieved from https://www.scotcourts.gov.uk/rules-and-practice/guidance-notes/dealing-with-a-deceased's-estate-guidance-notes [accessed 25 March 2018]

O'Neill, S. (2006). Wills and Awareness of Inheritance Rights.

Scottish Government. (2015, June 26). Consultation on the Law of Succession, para 2.2.

Scottish Government. (2015, June 26). Consultation on the Law of Succession, para 4.5. Retrieved from https://www2.gov.scot/Publications/2015/06/7518/0 [accessed 25 March 2019]

Gretton, G., & Steven, A. (2016). Property, Trusts and Succession (Second Edition), paras 25.29 and 25.30. West Sussex: Bloomsbury Professional Limited.

Scottish Government. (2015, June 26). Consultation on the Law of Succession. Retrieved from https://www2.gov.scot/Publications/2015/06/7518/0 [accessed 25 March 2019]

Scottish Law Commission. (2009). Report on Succession, Scot Law Com No 124. Retrieved from https://www.scotlawcom.gov.uk/files/6812/7989/6684/rep124.pdf [accessed 2 April 2019]

Scottish Law Commission. (2007, August). Discussion Paper on Succession, DP 136. Retrieved from https://www.scotlawcom.gov.uk/files/1012/7885/3181/dp136.pdf [accessed 26 March 2019]

Scottish Law Commission. (2009, April). Report on Succession, Scot Law Com No 2015. Retrieved from http://www.scotlawcom.gov.uk/files/7112/7989/7451/rep215.pdf [accessed 26 March 2019]

Scottish Government. (2018, October 18). Scottish Government Response to the Consultation on the Law of Succession. Retrieved from https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati [accessed 26 March 2019]

Scottish Law Commission. (2009, April). Report on Succession, Scot Law Com No 215, para 3.35. Retrieved from https://www2.gov.scot/Publications/2015/06/7518 [accessed 26 March 2019]

Scottish Government. (2018, October 18). Scottish Government Response to the Consultation on the Law of Succession, p 12. Retrieved from https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati [accessed 26 March 2019]

Land Reform Review Group. (2014, May 23). The land of Scotland and the common good: the final report of the Land Reform Review Group, p 40. Retrieved from https://www.gov.scot/publications/land-reform-review-group-final-report-land-scotland-common-good/ [accessed 26 March 2019]

Scottish Government. (2018, October 18). Scottish Government response to the Consultation on the Law of Succession, para 52. Retrieved from https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati [accessed 26 March 2019]

Scottish Government. (2018, October 18). Scottish Government Response to the Consultation on the Law of Succession, para 49. Retrieved from https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati [accessed 26 March 2019]

Scottish Government. (2018, October 18). Scottish Government Response to the Consultation on the Law of Succession, para 27. Retrieved from https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati [accessed 26 March 2019]

Law Society of Scotland. (2019, March). Rights of Cohabitants: Family Law (Scotland) Act 2006, section 28 and 29. Retrieved from https://www.lawscot.org.uk/media/361911/rights-of-cohabitants-paper.pdf [accessed 27 March 2019]

Law Society of Scotland. (2019, March). Rights of Cohabitants: Family Law (Scotland) Act 2006, sections 28 and 29. Retrieved from https://www.lawscot.org.uk/media/361911/rights-of-cohabitants-paper.pdf [accessed 27 March 2019]

Law Society of Scotland. (2019, March). Rights of Cohabitants - Family Law (Scotland) Act 2006, sections 28 and 29 (Executive Summary). Retrieved from https://www.lawscot.org.uk/media/361913/cohab-paper-exec-summary.pdf [accessed 27 March 2019]

Scottish Government. (2018, September 4). Programme for Government. Retrieved from https://www.gov.scot/programme-for-government/ [accessed 27 March 2019]

Scottish Government. (2019, February 17). Consultation on the Law of Succession. Retrieved from https://consult.gov.scot/justice/law-of-succession-2019/ [accessed 27 March 2019]

British Institute of International and Comparative Law. (2018, February). Intestate Succession in British Columbia and Washington State. Retrieved from https://www2.gov.scot/Resource/0054/00543273.pdf [accessed 27 March 2019]

Last Updated: 22/6 11:00pm

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