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Surviving spouses, surviving children and the reform of total intestacy law in England and Scotland: Past, present and future

Published online by Cambridge University Press:  02 January 2018

Fiona Burns
Fiona Burns*
Affiliation:
University of Sydney
*
Fiona Burns, Associate Professor, Faculty of Law, New Law Building F10, University of Sydney, NSW 2006, Australia. Email: [email protected]
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Abstract

England and Scotland have very different legal systems in relation to succession generally and intestacy in particular. Nevertheless, they have faced similar problems and tensions when attempting to reform the law of intestacy. This article considers the basic division of an intestate estate between spouses and children (and other issue). It is argued that prior to the twentieth century intestacy law in both jurisdictions was underpinned by a dynastic model in which the estate was preserved for successive generations. However, in the twentieth century the interests of the spouse became the primary focus of intestacy distribution. Recommendations (by law commissions in both jurisdictions) for further reform of the law are marked by a further intensification of the rights of the spouse (potentially leading to a further decline in the entitlement of children and issue). The Commissions have not only jettisoned dynastic intestacy, but also the earlier framing of intestacy rules based on the examination of wills and the ‘presumed intention’ of the intestate. Instead, the Commissions have preferred to formulate rules which are generally supported by empirical evidence such as public opinion surveys; and tempered by the aims of simplicity and administrative efficiency. This article contends that in order to create a division of assets reflecting acceptable standards, the aim of modern intestacy legislation ought to be the distribution of assets to those classes of family members who are likely to be the most economically vulnerable (such as aged spouses, minors and disabled adults). In any event, the ageing population and the needs of surviving aged spouses are likely to have a significant impact upon the framing of intestacy law in the future.

Type
Research Article
Information
Legal Studies , Volume 33 , Issue 1 , March 2013 , pp. 85 - 118
Copyright
Copyright © Society of Legal Scholars 2013

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Footnotes

*

I thank the referees for comments on an earlier draft of this paper.

References

1. Letter by Benjamin Franklin to Jean Baptiste Le Roy dated 13 November 1789, quoted in Knowles, E (ed)The Oxford Dictionary of Quotations (Oxford: Oxford University Press, 5th edn, 1999) p 323 Google Scholar.

2. See, eg, the Law Commission Intestacy and Family Provision Claims on Death: A Consultation Paper (Consultation Paper 191, 2009) paras 1.4–1.6.

3. The use of the word ‘children’ will be used in this paper to accentuate that the focus of the discussion is the division of assets between the spouse, on the one hand, and the intestate's children (or subsequent issue such as grandchildren), on the other. The paper will not discuss the definition of ‘issue’ or considerations whether to change the distribution between those family members who are defined as issue and other descendants (which, eg, has been raised by the Law Commission above n 2, paras 5.20–5.35).

4. There have been some notable discussions such as R Kerridge ‘Distribution on intestacy: the Law Commission's Report (1989)’ (1990) Conveyancer and Property Lawyer 358; Reid, D ‘from the cradle to the grave: politics, families and inheritance law’ (2008) 12 Edinburgh Law Review 391 CrossRefGoogle Scholar.

5. Law Commission Intestacy and Family Provision Claims on Death (Law Com 331, 2011).

6. With regard to England, see Sherrin, Ch and Bonehill, Rc The Law and Practice of Intestate Succession (London: Thomson/Sweet & Maxwell, 3rd edn, 2004)Google Scholar paras 2-001–2-017. In relation to Scotland, see Meston, Mc The Succession (Scotland) Act 1964 (Edinburgh: W. Green/Sweet & Maxwell, 5th edn, 2002)Google Scholar ch 1.

7. Indeed, it has been suggested that the wealthy classes avoided the law of intestacy because it did not necessarily accord with how they considered personal family relations ought to work (although they still preferred patrilineal descent) (see Spring, E Law, Land and Family: Aristocratic Inheritance in England, 1300 to 1800 (Chapel Hill, NC/London: University of North Carolina Press, 1994) pp 182–183 Google Scholar). Significant control of family assets was undertaken through settlements (see Holdsworth, Ws A History of English Law (London: Methuen/Sweet & Maxwell, 2nd edn, 1937) Vol VII, pp 373, 376–381 Google Scholar).

8. Early English law did not permit the devisiability of land by will. However, after the passing of the Statute of Tenures 1660, land was devisable. However, various forms of settlements were created to enable property owners and testators to provide for other members of the family (see, eg, Holdsworth, above n 7, p 373). In Scotland, it was not possible to leave heritage by will ( Erskine, J An Institute of the Law of Scotland in Four Books: In the Order of Sir George Mackenzie's Institutions of that Law (Edinburgh: Bell & Bradfute, 1805) Vol 2, Book III, p 640 Google Scholar). Prior to 1868, special destinations were used extensively to circumvent the rule that heritable property could not be left by will (Ibid, p 643; Scottish Law Commission Report on Succession (Scot Law Com 124, 1990) para 6.1). It was only after the passing of the Titles to Land Consolidation (Scotland) Act 1868 (31 & 32 Vic c 101) that testators were able to devolve land to a beneficiary under a will.

9. For example, in relation to England, Anderson has pointed out that there were only 9000 (of the 210,000 adults who died in 1858) who left sufficient personalty to warrant the taking out of letters of administration; and that in 1910 less than 7 per cent of adults who died that year had estates which warranted formal administration under the rules of intestacy ( Anderson, S ‘Property: succession inheritance and the family’ inThe Oxford History of the Laws of England: Private Law (1820–1914) (Oxford: Oxford University Press, 2010) Vol XII, p 5 Google Scholar).

10. With regard to England, see Sherrin and Bonehill, above n 6, paras 2-002–2-0003. In relation to Scotland, see M'Laren, J The Law of Scotland in Relation to Wills and Succession: Including the Subjects of Intestate Succession, and the Construction of Wills, Entails and Trust-settlements (Edinburgh: Bell & Bradfute, 1886)Google Scholar Vol 1, paras 121–134; Erskine, above n 8, pp 632–633; Meston, above n 6, pp 7–8.

11. With regard to England where the doctrines of ‘courtesy’ and ‘dower’ were important entitlements, see Sherrin and Bonehill, above n 6, para 2-004. In relation to Scotland where the widow acquired a right known as a ‘terce’ and the widower acquired a ‘right of courtesy’, see M'Laren, above n 10, paras 211–216; Meston, above n 6, p 5.

12. Sherrin and Bonehill, above n 6, para 2-014.

13. Ibid.

14. Ibid, para 2-015.

15. M'Laren, above n 10, para 221.

16. Ibid, paras 258–261; Erskine, above n 8, p 703.

17. The jus relicti was not part of the common law, but implemented by statute in the nineteenth century (see Married Women's Property (Scotland) Act 1881 (44 & 45 Vic c 21) s 6).

18. M'Laren, above n 10, paras 244–257; Erskine, above n 8, p 704.

19. M'Laren, above n 10, paras 223–243; Erskine, above n 8, pp 704–705. For a modern summary, see Meston, above n 6, pp 5–6.

20. M'Laren, above n 10, paras 223–243, 258–261; Erskine, above n 8, pp 704–705.

21. M'Laren, above n 10, paras 223–261; Erskine, above n 8, p 705.

22. Ibid. For a modern summary, see Meston, above n 6, p 9.

23. M'Laren, above n 10, para 224.

24. For a helpful discussion of the present situation, see Scottish Law Commission, above n 8, paras 9.4–9.8; Scottish Law Commission Discussion Paper on Succession (Discussion Paper 136, August 2007) paras 3.53–3.54, 3.80.

25. A surviving wife has a right to aliment from the deceased's estate (Scottish Law Commission, above n 24, para 3.53).

26. At present, a parent owes an obligation of aliment to his or her children up to the age of 18 years. Thereafter, aliment may be owed to a child 18 to 25 years of age where the child is undertaking further education or training (Scottish Law Commission, above n 24, para 3.80).

27. Scottish Law Commission, above n 8, paras 9.6–9.7.

28. Ibid, para 9.4.

29. Scottish Law Commission, above n 24, para 3.53. The Commission has observed that there are two views. In one view the deceased's liability to aliment transmits funds to the executors and then to the beneficiaries. The other approach is that the beneficiaries have an independent obligation to aliment the deceased's dependents by virtue of their enrichment from the succession (para 3.53).

30. Ibid, paras 3.54, 3.80.

31. In relation to England, see, eg, Cretney, S Family Law in the Twentieth Century: A History (Oxford: Oxford University Press, 2003) pp 479–480 Google Scholar; Cretney, S Law, Law Reform and Family (Oxford: Clarendon Press, 1998), p 249 CrossRefGoogle Scholar, fn 25; Sherrin and Bonehill, above n 6, para 2-016. In relation to Scotland, see Meston, above n 6, pp 4–5.

32. See, eg, Meston, above n 6, pp 14–15.

33. For a helpful list, see Kerridge, R and Brierley, Ahr Parry and Kerridge: The Law of Succession (London: Sweet & Maxwell/Thomson Reuters, 12th edn, 2009)Google Scholar, para 2-01, Note also, Cretney, Sm,‘Intestacy reforms: the way things were, 1952’ (1994) 9 Denning Law Journal 25 Google Scholar.

34. Administration of Estates Act 1925, s 33(1); Succession (Scotland) Act 1964, s 1.

35. Administration of Estates Act 1925, s 46(1)(i).

36. Intestates' Estates Act 1952, s 5, Schedule 2.

37. Meston, above n 6, pp 52–53.

38. Succession (Scotland) Act 1964, s 8(1).

39. Ibid, s 8(3).

40. Administration of Estates Act 1925, s 44 (1)(a). Note also Cretney, above n 31 (Law, Law Reform and the Family), p 246. In relation to Scotland, see Succession (Scotland) Act 1964, s 2, the effect of which is that the children equally take the assimilated estate whatever their gender.

41. Administration of Estates Act 1925, s 46(1).

42. Indeed, widowers achieved equality of treatment in relation to legal rights under the Married Women's Property (Scotland) Act 1881 (44 & 45 Vic c 21), s 6.

43. See, eg, Succession (Scotland) Act 1964, ss 2(1)(e), 8.

44. In relation to England, note Cretney, above n 31 (Law. Law Reform and the Family), pp 248–249. In relation to Scotland, see Meston, above n 6, pp 4–5.

45. Administration of Estates Act 1925, s 46(1)(v).

46. Ibid.

47. Ibid, ss 46(1)(i), 47(2)(b), 47(4).

48. Ibid, ss 46(1)(i), 55(1)(x).

49. Ibid, s 46(1)(i).

50. Ibid, s 46(1)(i)(b).

51. Family Provision (Intestate Succession) Order 2009 (SI 2009/135).

52. Intestate's Estates Act 1952, s 5, Schedule 2; Kerridge and Brierley, above n 33, paras 2-21–2-27.

53. Administration of Estates Act 1925, s 47A; Sherrin and Bonehill, above n 6, para 2-023; Kerridge and Brierley, above n 33, para 2-15.

54. Law Commission, above n 5, para 2.85.

55. Kerridge and Brierley, above n 33, paras 2-16–2-19. However, it ought to be noted that prior to the amendments made by the Intestates Estates Act 1952, the remaining estate (after distribution of the personal chattels and the statutory legacy) were held on trust for the spouse for life and then the statutorily entitled relatives obtained the property. See Sherrin and Bonehill, above n 6, para 2-020.

56. Succession (Scotland) Act 1964, s 11. The common law has governed the substance of legal rights.

57. M'Laren, above n 10, para 258; Erskine, above n 8, pp 705; Macdonald, Dr,Succession (Edinburgh: W Green/Sweet & Maxwell, 3rd edn, 2001)Google Scholar para 4.36; Meston, above n 6, pp 55–58.

58. M'Laren, above n 10, para 258; Erskine, above n 8, pp 705; Macdonald, above n 57, para 4.36; Meston, above n 6, pp 55–58.

59. Succession (Scotland) Act 1964, s 11.

60. Note Macdonald, above n 57, para 4.47.

61. Succession (Scotland) Act 1964, ss 2, 5, 6. Note Meston, above n 6, p 83.

62. Ibid, s 2.

63. Ibid, s 3.

64. Ibid, ss 8–9; Meston, above n 6, pp 37–38.

65. 1 & 2 Geo 5, c 101, s 1. See also Meston, above n 6, pp 4–5.

66. Prior Rights of Surviving Spouse Order 2005 No 252; Meston, above n 6, pp 38–43.

67. SI 1999/445, Art 2 Sch (as amended by the Prior Rights of Surviving Spouse Order 2005 No 252); Meston, above n 6, pp 43–46.

68. SI 1999/445, Art 2 Sch (as amended by the Prior Rights of Surviving Spouse Order 2005 No 252); Meston, above n 6, pp 46–50.

69. Macdonald, above n 57, para 4.44.

70. Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (SI 2011/436).

71. See, eg, the discussion in Sherrin and Bonehill, above n 6, paras 2-022–2-027.

72. For England: Civil Partnerships Act 2004 (UK), s 71, Schedule 4. For Scotland: Civil Partnerships Act 2004 (UK), Part 3 generally and s 131. For a general discussion of the UnitedKingdom legislation, see Washington, J ‘the Civil Partnership Act 2004: the legal recognition of same sex relationships in the United Kingdom’ (2005) 3 Private Client Business 177 Google Scholar.

73. Inheritance (Provision for Family and Dependents) Act 1975, ss 1(ba), 3; Sherrin and Bonehill, above n 6, paras 18-024–18-030.

74. Family Law (Scotland) Act 2006 (asp 2) s 29. There have been a number of cases in which the advantage provided by the provision have been sought: Savage v Purches 2009 SLT (Sh Ct) 36, 2009 Fam LR 6 (Sh Ct) (Tayside) (Falkirk); Windram, Applicant 2009 Fam LR 137 (Sh Ct (Lothian) (Jedburgh); Chebotareva v Khandro (King's Executrix) 2008 Fam LR 66 (Sh Ct (Tayside). See, eg, Guthrie, T and Hiram, H ‘Property and cohabitation: understanding the Family Law (Scotland) Act 2006’ (2007) 11 Edinburgh Law Review 208 CrossRefGoogle Scholar; Kerrigan, J ‘Section 29 of the Family Law (Scotland) Act 2006: the case for reform?’ (2008) 26 Scots Law Times 175 Google Scholar; McCarthy, F ‘Rights in succession for cohabitants: Savage v Purches’ (2009) 13 Edinburgh Law Review 325 Google Scholar; Roodt, C ‘Cohabitation: Chebotareva v Khandro’ (2009) 13 Edinburgh Law Review 147 Google Scholar.

75. See the amendments made to s 8 of the Succession (Scotland) Act 1964 bv s 14 of the Crofting Reform etc Act 2007 (asp 7).

76. For England: Adoption and Children Act 2002, ss 67, 144(4); Sherrin and Bonehill, above n 6, para 10-029. For Scotland: Adoption (Scotland) Act 1978, s 39 amended by the Family Law (Scotland) Act 2006 (asp 2) s 45(2), Schedule 3; Adoption and Children (Scotland) Act 2007 (asp 4) ss 40, 44.

77. For England: Legitimacy Act 1976, ss 5(1), 5(4), 10(1); Sherrin and Bonehill, above n 6, para 10-028. For Scotland, see Family Law (Scotland) Act 2006 (asp) s 21(2). However, it ought to be emphasised that in both England and Scotland, legitimated children were accorded rights much earlier than the modern enactments would suggest. In England, s1(1) of the Legitimacy Act 1926 provided that when parents of an illegitimate child married each other, the child was considered legitimate from the date of marriage. However, the law of legitimation of children by marriage for succession purposes applied much earlier in Scotland than in England (see Robertson, E The Law of Legitimation (London: Saunders & Benning, 1829) pp 2 Google Scholar, 35–38, 51; Bosville v Lord McDonald 1910 SC 597; Shedden v Her Majesty's Attorney-General (1858) 2 SW & T 170; 164 ER 958).

78. For England: Family Law Reform Act 1987, s 18. However, note the different situations and entitlements that can arise: Sherrin and Bonehill, above n 6, paras 10-023–10-027. For Scotland, see Family Law (Scotland) Act 2006 (asp) s 21(2). Note also the discussion about equality and inclusion of ex-nuptial children in Beckert, J Inherited Wealth (trans T Dunlop) (Princeton, NJ: Princeton University Press, 2004) pp 99–109 Google Scholar.

79. For England and Scotland, see the Human Fertilisation and Embryology Act 2008 (UK). For a discussion of the implications in English law see Sherrin and Bonehill, above n 6, paras 10-031–10-033. In relation to Scottish law, see Paisley, Rrm ‘the succession rights of the unborn child’ (2006) 10 Edinburgh Law Review 28 CrossRefGoogle Scholar at 56–58.

80. For England, see Sherrin and Bonehill, above n 6, para 10-018. For Scotland, see Meston, above n 6, p 17. Step-children are not included in the Succession (Scotland) Act 1964, s 2.

81. See, eg, Beckert, above n 78, pp 90–99.

82. See Law Commission, above n 5, para 2.6. This issue will be discussed further below.

83. Sherrin and Bonehill, above n 6, paras 1-024–1-027.

84. The Report of the Committee on the Law of Intestate Succession (Cmd 8310, 1951) p 3.

85. Sherrin and Bonehill, above n 6, para 1-024.

86. (1874) 7LR 53.

87. Ibid, at 66.

88. Sherrin and Bonehill, above n 6, para 1-024.

89. See generally, ibid, para 1-031.

90. See Committee on the Law of Intestate Succession, above n 84. For a review of the Morton Committee, see Sherrin and Bonehill, above n 6, paras 2-022–2-026; Cretney, above n 31 (Law, Law Reform and the Family), pp 253–259.

91. See Sherrin and Bonehill, above n 6, paras 1-025–1-027.

92. Some possible flaws were also raised by the Law Commission in its 1989 report Family Law Distribution on Intestacy (Law Com 187, 1989), para 4. These will be outlined below.

93. Sherrin and Bonehill, above n 6, paras 1-028–1-029.

94. Ibid, para 1-031.

95. Ibid, para 1-032.

96. Committee of Inquiry, Law of Succession in Scotland (Edinburgh, Cmd 8144, 1958).

97. Ibid, para 6.

98. See M'Laren, above n 10, paras 244, 258; Erskine, above n 8, p 705; Meston, above n 6, pp 52–53.

99. This was acutely demonstrated in Kerr, Petitioner 1968 SLT (Sh (Ct) 61, when a testator left his entire small estate to his widow. Despite the fact that the widow was the sole beneficiary under the will, she faced two problems. First, notwithstanding the terms of the will, her children were still entitled to claim their legal rights from the estate. Second, because the husband had died testate, she could not rely on prior rights because prior rights in favour of a spouse only arise in intestacy. Prior rights take priority over legal rights, but in the absence of prior rights, the legal rights of the children prevailed as an automatic and fixed right of inheritance. If the husband had died intestate, the widow would have acquired the estate entirely because she would have been able to rely on the prior right which would have exhaustively distributed the estate to her. In contrast, in English law the widow would have simply inherited the entire estate subject to payment of any debts and taxes.

100. See Scottish Law Commission, above n 8, para 9.4.

101. Law Commission, above n 92.

102. It pointed to the increase in home ownership, erosion of the statutory legacy by inflation and the development of different forms of property which do not form part of the deceased's estate (Law Commission, above n 92, para 2).

103. Ibid, para 4.

104. See below Part 4(b).

105. Law Commission, above n 92, para 38.

106. Ibid, para 4.

107. Ibid, para 6.

108. Ibid, para 25.

109. Ibid, para 26.

110. Ibid.

111. Ibid.

112. Ibid, para 25.

113. The Commission made recommendations for the abolition of hotchpot, a statutory period of survivorship of a spouse before he or she could claim under the intestacy rules (in order to avoid multiple applications for administration) and the right of cohabitants to make an application for family provision (Law Commission, above n 92, p 16). All of these recommendations were enacted with minor modification (Sherrin and Bonehill, above n 6, para 2-028).

114. Law Commission, above n 92, paras 28–36.

115. Ibid, para 42.

116. Kerridge and Brierley, above n 33, para 2-50.

117. See, eg, Hansard, HL Deb, vol 537, cc 946–1016, 3 June 1992, Lord Colermine; Hansard, HL Deb, vol 538, cc 170–178, 16 June 1992, Lord Mischon; Hansard, HL Deb, vol 561, cc 502–511, 13 February 1995, Lord Chancellor (Lord Mackay of Clashfern). Note also Cretney, above n 31 (Law, Law Reform and the Family), pp 270–271.

118. Law Commission, above n 5.

119. Law Commission, above n 2.

120. Ibid, para 1.25.

121. Ibid, paras 1.38–1.41.

122. Ibid, para 1.42–1.47.

123. Ibid, para 1.26.

124. Ibid.

125. Ibid, para 1.27.

126. Ibid, paras 1.29, 3.11–3.13.

127. Ibid, paras 3.22–3.28. This had been effectively raised by the Department of Constitutional Affairs as a crucial issue in 2005 (see Kerridge and Brierley, above n 33, para 2-59).

128. Law Commission, above n 5.

129. Ibid, para 2.33.

130. Ibid, para 2.37.

131. Ibid, paras 2.37–2.38.

132. Ibid, para 2.25; Recommendation 9.1.

133. Ibid, para 2.111; Recommendation 9.3.

134. Ibid, para 2.109. Although the present definition of ‘personal chattels’ excludes items used for ‘business purposes’, the new definition would more clearly differentiate personal chattels and other chattels. See Kerridge and Brierley, above n 33, para 2-13.

135. Ibid, para 2.91.

136. The Commission recommended that the Lord Chancellor must, at not more than five-year intervals, specify the amount of the statutory legacy and that unless he determines otherwise, the amount must be determined by reference to the increase in the retail prices index (Law Commission, above n 5, paras 2.124–2.128; Recommendation 9.4).

137. Ibid, paras 2.58–2.59.

138. Ibid, paras 2.45–2.47.

139. Ibid, paras 2.46–2.47.

140. Ibid, para 2.77.

141. Ibid, para 2.78.

142. Ibid, para 2.6.

143. Ibid, paras 8.58–8.61; Recommendation 9.27.

144. Ibid, paras 8.86–8.87; Recommendation 9.29.

145. Ibid, paras 8.97–8.102; Recommendation 9.30.

146. Ibid, paras 8.118–8.119; Recommendation 9.31.

147. Ibid, para 8.68; Recommendation 9.28.

148. Ibid, paras 6.6–6.11. The likely reason would be that independent adult children would not fulfil the dependency or maintenance requirement under the Inheritance (Provision for Family Dependents) Act 1975. Note, eg, Re Coventry (decd)[1979] 2 All ER 408; Re Dennis (decd) [1981] 2 All ER 140; Re Jennings (decd) [1994] 3 All ER 27.

149. Law Commission, above n 5, paras 6.19–6.26.

150. Scottish Law Commission, above n 8.

151. See, eg, the discussion of possibilities for the distribution between spouses and issue: Ibid, paras 2.5–2.6, which points out the law is ‘needlessly complicated’.

152. Ibid, paras 1.1–1.3.

153. Ibid, para 2.1.

154. Ibid.

155. Meston, above n 6, p 143.

156. Although in Kerr, Petitioner 1968 SLT (Sh Ct) 61 the deceased was not an intestate, the facts and the relevant law in relation to the facts raised an interesting contrast in the law of intestacy. For an overview of the case, see above n 99.

157. Part 3(c)(iv).

158. See the comments of Meston, above n 6, p 143.

159. Scottish Law Commission, above n 8, para 2.3; Recommendation 1.

160. See Succession (Scotland) Act 1964, s 2(1). Note in this regard, Scottish Law Commission Report on Succession (Scot Law Com 215, 2009), paras 2.11–2.15.

161. Scottish Law Commission, above n 8, paras 2.5–2.7; Recommendation 3(a).

162. Ibid, para 2.6.

163. Ibid, paras 9.5–9.10; Recommendations 55, 56.

164. Scottish Law Commission, above n 160, para 1.1. The recommendations which were implemented dealt with effects of divorce on special destinations and the effect of judicial separation on a wife's intestacy (para 1.1 fn 3).

165. Ibid. For a summary of the Report, see Spalding, A ‘People's choice’ (2011) 56 Journal of the Law Society of Scotland 20 Google Scholar

166. Scottish Law Commission, above n 160, para 1.3.

167. Ibid, para 1.4. Although in a previous discussion paper, the Scottish Law Commission referred to the ‘presumed wishes of the deceased’ as an important principle determining how succession rules ought to be structured, the principle was not mentioned as influential in the final report (note Scottish Law Commission, above n 24, para 2.2).

168. Scottish Law Commission, above n 160, para 2.2.

169. Ibid, para 2.3.

170. Ibid, para 2.4.

171. Ibid, para 7.36.

172. Ibid, paras 2.7–2.15; Recommendation 3.

173. Ibid, paras 2.18. For a discussion of earlier proposals in regard to special destinations, see Scottish Law Commission, above n 8, paras 6.1–6.14.

174. Scottish Law Commission, above n 160, paras 2.19–2.34; Recommendations 4, 5.

175. M'Laren, above n 10, para 110. See also Meston, above n 6, pp 20–21; Kerrigan, J,‘Special destinations: survivorship and bank accounts revisited’ (2011) 12 SLT 5 Google Scholar.

176. Scottish Law Commission, above n 160, paras 2.10, 2.19.

177. Ibid, para 2.25; Recommendation 6.

178. Ibid, paras 2.26–2.30; Recommendation 7.

179. Ibid, para 2.25 fn 41. There was more comprehensive discussion in the preceding Discussion Paper (see Scottish Law Commission, above n 24, paras 2.58–2.64).

180. Scottish Law Commission, above n 160, para 2.25 fn 41.

181. Note the comments of the Scottish Law Commission, above n 8, para 7.28 and fn 2. The satisfaction and discharge of succession rights has been a longstanding matter in Scottish law (see M'Laren, above n 10, paras 262–291; Erskine, above n 8, p 705).

182. Scottish Law Commission, above n 160, paras 2.31–2.34; Recommendation 8.

183. Ibid, para 2.32.

184. Ibid.

185. Ibid.

186. The current law has caused disquiet and concern (see ibid, paras 4.3–4.9; Recommendation 37). For example, the current law under s 29 of the Family Law (Scotland) Act 2006 (asp 2) only applies to intestate estates. The surviving cohabitant of an intestate estate does not have an automatic right to succeed to the (or part of the) intestate estate. An application to court must be made. The Scottish Law Commission pointed out, inter alia, that ‘when exercising its discretion, the court is overwhelmed by the number of potentially relevant factors so that in the absence of expressly articulated aims it is very difficult if not impossible to focus on those which are significant in a particular case’.

187. At present there are two separate definitions of ‘cohabitant’ in Scottish law. Section 25(1) of the Family Law (Scotland) Act 2006 (asp 2) states that ‘“cohabitant” means either member of a couple consisting of – (a) a man and a woman who are (or were) living together as if they were husband and wife; or (b) two persons of the same sex who are (or were) living together as if they were civil partners’. In making a determination about whether two parties are cohabitants, s 25(2) of the Act provides that the court may consider: the length of the period that they lived together; the nature of their relationship during that period; and nature and extent of any financial arrangement subsisting or which subsisted during that period. However, under s 8 of the Succession (Scotland) Act 1964 (amended by s 14 of the Crofting Reform etc Act 2007 (asp 7)) a cohabitant may be able to acquire the interest of the intestate as a tenant of a croft. Under s 8(6) a cohabitant means a person ‘(i) who was living with the intestate as if married to him; or (ii) who was living with the intestate as if in civil partnership with him; and had been so living for at least two years’. Whereas the definition in the Family Law (Scotland) Act 2006 (asp 2) requires essentially a qualitative assessment, the Succession (Scotland) Act 1964 specifically requires that the relationship existed for at least two years. For the proposed definition of ‘cohabitant’ in the Report, see ibid, paras 4.11–4.12; Recommendation 38.

188. The Commission's recommendation does not set down a minimum length of time for the relationship, preferring to rely on evidence of the commitment of the parties rather than the length of the relationship. The Commission recommended that cohabitants living with the intestate at the date of the intestate's death ought to have a relationship ‘which had the characteristics of the relationship between spouses or civil partners’. The kind of matters which the Commission suggested that the court ought to consider were: (a) whether they were members of the same household; (b) the stability of the relationship; (c) whether the parties had a sexual relationship; (d) whether they had children together, or had accepted children as part of the family; and (e) whether they appeared to family, friends and members of the public to be person who were married to, in civil partnership with or cohabitants of each other (see ibid, paras 4.11–4.12; Recommendation 38).

189. Ibid, paras 4.14–4.21; Recommendation 39.

190. Ibid, paras 4.24–4.30; Recommendation 42.

191. Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (SSI 2011/476).

192. In the Consultation Paper, the Commission had raised the possibility of the surviving spouse accounting for the market value of the property subject to the survivorship, but this was not pursued (see Law Commission, above n 2, paras 3.91–3.92 and Law Commission, above n 5, para 2.45).

193. See, eg, Scottish Law Commission, above n 160, para 2.3.

194. Law Commission, above n 2, paras 5.7–5.15; Law Commission, above n 5, paras 6.6–6.11, 6.25–6.26.

195. Law Commission, above n 92, para 24. Note and contrast the comments in Sherrin and Bonehill, above n 6, para 1-033, who consider that presumed intention was completely abandoned, and Borkowski, A inTextbook on Succession (Oxford: Oxford University Press, 2nd edn, 2002)Google Scholar para 1.1.4.1 that there was still sufficient in the Report to suggest that presumed intention was one of the principles considered. It appears that the Law Commission implicitly abandoned ‘presumed intention’ when it jettisoned wills as the primary source materials for reform (consider Law Commission, above n 92, para 4). In Scotland, while the earlier Discussion Paper of the Scottish Law Commission, above n 24, referred (at para 2.2) to presumed wishes as a factor to be taken into account, it is not referred to as a principle in the final Report of the Scottish Law Commission, above n 160, paras 2.2–2.4.

196. Law Commission, above n 92, para 6.

197. Scottish Law Commission, above n 160, para 2.3.

198. See, eg, the comments of the Law Commission, in the light and context of family provision legislation: ‘However, if intestate estates were liable to be re-allocated on the basis of “fairness”, this would undermine the choices made by the intestacy rules, especially the priority given to the surviving spouse’ (Law Commission, above n 5, para 1.23).

199. Scottish Law Commission, above n 160, para 2.3.

200. Law Commission, above n 2, para 1.26.

201. Eg, Law Commission, above n 5, paras 2.57–2.59.

202. However, note Scottish Law Commission, above n 160, paras 1.4–1.5.

203. Law Commission, above n 2, paras 1.38–1.46.

204. See, eg, Law Commission, above n 5, para 1.34.

205. Note the comments of Andrew Borkowski on the Crown and bona vacantia. Public opinion surveys have revealed that members of the public would prefer that charities rather than the Crown received estates subject to the doctrine of bona vacantia. However, various law commissions have not embraced this idea in their recommendations (Borkowski, above n 195, para 1.1.4.2). Note also Law Commission, above n 5, paras 3.38–3.45.

206. Law Commission, above n 5, paras 2.37–2.38.

207. Ibid, paras 2.67–2.82.

208. See, eg, Kerridge, R ‘a view from England’ (2010) 14 Edinburgh Law Review 323 Google Scholar at 323–324.

209. Reid, above n 4, pp 406–407; Reid, D ‘Inheritance rights of children’ (2010) 14 Edinburgh Law Review 318 Google Scholar at 320–321. Note also Scottish Law Commission, above n 160, paras 2.13–2.15.

210. Reid, above n 4, pp 413–414. Reid's article discussed the proposals in the Scottish Law Commission, above n 24, which were replicated in the Scottish Law Commission, above n 160, para 2.16; Recommendation 3. The Commission pointed out (at para 2.15 of the final Report) that the figure of £300,000 reflected the current levels of prior rights set four years before the Report. The Commission observed that its proposal ought not to leave the surviving spouse or partner in a worse position than under the current law.

211. See the comments of the Law Commission, above n 2, para 3.47; Law Commission, above n 5, para 2.6.

212. Law Commission, above n 5, paras 8.14–8.119; Scottish Law Commission, above n 160, paras 4.11–4.21.

213. Eg, Reid, above n 4, pp 409–410; cf. Scottish Law Commission, above n 160, paras 2.26–2.30.

214. Kerridge, above n 4, pp 364–365. Note also Kerridge, above n 208, p 234.

215. Law Commission, above n 5, paras 6.2–6.26.

216. Part 1(a). However, as stated previously, the breadth of the doctrine (in terms of persons able to rely on it) remains unclear.

217. Kerridge, above n 4, pp 366–368.

218. Parts 4(b) and 4(c).

219. See, eg, Law Commission, above n 5, paras 2.67–2.82.

220. See, eg, ibid, para 2.59.

221. Kerridge, above n 4, p 360.

222. Law Commission, above n 5, para 2.95. However, cf. Scottish Law Commission, above n 160, para 1.37.

223. See, eg, in relation to English law the discussion of the rights of children and the obligations accorded to them in Masson, J, Bailey-Harris, R and Probert, R Cretney: Principles of Family Law (London: Thomson/Sweet & Maxwell, 8th edn, 2008)Google Scholar Part V generally and chs 16 and 19 in particular.

224. The concept of ‘trust’ exists not only in English law, but Scottish law as well. Therefore, if the legitim as presently structured was not considered appropriate in relation to the property or the child's entitlement, a trust could be imposed in Scottish law. In relation to trusts in Scottish law, see Ross, Lord, Young, Je Drummond, Hope, Jad, Stuart, J, Jeffray, A, Prosser, Lord, Reid, J Gordon and Smith, T ‘Trusts and trustees and judicial factors’ in Smith, T and Black, R (eds)The Laws of Scotland: Stair Memorial Encyclopaedia (Edinburgh: Law Society of Scotland/Butterworths, 1989)Google Scholar Vol 24, paras 1–75.

225. Kerridge and Brierley, above n 33, para 2-29.

226. See McDouall, A,An Institute of the Laws of Scotland in Civil Rights with Observations upon the Agreement or Diversity between them and the Laws of England (Edinburgh: Printed by R Fleming for A Kincaid and A Donaldson, 1752)Google Scholar Vol 2, p 389.

227. See, eg, Law Commission, Intestacy and Family Provision Claims on Death: Analysis of Consultation Responses (Consultation Paper 191 (Responses), 2011) paras 3.17–3.88.

228. Another very good example of the division is the recently published Symposium on the Reform of the Law of Succession in the 2010 edition of the Edinburgh Law Review. Two writers generally support the proposed amendments of the law of intestacy in Scotland: Nichols, D ‘the report in outline’ (2010) 14 Edinburgh Law Review 306 Google Scholar at 307–308; and A Barr ‘A view from practice’ (2010) Edinburgh Law Review 313 at 314–315. Two writers express concerns about the present course of intestate succession: Reid, above n 209, at 320–321; Kerridge, above n 208, at 323–325. However, it ought to be noted that David Nichols has been a member of the Scottish Law Commission and was heavily involved in its work on intestacy for some time (see, eg, Scottish Law Commission Intestate Succession and Legal Rights (Consultative Memorandum 69, September 1986); Scottish Law Commission, above n 24).

229. Above Part 1.

230. Part 4(b).

231. Consider, eg, Buhai, S ‘Parental support of adult children with disabilities’ (2007) 91 Minnesota Law Review 710 Google Scholar.

232. Although other aspects of succession distribution are outside the confines of this paper, it is acknowledged that the adoption of this approach could also have an effect upon the distribution patterns when there was neither spouse nor children. The deceased's elderly parents (due to their perceived economic vulnerability) could take priority over younger middle-aged members of the family when there was a distribution based on a statutory list of entitled relatives. In the present English and Scottish law, parents still take priority (see Kerridge and Brierley, above n 33, paras 2-34–2-39; Macdonald, above n 57, paras 4.70–4.74). However, the Law Commission raised the issue whether this ought to continue (see Law Commission, above n 2, paras 6.37–6.46) and decided in its most recent Report that parents ought to be favoured over siblings, observing that the ‘parents are likely to be elderly and more in need of financial assistance than siblings’ (Law Commission, above n 5, para 3.12).

233. Which was contained in the Law Commission, above n 92, para 6. Note also Sherrin and Bonehill, above n 6, para 1-033.

234. Inheritance (Provision for Family and Dependants) Act 1975, s 1.

235. Ibid, s 3.

236. Ibid, ss 1(1)(e), 1(3).

237. As stated throughout this paper, at present Scotland does not have a discretionary system similar to that of family provision in England. In England, the concept of ‘freedom of testation’ is moderated by the operation of the Inheritance (Provision for Family and Dependants) Act 1975. In Scotland, there is a system of legal rights which operate in relation to testate and intestate estates and cannot be defeated by will. The concept of ‘legal rights’ ensures that children and spouses cannot be completely disinherited. Consider M'Laren, above n 10, paras 244–261. Note also Erskine, above n 8, p 705; Meston, above n 6, ch 5; Macdonald, above n 57, para 9.01.

238. See, eg, the Law Commission, above n 5, paras 1.30–1.35; Scottish Law Commission, above n 160, para 1.4.

239. Office for National Statistics (UK) ‘Death registrations: deaths fall below half a million’

240. Ibid.

241. Office of National Statistics (UK) ‘Population: ageing, fastest increase in the “oldest old” ’

242. J Cumbo ‘Scant options to fund long-term care’ Financial Times, Money Section, 11 June 2011, p 2.

243. See, eg, Department for Work and Pensions A State Pension for the 21st Century (Cm 8053, 2011).

244. Department for Work and Pensions, above n 243, paras 29–31, 35.

245. See, eg, Cumbo, above n 242.

246. Law Commission, above n 2, para 1.40; Law Commission, above n 5, para 3.12.

247. Law Commission, above n 2, Appendix C, Tables 5 and 6; Law Commission, above n 5, Appendix D, Tables 5 and 6. These tables deal with the grants of representation in England and Wales between November 2007 and October 2008.

248. Ibid, Table 4, which details medians and averages of estates which were administered within five years of the death of the deceased. In relation to grants made more than five years after the death of the deceased, both the average and median values are significantly lower (Table 4A).

249. See Law Commission, above n 5, para 3.12.

250. Law Commission, above n 92, para 42.

251. Ibid.

252. Law Commission, above n 2, paras 3.43–3.49.

253. Scottish Law Commission, above n 160, para 1.3.

254. See, eg, Reid, above n 4, p 399.

255. See, eg, Law Commission, above n 2, Appendix C, Table 4, and Annex B, Table 4A; Law Commission, above n 5, Appendix D, Table 4, and Annex B, Table 4A.

256. Ibid.

257. Part 3(c)(iv).

258. Law Commission, above n 5, para 2.6.

259. As to the potential complexities in England, see Gray, K and Gray, Sf Elements of Land Law (Oxford: Oxford University Press, 5th edn, 2009)Google Scholar ch 7 and in particular para 7.6.21. For the Scottish situation, see Gordon, Wm and Wortley, S Scottish Land Law (W Green/Thomson Reuters, London, 3rd edn, 2009)Google Scholar paras 17-62–17-63.

260. Law Commission, above n 5, paras 2.51–2.62.