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Book reviews

19 April 10

Reviews of Legal Systems in Scottish Churches (MacLean); Drafting Wills in Scotland (Barr, Biggar, Dalgleish & Stevens); Scottish Land Law (Gordon & Wortley)

by Heather Carmichael, Simon Mackintosh, Robert Rennie

Legal Systems in Scottish Churches

Rev Dr Marjory A MacLean

PUBLISHER: DUNDEE UNIVERSITY PRESS

ISBN: 9781845860660

PRICE: £20

Despite the status of the Church of Scotland as the national church, the average legal practitioner rarely ventures into the realm of “church law.” However, as events before the last General Assembly have shown, the law of the church can be highly topical. Similarly, as the case of Percy v Board of National Mission of the Church of Scotland 2006 SC (HL) 1 demonstrated, the interaction between the general civil law of Scotland and the realm of “matters spiritual” which fall within the exclusive jurisdiction of the church courts can be not only complex, but of critical importance to the party seeking a remedy against the church.

However, despite the importance of the Church of Scotland and the churches of other Christian denominations to the life of the nation, the law and practice of the church courts seems to be a topic which is rarely touched upon in the legal education of the average practitioner.

It is with a view to filling that gap that this book has been compiled. Its aim is to provide explanation of the various judicial bodies and procedures extant within the three major denominations in Scotland. The book comprises eight chapters written variously by Finlay A Macdonald, Marjory A Maclean (the Principal Clerk and Depute Clerk to the General Assembly of the Church of Scotland), Laura J Dunlop (Procurator of the Church of Scotland), Sheriff A B Wilkinson QC, and Francis Gill WS. Four chapters are devoted to the Church of Scotland, three to the Scottish Episcopal Church, and one to Roman Catholic canon law.

The section dealing with the legal system of the Church of Scotland provides a brief description of the constitutional relationship between Church and state, and the division of jurisdiction as between church courts and civil courts. An overview is provided setting out the courts of the church, and their jurisdictions as first instance and/or appellate bodies, together with a description of procedure and the manner in which non-contested and contested matters are dealt with, submissions, questioning of parties, evidence and debate. A full chapter is devoted to the conduct of disciplinary business. The issues of legal representation and “expenses” (used in the sense of a party’s entitlement to have legal advice and representation paid for by the church) are also covered, together with a set of “hints and tips” as to conduct, etiquette, dress and forms of address appropriate when appearing before one of the various courts of the church.

A similar approach is taken in the chapters dealing with the Scottish Episcopal Church, but with a fuller treatment of church history, and a more detailed treatment of the judicial procedures and greater citation from the relevant canons (Episcopal church legislation), particularly in the chapter devoted to the discipline of clergy.

Roman Catholic canon law receives the sparsest treatment of the three, with only a brief overview of the work of the Scottish National Tribunal of the church being given.

It should, however, be noted that this book is not (nor does it pretend to be) a detailed guide to church law, practice and procedure. The practitioner seeking such a guide may find it elsewhere, in works such as The Constitution and Laws of the Church of Scotland (ed J L Weatherhead; Board of Practice and Procedure: Edinburgh, 1997), An Introduction to Practice and Procedure in the Church of Scotland, A G McGillivray (most easily located on the Church of Scotland extranet); Acts of the General Assembly from 1929 with Regulations and Styles (Church of Scotland, 2nd ed, 2003 as updated); and the relevant sections of the Stair Memorial Encyclopedia. A bibliography is provided giving direction to such helpful works. The book does, however, provide a useful function in setting out the various legal structures and judicial bodies within the churches which may be unfamiliar to the average legal practitioner.

Overall, the book fulfils the remit which it sets out to achieve. As such, it serves as a useful introduction to the student or practitioner seeking information on the system generally in order to ascertain which may be the appropriate forum for a particular piece of business; seeking to understand the place of a particular court or tribunal within the larger structure of the relevant church; or seeking an overview of the practice of (or before) the relevant bodies. The book would also be useful for the ordinary church member seeking to know more about the judicial structures of the church to which he or she belongs.

  • Heather Carmichael, advocate

Drafting Wills in Scotland (2nd edition + CD rom)

Barr, Biggar, Dalgleish & Stevens

PUBLISHER: BLOOMSBURY PROFESSIONAL

ISBN: 9781845920401

PRICE: £150 + 9% VAT = £163.50

The first edition of this work quickly established itself as an essential work of reference for those involved in drafting wills in Scotland – the first port of call on any issue on which guidance was needed. Since that edition in 1994, there have been many changes in the law which have an impact on will drafting: for example the Adults with Incapacity (Scotland) Act 2000, the Civil Partnership Act 2004, the Charities & Trustee Investment (Scotland) Act 2005, the Family Law (Scotland) Act 2006, combined with the annual Finance Acts, in particular Finance Act 2006. This edition was therefore needed to enable these, and other legislative and case law developments, to be properly explored and reflected in the text and in the styles.

This second edition deserves the same reputation as its predecessor, and its value to practitioners is undoubted.

The title tells you what the book is about – it is not merely a collection of styles, but rather a toolkit to help you do the job of drafting wills. Paragraph 1.8 makes this clear: “the Styles are intended to be used in conjunction with the text and not regardless of it”.

The book includes a thorough review of most of the areas likely to impinge on will drafting, followed by an extremely useful collection of styles, incorporating summaries and references to the relevant part of the text.

Even without the styles, the text itself would be of enormous benefit to those dealing with wills, succession and estate administration in Scotland. As is to be expected from this group of authors, the difficult areas are tackled thoroughly, and taxation aspects are properly and fully addressed. For example, questions relating to international aspects of will writing and to business and agricultural property are explored, and guidance is also given on more unusual assets such as “cherished” car registrations and yachts.

The styles have evolved from the first edition – their language and layout is clear, although the value (at least to the drafter) of some older legal language is demonstrated by the need to use about 20 words to replace the expression “equally per stirpes”!

This book has particular strength because it tackles Scots law and taxation matters together. It will be of use to a wide range of practitioners – from those seeking guidance on how to tackle particular issues they have not seen in practice before, to those wishing to modernise their drafting practices, and not forgetting the experienced solicitor looking for a second opinion.

It is thoroughly recommended.

  • Simon Mackintosh, Turcan Connell

Scottish Land Law 3rd edition, Vol I

William M Gordon and Scott Wortley

PUBLISHER: W GREEN/SCOTTISH UNIVERSITIES LAW INSTITUTE

ISBN: 9780414015548

PRICE: £165

This is the third edition of this seminal work on Scottish land law. There was a suggestion at the time of publication of the first edition that the title should have been The Law of Immovable Property in Scotland. Another alternative at the time (1989) would have been Heritable Property Law. Since then, of course, the changes to Scottish land law have been dramatic. Phrases such as “estate in land” vanished with feudal abolition. What we have now is indeed a system of land law rather than a system of tenure. In a very real sense, therefore, this book has come into its own.

The book will now be split into two volumes. In the introductory part, gone is the chapter on the feudal system, being replaced by a general chapter on the structure of land law. Volume I deals with ownership of land in general terms; burdens, restrictions and subsidiary rights (with the exception of leases) will be dealt with in the second volume. The text also reflects current concerns about the environment. Gone are references to teinds and stipends, and in comes a new section on flood prevention (para 6-64). The chapter on separate tenements (chap 7) is of course now much curtailed following feudal abolition.

Chapter 11 deals with capacity to hold and deal with land and, as would be expected, there is a new section on adults with incapacity (paras 11-17 to 11-23). The law of inhibition is also dealt with, both before and after part 5 of the Bankruptcy and Diligence etc (Scotland) Act 2007. The section on matrimonial homes is expanded to take into account the Civil Partnership Act 2004. Land registration is discussed briefly (chap 12), and this is appropriate because this is a book essentially on pure property law as opposed to one dealing with the mechanics of conveyancing. Positive prescription is dealt with in depth as before. Reference is made to Board of Management of Aberdeen College v Youngson 2005 SC 371. Given the prevalence in the past of dispositions by A to A to found prescription, perhaps some greater discussion would have been appropriate. The rights of cohabiting couples and civil partners are dealt with in the new edition in the chapter on possession (paras 14-80 to 14-84).

Chapter 13 deals with content of ownership and matters such as encroachment and trespass. It also deals with the vexed question of delivery of a disposition and the cases of Sharp v Thomson 1997 SC (HL) 66 and Burnett’s Trustee v Grainger 2004 SC (HL) 19. Mercifully perhaps everything has been said about these cases that needs to be said. The chapter previously entitled “Co-ownership and Common Interest” is now renamed “Co-ownership and the Law of the Tenement”. Where titles are silent, the new law of the tenement is based on statute (Tenements (Scotland) Act 2004), whereas the old common law was based almost entirely on common interest. There is a very good analysis of the new statutory framework and it is set out in concisely numbered paragraphs.

There is a chapter on leases (chap 18), although a lease would of course be regarded as a subsidiary right. The justification for this is that so far as the tenant is concerned, the lease is a benefit or a right rather than an encumbrance. This chapter is of necessity very general but it is expanded to take account of various cases. Of great value here is the wealth of citation in the footnotes.

Volume I of Scottish Land Law is not just directed at students or academics; it is the fundamental text on land law which remains essential reading for all members of the legal profession. As with previous editions, one of the main benefits of the book is the ease with which one can find a concise yet accurate treatment of a particular property law issue. No office should be without this volume, and we all await Volume II with eager anticipation.

  • Professor Robert Rennie, School of Law, University of Glasgow

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