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Succession consultation seeks to advance Commission proposals

15 August 2014

A consultation on "technical" issues affecting the Scots law of succession has been launched by Scottish ministers, as a first move towards implementing recommendations of the Scottish Law Commission.

In its 2009 Report on Succession, the Commission made some wideranging recommendations, including a new scheme for intestate succession; reformed protection from disinheritance for spouses and civil partners, with options for protection of children; and on rights for cohabitants.

Subsequent discussions have revealed these to be controversial matters, and ministers have decided not to let these delay necessary reforms in more technical areas of succession law – with the result that work on reform will progress in two separate streams.

The present consultation focuses on technical recommendations in the report, in the main relating to jurisdiction and choice of law; wills and survivorship; rights of succession in limited circumstances; bonds of caution; and the timescale for a surviving cohabitant to make a claim on a deceased cohabitant's intestate estate. The Government takes the view that, in principle, there could be merit in legislating along the broad lines suggested by the Commission on the issues which are the subject of this consultation.

Ministers are anxious to secure that any resulting legislation is "robust and durable, with no unintended consequences", taking account of all relevant perspectives, including equalities considerations and any potential financial and regulatory implications. A further aim is to gather information to permit an assessment of the impact and costs of implementing the proposals (or otherwise), from the perspective of a range of interests – information that they admit has to date proved difficult to access.

Among other matters, questions cover the possible abolition of bonds of caution for executors dative, and where currently required for executors nominate; revocation of a will by the birth of a child, or by divorce, dissolution or annulment of a marriage or civil partnership; survivorship and special destinations; extended powers to grant relief from forfeiture; protection of trustees and executors from errors in distribution; and allowing one year, rather than six months, for a cohabitant's claim for financial provision to be brought.

A second consultation will follow, covering the more controversial proposals in the Commission's report.

Click here to view the current consultation. The deadline for responses is 7 November 2014.

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