Committee
Delegated Powers and Law Reform Committee 22 September 2015
22 Sep 2015 · S4 · Delegated Powers and Law Reform Committee
Item of business
Succession (Scotland) Bill: Stage 1
Professor Paisley
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Yes, I would like to comment on the way that section 1 is designed. It is a provision of the law of succession, and the real intention, in the guts of the bill, is to reflect what the testator would have wished to happen when they died. The last person they would want to inherit is their ex-spouse, and the bill’s purpose is to reflect the testator’s intention. It goes about it in a slightly odd way, because it indicates that, if the four circumstances in section 1(1) are complied with, the ex-spouse will “be treated as having failed to survive the testator.” In other words, it is a bit like saying that the testator has got his wish and it is as if his ex-spouse was dead. Rather than say, “I wish she were dead,” there is probably a better way to phrase it in the law of succession. A better way to do it would be to say that every will interpreted by the law of Scotland will be deemed to include an implied term, that the spouse in question will not receive that particular benefit. A testator could make an express contradictor to that, should he or she wish to do so. That approach would get over the minor flaw in section 1(2), which says that “For the purposes of the will”— please note that it says “the will”, rather than “the provision”— “P is to be treated as having failed to survive the testator.” That phrase would mean that for the whole will—not just for this provision—the ex-spouse would be treated as having failed to survive. For example, I might leave a bequest to my son, on the basis that he would get £100 if my wife were alive, with a secondary provision that he would get £200 if she were dead. If I then divorce my wife, section 1(2) would kick in, even though the provision would be in favour of my son. The drafting of section 1(2) means that the provision makes a change for the “purposes of the will”, so it has a wider effect than is intended. If the bill is about succession, it should be about what a testator wants in their will. In that case there should be a simple provision of a deemed implied term—we have that in contracts and every other type of voluntary arrangement, so I think that testators would understand exactly what it meant.
In the same item of business
The Convener
SNP
Agenda item 2 is oral evidence on the aforementioned Succession (Scotland) Bill. We have two panels: first, a panel of legal academics and secondly, witnesse...
Professor Janeen Carruthers (University of Glasgow)
In terms of seeing action and movement, two bills is the sensible way forward. Once two bills become two acts, it might be sensible to consolidate them, so t...
The Convener
SNP
When that consolidation occurs—assuming that it does—would it be practicable to try to consolidate absolutely everything in statute at that point or would th...
Professor Carruthers
That gives rise to the question whether it is necessary to put into legislative form a rule that already operates effectively at common law. Personally, I do...
The Convener
SNP
I am not a succession lawyer, but there will be previous statutes that still interact—I rather imagine that there will be several, given the way that law is ...
Professor Carruthers
My view is that it is better to have fewer pieces of the jigsaw that have to be put together. It is simpler to work from a smaller number of statutes than fr...
Professor Elizabeth Crawford (University of Glasgow)
Perhaps it would be too big a task to try to put absolutely everything into some compendious act in the future. After all, the formal validity of wills is ni...
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
SNP
Forgive me, Professor Carruthers, but I want to be clear. You used the phrase “In my personal view”. Do you have another hat that you might wear with which y...
Professor Carruthers
It was exactly the latter. I simply did not want to suggest that I was giving the panel’s view.
Stewart Stevenson
SNP
That is fine. Thank you.
Professor Roderick Paisley (University of Aberdeen)
It would be possible to consolidate the existing statutory material on the law of succession into one act after the two bills are enacted. However, it would ...
The Convener
SNP
I am grateful for those general comments. We will, of course, get into the details of the bill but I will pursue one more general question. Do any of you hav...
Professor Crawford
It is an excellent idea to separate the technical from the more policy-driven or controversial issues, but the difficulty lies in drawing the dividing line a...
The Convener
SNP
I appreciate that. Section 9 is one that we will undoubtedly come to.
Professor Paisley
I would like to make a point about the Forfeiture Act 1982, which is being amended in the Succession (Scotland) Bill. I am quite surprised at that; I think t...
The Convener
SNP
Thank you for that comment, which is much appreciated. Stewart Stevenson will look at section 1 and the effect of divorce.
Stewart Stevenson
SNP
I want to probe the provisions in section 1 in relation to guardians of a child, to see whether they cover instances in which a will has appointed a former s...
Professor Carruthers
I think that the Law Society of Scotland drew particular attention in its written evidence to the inclusion of the word “guardian” in section 1(1)(a)(ii). I ...
Stewart Stevenson
SNP
Right. No one else wishes to contribute, so I will move on. TrustBar has raised the issue of whether section 1 should take effect at the point at which the m...
Professor Crawford
I have given some thought to this and I tend to favour the characterisation and the manner of drafting that are laid down at present. It is always difficult ...
Professor Carruthers
The written evidence from the Faculty of Advocates suggests that section 1(1)(d) could be drafted according to the testator’s domicile at the date of the div...
Professor Crawford
It is really a nice point. There is a rule, supported by precedent, that the question whether a will is revoked by a marriage is a matter of matrimonial law,...
Stewart Stevenson
SNP
Is there a practical issue as well? First, as Professor Crawford said, it would be a divorce recognised under Scots law, which is immediately restricting, so...
Professor Crawford
Yes, there is a practical issue.
Professor Carruthers
Section 1 is about applicability. It starts with the words, “This section applies where”, so tying it to the testator’s domicile at death is sensible in so f...
The Convener
SNP
Professor Paisley, do you have anything to add?
Professor Paisley
Yes, I would like to comment on the way that section 1 is designed. It is a provision of the law of succession, and the real intention, in the guts of the bi...
Stewart Stevenson
SNP
I want to open up some of the terminological difficulties that I have had as we have looked at this. There are two other places in the bill where a person is...
Professor Paisley
The fewer legal fictions that we have, the better. You should try to move the law so that it is as consonant as possible with the actual intentions of the te...
Professor Crawford
In relation to what Professor Paisley said about section 1(2), to save a lot of redrafting, it might be possible to say, “For the purposes of the benefits or...