Hansard

It gives me great pleasure to open this stage 3 debate on the Succession (Scotland) Bill and to invite members to agree to pass the bill this evening.

At the outset, I thank the members of the Delegated Powers and Law Reform Committee for their hard work and careful scrutiny of what is essentially a technical bill—they have been a great credit to the Parliament. I thank MSPs for their comments on the bill during its passage through the Parliament, and I thank the organisations and individuals who provided oral and written evidence to the committee. Like Nigel Don, I am grateful to the clerks to the DPLR Committee for their support.

In particular, I thank the Law Society of Scotland and the trusts, fiduciaries and executries bar group—TrustBar—who have been generous in giving of their time and expertise as we have developed the legislative proposals. I thank all the witnesses who have supported the process.

Of course, I also wish to thank the Scottish Law Commission for its unstinting patience as we sought its advice on recommendations that it published more than six years ago. That point is not lost on me, nor is it lost on my colleagues throughout the chamber. The commission’s advice and views have been invaluable.

I said that the bill was essentially technical, and it is, but it became clear through the scrutiny process that its provisions have the potential to impact on any one of us at an especially vulnerable time in our lives. Ensuring that the bill fulfils the policy aims of making the law on succession fairer, clearer and more consistent is therefore especially important. These are, after all, the first significant amendments to the law of succession in more than 50 years.

As I indicated during the stage 1 debate, the bill has its origins in the Scottish Law Commission’s “Report on Succession”, which was published in 2009. This is the second bill to be considered as part of the SLC bill procedure. I take the opportunity to place on record once more my view that the process that is in place to scrutinise these bills is clearly effective in doing the important job of getting good law reform into statute. We can have confidence in that process as we go forward.

The Succession (Scotland) Bill has been welcomed by the profession, and it will make a number of important improvements to the law.

Currently, if a will makes provision for a spouse or civil partner, that remains valid even after the breakdown of the relationship, whether by divorce, dissolution or annulment. For many people, that is an unexpected outcome, and it could lead to undesirable consequences. The bill reverses that aspect of the law.

There is currently no way for a person to seek rectification of a will to enable it to be corrected if it does not accurately express the testator’s instructions. That deficiency in the law was highlighted by a case in the Supreme Court, Marley v Rawlings and Another, where Mr and Mrs Rawlings signed mirror wills leaving everything to each other, but if the other had already died, the entire estate was left to Mr Marley, who was not related to them but whom they treated as their son. However due to a clerical error, Mr Rawlings signed the will prepared for Mrs Rawlings and vice versa. The sons of Mr and Mrs Rawlings challenged the validity of the will on the basis that they would inherit under the laws of intestacy. The Supreme Court decided that Mr Rawlings’s will should be rectified, but as that was an English case there was uncertainty about what decision the Scottish courts would have reached. The bill will address that issue.

Similarly, an individual might not expect that if they make a new will and then change their mind and cancel it, any earlier will revives and dictates how their estate will be distributed. Again, that is unlikely to be what they intended. The bill will reverse that position so that an earlier will is not revived by the revocation of a later will. That does not prevent the individual from reviving the earlier will by other means, such as by re-executing it or making a new will in the same terms. The only exception is when there is express provision to the effect that an earlier will is revived, as then it will be clear that that is the individual’s intention.

The opportunity has also been taken to close a number of jurisdictional gaps to ensure that Scottish courts have jurisdiction where the applicable law is Scots law.

We touched on some of the issues around how survivorship should operate in Scotland when we debated the stage 3 amendments. Although common calamities are not everyday occurrences, we need to have clarity and certainty in the law where there is uncertainty as to the order of death. The bill achieves that clarity.

The bill also sweeps away some very old legislation, through the repeal of the Parricide Act 1594 and reform of the law relating to forfeiture. The notorious Dr Crippen was found guilty of murdering his wife Cora. He inherited from his wife and as he sat in jail awaiting his fate of hanging he wrote a will leaving his estate to his mistress. However, the judge said that

“it is clear that the law is that no person can obtain or enforce any right resulting to him from his own crime”,

and Dr Crippen was thus subject to the law of forfeiture. Forfeiture is where an individual loses their right to inherit because they have unlawfully killed their benefactor. At the moment, although such an individual would lose any rights to inherit, the way in which they are treated in the eyes of the law also dictates how any inheritance would be distributed to others. We have therefore made changes to ensure that the law is fairer and more consistent.

The bill also reforms estate administration by putting in place protections for trustees and executors in certain circumstances and for persons acquiring title in good faith. It also reforms other matters, including the abolition of donatio mortis causa and the right to claim the expense of mournings.

It will have been clear that the Scottish Government has listened carefully to the views of stakeholders and the committee, which is why at stage 2 we made a number of changes to the bill.

In succession law, someone must survive to inherit; equally, sometimes, for another person to inherit, it must be clear that the person on whom their inheritance is conditional has died before the testator. Failure to survive does not necessarily mean that a person can be regarded as dying before another person. A person who fails to survive the testator may have died at the same time as them. At stage 2, we made a number of changes to ensure that, where needed to achieve the policy objectives, it is clear that a person died before another person. Earlier today, we made some further small but related amendments to ensure that there are no unintended consequences or surprising outcomes, and that the detail is unambiguous.

Earlier, we debated some unanticipated amendments to the bill that arose out of the business decision of one of the providers of bonds of caution to withdraw from the market. As Nigel Don said, we had a very short space of time in which to consider the impact of that decision and take action to try and mitigate its worst effects. I am very grateful to the Scottish Courts and Tribunals Service for highlighting the problem in the first place and for working with us to get the best possible remedy, given the many constraints that we were under. Once again, the Law Society of Scotland was able to offer its views under significant time pressures and to provide the necessary reassurances on the remedy.

The committee also demonstrated its capacity to take quick evidence and arrive at a view. I very much appreciate the additional scrutiny that the evidence session provided and the input of the witnesses who attended the committee. It gives me even greater confidence going forward that the solution that we have provided for will address an immediate situation and give us the capacity to insulate against any further change that is beyond our control.

We will turn again to the reform of bonds of caution as part of the wider and more fundamental reform of the law of succession, as John Scott indicated. I will continue to reflect on a number of the suggestions that were made at an earlier evidence session, which are more appropriate to our further consideration of bonds of caution.

Voting for the Succession (Scotland) Bill today will ensure that an important area of the law is subject to long-overdue reform. It is an area with which, at some point—or indeed at various points—in our life, we will all come into contact in one way or another. It is therefore vitally important that the law meets expectations and is fit for purpose, and I believe that these reforms will achieve that aim.

I move,

That the Parliament agrees that the Succession (Scotland) Bill be passed.