Meeting of the Parliament 28 January 2016
During stage 2 consideration of amendments, the Minister for Community Safety and Legal Affairs said that he was glad to get away from the Justice Committee for a while. I suspect that fellow members of the Justice Committee will agree with me that we were pleased not to have the bill come before our committee along with all the other bills. We are grateful to the Delegated Powers and Law Reform Committee for doing the hard work on this very technical bill.
The down side of the bill not having come before the Justice Committee is that, yet again, I am required to make an opening speech on a bill with which I have very little familiarity. Indeed, I would not care to try to pass an exam on the set of amendments that we have just discussed. If they had been discussed in Latin, I would probably be just about as well educated as to their effect.
The bill deals with issues that are of importance to the majority of people: namely, wills and inheritance. I note that, at stage 2, the minister lodged a number of amendments to clarify some of the issues that were raised at stage 1, and he has done the same at stage 3. As has been said, the bill is based on a draft bill that was produced by the Scottish Law Commission, but it does not include all the provisions of that draft bill. The other provisions in the draft bill will undergo further consultation—indeed, they may be out for consultation at present—with a view to further legislation being introduced in the next session of Parliament. I am sure that members are looking forward to that.
The issue of guardianship has been addressed. The Law Society highlighted concerns about whether a will that appoints a person’s spouse or civil partner as a guardian of their stepchildren would continue to take effect if the relationship was terminated and the deceased had not made a subsequent arrangement. An amendment was necessary because the bill revokes a person’s existing will—as we have discussed—on divorce or dissolution of a civil partnership. If the bill were not amended, the former partner would not be able to become the child’s guardian even if the deceased would have wanted that arrangement to continue.
The bill now also makes it clear that the revocation of a will does not apply where the testator died prior to the annulment of the marriage or civil partnership taking place. That is a bit of a technical issue, but there could be the odd occasion on which someone dies before the process is complete.
The Law Society of Scotland stated in its written evidence that section 1 should apply when
“the testator either died domiciled in Scotland or has heritable property in Scotland.”
The bill originally applied to persons who were permanently resident in Scotland when they died, and the committee received a variety of responses on that section at stage 1. At that stage, the committee agreed with the Government’s approach. However, both the committee and the Government were persuaded by the Law Society’s arguments. The minister explained to the committee that succession to immoveable estate is governed by lex situs, or where the property is situated. Succession to moveable property depends on where the deceased was domiciled at the time of their death. The bill has therefore been amended so that section 1 applies when the testator was not domiciled in Scotland but owned heritable property here.
The bill enables the courts to rectify a will after the death of a testator so that “simple and obvious” errors can be corrected, with the proviso that someone other than the testator had prepared the will and the testator had issued instructions to that person. There was some discussion at stage 1 of whether that should be extended to wills prepared by the testator—for example, handwritten wills or wills that are produced using an online template. The committee and the minister quite correctly resisted those arguments. The Scottish Law Commission draft bill, on which this bill is based, would have enabled a sheriff in the sheriffdom where the will was confirmed to consider an application for rectification. That provision was not included in the bill as introduced, and amendment at stage 2 has corrected that inadvertent omission.
The bill puts into statute the common-law provision that, when a beneficiary pre-deceases the testator, the beneficiary’s direct descendants should inherit. The policy intention has been clarified by amendment at stage 2, and the bill now also enables a testator to identify a beneficiary by category, such as their relationship to the testator, as well as by name. That was a committee recommendation at stage 1.
The bill addresses the situation in which two people who are each other’s beneficiaries die at the same time or it is unclear which person died first. If they had been in a legal partnership as spouses or civil partners, the Succession (Scotland) Act 1964 presumes that neither survived and therefore both partners’ subsequent beneficiaries will inherit. However, if the two people were not involved in a legal partnership, the law as it stands at present assumes that the younger person survived the older person and therefore only the younger person’s beneficiaries will inherit.
The bill, however, did not originally address the issue of a common calamity—again, there has been some discussion of that at stage 3—where an entire family dies in an accident and there are no surviving beneficiaries, in which case the estate would go to the Crown rather than to any surviving relatives. Clarifying that situation is complex, but amendments at stages 2 and 3 have set out conditions in which property may transfer to one member of the group, depending on the order of death.
The bill sets in statute the forfeiture rule, which precludes a person who has unlawfully killed another from benefiting from the result—indeed, the minister illustrated that for us earlier with the example of Crippen. In such cases, the person who has forfeited their rights to the estate by an unlawful killing will be considered, for the purposes of inheritance law, to have failed to survive the testator. A stage 2 amendment clarified that forfeiture included legal and prior rights. I will take that as read, because I am quite uncertain as to what it means, although I am sure that it is probably a good thing.
The bill also abolishes the donatio mortis causa as a legal entity. Again, I had never heard of it. As it stands, a person can make a gift to another in the anticipation that they are going to die, but if they do not die, the gift can be returned to them. The donor can also change their mind and ask for it back and, if the recipient dies first, the gift is returned to the donor rather than given to the recipient’s beneficiaries. That seems a rather curious sort of gift, and one wonders how the donatio mortis causa process ever arose in the first place. However, the bill abolishes it as a legal entity. Gifts can still be made on that basis, but they do not require to be made in anticipation of death. As I said, it seems curious that somebody who thinks that they are going to die would make a gift, but then decide that they wanted it back just because they did not die.
As I said, the bill is very technical. I am sure that it will be of great benefit to the future understanding of inheritance law, and that we all look forward to whatever comes forward in the next session of Parliament that will build on the bill’s provisions.