Hansard

I am pleased to open the debate on the Succession (Scotland) Bill. I thank those who submitted evidence, and I thank the convener, members and clerks of the Delegated Powers and Law Reform Committee for the committee’s detailed scrutiny of the bill at stage 1. I am also grateful to the Scottish Law Commission, whose “Report on Succession”, which was published in 2009, formed the basis of the bill.

This is the second bill to be considered under the SLC bill procedure, and I for one am very encouraged by the measured and robust process that is in place to scrutinise such bills. The SLC bill process is doing the important job of getting good law reform into statute, and it is clearly a process that we can have confidence in for the future. I very much welcome the committee’s support for the general principles of the bill and its detailed and helpful report.

The bill aims to make the relevant parts of the law clearer, fairer and more consistent. On paper, the provisions might at first glance seem dry and technical, but it was clear from the evidence that the bill contains many improvements to the law on succession that are long overdue and which will be welcomed by the legal profession and, I hope, the wider public.

The provisions in the bill will at some point affect us all, either when we are bereaved relatives or when we make provision for our loved ones in the event of our passing. The provisions are wide ranging and to some extent eclectic. Many of them update the presumptions and fallback positions that kick in when someone has not made express provision in their will for a defined set of circumstances. They can therefore be very important.

For example, the bill will reverse existing law so that, when a couple have had their marriage or civil partnership ended through divorce, dissolution or annulment, an ex-spouse or ex-civil partner will not inherit unless the will or special destination expressly provides that they are to inherit even if the marriage or civil partnership comes to an end. At the moment, if someone makes a new will and then changes their mind and cancels that new will, any earlier will revives and dictates how their estate will be distributed, which might not be what the person intends. The bill will therefore change the current law so that an earlier will is not revived by the revocation of a later will.

It is a fundamental tenet of the law that a beneficiary under a will must have survived the deceased in order to inherit. In most circumstances, the facts as to who survived whom will be clear. However, because there are circumstances in which that is not clear, the bill will change the current law to produce more consistent results and smooth out the impact when small differences in timings of deaths could lead to big and unexpected differences in the effects of death on an estate.

The bill will also enable a court to rectify a will to give effect to a testator’s instructions when they did not draft the will, and it will update the law as it relates to forfeiture, claiming the expense of mournings and gifts that are made in contemplation of death.

What I have just referred to are not everyday occurrences; in some cases, they will happen rarely. Nonetheless, the law needs to be fit for purpose in those circumstances and must produce fair and clear outcomes. All those examples make the law certain—which the legal profession will like—and lead to fairer outcomes that are likely to be more in line with what members of the public would expect in the circumstances.

With a bill such as this, it was difficult not to be drawn into the detail at stage 1. There is a clear consensus about the principles, and the focus of many of the evidence sessions was on whether the bill would achieve the policy or whether there might be a clearer way of achieving that policy. We will return to that at stage 2. We have reflected carefully on the witnesses’ evidence and the views of the committee, as set out in its stage 1 report, and I am pleased to confirm that we will amend the bill at stage 2 to address the vast majority of the issues that the committee has raised.

In particular, we will remove from the application of section 1—which deals with the impact on a will of divorce, dissolution or annulment—provisions that relate to the appointment of a former spouse or civil partner as a guardian. We will amend section 6 to deal with the concern that the reference to a will naming a beneficiary might mean that beneficiaries are not covered if they are identified as a class. We will also introduce changes to make it clear that the provisions relate only to direct descendants or a group that consists solely of direct descendants.

More generally, we are considering the bill’s terminology to ensure that it gives effect to the policy. Sections 9 and 10 have generated much discussion, and we intend to address the concerns that have been raised about how the sections operate and interact with one another.

We have been reflecting on the point that was made about estates not falling to the Crown and on the adoption of the suggestion that, when estates would otherwise fall to the Crown as a result of the application of the survivorship provision, the younger person should be deemed to have survived the elder. As practitioners noted, the application of the survivorship provision is extremely rare. Our view is that the change to the survivorship rules will not increase the number of intestate estates, as the testator’s legacy will be distributed according to the deceased’s will as if the beneficiary had died. We will consider carefully how the TrustBar suggestion might operate from a practical perspective before committing to any amendment.

There will be further minor amendments where we have reflected on the views of witnesses who suggested that, in some places, reference be made to the plural as well as to the singular.

We fully acknowledge the committee’s recommendations on the need for guidance that is of a high standard, clear and not overly legalistic. We will revisit our guidance to reflect changes that are made not only by the bill but by any subsequent bill. We will also review the information on our websites.

I was taken by the committee’s view that, although the Scottish Government publication on what to do after a death is well received, guidance on what to do before a death would be invaluable. We will certainly reflect on that, and I thank the committee for that suggestion.

The Scottish Parliament may be aware that the Scottish Government is taking forward the recommendations that are contained in the Scottish Law Commission’s “Report on Succession” in two distinct strands and that a consultation on the remaining recommendations closed in September. We adopted that approach so that progress could be made on these worthy changes and so that they would not be held up by the more extensive consultation that is needed on a fundamental overhaul of the law of succession. It is encouraging that witnesses acknowledged the sense in that approach and recognised the benefits of enabling a high level of scrutiny of the provisions, which might have become lost in any wider changes to the law on succession.

The provisions are intended to stand the test of time. They will operate with the law as it stands and should continue to be relevant if the law is changed in the near future. We gave the committee a clear undertaking that we will consider at the relevant time the need to consolidate the bill with any subsequent bill to ensure that the law is easily accessible.

The Delegated Powers and Law Reform Committee recommended that the Parliament should agree to the general principles of the bill.

I move,

That the Parliament agrees to the general principles of the Succession (Scotland) Bill.