Hansard

As has been said, this bill was not considered by the Justice Committee, and I was completely unaware of its provisions until last week. I have not read through the almost 200-page Scottish Law Commission report of 2009, but I suspect that the Scottish Government’s approach of taking out and dealing with the less contentious matters in a small technical bill and consulting further on the more contentious issues is probably sensible.

The bill is principally concerned with changing the law on wills and inheritance. Nigel Don has already talked about the provisions with regard to the revocation of an existing will on divorce or dissolution of a civil partnership, and he has pointed out that it was suggested in evidence that issue of guardianship not be included in that part of the bill.

The date on which the proposal should apply was also discussed. At the moment, the bill applies if the testator was permanently resident in Scotland at the time of their death, but some witnesses felt that the testator should be domiciled in Scotland at the time of the divorce or dissolution, as that would be more consistent with private international law. I understand that the committee considered that to be a matter for succession law and therefore felt the bill’s approach to be appropriate.

The bill enables the courts to rectify a will after the testator’s death to enable the correction of “simple and obvious” errors, as long as someone other than the testator had prepared the will and the testator had issued instructions to that effect. The committee had quite an interesting discussion on whether to include wills prepared by the testator themselves, such as handwritten wills or wills using an online template.

For a period of time, I lived in England, and I remember that my first will was prepared with something that I bought from WH Smith. A person would write their will with this thing and then get someone else to sign it; in fact, I got the prospective parliamentary candidate for Slough to sign mine on the day of the 1987 general election. I have to say that it did not bring him a lot of luck, and the will was no longer applicable once I moved back up to Scotland.

Again, the committee agreed with the minister that it was important for another person to be present when the will was drawn up to verify the testator’s instructions and instructions. If no one else was present, trying to indicate what the testator had wanted would give rise to problems.

Applications for rectification have to be made within six months, although the courts have the discretion to extend that period. There was some discussion about whether six months is the correct period and whether the period itself should run from the date of death or from the date of confirmation when the will becomes a public record. It was felt that, if the period ran from the date of death, the executors could, if they had any interest in the matter, have an incentive to delay confirmation of the will. The Scottish Government has agreed to reflect on some of the evidence in that respect. The committee also pointed out in its report that executors should be made aware that they should not distribute the estate until the six months has passed, just in case some error has been made.

The bill also puts into statute the common-law provision that when a beneficiary predeceases the testator the beneficiary’s direct descendants should inherit. As a consequence, if a child predeceased his or her parents, the child’s children would inherit when his or her parents died rather than the child’s siblings—if that is at all clear.

As Nigel Don has pointed out, the bill seeks to address the situation—say, an accident—in which two people who are each other’s beneficiaries die at the same time or in which it is unclear who died first. The Succession (Scotland) Act 1964 presumes that, in the case of spouses and civil partners who were each other’s beneficiaries, the heirs of both would inherit if neither survived the other. However, if the people in question were not spouses or civil partners—if, for example, they cohabited—the law assumes that the younger person survived the older person and, in that case, the younger person’s next lot of heirs would inherit the whole estate. The bill repeals that part of the 1964 act to ensure that when the beneficiaries’ order of death is uncertain the property is to be divided equally between the estates of both.

Although that certainly seems to be fairer, it does not, as Nigel Don has suggested, address the unusual case of a tragedy in which the entire family dies and there are no surviving beneficiaries. In that case, the estate will go to the Crown rather than to other relatives. However, it has been argued that the younger person should be considered as having outlined the elder and, as a result, their beneficiaries will inherit rather than the Crown.

The bill also builds on the rule of forfeiture, whereby someone cannot inherit the estate of a person whom they have unlawfully killed, which seems to be quite correct. Under section 2, in those circumstances the offender would be treated as if they had predeceased the person who had been killed, and the deceased’s entire estate would therefore pass to their next-in-line heirs. I note that the Parricide Act 1594, which disinherits people who have killed their parents or grandparents, is repealed, as those cases are covered by the forfeiture rule. I remember from when we discussed the common good that the common good legislation dates back to the 14th century. It is clear that succession legislation dates back to the 16th century.

Section 18 of the bill consolidates and extends the protections for executors who have distributed an estate in error because they were ignorant of the facts that would have enabled it to be distributed properly. I understand that the Government has undertaken to provide guidance for executors on the requirements that are imposed on them, as the section also requires executors to make reasonable inquiries. Lay people might find that a bit difficult.

All in all, the bill is technical and quite dry in some respects, but it appears to be a good thing, and we will support it.