Douglas J. Cusine

The system which we have in Scotland of legal rights has its supporters whose principal argument sees to be that it provides certainty, which, without doubt, it does. However, if that can create injustice, then, in my view, that system is suspect.

That said, in one of the Scottish Law Commission’s Reports on Succession (No. 216. 2009), it narrates that the majority of those who responded to the discussion paper favoured, in principle, retaining the present system, albeit the commission recommends improvements. Their proposals, if implemented, will provide for a fixed share for spouses and children exigible from both heritable and moveable estate. The government responded in July 2009 agreeing with that, but one issue which on the SLC did not opine, as it is a social one, is whether adult children should be entitled to a fixed share, or only dependent ones. The government was going to consider this.

My issue with the recommendations is that they do not address cases where, I think, many people would agree that the claimant should not be entitled to the fixed share. The following examples, I hope, illustrate my point.  

When in practice many years ago, the following case turned me against the rigid system of legal rights. The firm had clients, whom we knew as Mr and Mrs X. They had been clients for over 30 years. Mr X died and my boss suggested “advertising for claims.” We received a letter from another firm advising that they acted for “Mrs X,” but a different one. We contacted X’s children who explained that “the real” Mrs X, for whom the other firm acted, had moved out of the family home when the children were under school age, (they were then in their 40s). Shortly thereafter, their father had taken up with “our” Mrs X who brought the children up and, as far they were concerned, she was their mother. They were incensed when I explained that the real Mrs X had a claim for a third of the net moveable estate which, as you will have guessed, she took. For religious reasons, Mr X and the real Mrs X never got divorced and there was no heritable estate. That outcome seemed to me to be very unfair.

Another example involved a friend of mine who had a child by his first marriage, but had re-married, following a divorce. As his life was nearing its end, he asked me for names of firms of solicitors who did executry work. He said that he would have to protect both his daughter and his second wife. On his death, the will (which had been prepared by a firm other than the ones I had suggested) left everything to the second wife. The principal asset was his house, but his daughter was left to claim her one-third of the moveable estate. 

For me, another unfair outcome.

The final example was mentioned by another solicitor. Mr and Mrs X had three children, one of whom, a son, was severely handicapped and lived in a home. Mr and Mrs X consulted the other two children, both of whom were very well off, and they agreed to their parents’ proposal to leave their estates, or at least a substantial part, to the home which looked after their son. On the death of the first parent, the two children claimed their legal rights. What happened on the second death I do not know but I could have a guess.

One has to accept that going to court is both expensive and time-consuming and, for these reasons, the certainty of a system of legal shares has its attraction. In 1975, an act which applies only to England and Wales, introduced a discretionary system. Obviously, there were court cases on its provisions, but, for some time, lawyers have been able to advise potential claimants about the likelihood of success and how much the court would be inclined to award. 

If the majority of those who responded to the SLC’s discussion paper favoured legal shares, that has to be respected, but I cannot think of any sound reason why any implementing legislation could not accommodate those who think that the legal share should not be awarded, in whole, or in part. It is not inevitable that the issue would go to court. The mere challenge might be enough to produce a resolution.

Deeds of family arrangement need agreement of all, but “Where there’s a will, there is a way,” often in the form of a fight.