Faculty suggests new intestacy rules could exclude children of the deceased

In its response to a Scottish government consultation paper, which followed a report by the Scottish Law Commission, the Faculty said it agreed that enabling a surviving spouse or civil partner to remain in the family home should continue to be a major policy aim.

In many cases, this will happen because the half share passes automatically under a survivorship destination in the title deeds, or because the deceased has bequeathed the property to the spouse or civil partner.

However, the Faculty was concerned that under suggested changes on intestacy - where someone dies without leaving a will - the surviving spouse or civil partner in many cases would succeed to the whole estate “and the children of the deceased will be entirely excluded.”

The Faculty stated: “We believe that most people’s expectation would be that their spouse or civil partner and their children would share the estate if they died intestate. While it is important to enable spouses and civil partners to remain in the family home, this should not be the only consideration and needs to be balanced against the rights of the children to at least a share in their parent’s estate.”

To achieve the policy aim, the proposals involve the surviving spouse or civil partner inheriting everything up to a certain value, likely to be £335,000 or higher, which is more than the total amount of most estates in Scotland. The high value has been selected so as to include a very large number of houses.

The Faculty said: “We recognise that by setting the threshold sum sufficiently high, the scheme can achieve the policy aim. However, this is an indirect method of achieving the aim and may involve overriding the interests of others, in particular the children of the deceased.

“We believe that a better method of balancing the interests of the spouse or civil partner and deceased’s children would be to make specific provision for the succession to the family home and thereafter to divide the estate equally between the surviving spouse or civil partner and children.”

Another area covered by the consultation paper is protection from disinheritance. Here, too, the proposals could adversely affect the position of children of the deceased, since legal share, the proposed new term for legal rights which arise automatically on death, will be calculated by reference to what the children would have received on intestacy. If the threshold sum for the spouse or civil partner is high, this could be nil.

The Faculty said: “In common with many other legal systems, Scots law has traditionally provided spouses and children with a degree of protection against disinheritance by giving them a legal right to share in the deceased’s estate which cannot be defeated by the terms of a will.

“We note that the public attitude surveys cited by the Commission strongly support the retention of this protection from disinheritance for both spouses and children…We agree with the Commission’s proposal that the protection should be a fixed share from the whole estate.”

The actual size of that share, added the Faculty, was a question of policy for the legislature to determine.

The full Response is available on the Faculty’s website.