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Discussion Paper on Succession (DP 136)

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Discussion Paper on Succession (DP 136) Discussion Paper on Succession August 2007 DISCUSSION PAPER No 136 This Discussion Paper is published for comment and criticism and does not represent the final views of the Scottish Law Commission. EDINBURGH: The Stationery Office £25.00 NOTES 1. In accordance with our Publication Scheme, please note that (i) responses to this paper will be made available to third parties on request in paper form once the responses have been considered at a Commission meeting unless a respondent has asked for a response to be treated as confidential or the Commission considers that a response should be treated as confidential; (ii) subject to the following, any summary of responses to this paper will be made available to third parties on request in paper form once it has been considered at a Commission meeting: any summary will not be made available in relation to projects where the subject matter is considered by Commissioners to be of a sensitive nature; any summary being made available will not include reference to any response where either the respondent has asked for the response to be treated as confidential or the Commission considers that the response should be treated as confidential. Any request for information which is not available under the Commission's Publication Scheme will be determined in accordance with the Freedom of Information (Scotland) Act 2002. 2. Please note that some or all responses to this paper and the names of those who submitted them may be referred to and/or quoted in the final report following from this consultation or in other Commission publications and the names of all respondents to this paper will be listed in the relative final report unless the respondent specifically asks that, or the Commission considers that, the response or name, or any part of the response, should be treated as confidential. 3. Where possible, we would prefer electronic submission of comments. A downloadable electronic response form for this paper as well as a general comments form are available on our website. Alternatively, our general email address is [email protected]. 4. The Discussion Paper is available on our website at www.scotlawcom.gov.uk or can be purchased from TSO Scotland Bookshop. 5. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that an accessible electronic version of this document is available on our website. 6. This publication (excluding the Scottish Law Commission logo) may be re-used free of charge in any format or medium for research for non-commercial purposes, private study or for internal circulation within an organisation. This is subject to it being re-used accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and the title of the publication specified. For any other use of this material please apply for a Click-Use Licence for core material from the Office of Public Sector Information (OPSI) website: www.opsi.gov.uk/click-use/index.htm. Telephone enquiries about Click-Use Licences should be made to OPSI, Tel: 01603 621000. ISBN: 978-0-10-888202-9 ii The Scottish Law Commission was set up by section 2 of the Law Commissions Act 19651 for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Drummond Young, Chairman Professor George L Gretton Professor Gerard Maher, QC Professor Joseph M Thomson Mr Colin J Tyre, QC. The Chief Executive of the Commission is Mr Michael Lugton. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. The Commission would be grateful if comments on this Discussion Paper were submitted by 31 December 2007. Please ensure that, prior to submitting your comments, you read notes 1-3 on the facing page. Comments may be made on all or any of the matters raised in the paper. All non-electronic correspondence should be addressed to: Dr David Nichols Scottish Law Commission 140 Causewayside Edinburgh EH9 1PR Tel: 0131 668 2131 1 Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820). iii Contents Paragraph Page Abbreviations viii Part 1 INTRODUCTION Background 1.1 1 Advisory group 1.5 2 Outline of the discussion paper 1.6 3 Legislative competence 1.14 5 Part 2 INTESTATE SUCCESSION Overview 2.1 6 A: SURVIVING SPOUSE OR CIVIL PARTNER AND OTHER RELATIVES The pre-1964 position 2.6 7 The current position 2.8 8 Prior rights 2.9 8 Legal rights 2.13 9 Free estate 2.15 9 1). Deceased survived by a spouse or civil partner but not by issue 2.17 10 Proposals for reform 2.18 12 2). Deceased survived by a spouse or civil partner and by issue 2.27 14 Options for reform 2.33 16 All to surviving spouse or civil partner 2.33 16 Liferent to surviving spouse or civil partner, fee to issue 2.40 19 The Dutch system 2.41 19 Sharing the estate between spouse or civil partner and issue 2.46 20 Proposals for reform 2.49 21 B: SEPARATED SPOUSES OR CIVIL PARTNERS The present position 2.58 25 Options for reform 2.61 26 C: SPOUSE OR CIVIL PARTNER NOT PARENT OF ALL THE CHILDREN The present position in Scotland and some other jurisdictions 2.65 27 Options for reform 2.68 28 D: STEPCHILDREN AND ACCEPTED CHILDREN The current law in Scotland 2.71 29 Should it be changed? 2.73 30 E: EFFECT OF TESTAMENTARY PROVISIONS ON INTESTATE SHARES The present position in Scotland and some other jurisdictions 2.81 32 iv Contents (cont'd) Paragraph Page Proposals for reform 2.83 32 F: OUR 1990 RECOMMENDATIONS 2.87 34 Part 3 PROTECTION FROM DISINHERITANCE Introduction 3.1 36 A: SURVEY OF CURRENT SCHEMES The present position in Scotland 3.4 37 Defects of existing Scottish legal rights 3.11 39 Other jurisdictions 3.15 40 Court-based 3.15 40 Rule-based 3.27 43 The schemes compared 3.33 45 B: PROPOSALS FOR REFORM Preliminary 3.35 46 1). Surviving spouses and civil partners 3.37 46 Fixed share or discretionary award? 3.38 47 The amount of the legal share 3.41 47 Renunciation of the legal share 3.49 51 Entitlement to aliment 3.53 51 The former matrimonial or family home 3.56 52 2). Cohabiting partners 3.58 52 Overview 3.58 52 Proposals for reform 3.63 54 Entitlement to aliment 3.76 59 3). Children and issue of the deceased 3.78 60 An alimentary scheme for dependent children 3.80 60 Fixed shares for children 3.92 65 Should adult children have a claim? 3.94 65 Legal protection for all children 3.102 68 Court-based discretionary system 3.103 68 Fixed legal share 3.104 69 Accepted children 3.111 73 Grandchildren 3.113 74 4). Other relatives and other persons 3.114 74 C: EXCLUDING CERTAIN KINDS OF PROPERTY FROM LEGAL SHARE 3.120 76 v Contents (cont'd) Paragraph Page Part 4 MISCELLANEOUS Overview 4.1 78 A: ANTI-AVOIDANCE PROVISIONS AND COLLATION Introduction 4.2 78 1). Anti-avoidance provisions 4.3 78 The current position in Scotland 4.3 78 Should anti-avoidance provisions be introduced? 4.5 79 General 4.5 79 Arguments in favour of anti-avoidance provisions 4.10 80 Arguments against anti-avoidance provisions 4.14 80 Form of anti-avoidance scheme if introduced 4.17 81 Possible refinements 4.24 83 2). Collation inter liberos 4.25 83 The present law 4.25 83 Proposals for reform 4.29 85 B: TIME LIMITS The present law 4.36 87 Proposals for reform 4.45 90 C: PRIVATE INTERNATIONAL LAW Introduction 4.50 91 1). Jurisdiction 4.54 92 The general rules 4.54 92 Cohabiting partners 4.65 96 Dependent children 4.70 98 2). Choice of law and renvoi 4.75 99 General 4.75 99 Intestate succession 4.80 100 Spouses, civil partners and children 4.80 100 Cohabiting partners 4.87 103 Protection from disinheritance 4.90 104 Spouses, civil partners and children 4.90 104 Cohabiting partners 4.100 106 3). Anti-avoidance provisions 4.101 107 Jurisdiction 4.102 107 Choice of law 4.105 107 D: EXECUTORS AND BONDS OF CAUTION Introduction 4.107 108 1). Bonds of caution 4.113 109 The current position in Scotland and other jurisdictions 4.113 109 Should caution be abolished? 4.116 110 Should caution be retained for some cases only? 4.119 112 Caution for executors-nominate? 4.124 114 vi Contents (cont'd) Paragraph Page Civil partners 4.128 115 2). Refusal to appoint or confirm executors 4.130 115 Executors-dative 4.131 116 Refusal to confirm executors 4.135 117 Part 5 LIST OF PROPOSALS AND QUESTIONS 119 APPENDIX A OTHER JURISDICTIONS 127 APPENDIX B ADVISORY GROUP ON SUCCESSION 152 vii Abbreviations Anton with Beaumont A E Anton with P R Beaumont, Private International Law, (2nd edn, 1990) Currie and Scobbie J G Currie and E M Scobbie, The Confirmation of Executors in Scotland (8th edn, 1995). Family Law Report Scottish Law Commission, Report on Family Law, (Scot Law Com, No 135, 1992). Johnston D Johnston, Prescription and Limitation, (1999). McLaren The Hon. John McLaren, The Law of Wills and Succession, (3rd edn, 1894). Meston Michael C Meston, The Succession (Scotland) Act 1964, (5th edn, 2002). SOCRU Succession Survey Scottish Office Central Research Unit, Succession Report Scottish Law Commission, Report on Succession, (Scot Law Com, No 124, 1990).
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