Succession law: overturning centuries of tradition

As part of our platinum anniversary blog series, Michael Kusznir, solicitor at Raeburn Christie Clark & Wallace and member of our Trust and Succession Law Sub-committee, looks back to a time when an ‘illegitimate’ child was a stranger in law and blood to its parents.

It has been remarked that the mills of the law grind slowly, yet over the last 50 or so there have been substantive changes to the law of succession to reflect our changing world since the Law Society of Scotland was created in 1949.

Let me take only three examples.

Centuries of tradition were overturned by the Succession (Scotland) Act 1964, which swept aside the feudal norm of male primogeniture being the default succession to land and buildings, along with the feudal liferents of terce (for widows) and courtesy (for widowers), and established Confirmation as the ongoing route for obtaining title thereto as well as for moveable property.

Another feudal concept to bite the dust has been the idea of illegitimacy as a bar to inheritance. The common law concept was that an illegitimate child was filius nullius: a stranger in law and blood to its parents. Limited changes were made in 1968: an illegitimate child could now claim legitim and their child could represent them if the parent predeceased. There were also reciprocal rights of inheritance between mother, father and child. It did not go any further than this in 1968 although more substantive changes were made in 1986 when virtually all impacts of illegitimacy were abolished. Now it and its stigma have gone, being gradually removed in a piecemeal manner up until the total abolition of its legal status in 2006 by the Family Law (Scotland) Act.

On the inheritance tax front, the full spousal exemption that civil partners now benefit from was only introduced on 13 November 1974. Before that the exemption was limited and its introduction allowed for spouses to inherit without limit. The limited spousal exemption had only been £15,000!

We saw the ability for same sex partners to acquire a legal status for their relationship in 2004 with the Civil Partnership Act, which provided rights and responsibilities similar to male and female marriage.

The result was something similar to traditional marriage although different in that until the Marriage and Civil Partnership (Scotland) Act 2014 it had to be an entirely civil process and could not take place in a place of religious worship.

There are many tax benefits for civil partners now, which were implemented in the 2005 Finance Act. The changes meant they benefited from being able to inherit without limit from a civil partner and could also benefit from their partner’s tax allowances on the second death.

Succession is certainly one area of law that has overturned centuries of tradition.

Platinum blog series

Deborah Dillon is Lead Auditor, Business & Platform Solution for Atos UK&I. She specialises in Information Governance, including the application and implementation of Data Protection processes and procedures across a wide range of organisational areas. Deborah is a member of our Privacy Committee.

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