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  4. Intestacy reform direction still unclear: ministers

Intestacy reform direction still unclear: ministers

20th May 2020 | executries

No clear consensus has emerged from the public in the latest exercise to explore reform of succession laws where someone dies without a will, the Scottish Government has reported.

In its response to the consultation carried out during the spring of 2019, the Government reports that neither of the foreign models put forward as a possible basis for reform - from British Columbia, and Washington State, USA - enjoyed majority support among those who responded.

Almost two thirds agreed that cohabitants should have to continue to apply to the courts in order to obtain financial provision on intestacy, and there was a broad view that a surviving spouse or civil partner should be given greater recognition.

Some specific points attracted more agreement, and will be legislated for at an early opportunity:

  • a time limit for claims for temporary aliment;
  • a person convicted of murder or culpable homicide should not be allowed to be executor to their victim's estate;
  • difficulties can be caused from personal data being publicly available within a grant of confirmation; and
  • the small estates limit should be reviewed.

On the bigger questions, however, ministers recognise that expectations differ about what should happen to a deceased person's estate, and "will seek, therefore, to explore whether the views of the wider general public regarding intestate succession can be better understood".

They add:"Once we have the benefit of completing further research and evidence gathering, we will consider whether the issue of intestate reform, including the issue of cohabitants rights in succession, should be referred to the Scottish Law Commission. The... Commission recently published a discussion paper on the cohabitation provisions in the Family Law (Scotland) Act 2006. Any proposed reform on these matters is likely to have a bearing on the shape of any future reform proposals for the succession rights of cohabitants so we will consider carefully any future recommendations. We will also continue to consider this matter in light of any new legislation and any impact it might have on this issue."

Click here to view the published response.

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