Children could lose out under new succession law, Law Society warns

Gordon Wyllie

Children could lose out under new proposals to change the rules of intestacy, the Law Society of Scotland has said today.

Responding to Scottish government proposals to change the law on intestate succession - where someone dies without leaving a will - the Society has indicated they may unduly affect children because the suggested threshold for the surviving spouse’s share is too high.

The Scottish Parliament’s delegated powers and law reform committee is continuing to hear oral evidence on the Succession (Scotland) Bill, introduced in June, today.

Gordon Wyllie, convener of the Law Society’s trusts and succession committee said: “Succession law affects everyone regardless of what they own and whether or not they have made a will prior to their death. It is therefore essential to ensure that any changes will work in the best interests of people in Scotland.

“The Scottish Government’s intention is to balance the rights of spouses and children but we think that in practice, the proposed new rules could result in little or nothing being left for children once the spouse has taken his or her share.

“We believe that lowering the proposed threshold levels would achieve a fairer outcome.”

Other aspects of the legislation were welcomed by the Society.

The Law Society supports the proposal to remove the distinction between ‘heritable property’ and ‘moveable property’ as it would remove complexity and strengthen protection from disinheritance where a will exists.

Currently, spouses and any children have legal rights to a share of the deceased’s moveable estate, regardless of a will’s provisions, with heritable property left to whomever the deceased person has chosen. An individual can therefore choose to exclude family members from inheriting part of his or her estate by converting it into heritable property.

The Scottish government is also consulting on proposals to replace legal rights with a fixed share of the whole estate, set at 25 per cent of what would be received under the proposed new rules of intestacy.

Mr Wyllie said: “We agree with the proposal to remove the distinction between heritable and moveable property for the purposes of both testate and intestate succession.

“We also support the introduction of a fixed share for a spouse or children who may have been excluded from the will.

“Greater clarity and protection against disinheritance in this area of law are welcome outcomes, which we think can be achieved provided further consideration is given to the proposed threshold levels.

“We would also recommend that given the fundamental nature of these proposed changes, if and when they are implemented it will be vital to launch a high-profile public information campaign to make sure that people are fully aware of the changes and are encouraged to plan for how their property is distributed after their death.”

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