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Hamilton Ross
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A Step in the Right Direction for Scots Succession Law?

Succession law in Scotland has for a long time now been an area of law which is in need of radical reform. Despite being an area which is likely to affect us all at one point in our lives, the law of succession has for a long time been criticised as being overly complex and outdated.

The turn of the New Year brought the first significant reform of succession law in Scotland in over fifty years. The Succession (Scotland) Bill, aimed at simplifying and modernising the law in this area, passed its final stage in the Scottish Parliament on Thursday 28th January 2016.  This Bill introduced a number of the recommendations made by the Scottish Law Commission in their Report on Succession 2009, perhaps most notably, removing the provision which allowed ex-spouses and ex-civil partners to inherit from their former partner unless there was express provision to the contrary in the will. Further, it introduced new rules for how survivorship should operate where there is uncertainty as to the order of death, it reformed the law in relation to the revival of a revoked will and also put in place protection for trustees and executors.

These technical changes appear to fulfil the aims set out by Professor Joseph Thomson, the lead commissioner on the succession project, who said at the publication of the 2009 report, “The aim is to simplify the law radically by providing rules which are easily understood and which at the same time reflect the nature of family structures in contemporary Scotland.

However, despite undoubtedly being an important step in the right direction towards a more modern set of rules, the bill has failed to address the problems faced in Scotland by cohabiting partners. Despite being the fastest growing family type in the UK in recent years, cohabiting couples are still not on equal statutory footing with married couples. In 2015, the ONS (Office for National Statistics) published figures which highlighted the change in modern family structures. There is now a total of 3.2 million cohabiting couple families, making up 17% of all families in the UK.

Currently, cohabitants do have some protection in Succession law, albeit minimalist in comparison to married couples. The Family Law (Scotland) Act 2006 allows cohabitants to make a claim on their partner’s estate if that partner died intestate. In reality, this has proved to be a stressful and expensive process, meaning parties have to go to court without any guarantee that an award will be made.

The Succession (Scotland) bill has therefore failed to remedy the problems faced by a now very important section of our modern society, cohabiting couples and it cannot be doubted that further reform of succession law will still required in Scotland to make it fit for purpose. However this bill brings some much needed reform and hopefully will be the first step in a radical modernisation of Scotland’s law on Succession.

Author: Jennifer Cunningham, LLB Hons, currently studying for the Diploma in Legal Practice

The views expressed are those of the author and do not necessarily reflect the views of the firm.

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