Official Report 552KB pdf
Agenda item 2 is two oral evidence-taking sessions on the Succession (Scotland) Bill, first, with the Scottish Government and, secondly, with the Scottish Law Commission.
I welcome from the Scottish Government Jill Clark, team leader, and Frances MacQueen, policy officer, civil law reform unit; and Kathryn MacGregor and Ros Wood, both of whom are solicitors in the constitutional and civil law division. We have a few questions for you, and I ask John Mason to begin the questioning.
Good morning and welcome to the committee. Given that two pieces of legislation on succession are around at the moment, are you comfortable that there will be no confusion among practitioners and members of the public? Do you think that we will need to consolidate the law at some stage?
I will set out the background on why we have taken the approach of having two separate workstreams.
As I explained when I met the committee previously, the Scottish Law Commission’s 2009 report on succession is very large and substantive, and we knew from early consultation that some of its recommendations, particularly on disinheritance, would attract polarised views. We knew that we would have to do a lot more work, including further consultation, on those recommendations.
In comparison, many other aspects of the report were uncontentious, and we considered that they were worthy of progression at an early opportunity. That is why we have introduced the Succession (Scotland) Bill but are continuing to consult on provisions for another bill. Progressing the recommendations in this way makes the work more manageable and ensures that the provisions in the present bill are not unduly delayed.
There is the potential for confusion, which is why we were keen from the outset to signal what we were doing. In the consultation on this bill, we set out that we would be taking forward a second workstream, and we have done the same thing in the consultation on the second bill. On the timing, we were anxious to ensure that, while the present bill was being considered by the Parliament, the consultation on the second bill was in the public domain so that the demarcation between the two, and how they fitted together, became clear.
Whether we should have a consolidation bill is an issue for further down the line and will be a matter for the next Scottish Government. At that point, it will be necessary to consider the succession law landscape and whether consolidation is necessary; it would be premature to do so at this time.
That is fair enough.
The Law Society of Scotland’s view is that it should be possible to amend the bill, once enacted, only by primary legislation. Do you have a view on that?
We think that there are good reasons why we should not be able to amend it only by primary legislation. My colleague Ros Wood will respond more fully on that point.
We do not agree that amendment should be possible only by primary legislation. The powers to modify contained in section 25 are in keeping with the powers that are normally considered appropriate for legislation in case there is a need for fine tuning to ensure the workability of an act. It would be unfortunate if an element of fine tuning to ensure workability could not be taken forward because primary legislation was required.
There are appropriate constraints on the power to amend the act by subordinate legislation. It can be used only to give full effect to the act; if more substantive changes were in prospect, they would have to be made by primary legislation.
The Law Society’s concern was that practitioners might not pick up on changes that are introduced through subordinate legislation. It is, however, part of practitioners’ professional responsibilities to advise on the most up-to-date version of the law as a matter of course. Also, the Scottish Government is likely to publicise any use of the amending power that is particularly relevant for practitioners.
So is your key argument that there is no reason to make an exception for this bill?
Yes, that is correct.
That is fair enough.
A question has been raised in relation to the dates on which the provisions become applicable and whether the bill will have any retrospective effect. Is that an issue?
We will deal with the application of the provisions by way of a commencement order, and generally there is no intention to make any of the provisions retrospective. Again, Ros Wood will go into more detail.
The Scottish Law Commission recommended that the provisions should apply in relation to death occurring on or after commencement, and that sections 6, 7, 8, 19 and 20 should apply to documents executed on or after commencement. The Scottish Government is content with the commission’s proposed application, except in respect of section 5.
Under the current law, a will that is revoked by a subsequent will will revive if the subsequent will itself is revoked. Section 5 reverses that position so that an earlier will no longer revives. The Scottish Law Commission recommended that section 5 should apply in relation to all deaths occurring after commencement, irrespective of when the revocation takes place.
However, the Scottish Government takes the view that section 5 should apply only in respect of wills that are revoked after commencement to ensure that, where a person revoked their will on the basis that their old will would revive, the old will would not be invalidated under the bill. A person who revokes their will after the provisions in the bill come into force will do so on the understanding that their old will will not apply unless they re-execute it. That is the only change in application that the Scottish Government recommends.
We will come later to the general subject of simultaneous death or uncertainty of order of death, but I wonder what would happen where one party to that simultaneity or uncertainty has a document that was written before the passage of the bill, which would therefore not be captured under the new law, while the other party has a document that was written afterwards. Would any difficulties arise in such circumstances? I cannot imagine what those difficulties would be, but I would like to hear your answer.
On the basis that they are both treated as having failed to survive, each person’s will would have no effect on the other person, so that question would not arise—it would be headed off at the pass, if you like. The nature of the provision means that, when two people both die the same time, it is as if each had never made any will in respect of the other.
Right. That is helpful—thank you.
I accept that the witnesses have already made the point that practitioners and other stakeholders should be up to speed with what is going on in the Delegated Powers and Law Reform Committee and in Parliament, but I wonder about members of the public, who perhaps do not follow the proceedings of this committee with avid attention. Assuming that the bill is passed, are there plans to communicate the changes and get them out into the wider public domain?
As you say, we are quite comfortable that the legal profession is engaging in the process through consultation and with the DPLR Committee as the bill progresses, and it will therefore be kept up to speed.
There is an issue with regard to the public, but it is worth putting the situation in context. Many of the circumstances that are outlined in the bill will occur infrequently, and in some cases only very rarely, and the number of members of the public that they will affect will be small. That is not a reason not to disseminate information, of course. Several situations—concerning forfeiture or rectifying a will, for example—would involve a court process, so the legal profession, which would have that knowledge, would inevitably be involved.
We have a very useful and well-used publication that we supply free to hospitals, hospices, citizens advice bureaux and the public, entitled, “What to do after a death in Scotland: practical advice for times of bereavement”, which outlines the main legal provisions. At present, there is not much in it regarding the provisions, but we will see whether we can add something to it that would at the very least signpost some of the changes. We also have a website with information on succession that we will update. We are trying to think of providing information in an accessible and easy-to-understand way—as opposed to what is in the bill itself, perhaps.
It has been argued that the bill brings the law more into line with what the public might naturally have expected, so in fact you might need to explain the new situation less than the present one.
Yes. Ignorance is a wonderful thing, you might think, and perhaps we should leave that undisturbed. However, we need to ensure that people are clear where there needs to be clarity.
In the future, if we end up changing the fundamentals of succession, there may be a much bigger public dissemination and the matter can be highlighted again at that point.
Thank you. We move on now with John Scott on the effects of divorce.
Good morning. I want to ask about the policy rationale for including guardianship in the scope of section 1 and whether the panel agrees with the Law Society that there are potential drawbacks to that approach.
Section 1 gives effect to recommendation 52 in the Scottish Law Commission’s report. Under section 1, if a testator’s marriage is terminated, testamentary provision in favour of the former spouse is effectively revoked; that includes any appointment.
As John Scott said, one of the Law Society’s concerns was that guardianship that was conferred on an ex-spouse would fall. We considered with policy colleagues whether there should be an exception. However, on the basis that a guardian can also be appointed by the courts, there would be nothing to prevent the ex-spouse from going to court and asking to be appointed afresh.
In addition, and probably more importantly, the testator can make provision in their will to override the presumption that guardianship will fall. Where the testator does not make that provision, we think that it has to be assumed that the testator did not intend that the former spouse should be appointed. That was the policy rationale.
There is an implication by omission.
Yes.
How long would the process take if someone had to go through the courts for guardianship?
I do not know. I propose that I write to the committee when I have found out exactly how long it would take.
The provision will apply only where one of the parents has accepted a child or children as part of the family and does not have parental rights and responsibilities over them. We do not imagine that it would be common for an ex-spouse not to have parental rights and responsibilities over the children that are within the family. However, as has been noted, such a situation could arise.
I observe on behalf of the committee that the fact that something is not very common does not mean that we do not need to get the law right. It does not matter if there is only one case. Even if we are not sure that the issue will arise, we still need to make sure that the law says what we think it should say.
I refer back to Ros Wood’s comments. The policy in respect of the provision is that it should be the testator’s intentions that are given effect.
Thank you.
I now refer to TrustBar’s evidence to the committee relating to section 1(1)(d) where marriage or civil partnership ends. Do you think that there is merit in TrustBar’s suggestion that section 1 should operate at the point when the marriage or civil partnership ends instead of at the point when the testator dies?
The Scottish Law Commission recommended in recommendation 48 in its report that section 1 of the bill should apply only where the deceased is domiciled in Scotland. Section 1(1)(d) gives effect to that. The Scottish Government does not agree that the testator requires to have been domiciled in Scotland at the time of the divorce, dissolution or annulment in order for that provision to apply.
10:30We agree with the Scottish Law Commission’s recommendation that, in order to provide an appropriate link to Scotland, the rule in section 1 should apply when the testator dies in Scotland regardless of where the termination took place; requiring the testator to be domiciled in Scotland at the date of termination rather than at the date of death would produce anomalous results. For example, if a person of Scottish domicile whose estate fell to be distributed according to Scots law got divorced in France for some reason, Scots law would not apply, and we think that that would be an undesirable result. Ultimately, the view is that the Scots law of succession should apply to those who die in Scotland.
Okay. You are aware of the concerns.
That takes us to page 6 of our question paper.
Is there merit in TrustBar’s view that the protection in section 2(4) for people who acquire property in good faith is unnecessary because property that is subject to a special destination passes automatically without any need for an executor?
TrustBar has submitted that a third-party purchaser could never purchase property in good faith because they would always be aware of the special destination in the property title, but we submit that that section is not really designed to deal with that situation.
There are situations in which a third party could purchase property in good faith—for instance, in the case of an unworthy spouse. It is foreseeable that title could pass to a former spouse, perhaps from an executor, without knowledge that the couple had been divorced or that the marriage had been annulled. The unworthy spouse could then pass the property on to a third person and, under the law of unjustified enrichment, the unworthy spouse would have to return that property, or the value thereof, to the estate.
Section 2(4) protects the third party by saying that their title will be protected and they will not have to give the property back. That replicates the provisions in section 19(3) of the Family Law (Scotland) Act 2006 and section 124A(3) of the Civil Partnership Act 2004, which also currently afford that protection. The bill combines those in a way that makes the provisions easily accessible in one section.
Okay. Thank you.
Let us be absolutely clear: is that an unqualified protection for the third-party purchaser or acquirer? I ask that because I have a devious mind. There could be an arrangement between the—to use your phrase—“unworthy spouse” and a third party to minimise the benefit that the unworthy spouse would acquire, knowing that there might subsequently be doubt about the whole transaction to the unworthy spouse in an attempt to protect the asset. That third party might be somebody with whom the unworthy spouse now had a relationship. I am sure that there could be lots of other examples. Is an unqualified right being created or is it a qualified right? Would such examples be caught by other legal provisions?
That is a foreseeable situation. The right is a qualified right. It would depend on the third party acting in good faith.
So the test is whether the third party is acting in good faith.
Yes.
That is helpful. Thank you.
Sections 3 and 4 are on rectification of a will. I note what is in the bill, but I also note that the Law Society of Scotland and TrustBar commented that there might be other ways of doing this. They suggested at least that they could see alternatives and are, maybe, not terribly happy with what is proposed. First, given that level of discussion, is it appropriate that what has been proposed is in a bill that is in front of this committee? Are we dealing with a bill that is sufficiently non-contentious?
Yes—I think that the bill is sufficiently non-contentious. Many of TrustBar’s comments are on the detail; they do not suggest that the provisions would have a different legal effect, but are about how the aims would be achieved. We have only very recently—yesterday—written to both TrustBar and the Law Society about the detail of their submissions to the committee in order to outline our position on some of their comments and to seek clarification on others. We hope to have a dialogue with them, as things progress. I do not think that their comments take the provisions out of the realm of what is suitable for the committee to consider.
I am grateful to you for that advice.
I note that Michael Kusznir and—I think—TrustBar commented on the date of the application for rectification. The particular suggestion that I want to pick up on is related to the fact that confirmation can sometimes take a very long time. Might the timetable for rectification be set at the date of death rather than the date of confirmation? Otherwise, things could run on for an almost open-ended period.
That is one of the points that we have included in our letter to TrustBar, because we—like TrustBar—are of the view that, whatever happens, the process should not be unduly delayed and should be as quick as possible. TrustBar has suggested a period of two years, but we are not sure that that would meet the criterion of being within reasonable time limits. That is something that maybe needs to be worked out and considered. As I said, we have picked up that issue with TrustBar.
So, as you have flagged up the issue, we can expect you to come back on that at some stage.
Absolutely.
That is fine. Thank you.
I turn to the effect of revocation on a will and the possibility that the second or subsequent will might be struck down, for example because of incapacity. There is the possibility that it might have been the testator’s wish that the earlier will would have been revived, because it might be the only extant testament that makes any sense. Has anybody considered whether there should be an exception or whether the decision should at least be within the court’s discretion?
Yes. Section 5 would apply only when a will revokes another will; it would not apply when a court reduces a will. If a will revokes an earlier will and that will is itself reduced by the court, there is nothing to revoke the earlier will, so the earlier will would remain as it is and section 5 would not apply; the bill will not affect such situations.
Are we sure that that is what we want to happen? I am sorry, because that sounds like a policy statement—I am questioning whether that is what we want the policy to say.
I think that, in the circumstances, that sounds right.
I do as well, but I am conscious that we might need to think about that exceptional and rather rare circumstance.
If a person revokes their will, they do so knowing that they will revive or not revive, whereas if a court reduces a will, the testator may already have died and a court would not want to revert to a position of intestacy, so I think that there is a policy justification for not revoking the old will.
Forgive a layperson’s question, but I want to be clear that I understand what reducing a will means. In effect, it means taking bits of the will out so that they do not have effect. Is there a difference when the reduction in the will takes us to a position of nullity of the will, or is it all the same?
What generally happens is that an application is made to the Court of Session. Usually, when the court reduces the will, the whole will will fail. However, there is case law in which part of a will was deemed to have been reduced but the rest has subsisted. I cannot remember the case’s name off the top of my head, but I can write to the committee with it.
In answer to your question, the whole will would generally fall.
In essence, there is, in fact, no distinction between a partial reduction and a total reduction.
Generally speaking, the whole will will be reduced.
Forgive me, but “Generally speaking” sounds like weasel words. You are saying that there is a little bit of uncertainty and that it would be up to the courts to determine the matter.
Yes—it would be up to the Court of Session.
At the end of the day, that is not an unreasonable position.
I do not think that you need to give us the legal reference that you mentioned.
Any reduction in work is welcome at this stage.
James Kelly has questions on legacies.
TrustBar and the Law Society made specific comments about sections 6 and 24. TrustBar had concerns about the position in section 6(2) in relation to a testator deciding that they do not want section 6 to generally apply to them, and about how that interacts with the other provisions in section 6. What do you make of those comments?
Is the question about how section 6 interacts with somebody who wants to renounce their legal rights?
Yes.
Section 6 would not apply in that situation, because it deals with the legacy, not legal rights. Section 6 places on a statutory footing a conditio that, where an individual dies between the legacy being granted and that legacy vesting, their issue can step into their shoes and take their share of the legacy. That would not apply to legal rights. The equivalent provision would be section 11 of the Succession (Scotland) Act 1964, which says that issue can step into the shoes of an individual, where they are not able to take their legal rights through predecease.
So, with regard to section 6(2), the testator has to be absolutely clear that they do not want section 6 to apply.
Section 6 would not apply in respect of legal rights. In terms of the legacy, the testator could make provision in the will that overrides the statutory presumption in section 6. In the common law previously, that would not have been allowed, and the issue would have been presumed to be favoured over whomever the testator had made an alternative. Now, the situation will be that when alternative provision is made in the will, that will override the statutory presumption. Is that clear?
Yes.
On section 6(6), the Law Society felt that the definition of “issue” should be made clearer to ensure that how it relates to adopted children and stepchildren is clear. You said that you have had some interaction with the Law Society and TrustBar. Is that something that you have discussed with them and taken on board?
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We do not think that much needs to be done because the term “issue” means direct descendants of every degree, whether that is a child or a grandchild, and it covers descendants by adoption by virtue of section 23 of the Succession (Scotland) Act 1964. The definition of “issue” already includes adopted children and excludes stepchildren. That was the view of the Scottish Law Commission and that is our view, so the answer is there already. Whether it needs to be made clearer is something that we will certainly reflect on, but that is the position. Issue would include adopted children but would exclude stepchildren.
Right—so that is your policy position, which is at odds with the Law Society of Scotland.
That is what the law provides. The question is whether it is necessary to make that clearer.
Thank you.
Stewart Stevenson has questions about survivorship.
Some questions have been raised about simultaneity of decease and the use of the word “uncertain”. I suppose that the first question is how we decide that we are uncertain and how that works in practice. TrustBar criticises the use of the word “uncertain”. I can posit for myself that one can be certain that one is uncertain in some circumstances, but in other circumstances one could remain uncertain as to whether one is uncertain.
The order of death is uncertain if it is not possible to prove a particular order on a balance of probabilities. That was discussed in the case of Lamb v Lord Advocate, so that is the standard. It is the balance of probabilities.
I am content with that answer. Who determines the balance of probabilities? Is it the trustees or is it the courts?
It would be the trustees in the first instance, but if the beneficiaries were unhappy, the case would go to the court.
Forgive me, but I have to observe that that is one of the most worrying things about the whole subject—not just about the bill, in particular. Every single one of us in this room could find ourselves being the executor of a will, and we are ordinary folk, as are most executors who find themselves in the position of being a trustee. Of course, we would have to take legal advice, but if we are not sure what “uncertain” means, how on earth is an ordinary trustee supposed to make that judgment? How can an ordinary person who suddenly finds themselves having to do that—they certainly do not choose the timing of it—make a judgment that they might then have to defend in court against litigious potential beneficiaries? The practicalities of getting the appropriate legal advice that a lay trustee would need in order to get a defensible position worry me enormously. What is your response to that?
That is something that we will need to reflect on. You are right: we assume that people in the legal profession are aware of certain terms, but your point is well made, so we shall reflect on that and write to the committee.
That would be helpful.
Earlier, we were talking about lawyers understanding the bill, which is fair enough. I have a great respect for lawyers. However, if there is one thing that we all need to do as adults, it is write a will. That is a pretty basic message, so the bill affects every single adult member of our society. Ensuring that people understand what they should do is a pretty important part of governmental action, because it is difficult to see who else’s responsibility it might be.
You are perfectly correct, convener. In 1912, at the age of three, my mother was the executor for her grandfather, according to his will. Her father undertook the role, but I have to wonder why her grandfather named her. Let us move on, however, to a more fundamental matter before we leave the subject of survivorship and uncertainty.
There is potentially a need to address the issue of cases, where there is deemed to be simultaneity or uncertainty, in which the estate falls to the Crown. Is that a satisfactory position to be in, rather than the estate passing to other relatives?
That is the point that TrustBar made, and it is one that we are going to reflect on. I take the point that we are talking about very small numbers—probably tiny numbers—but nevertheless we need to think it through. We have decided that we should reflect on that point, because the position that you describe is probably not the best outcome.
In particular, if the will refers to other relatives or other people, it would seem perverse that the law should deprive them of their right to inherit simply because of uncertainty about whether there is simultaneity or because there is unresolvable uncertainty about the order of death. Speaking as an individual, I would encourage you to think carefully about that. We—or I, anyway—will come back to that point if I do not like what I hear subsequently.
In considering that point, you might like to reflect on whether there are circumstances in which such decisions should be down to the discretion of a court. I recognise that generally that is what we are trying not to have, because then there could be a large number—up to the total population number—of cases in court. However, in the situation, for example, of an entire branch of a family dying in a car crash—which will be rare—perhaps it should be open for a court to decide what is reasonable, instead of looking at testamentary documents that would bear little resemblance to what anybody thought should happen in those circumstances.
To clarify one thing that Stewart Stevenson mentioned earlier, if there was provision in the will, that would take effect. It is where there is no provision in the will—
It is where we have run out of implementable provisions.
Yes.
That is helpful.
Also, as you say, convener, the court would be another option.
It would plainly not be the preferred option most of the time, or everybody would finish up in court, which is exactly what we want to avoid. I will leave you to reflect on those exceptional cases.
That takes us to forfeiture.
I would like to know why we are abolishing the Parricide Act 1594 at this stage rather than simply leaving its provisions.
Back in 1990, in the report that was the precursor to its 2009 report, the Scottish Law Commission recommended that the common law of forfeiture should be put on a statutory footing and that at the same time the Parricide Act 1594 should be abolished. By the time of the 2009 report, the SLC had shifted its position and considered that it was not necessary to abolish the common law of forfeiture, because it was used very rarely and it worked very well when it had to. However, the SLC still recommended that the 1594 act be abolished. Therefore there is no recommendation in the bill to put the common law of forfeiture on a statutory footing, which I think the respondent thought should happen in order for the 1594 act to be abolished. We are content that the common law of forfeiture works fine and that the 1594 act is unnecessary because the common law covers what was previously in the 1594 act.
The working of the law subsequent to the passage of the bill that is before us would be that the legal fiction is created that the person who benefits has, in succession law terms, died before the person who provides the benefit.
Yes, that is the change that the bill would introduce.
It is an interesting legal concept—that one is simultaneously alive and dead. As I said last week, Edgar Schrödinger would be interested, if he were still alive.
Perhaps he is.
I do not think that he is; he has indeed passed on.
The other issue that has been raised is why you think that it is appropriate, in policy terms, for the court to be able to grant an unlawful killer 100 per cent relief from the effect of forfeiture. I have in mind the example of people who assist people to travel to the Dignitas clinic in Switzerland, which might be an unlawful act but is what the person who eventually dies wants to happen. I can see that, subject to the courts looking at it, there might be circumstances where 100 per cent relief might be appropriate. Is that the sort of thing that the Government had in mind when contemplating having 100 per cent relief, or were other circumstances considered?
The granting of relief is discretionary. In a way, the court is hampered at the moment. There was a case in 1987 involving a petitioner called Cross in which the judge felt that they could grant 100 per cent relief on the heritable property but only 99 per cent relief on the moveable property. That is an artificial divide. If we are giving discretion to the courts, they should be able to exercise their discretion right to the limit.
The sort of circumstances in which courts have granted relief but not total relief, as they felt that they could not do that, include, for example, when a suicide pact went wrong; and when someone who had been abused in an abusive relationship accidentally killed the abuser in self-defence. That sort of circumstance might chime with Mr Stevenson’s example. The bill’s intention is to open up the full percentage to the court so that it does not have the artificial line that I described.
Section 18 refers to “Estate administration” and “errors in distribution” with regard to the protection of trustees and executors in certain circumstances. I seek clarification about the duty to make reasonable inquiries about the existence of potential beneficiaries. Do we expect that duty to be interpreted as being a duty to advertise? The bill does not specifically mention a duty to advertise, but it might be assumed that such a duty would almost automatically become the case. If it was the case, would that delay the whole process of administering estates?
The term “reasonable inquiries” is a commonly understood one, which would not involve advertising. If there was a duty to advertise, it would be set out in the legislation. What constitutes reasonable inquiries is commonly understood, but if there was any dispute about its meaning, it would fall to the court to consider in a particular case whether somebody had acted reasonably within their professional responsibilities.
If it is going to fall to the courts, will people play safe and just tend to advertise more often than we would expect them to need to?
I do not think so, because the term “reasonable inquiries” is a commonly understood one. Advertising about whether someone was adopted, for example, would probably not receive many answers, but making reasonable inquiries about it would involve speaking with family members and checking what the family relationships were. I do not think that advertisement would be particularly helpful in such circumstances.
The Scottish Law Commission considered in 1990 whether there should be a specific duty to advertise as part of making reasonable inquiries and determined that there should not be a specific duty, because it could give undue weight to that form of reasonable inquiry and people might think that they would require only to advertise rather than make further reasonable inquiries. The commission also stated that it felt that “reasonable inquiries” was a commonly understood term, as my colleague said, and that therefore there was no merit in defining it further. In fact, I think that the commission felt that defining “reasonable inquiries” further in legislation could hamper it, which is why we have not defined the term.
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In this narrow and specific context, it would be interesting to know what it is thought might constitute reasonable inquiries. I give two suggestions as to what it might be—the employment of private inquiry agents to track down missing people and the employment of professional genealogists to find unknown parts of a family. Is that the sort of thing that reasonable inquiries might be thought to include?
Again, it would probably depend on the circumstances of the case. It is high-level work to compile the sort of reports that you mentioned. However, if a member of the family said to the executor, “We think that there is an adoptive sister,” it would be for them to make more extensive inquiries than they might usually make. It would be context specific and it would depend on the circumstances of the case.
I suggest that families do not know of relatives more often than you might imagine. In the past two years, our family discovered a cousin that we had absolutely no knowledge of, who was born in 1943 and is still living.
I entirely accept that such things happen, but can I move us on? I wonder whether John Scott has another question.
I do. I take you to section 22 and private international law. In the generality, is it desirable that reforms to this complex subject will be split between two separate succession bills? Is that reasonable?
Yes, to the extent that the recommendations will apply, as far as they can, to the bill and any future legislation. There is no tension in that. They just apply to the extent that they do—no more and no less.
Okay. Recommendation 50 appears not to be completely implemented in the bill. Can you explain that, please?
I mirror what my colleague Jill Clark said. It is implemented in so far as it relates to the bill provisions. Where, perhaps, a provision requires a testator to be domiciled in Scotland, we only need to note the grounds of jurisdiction where a person is domiciled in Scotland. It applies in so far as it relates.
Thank you.
James Kelly has the last question on the proposals.
The Law Society of Scotland made the point in its submission that two issues were consulted on but not included in the bill: bonds of caution and the effect of the birth of a child. Will you explain your rationale for not including those?
Yes. Actually, four or five things that we consulted on have not appeared in the bill: bonds of caution, the conditio about the child, temporary aliment, aliment jure representationis and recommendation 46, which was about jointly held foreign moveable property. None of those features in the bill because we got a mixed reaction on them.
There was a lot of support for abolishing bonds of caution, which were the subject of the main question, but there was a lot of uncertainty about what safeguards we needed instead. In general, people were against the conditio proposal—there was a majority against that—and it was similar with the two alimentary provisions, which were grouped with mournings. The mournings proposal is the only one that we progressed into the bill.
We are consulting again on all those things. They are being consulted on now in the second consultation. Some of them have moved on a bit because we have been able to take an initial view. We are just looking at what safeguards we need for bonds of caution, for example, as opposed to the principle. Recommendation 46, on joint foreign moveable property, does not feature in the second consultation, but we will keep it in mind as that progresses.
In general, the reason is that there was mixed support and there were mixed views, so we decided that the provisions needed another examination.
Thank you.
That is, of course, entirely consistent with the committee’s remit and the legislation that should be in front of us, slightly strange though that might seem from the outside.
That brings us to the end of our prepared questions and the end of this session. Thank you very much. I will suspend the meeting for a couple of minutes, not least in order to allow the witnesses to change over.
11:05 Meeting suspended.
I welcome our witnesses from the Scottish Law Commission. We have Caroline Drummond, who is the commissioner for the bill, and Charles Garland, who is the project manager for the bill. Welcome back, Mr Garland. I think that this is Caroline Drummond’s first formal appearance before the committee.
It is.
It is good to see you.
Our questions will roughly follow those that we just asked the Scottish Government. They will therefore be led by John Mason.
My first question is about the fact that two succession bills are around. Is that causing or could it cause confusion for practitioners or for those who are less involved in the area?
As our initial report on the matter was produced in 1990, we are absolutely delighted to see any bill taking it forward. As far as we are concerned, it would be good if the bills were consolidated and brought together so that there is one place not just for practitioners to see clearly but for the public to consult. That is our preferred option. However, it is understood that the Government has to look at that once the current consultation is finished.
You are happy that the Government has gone with two bills rather than waiting and dealing with it all later.
Yes. We are happy that the current bill is going ahead, because we think that it is non-controversial.
The Law Society feels that, if we were to amend the act once the current bill is passed, that should be done by further primary legislation rather than by regulations. Do you have a view on how that should happen?
The legislative timetable is busy and it is difficult to get primary legislation through. We have heard the Government’s explanation on amendments. It has said that there are appropriate constraints, so we are happy with that.
Section 25’s scope seems quite wide, but you are satisfied with it.
Yes.
My next question is on retrospection. People are concerned that parts of the bill could be commenced that would affect people who have already died or put their will in place. Are you comfortable with the way in which the Government has dealt with that?
Yes. In our view, it is always better if we can tell from a bill when it will come into effect. However, the Government policy is to have a commencement order and to deal with the issue in that way. As we will have a chance to look at that in advance, we are happy with the position.
On retrospection, are you comfortable that all the provisions have been translated in the best way? There are some things on which we want to change the general law of the land and to affect every will that is thereafter brought into effect but, on other matters, we would not want somebody who has drawn up a will to have to change it because the law has been changed under their feet. Is the balance right?
We think that it is.
What is the policy rationale for including guardianship in the scope of section 1? What is your position on that and what are the drawbacks of that approach?
The SLC included guardianship in its 1990 report and again in its 2009 report. The issue has been considered in detail on two occasions, so we are happy with that and we are happy with the bill as it stands. As the Scottish Government said, it would be quite unusual for a spouse without parental responsibilities to be appointed as a guardian. We are happy with the approach.
11:15
You are happy, so you do not think that the Law Society has a point in thinking that there are drawbacks.
No—if the spouse has parental responsibilities, I do not think that there is an issue, so I was quite surprised by the Law Society’s point. However, I was heartened to hear that the Government is in discussion with it to get to the bottom of that point.
Is there merit in TrustBar’s suggestion that section 1 should operate when the marriage or civil partnership ends and not when the testator dies? We have had a pretty full explanation on that from the Scottish Government, but I am interested in your views.
We do not agree with the TrustBar proposal, which would introduce concerns. There would be multilayering of where a person was when they married; they could get married again and then die. We are looking at the law of succession and we feel that we need to look at the situation when someone dies.
Is there merit in TrustBar’s view that the protection for people who acquire property in good faith, which section 2(4) covers, is unnecessary, because property that is subject to a special destination passes automatically without any need for an executor? That point has also been discussed already.
There is merit in having all the provisions that relate to succession in one place for people to look at, so we do not think that the protection is unnecessary. We are happy with it and happy that it relates both to heritage and moveable property.
I move on to the power of rectification. The Scottish Government made it clear that it feels that the comments about rectification from the Law Society and TrustBar do not concern the general principle, so the provisions are not sufficiently contentious to be put in another bill. I would be interested in your comments on that, if you have any.
A further point is whether the time limits to apply for rectification should come from the point of confirmation or the point of death. The fair comment was made that confirmation can take a long time, so the period could become open ended.
I understand that section 3(2) gives the court the ability to extend the time limits.
Would you be happy with a relatively short time limit that was subject to the court’s discretion, as many things are?
Yes.
That seems to be a fair way forward.
My question pertains to section 6, which deals with death before legacy vests. There were a couple of comments on that from TrustBar and the Law Society. TrustBar was getting at the provision in section 6(2), which allows section 6 generally not to apply to a testator. Will that result in any confusion and does anything need clarification there?
To be clear, I note that section 6(2) gives the testator the right for the provisions in section 6 not to apply to them. TrustBar has concerns about whether that is clear enough and whether it would override other comments.
I do not share TrustBar’s concern in that respect. We are perfectly happy with the drafting as it stands.
Do you have anything to say about section 6(2), Charles?
The issue is covered in the Scottish Government’s letter to TrustBar. TrustBar’s members have details and practical experience, and any examples that they can point to of typical ways in which wills might be drafted that might give rise to concern will need to be taken into account. The concern seems to be about the definition of a residue clause, but it is only right that TrustBar is given a chance to explain the possible doubt.
The Law Society has made a point about the definition of “issue” in section 6(6). As the Scottish Government told us in the previous evidence session, the Law Society is concerned about the impact of that definition on adopted children and stepchildren and believes that those people are not included. The Scottish Government has explained that the policy approach that it wants to take is for the provision to apply to adopted children but not stepchildren. Do you have any comments on that?
No. We are perfectly happy with that approach and with the Government’s explanation.
The approach seems right, given that adopted children lose the right on adoption to claim any rights against their natural parents. The same is not true for stepchildren, and including them in the provision would in effect give them two bites of the cherry.
In response to the question about simultaneity of death or uncertainty about the sequence of death, the Government said that the matter would be determined on the balance of probabilities, which is a standard thing to say. Is the Scottish Law Commission content that trustees and executors will be able to operate on that basis, particularly if they do not have legal advice, without getting into any difficulties?
We are perfectly happy with that. We do not share TrustBar’s concern about the law being uncertain on uncertainty. It seemed clear to us what the word “uncertain” meant in the case that it quoted, and certainly the word “uncertain” has been in the Scottish Law Commission’s reports throughout.
As for what happens in practice, it will be useful to discuss with practitioners their experience, because I suspect that there is generally accepted practice. However, we have no difficulty and are perfectly happy with the word “uncertain”.
So the use of the word “uncertain” in this context is not in any way novel in relation to previous uses of the word in Scots law.
No.
That is sufficient.
I will take the opportunity to raise an issue that I raised with the Scottish Government, which is that most executors of wills are laypeople—sometimes with a very small “l”. To what extent did the Scottish Law Commission consult laypeople who have experience of doing this—those who have no experience would have nothing much to say—to ensure that the law that we are promoting can be effectively worked by those who will come to it suddenly, unwillingly and without any legal background?
As I understand it, our original consultation, which culminated in the 1990 report, involved members of the public. We also have handwritten submissions from that time in our old files.
Indeed. There was also consultation in 2007, although most of the topics that were consulted on then are not in the bill. Nevertheless, members of the public have had an opportunity to respond, and some of them—particularly those who have found themselves in a situation in which they felt that the law treated them unfairly—have made strong representations.
Are you in a position—clearly you cannot do this now—to help the Government to produce the guidance that will surely be necessary, once we have got both bills through the process and possibly once the law has been consolidated, to ensure that the man or woman in the street can read up on this without having to talk to a lawyer about how to be an executor? Our job as MSPs is to ensure that lawyers deal with what they have to deal with and not with what they do not have to deal with, which tends to be expensive. That is how we protect our constituents.
Indeed. The Government’s guidance notes are very good, but we would be absolutely delighted to help with that.
I hope that this will not sound like too much of a plug, but I point out that in Scots law executors are generally and for almost all purposes treated as trustees. The law of trusts is complicated in its own right and is antique in a way that makes succession law look relatively modern. Our report on trust law was published last year and I hope that it will come to Parliament before too long, so that the law that applies generally to trustees but also to executors is reformed. There would be a number of clear benefits in doing that, one of which is that the law on trustees and therefore executors would be brought together and expressed in modern language.
That heartfelt plea has not fallen entirely on deaf ears. Let us hope that the Government is listening.
In its evidence about the situation when a family perish together and the destination of assets is, broadly speaking, the Crown, the Government indicated that it is going back and thinking further on the matter. What might the Scottish Law Commission, if asked, advise the Government on that subject?
Our two reports—the original 1990 report in particular—make excellent reading on that. I do not think that we have anything more to add.
In essence, the advice is that we should read your previous reports.
Again.
Right—I am perfectly content with that.
To move on to parricide and forfeiture, the key point is probably the provision for 100 per cent relief. Does the Scottish Law Commission have any issues with the existence of 100 per cent relief or any belief that the courts will have difficulties in dealing with it?
No—we are content with the provision. We believe, as the Government does, that it seems artificial that a court can award only 99 per cent relief. Our view is that, if a court has discretion, it should have full discretion.
On the subject of artificiality, the legal mechanism for depriving a beneficiary of the fruits of their illegal act is to legally decide that, for that purpose, the beneficiary was dead before the person was killed. It sounds very odd that a person will die twice in law. Is there not a better legal mechanism by which that result can be achieved? I understand the practical effects, but it must sound to the layperson a distinctly odd approach to take, given the common understanding of the term “death”.
It is death only for a particular narrow purpose. Such a provision appears not only in section 12 but in sections 1 and 2, and it is, for the purpose that you describe, a useful assumption.
I understand that. I am saying only that to be both dead and undead simultaneously sounds a little odd. While atomic physicists would be perfectly content to deal with such an example of Schrödinger’s cat, the legal profession in all its manifestations might think of more useful terminology—in the future, perhaps, as we are clear where we are on it at present.
I think that the legal profession would struggle to do so. There have been attempts in the past to avoid using the terminology, and they have all failed.
On the basis that the situation does not occur very often, I suggest that we move on, although we need—as I have said—to ensure that the law is right even for such rare events.
John Mason will take us on to protection for trustees, which I am sure is a common concern.
I think so. Section 18 refers to protection of trustees and executors in certain circumstances in which there have been errors in distribution. It states that there will be no blame if the trustees have acted
“in good faith and after such enquiries as any reasonable and prudent trustee would have made in the circumstances of the case”.
How will that approach work in practice? If it becomes the norm, will there be advertising? My fear is that advertising would delay procedures in concluding an estate.
The measure in the bill is the same as the existing law, so we hope that there is an established body of practice. The fact that the provision consolidates the existing law may be less significant than the fact that there are differences in the ways in which people’s relationships may be established or in which people may be traced.
Putting an advert in a newspaper might once have been a reasonable precaution that would attract immunity from liability, but it is possible that more may now need to be done to track people down through the use of electronic means or electronic advertisements. We hope that the existing practice would simply carry on, but it would need to be adapted to what is considered reasonable in view of the kinds of tracing that can now be done. It is now much more simple than it once was for somebody to take those measures in hand themselves.
11:30
That is a reasonable answer. I accept that established law is in place and that the issue does not seem to have been a problem up to now. You have pointed out that the means of communication are changing; it seems to me that relationships, too, are changing and that the traditional family unit is perhaps less common. I have to say that the position seems vague to me but, if you are satisfied with it, that is fair enough. The fear is that, as a result, we will end up with delays in concluding matters.
We do not think that this will give rise to additional delays.
You will forgive me but, as someone who has been involved in genealogy for more than 50 years, I can tell you that having information online merely makes it easier to confuse things. The records that one looks at are all informed by what people believe to be correct rather than by objective fact. Off the record, I could give you lots of examples in which what is on a birth, death or marriage certificate is not correct, although it was given in good faith.
Would you like to take us forward, John?
With regard to section 22, is it desirable for reform of the complex subject of private international law to be split over the two succession bills? Are you content with that approach?
Yes. The approach will apply only in so far as it relates to this bill and the one that is to follow.
That is all I wanted to hear.
James, I think that you are the tail gunner again.
I have a quick question to finish off with, convener. In the previous evidence session, the Scottish Government witnesses indicated that five proposals were consulted on but not taken forward in the bill and outlined some of the reasoning behind that. Are you content with that approach?
Yes. Although it would be great if all our recommendations were enacted, we appreciate that the proposals in question were contentious. The Government is reconsulting on them, which is great news.
That brings us to the end of our questions. Thank you very much for your succinct and lucid answers.
I suspend the meeting to allow the witnesses to depart.
11:34 Meeting suspended.