The next item of business is a debate on motion S4M-14768, in the name of Paul Wheelhouse, on the Succession (Scotland) Bill.
14:40
I am pleased to open the debate on the Succession (Scotland) Bill. I thank those who submitted evidence, and I thank the convener, members and clerks of the Delegated Powers and Law Reform Committee for the committee’s detailed scrutiny of the bill at stage 1. I am also grateful to the Scottish Law Commission, whose “Report on Succession”, which was published in 2009, formed the basis of the bill.
This is the second bill to be considered under the SLC bill procedure, and I for one am very encouraged by the measured and robust process that is in place to scrutinise such bills. The SLC bill process is doing the important job of getting good law reform into statute, and it is clearly a process that we can have confidence in for the future. I very much welcome the committee’s support for the general principles of the bill and its detailed and helpful report.
The bill aims to make the relevant parts of the law clearer, fairer and more consistent. On paper, the provisions might at first glance seem dry and technical, but it was clear from the evidence that the bill contains many improvements to the law on succession that are long overdue and which will be welcomed by the legal profession and, I hope, the wider public.
The provisions in the bill will at some point affect us all, either when we are bereaved relatives or when we make provision for our loved ones in the event of our passing. The provisions are wide ranging and to some extent eclectic. Many of them update the presumptions and fallback positions that kick in when someone has not made express provision in their will for a defined set of circumstances. They can therefore be very important.
For example, the bill will reverse existing law so that, when a couple have had their marriage or civil partnership ended through divorce, dissolution or annulment, an ex-spouse or ex-civil partner will not inherit unless the will or special destination expressly provides that they are to inherit even if the marriage or civil partnership comes to an end. At the moment, if someone makes a new will and then changes their mind and cancels that new will, any earlier will revives and dictates how their estate will be distributed, which might not be what the person intends. The bill will therefore change the current law so that an earlier will is not revived by the revocation of a later will.
It is a fundamental tenet of the law that a beneficiary under a will must have survived the deceased in order to inherit. In most circumstances, the facts as to who survived whom will be clear. However, because there are circumstances in which that is not clear, the bill will change the current law to produce more consistent results and smooth out the impact when small differences in timings of deaths could lead to big and unexpected differences in the effects of death on an estate.
The bill will also enable a court to rectify a will to give effect to a testator’s instructions when they did not draft the will, and it will update the law as it relates to forfeiture, claiming the expense of mournings and gifts that are made in contemplation of death.
What I have just referred to are not everyday occurrences; in some cases, they will happen rarely. Nonetheless, the law needs to be fit for purpose in those circumstances and must produce fair and clear outcomes. All those examples make the law certain—which the legal profession will like—and lead to fairer outcomes that are likely to be more in line with what members of the public would expect in the circumstances.
With a bill such as this, it was difficult not to be drawn into the detail at stage 1. There is a clear consensus about the principles, and the focus of many of the evidence sessions was on whether the bill would achieve the policy or whether there might be a clearer way of achieving that policy. We will return to that at stage 2. We have reflected carefully on the witnesses’ evidence and the views of the committee, as set out in its stage 1 report, and I am pleased to confirm that we will amend the bill at stage 2 to address the vast majority of the issues that the committee has raised.
In particular, we will remove from the application of section 1—which deals with the impact on a will of divorce, dissolution or annulment—provisions that relate to the appointment of a former spouse or civil partner as a guardian. We will amend section 6 to deal with the concern that the reference to a will naming a beneficiary might mean that beneficiaries are not covered if they are identified as a class. We will also introduce changes to make it clear that the provisions relate only to direct descendants or a group that consists solely of direct descendants.
More generally, we are considering the bill’s terminology to ensure that it gives effect to the policy. Sections 9 and 10 have generated much discussion, and we intend to address the concerns that have been raised about how the sections operate and interact with one another.
We have been reflecting on the point that was made about estates not falling to the Crown and on the adoption of the suggestion that, when estates would otherwise fall to the Crown as a result of the application of the survivorship provision, the younger person should be deemed to have survived the elder. As practitioners noted, the application of the survivorship provision is extremely rare. Our view is that the change to the survivorship rules will not increase the number of intestate estates, as the testator’s legacy will be distributed according to the deceased’s will as if the beneficiary had died. We will consider carefully how the TrustBar suggestion might operate from a practical perspective before committing to any amendment.
There will be further minor amendments where we have reflected on the views of witnesses who suggested that, in some places, reference be made to the plural as well as to the singular.
We fully acknowledge the committee’s recommendations on the need for guidance that is of a high standard, clear and not overly legalistic. We will revisit our guidance to reflect changes that are made not only by the bill but by any subsequent bill. We will also review the information on our websites.
I was taken by the committee’s view that, although the Scottish Government publication on what to do after a death is well received, guidance on what to do before a death would be invaluable. We will certainly reflect on that, and I thank the committee for that suggestion.
The Scottish Parliament may be aware that the Scottish Government is taking forward the recommendations that are contained in the Scottish Law Commission’s “Report on Succession” in two distinct strands and that a consultation on the remaining recommendations closed in September. We adopted that approach so that progress could be made on these worthy changes and so that they would not be held up by the more extensive consultation that is needed on a fundamental overhaul of the law of succession. It is encouraging that witnesses acknowledged the sense in that approach and recognised the benefits of enabling a high level of scrutiny of the provisions, which might have become lost in any wider changes to the law on succession.
The provisions are intended to stand the test of time. They will operate with the law as it stands and should continue to be relevant if the law is changed in the near future. We gave the committee a clear undertaking that we will consider at the relevant time the need to consolidate the bill with any subsequent bill to ensure that the law is easily accessible.
The Delegated Powers and Law Reform Committee recommended that the Parliament should agree to the general principles of the bill.
I move,
That the Parliament agrees to the general principles of the Succession (Scotland) Bill.
14:47
I welcome the opportunity to speak on behalf of the Delegated Powers and Law Reform Committee on the Succession (Scotland) Bill. This is a Scottish Law Commission bill. It is only the second such bill to be considered by the committee following changes to standing orders in 2013 that provided that certain Scottish Law Commission bills may be referred to the DPLR Committee as the lead committee.
Before I talk about the bill’s specifics, I will briefly reflect on the commission’s role and the value of updating the law. The Scottish Law Commission plays a vital role in recommending reforms that are aimed at updating and improving Scots law. However, until recently, the take-up of commission-inspired bills has been very low. The process allows such bills to be given the consideration that they deserve and allows important reforms to be implemented. We must do what we can to ensure that Scots law is up to date and accessible. The Standards, Procedures and Public Appointments Committee is reviewing the Scottish Law Commission bill process, and I hope that the outcome will build on the progress that we, as a Parliament, have made in improving the implementation of commission reports.
I turn to the bill. First, I thank all those who provided written and oral evidence to the committee. In addition to receiving the written submissions, the committee heard from legal and academic representatives over four oral evidence sessions. The bill covers very complex matters and the committee greatly appreciated the detailed evidence that it received.
The bill covers a disparate selection of measures that relate to succession law. It originates from a 2009 report of the Scottish Law Commission, which built on the recommendations of a commission report of 1990. The fact that those original recommendations had not been implemented rather makes the point.
It is clear that there has long been recognition of the need for reform in this area. Evidence to the committee reflected the need for reform; it also reflected the fact that the bill will contribute to the process of reform. The committee recognises the need for reform and the contribution that the bill will make to that process.
However, as the minister mentioned, the bill is only part of the reform of the law of succession. The Scottish Law Commission’s 2009 report also contained proposals that would make more wide-ranging reforms to the law of succession. The Scottish Government has been consulting on those proposals with a view to legislating further. The committee recognises that the wider consultation covers matters that require further consideration and that those matters might not be appropriate for an SLC bill. The committee therefore appreciates the necessity of a second bill on succession.
Nonetheless, having two bills on succession in such short order may present challenges and in particular may be confusing for the users of the legislation. With that in mind, the committee discussed with witnesses whether there would be value in consolidating the legislation after the second bill, and that approach was supported. The committee welcomes the Government’s commitment to considering consolidation in the context of a future succession bill. Consolidating the two bills would improve the accessibility of the law for the public, which the Parliament should always strive to do.
As I mentioned, succession is a complex area of law that impacts on the public widely. The committee welcomed the Scottish Government’s recognition of that and its commitment to review and update its guidance on what to do after a death. The committee remains of the view that it would be helpful to have guidance on what people need to do before death, as the minister noted, and it encourages the Scottish Government to reflect on the benefits of such guidance. We should all be aware of the desirability of leaving a properly functioning will.
As I said, the bill covers a disparate and varied set of measures in relation to succession, and members will be pleased to hear that I have no intention of covering most of them. I do, however, want to cover a few.
Section 1 provides that, if a marriage ends in divorce or a civil partnership terminates by dissolution, any provision in a will that benefits the testator’s former spouse or civil partner will not take effect. Section 1 applies to provisions in wills that appoint the testator’s former spouse or civil partner as a guardian of a child. That means that, under section 1 as it stands, a former spouse or civil partner could not become a guardian of a child.
Witnesses argued that it might be desirable in some cases for a former spouse or civil partner to become a guardian, irrespective of the absence of express provision to that effect, and that it would be unfortunate if their only option was to seek parental rights through lengthy and costly legal proceedings. The committee found those arguments persuasive, so it is pleased that the Scottish Government has agreed to lodge an amendment at stage 2 to remove the appointment of guardians from the effect of section 1.
Another area that I will highlight relates to survivorship. Sections 9 to 11 deal with the law relating to survivorship in the event of a common calamity, such as a car accident, in which two or more people’s deaths were simultaneous or it is not clear which person lived longer. A number of issues arose in relation to those sections. In particular, witnesses expressed concern about the situation in which a family perish together and, because the order of death is uncertain, the estate falls to the Crown rather than to other relatives.
Although the committee recognises that such a situation will arise rarely, it would not want the estate to fall to the Crown in such circumstances. It seems highly improbable that that would ever have been the testator’s wish. I am pleased that the Scottish Government is reflecting on the matter, and I hope that a solution will be found that avoids the possibility of the estate falling to the Crown, as far as that is practicably possible.
The committee expressed concern about the inconsistency of expression in the ancillary powers in the bill as compared with other bills. That is not a new concern. The committee welcomes the Scottish Government’s commitment to reflect further on how ancillary powers are expressed. We acknowledge that there might be reasons for framing the ancillary powers in a specific bill in a particular way, but we feel that there frequently seem to be differences in how such powers are framed that do not make much sense in the context.
Could you draw to a close, please?
Although the reforms in the bill are technical and comparatively uncontroversial, they represent very important and necessary changes to succession law. More generally, the bill contributes to the objective of improving and updating Scots law.
The committee recommends that the general principles of the Succession (Scotland) Bill be agreed to.
14:54
As has been said, this bill was not considered by the Justice Committee, and I was completely unaware of its provisions until last week. I have not read through the almost 200-page Scottish Law Commission report of 2009, but I suspect that the Scottish Government’s approach of taking out and dealing with the less contentious matters in a small technical bill and consulting further on the more contentious issues is probably sensible.
The bill is principally concerned with changing the law on wills and inheritance. Nigel Don has already talked about the provisions with regard to the revocation of an existing will on divorce or dissolution of a civil partnership, and he has pointed out that it was suggested in evidence that issue of guardianship not be included in that part of the bill.
The date on which the proposal should apply was also discussed. At the moment, the bill applies if the testator was permanently resident in Scotland at the time of their death, but some witnesses felt that the testator should be domiciled in Scotland at the time of the divorce or dissolution, as that would be more consistent with private international law. I understand that the committee considered that to be a matter for succession law and therefore felt the bill’s approach to be appropriate.
The bill enables the courts to rectify a will after the testator’s death to enable the correction of “simple and obvious” errors, as long as someone other than the testator had prepared the will and the testator had issued instructions to that effect. The committee had quite an interesting discussion on whether to include wills prepared by the testator themselves, such as handwritten wills or wills using an online template.
For a period of time, I lived in England, and I remember that my first will was prepared with something that I bought from WH Smith. A person would write their will with this thing and then get someone else to sign it; in fact, I got the prospective parliamentary candidate for Slough to sign mine on the day of the 1987 general election. I have to say that it did not bring him a lot of luck, and the will was no longer applicable once I moved back up to Scotland.
Again, the committee agreed with the minister that it was important for another person to be present when the will was drawn up to verify the testator’s instructions and instructions. If no one else was present, trying to indicate what the testator had wanted would give rise to problems.
Applications for rectification have to be made within six months, although the courts have the discretion to extend that period. There was some discussion about whether six months is the correct period and whether the period itself should run from the date of death or from the date of confirmation when the will becomes a public record. It was felt that, if the period ran from the date of death, the executors could, if they had any interest in the matter, have an incentive to delay confirmation of the will. The Scottish Government has agreed to reflect on some of the evidence in that respect. The committee also pointed out in its report that executors should be made aware that they should not distribute the estate until the six months has passed, just in case some error has been made.
The bill also puts into statute the common-law provision that when a beneficiary predeceases the testator the beneficiary’s direct descendants should inherit. As a consequence, if a child predeceased his or her parents, the child’s children would inherit when his or her parents died rather than the child’s siblings—if that is at all clear.
As Nigel Don has pointed out, the bill seeks to address the situation—say, an accident—in which two people who are each other’s beneficiaries die at the same time or in which it is unclear who died first. The Succession (Scotland) Act 1964 presumes that, in the case of spouses and civil partners who were each other’s beneficiaries, the heirs of both would inherit if neither survived the other. However, if the people in question were not spouses or civil partners—if, for example, they cohabited—the law assumes that the younger person survived the older person and, in that case, the younger person’s next lot of heirs would inherit the whole estate. The bill repeals that part of the 1964 act to ensure that when the beneficiaries’ order of death is uncertain the property is to be divided equally between the estates of both.
Although that certainly seems to be fairer, it does not, as Nigel Don has suggested, address the unusual case of a tragedy in which the entire family dies and there are no surviving beneficiaries. In that case, the estate will go to the Crown rather than to other relatives. However, it has been argued that the younger person should be considered as having outlined the elder and, as a result, their beneficiaries will inherit rather than the Crown.
The bill also builds on the rule of forfeiture, whereby someone cannot inherit the estate of a person whom they have unlawfully killed, which seems to be quite correct. Under section 2, in those circumstances the offender would be treated as if they had predeceased the person who had been killed, and the deceased’s entire estate would therefore pass to their next-in-line heirs. I note that the Parricide Act 1594, which disinherits people who have killed their parents or grandparents, is repealed, as those cases are covered by the forfeiture rule. I remember from when we discussed the common good that the common good legislation dates back to the 14th century. It is clear that succession legislation dates back to the 16th century.
Section 18 of the bill consolidates and extends the protections for executors who have distributed an estate in error because they were ignorant of the facts that would have enabled it to be distributed properly. I understand that the Government has undertaken to provide guidance for executors on the requirements that are imposed on them, as the section also requires executors to make reasonable inquiries. Lay people might find that a bit difficult.
All in all, the bill is technical and quite dry in some respects, but it appears to be a good thing, and we will support it.
15:01
I, too, am pleased to be participating in this stage 1 debate on the Succession (Scotland) Bill.
I thank the Delegated Powers and Law Reform Committee’s convener, clerks and members for their assistance with the delivery of a comprehensive report, and I thank the witnesses, whose contributions helped to inform the process from the outset.
As legal practitioners are aware, many of the recommendations that form the foundations of the bill’s provisions date back to the Scottish Law Commission’s report on succession in 1990, which largely remains unimplemented. A subsequent SLC report that was published in 2009 revisited a number of those recommendations and carried them forward. I thank the SLC’s commissioners and legal staff for the considerable work that has gone on towards the implementation of the reforms.
The bill principally seeks to update four key areas of succession law: testamentary documents and special destinations; survivorship; forfeiture; and estate administration. It also includes a number of miscellaneous reforms. The bill is complex, and I reiterate the committee’s suggestion to the minister that its provisions need to be clearly explained in guidance to the public once it has completed its parliamentary passage. I welcome the minister’s comments in that regard.
As the committee agreed in its stage 1 report, it was difficult, given the somewhat disparate nature of the bill, to offer an overarching view of its legislative provisions. Although members agreed to the general principles of the bill, we raised concerns in particular about sections 6, 9 and 10. We are pleased that the Scottish Government has committed to address those at stage 2.
It is nevertheless clear that the legal profession welcomes the progress that the bill makes in the area of succession law, albeit some 25 years after the recommendations were first put forward. The Faculty of Advocates, for example, stated that it
“has held the view, shared widely in the legal profession, that reform of the Scots law of succession is required.”
As such, there was a strong degree of consensus among stakeholders, and the DPLR Committee did not receive any evidence that questioned the need for reform. Perhaps it is a fair assessment to attribute that consensus to the predominantly technical nature of the bill.
In seeking to reform that area of Scots law, the Scottish Government has adopted a two-pronged approach that first aims to put the non-contentious provisions on the statute books. The committee’s understanding is that the Scottish Government will introduce wider-ranging proposals to succession law at a later date. Although the Faculty of Advocates described that approach as “unchartered waters”, there is nevertheless some merit in it. Sensible provisions in draft legislation have too often been overshadowed by contentious proposals, such as in the Air Weapons and Licensing (Scotland) Bill earlier this year. As such, the complex changes that are proposed in the Succession (Scotland) Bill have been subject to sufficient scrutiny and have not been superseded by other, more contentious areas of policy.
Nevertheless, the committee raised the question of there being consolidation once the second succession bill has been passed in order to avoid a cluttered legislative landscape in that area of law—I must say that I rather like that expression. As Professor Crawford, Professor Carruthers and Professor Paisley emphasised in their evidence, it would be a difficult undertaking to consolidate all aspects of succession law. However, the minister has agreed to consider the possibility of consolidating the two new pieces of legislation at a later stage, which is a welcome development.
Broadly speaking, this is a sensible piece of legislation. Although limited in scope, its provisions will have a significant impact on those people affected by this area of Scots law and its technical focus should not diminish its importance. The Scottish Conservatives will therefore support the bill at stage 1.
We now move to the short open debate, with speeches of a maximum of four minutes.
15:05
This is an interesting bill, which we have been dealing with in the DPLR Committee. I will address my remarks to the rectification provisions in sections 3 and 4.
In particular, I note that the minister said, as reported in paragraph 73 of the committee’s report, that we are looking at the grounds for rectification being only when what the testator has wanted and has clearly expressed as being wanted is not reflected in the will.
The minister also said:
“We will continue to reflect on whether software could be considered as constituting a third party.”—[Official Report, Delegated Powers and Law Reform Committee, 29 September 2015; c 7.]
That refers to where software contributes to the misrepresentation in a resulting will of the intentions that were clearly stated by the testator. The important point is that we have to consider what is done with software, which is quite different from using electronic means to fill in the blanks in a template with one’s intentions. In that case, the intention of the testator is directly keyed, through the keyboard, into the resulting document without any intermediate computer, computer programmer or computer program operation.
Thinking about the matter further, I note that there is clearly a third party when a computer program is involved, because there is the programmer who produced the program. All computer programs are similar in that it is impossible to guarantee a computer program, however simple it may be, to be free from potential error under some circumstances. Even though the testator might have keyed only, “I wish to leave all my assets to my spouse”, for example, it is still perfectly possible for a computer program to scramble that and misspell “spouse”, for the sake of argument. The resulting document would therefore require rectification in order to give effect to the testator’s intention. I think that we have to take account of that.
The difficulty that a court is likely to have to wrestle with is whether there is something that would give clear insight into what the testator’s intentions were. If the testator just keys some data into a computer program, there will be no clear record of the testator’s intentions unless what is keyed in is preserved for examination at a later date.
One of the aspects that we might address that is outwith the legislation but related to it is seeking to provide advice to those who produce automated systems for producing wills that are drawn up by computer programs about the need to preserve directly the testator’s input so that it is possible to examine whether the operation of the computer program has taken the testator’s stated intentions as expressed through the keyboard and produced a will that is different from those intentions.
I think that that lies at the heart of what we would almost certainly need to do. The Government could help those who draw up such programs by making that point and perhaps setting it down as the test that the courts might apply.
It has been an interesting bill to scrutinise. In particular, there is the fiction in section 12—on forfeiture—that means that, if someone murders the person from whom they are due to inherit, that “offender”, although physically still living, is legally dead. That is an exciting and engaging prospect. I look forward to the subsequent stages of the bill.
15:09
Although the bill is technical in nature, I agree with other members’ view that it is important. All of us, inside or outside the chamber, want to be assured that Scotland has a legal framework on succession that ensures that what happens to the estate of someone who dies is in line with their wishes and that those whom they want to benefit do benefit, aided and not hindered by legislation.
This area of law has been in need of reform, as John Scott pointed out. That is what we heard from those who gave evidence to the Delegated Powers and Law Reform Committee’s inquiry. Indeed, given that the Scottish Law Commission reported on the issue in 1990 and again in 2009, it could be argued that the reform is somewhat overdue.
That is why it is evidently beneficial that, in this Parliament, what was previously the Subordinate Legislation Committee has had its remit broadened to include law reform bills. That means that good proposals for legislation have been acted on rather than left to gather dust. Whatever the shape and structure of the committees in the next session of Parliament, I hope that there will be a committee that will continue taking forward Scottish Law Commission bills.
The DPLR Committee’s deliberations on the Succession (Scotland) Bill have been effective, and we can conclude that legislating on technical matters concerning succession before further legislation is introduced on substantive matters of succession policy has been the right approach and has allowed the reforms to be made timeously. However, I echo the evidence that we heard at committee that, in the fullness of time, ministers should proceed with consolidation focused on the two acts.
Although there has been a great deal of consensus on the bill, there have been areas on which witnesses urged ministers to take a different approach. Other members have discussed that with reference to survivorship, forfeiture, guardianship and the point at which section 1 should come into effect. I believe that the committee and the minister have taken the right approach on those subjects.
The issue that I pursued at committee with those who gave evidence was rectification, and specifically the proposal from TrustBar, the Law Society of Scotland and others that the scope of the provisions on rectification should be widened so that they might include documents that are drawn up by the testator such as handwritten wills and wills that are created online using templates, which Stewart Stevenson discussed in his speech.
The majority of witnesses identified as the crucial concern in the matter whether a third party was present in some shape or form when the document was drawn up. I understand the minister’s contention that the presence of someone else to verify that the person’s intent was different from what was ultimately expressed in the will is the key issue. The committee agreed that the scope of the provisions should not be extended, but the debate on the issue and the points that Mr Stevenson made highlight that more and more people will go online to create important documents such as wills and the law must stay abreast of that social context.
It is not unreasonable to say that, given that the priority is to enable people’s wishes to be abided by, things such as online will templates should also be given weight when we determine what those wishes actually were. I do not pretend that there is an easy answer to the issue, but ministers should keep a watching brief on how documents pertaining to legal issues that are drafted online by individuals should be regarded by the law, and not only on the issue of succession. Today, in its briefing, the Law Society of Scotland asks ministers to rethink their approach to the matter in the bill.
The bill is technical, but it has thrown up important questions. It concerns an important area of law that has needed reform for some time and it raises interesting points of detail in law that will provide ministers with quite a lot to reflect on, both today and for further bills.
Will you draw to a close, please?
The bill should certainly be supported at stage 1 today.
We turn to the closing speeches.
15:13
I thank members for a good debate this afternoon. It is clear that there is a great deal of consensus in the Parliament and I am pleased that the Scottish Law Commission’s efforts towards reforming some technical aspects of succession law have attracted cross-party support. We have reflected on the granular dimensions of the bill as well as on broader issues relating to the Scottish Government’s legislative approach to the issues and the possibility of consolidating the bill and future legislation.
However, in closing, perhaps we should revisit the Scottish Law Commission’s original aim in examining this area of Scots law. When launching the 2009 report, Professor Joseph Thomson, the lead commissioner on the succession project, said:
“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.”
The test of the bill is whether it achieves the radical simplification that the Scottish Law Commission intended. The Delegated Powers and Law Reform Committee is satisfied that, allowing for the suggested changes at stage 2 of the bill’s parliamentary passage, the bill will achieve the stated aim of the report on which it is based.
However, it is important to remember, as the convener emphasised during evidence to the committee on the bill, that
“the fact that something is not very common does not mean that we do not need to get the law right ... 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.”—[Official Report, Delegated Powers and Law Reform Committee, 8 September 2015; c 6.]
That comment was made on the strength of a point that I raised regarding the policy rationale for the inclusion of guardianship in section 1, which says that a divorce or the dissolution of a civil partnership should revoke an existing will.
Section 1 also applies to provisions in wills that appoint the testator’s former spouse or civil partner as a guardian of a child. Nigel Don referred to that in his opening speech. However, that provision was criticised by stakeholders, including the Law Society and TrustBar. The key concern is that it might be desirable in some cases for a former spouse or civil partner to become a guardian, irrespective of the absence of express provision under section 1(3).
As such, there are implications both for the amount of time that it could take to seek parental rights—up to a year and a half—and the cost, which could amount to £6,000 if the client is unable to secure legal aid. TrustBar highlighted the possible inconsistencies that the provision might create between family law and succession law.
The committee explored the issue in some detail with witnesses and I am pleased that the minister has agreed that it would not be appropriate to apply different outcomes to guardianship provisions. That will result in an amendment being lodged by the Scottish Government at stage 2.
Notwithstanding that and other minor criticisms of the bill—and Stewart Stevenson’s speech, which only served to highlight the bill’s complexities—I am pleased to reiterate that the Scottish Conservatives will vote in favour of the bill at decision time.
15:16
Labour supports the approach that has been taken at stage 1. Wills and inheritance are an important issue and I am grateful to Nigel Don and the DPLR Committee for taking on an undoubtedly daunting task in dealing with complex—and, in some areas, controversial—issues.
The fact that the committee held four oral evidence sessions is heartening and demonstrates the depth of inquiry in the committee’s approach. The sensible decision to take from the discussions those elements of the proposals that could be introduced into law at this stage with a view to considering a second bill later in the process is also heartening; that was the right decision.
Hearing from Nigel Don that the committee was persuaded by evidence in deciding the way forward with regard to section 1 indicates best practice and the reason that committees exist in this Parliament, which is to follow evidence. That gives members more confidence in moving forward.
It is not surprising that Elaine Murray found parts of the bill interesting. Stewart Stevenson, as always, found the legislation interesting but came up with an obscure way of analysing it, which lightened the atmosphere in an otherwise in-depth consideration.
The Scottish Law Commission does important work on our behalf. Paul Wheelhouse was right to acknowledge its work on the 2009 report but failed to acknowledge that the 2009 SLC report reiterated an SLC report from 1990. It just goes to show how quickly the law moves in these parts.
In my time on the Justice Committee, it was a source of some embarrassment to me that we were aware of many Scottish Law Commission reports that unfortunately we had no time to address. I agree with Richard Baker that the creation of the DPLR Committee approach is a good step forward. I hope that the Scottish Law Commission can take heart that its hard work on behalf of Scots law in maintaining an up-to-date environment that is fit for the demands of modern life is well worth the effort. We should try to ensure that we introduce that into our processes, so that new law can be created.
The member talks about keeping up with modern developments. Does he welcome, as I think I do, the abolition of the Parricide Act 1594, because it means that the courts judging the facts of a case can now decide whether to allow 100 per cent inheritance? That is important because, although assisted suicide is not common, it exists, so it might be appropriate for the courts to allow full inheritance in some circumstances. This is an example of our keeping up with the evolution of the law.
I am afraid that you are approaching your last minute, Mr Pearson.
Indeed. I accept Stewart Stevenson’s point. The Parricide Act was enacted in 1594, so it has taken us a while to reconsider the circumstances, but the decision is no less valuable for that fact.
Making laws certain and allowing clarity should always be the Scottish Government’s desire. Paul Wheelhouse acknowledged that in his speech. The guidance that will accompany the legislation will indeed be important. I know that officials will spend time on ensuring that the guidance enforces the intention of the legislation and produces for the Scottish public legislation that is invaluable at the time when it is most needed, which is, unfortunately, at the time of death. Paul Wheelhouse’s suggestion that we should have a brochure that offers information before death should not be overlooked and I hope that he will revisit it in due course.
I am grateful to you, Presiding Officer.
15:21
The spirit of this afternoon’s debate has served to highlight the value that the scrutiny of the Delegated Powers and Law Reform Committee brings to the Scottish Law Commission bill procedures. In front of a reasonably full public gallery, it also shows that the Parliament can occasionally agree on matters of importance to the people of Scotland.
There is little doubt that the reform of the law of succession has been long awaited, as Nigel Don, John Scott, Richard Baker and Graeme Pearson have indicated. It has been a long time since the issue first came up, and I echo the points that were made by members about the new procedure allowing important work to come forward when it is merited. There is a clear view that change is overdue and that it is being eagerly anticipated.
There is a lot of good will out there for the legislation as it goes forward and I very much welcome the positive thoughts of members across the chamber. The debate has highlighted a tricky area of law that has been well served by the Law Commission exposing difficult issues and anomalies and providing solutions that will lead to a fairer and more consistent law. After all, as I said in opening and as a number of other members have acknowledged, the bill has the potential to affect everybody. The one certainty in life is, of course, death. For that reason, we all have an interest in ensuring that succession law is fit for purpose and meets the challenges of today’s society and expectations.
Woody Allen famously said:
“I’m not afraid of death, I just don’t want to be there when it happens.”
I think that we can all echo that sentiment. However, the difficulty with not being there is that what the deceased wanted to happen to their estate is often not very clear. That touches on Stewart Stevenson’s point about online wills. The law therefore needs to step in and fill that void, and deal with things in a fair way. It is therefore only right that generally overlooked and neglected areas of succession law are thoroughly debated, as the impact of such law on individual people and families can be considerable.
In my opening speech, I talked about some of the key provisions of the bill. Others include clarifying the law on forfeiture, which has also been referred to. Forfeiture is a legal rule that prevents someone who is responsible for the unlawful death of another from benefiting under the deceased’s will. I will take on board Stewart Stevenson’s point and reflect on it. There has been some colourful evidence on this issue. Among other things, the bill will place it beyond doubt that the children of a forfeiter will not be punished for the actions of their parent under the law of succession.
The bill will also restate and improve some protections around the administration of estates. Those changes have been described as useful and practical additions to the administration rules, which will have benefits for executors and beneficiaries alike.
There is little doubt that the combined effect of the initial work of the Law Commission, the professional scrutiny of the committee and the comments offered by experts in this field of law will result in a bill that will make a difference and meet our policy aims of a more consistent, clearer and fairer law. I hope that the Scottish Parliament is reassured that we have listened hard to the committee and the experts and continue to liaise with the Law Commission on the points of detail.
We will lodge a number of amendments at stage 2, as mentioned by John Scott and others, to address many of the points that were raised in the stage 1 report and by those giving evidence.
There are other issues on which we are continuing to reflect. As I have mentioned, the law that is being changed is technical and tricky, so we need to think through the consequences of any amendments to ensure that they deliver something that is fit for purpose. For that reason, we will continue to seek views from the profession and work closely with the Law Commission to test the amendments.
On that point, I am conscious of the issue of common calamity, when we are not clear in which order people have died, and the risk that the estate will finish up by going to the Crown. I think that I speak not just for myself but for the committee in saying that there are no circumstances in which we would ever want that to happen. I wonder whether one solution might be the fallback that, under those circumstances, the court simply has the discretion to do what seems to it to be reasonable. It might be that defining the order in which we have died on the basis of age does not overcome the problem and that discretion is the best solution that the court could have.
I take the member’s points on board. We are trying to deliver as much certainty as we can in the law of succession.
I was going to turn in any case to the point about estates falling to the Crown. I recognise the committee’s view that estates should not fall to the Crown. We are giving further consideration to the matter in advance of stage 2. The key is how a rule might be framed. TrustBar offered a draft provision, but we need to understand whether it would work better in practice.
Currently, estates that appear to fall to the Crown are first investigated by the national ultimus haeres unit and then passed to the Queen’s and Lord Treasurer’s Remembrancer. The QLTR administers the estate, paying any debts, and it is then added to the list of unclaimed estates. Those estates are advertised on the website as having fallen to the Crown, but we understand that blood relatives are found in most cases, if not all. There is, therefore, a practical time and resource issue. Although I am not averse to amending the bill on this issue, we need to bottom out the practicalities. It would be pointless to amend the bill if we could not give the amendment effect or if giving it effect would place a significant financial burden on the estate. There are also likely to be different views on what any rule would be for distributing the estate in those circumstances. I take the point that Nigel Don made about having a simpler process, and I will reflect on it after the debate. I hope that that makes clear the Government’s position. We are engaged in discussions and will reflect on them.
I am pleased that there has been such clear support for the proposals today from across the chamber, including from Conservative and Labour members. I welcome the support of those parties for the bill. There is no doubt that it will make a positive difference as it strives to deliver fairer outcomes at what is often a terrible time in people’s lives, when the last thing that they need is confusion and uncertainty.
In my last minute and a bit, I would like to reflect on a couple of points that members made. Stewart Stevenson talked about software, and I will reflect on the points that he made. A key point is that an online pro forma would not provide the necessary evidence to support a claim for rectification—I think that Stewart Stevenson accepted that. If a testator drew up their own will on paper or online, the provision in question would not apply. We are aware of some online forms that involve the presence of a lawyer. They might be covered by the bill but, where there is no lawyer present, that is clearly a challenge.
Elaine Murray made points about reasonable time. We have been reflecting closely on the evidence that was given to the committee and the committee’s view about the six-month period running from the date of confirmation as opposed to the date of death. We will come back to Parliament with further detail on that point.
On the issue of the testator requiring to be domiciled in Scotland on the date of their death, which Elaine Murray also talked about, we share the view of the Law Commission and the committee that the rule about the effect of divorce, dissolution and annulment on a will should apply in cases in which a testator dies domiciled in Scotland and not simply in cases in which the testator was domiciled in Scotland at the time of divorce, dissolution or annulment.
I see that I have run out of time. I thank members for their thoughtful contributions, and I look forward to working with them to deliver the bill at stage 2 and stage 3.