The next item of business is a debate on motion S4M-15440, in the name of Paul Wheelhouse, on the Succession (Scotland) Bill.
Before I invite the minister to open the debate, I call the Cabinet Secretary for Justice, Michael Matheson, to signify Crown consent to the bill.
For the purposes of rule 9.11 of the standing orders, I advise the Parliament that Her Majesty, having been informed of the purport of the Succession (Scotland) Bill, has consented to place her prerogative and interests, in so far as they are affected by the bill, at the disposal of the Parliament for the purposes of the bill.
Thank you, cabinet secretary. That means that we now begin the debate.
14:47
It gives me great pleasure to open this stage 3 debate on the Succession (Scotland) Bill and to invite members to agree to pass the bill this evening.
At the outset, I thank the members of the Delegated Powers and Law Reform Committee for their hard work and careful scrutiny of what is essentially a technical bill—they have been a great credit to the Parliament. I thank MSPs for their comments on the bill during its passage through the Parliament, and I thank the organisations and individuals who provided oral and written evidence to the committee. Like Nigel Don, I am grateful to the clerks to the DPLR Committee for their support.
In particular, I thank the Law Society of Scotland and the trusts, fiduciaries and executries bar group—TrustBar—who have been generous in giving of their time and expertise as we have developed the legislative proposals. I thank all the witnesses who have supported the process.
Of course, I also wish to thank the Scottish Law Commission for its unstinting patience as we sought its advice on recommendations that it published more than six years ago. That point is not lost on me, nor is it lost on my colleagues throughout the chamber. The commission’s advice and views have been invaluable.
I said that the bill was essentially technical, and it is, but it became clear through the scrutiny process that its provisions have the potential to impact on any one of us at an especially vulnerable time in our lives. Ensuring that the bill fulfils the policy aims of making the law on succession fairer, clearer and more consistent is therefore especially important. These are, after all, the first significant amendments to the law of succession in more than 50 years.
As I indicated during the stage 1 debate, the bill has its origins in the Scottish Law Commission’s “Report on Succession”, which was published in 2009. This is the second bill to be considered as part of the SLC bill procedure. I take the opportunity to place on record once more my view that the process that is in place to scrutinise these bills is clearly effective in doing the important job of getting good law reform into statute. We can have confidence in that process as we go forward.
The Succession (Scotland) Bill has been welcomed by the profession, and it will make a number of important improvements to the law.
Currently, if a will makes provision for a spouse or civil partner, that remains valid even after the breakdown of the relationship, whether by divorce, dissolution or annulment. For many people, that is an unexpected outcome, and it could lead to undesirable consequences. The bill reverses that aspect of the law.
There is currently no way for a person to seek rectification of a will to enable it to be corrected if it does not accurately express the testator’s instructions. That deficiency in the law was highlighted by a case in the Supreme Court, Marley v Rawlings and Another, where Mr and Mrs Rawlings signed mirror wills leaving everything to each other, but if the other had already died, the entire estate was left to Mr Marley, who was not related to them but whom they treated as their son. However due to a clerical error, Mr Rawlings signed the will prepared for Mrs Rawlings and vice versa. The sons of Mr and Mrs Rawlings challenged the validity of the will on the basis that they would inherit under the laws of intestacy. The Supreme Court decided that Mr Rawlings’s will should be rectified, but as that was an English case there was uncertainty about what decision the Scottish courts would have reached. The bill will address that issue.
Similarly, an individual might not expect that if they make a new will and then change their mind and cancel it, any earlier will revives and dictates how their estate will be distributed. Again, that is unlikely to be what they intended. The bill will reverse that position so that an earlier will is not revived by the revocation of a later will. That does not prevent the individual from reviving the earlier will by other means, such as by re-executing it or making a new will in the same terms. The only exception is when there is express provision to the effect that an earlier will is revived, as then it will be clear that that is the individual’s intention.
The opportunity has also been taken to close a number of jurisdictional gaps to ensure that Scottish courts have jurisdiction where the applicable law is Scots law.
We touched on some of the issues around how survivorship should operate in Scotland when we debated the stage 3 amendments. Although common calamities are not everyday occurrences, we need to have clarity and certainty in the law where there is uncertainty as to the order of death. The bill achieves that clarity.
The bill also sweeps away some very old legislation, through the repeal of the Parricide Act 1594 and reform of the law relating to forfeiture. The notorious Dr Crippen was found guilty of murdering his wife Cora. He inherited from his wife and as he sat in jail awaiting his fate of hanging he wrote a will leaving his estate to his mistress. However, the judge said that
“it is clear that the law is that no person can obtain or enforce any right resulting to him from his own crime”,
and Dr Crippen was thus subject to the law of forfeiture. Forfeiture is where an individual loses their right to inherit because they have unlawfully killed their benefactor. At the moment, although such an individual would lose any rights to inherit, the way in which they are treated in the eyes of the law also dictates how any inheritance would be distributed to others. We have therefore made changes to ensure that the law is fairer and more consistent.
The bill also reforms estate administration by putting in place protections for trustees and executors in certain circumstances and for persons acquiring title in good faith. It also reforms other matters, including the abolition of donatio mortis causa and the right to claim the expense of mournings.
It will have been clear that the Scottish Government has listened carefully to the views of stakeholders and the committee, which is why at stage 2 we made a number of changes to the bill.
In succession law, someone must survive to inherit; equally, sometimes, for another person to inherit, it must be clear that the person on whom their inheritance is conditional has died before the testator. Failure to survive does not necessarily mean that a person can be regarded as dying before another person. A person who fails to survive the testator may have died at the same time as them. At stage 2, we made a number of changes to ensure that, where needed to achieve the policy objectives, it is clear that a person died before another person. Earlier today, we made some further small but related amendments to ensure that there are no unintended consequences or surprising outcomes, and that the detail is unambiguous.
Earlier, we debated some unanticipated amendments to the bill that arose out of the business decision of one of the providers of bonds of caution to withdraw from the market. As Nigel Don said, we had a very short space of time in which to consider the impact of that decision and take action to try and mitigate its worst effects. I am very grateful to the Scottish Courts and Tribunals Service for highlighting the problem in the first place and for working with us to get the best possible remedy, given the many constraints that we were under. Once again, the Law Society of Scotland was able to offer its views under significant time pressures and to provide the necessary reassurances on the remedy.
The committee also demonstrated its capacity to take quick evidence and arrive at a view. I very much appreciate the additional scrutiny that the evidence session provided and the input of the witnesses who attended the committee. It gives me even greater confidence going forward that the solution that we have provided for will address an immediate situation and give us the capacity to insulate against any further change that is beyond our control.
We will turn again to the reform of bonds of caution as part of the wider and more fundamental reform of the law of succession, as John Scott indicated. I will continue to reflect on a number of the suggestions that were made at an earlier evidence session, which are more appropriate to our further consideration of bonds of caution.
Voting for the Succession (Scotland) Bill today will ensure that an important area of the law is subject to long-overdue reform. It is an area with which, at some point—or indeed at various points—in our life, we will all come into contact in one way or another. It is therefore vitally important that the law meets expectations and is fit for purpose, and I believe that these reforms will achieve that aim.
I move,
That the Parliament agrees that the Succession (Scotland) Bill be passed.
14:55
During stage 2 consideration of amendments, the Minister for Community Safety and Legal Affairs said that he was glad to get away from the Justice Committee for a while. I suspect that fellow members of the Justice Committee will agree with me that we were pleased not to have the bill come before our committee along with all the other bills. We are grateful to the Delegated Powers and Law Reform Committee for doing the hard work on this very technical bill.
The down side of the bill not having come before the Justice Committee is that, yet again, I am required to make an opening speech on a bill with which I have very little familiarity. Indeed, I would not care to try to pass an exam on the set of amendments that we have just discussed. If they had been discussed in Latin, I would probably be just about as well educated as to their effect.
The bill deals with issues that are of importance to the majority of people: namely, wills and inheritance. I note that, at stage 2, the minister lodged a number of amendments to clarify some of the issues that were raised at stage 1, and he has done the same at stage 3. As has been said, the bill is based on a draft bill that was produced by the Scottish Law Commission, but it does not include all the provisions of that draft bill. The other provisions in the draft bill will undergo further consultation—indeed, they may be out for consultation at present—with a view to further legislation being introduced in the next session of Parliament. I am sure that members are looking forward to that.
The issue of guardianship has been addressed. The Law Society highlighted concerns about whether a will that appoints a person’s spouse or civil partner as a guardian of their stepchildren would continue to take effect if the relationship was terminated and the deceased had not made a subsequent arrangement. An amendment was necessary because the bill revokes a person’s existing will—as we have discussed—on divorce or dissolution of a civil partnership. If the bill were not amended, the former partner would not be able to become the child’s guardian even if the deceased would have wanted that arrangement to continue.
The bill now also makes it clear that the revocation of a will does not apply where the testator died prior to the annulment of the marriage or civil partnership taking place. That is a bit of a technical issue, but there could be the odd occasion on which someone dies before the process is complete.
The Law Society of Scotland stated in its written evidence that section 1 should apply when
“the testator either died domiciled in Scotland or has heritable property in Scotland.”
The bill originally applied to persons who were permanently resident in Scotland when they died, and the committee received a variety of responses on that section at stage 1. At that stage, the committee agreed with the Government’s approach. However, both the committee and the Government were persuaded by the Law Society’s arguments. The minister explained to the committee that succession to immoveable estate is governed by lex situs, or where the property is situated. Succession to moveable property depends on where the deceased was domiciled at the time of their death. The bill has therefore been amended so that section 1 applies when the testator was not domiciled in Scotland but owned heritable property here.
The bill enables the courts to rectify a will after the death of a testator so that “simple and obvious” errors can be corrected, with the proviso that someone other than the testator had prepared the will and the testator had issued instructions to that person. There was some discussion at stage 1 of whether that should be extended to wills prepared by the testator—for example, handwritten wills or wills that are produced using an online template. The committee and the minister quite correctly resisted those arguments. The Scottish Law Commission draft bill, on which this bill is based, would have enabled a sheriff in the sheriffdom where the will was confirmed to consider an application for rectification. That provision was not included in the bill as introduced, and amendment at stage 2 has corrected that inadvertent omission.
The bill puts into statute the common-law provision that, when a beneficiary pre-deceases the testator, the beneficiary’s direct descendants should inherit. The policy intention has been clarified by amendment at stage 2, and the bill now also enables a testator to identify a beneficiary by category, such as their relationship to the testator, as well as by name. That was a committee recommendation at stage 1.
The bill addresses the situation in which two people who are each other’s beneficiaries die at the same time or it is unclear which person died first. If they had been in a legal partnership as spouses or civil partners, the Succession (Scotland) Act 1964 presumes that neither survived and therefore both partners’ subsequent beneficiaries will inherit. However, if the two people were not involved in a legal partnership, the law as it stands at present assumes that the younger person survived the older person and therefore only the younger person’s beneficiaries will inherit.
The bill, however, did not originally address the issue of a common calamity—again, there has been some discussion of that at stage 3—where an entire family dies in an accident and there are no surviving beneficiaries, in which case the estate would go to the Crown rather than to any surviving relatives. Clarifying that situation is complex, but amendments at stages 2 and 3 have set out conditions in which property may transfer to one member of the group, depending on the order of death.
The bill sets in statute the forfeiture rule, which precludes a person who has unlawfully killed another from benefiting from the result—indeed, the minister illustrated that for us earlier with the example of Crippen. In such cases, the person who has forfeited their rights to the estate by an unlawful killing will be considered, for the purposes of inheritance law, to have failed to survive the testator. A stage 2 amendment clarified that forfeiture included legal and prior rights. I will take that as read, because I am quite uncertain as to what it means, although I am sure that it is probably a good thing.
The bill also abolishes the donatio mortis causa as a legal entity. Again, I had never heard of it. As it stands, a person can make a gift to another in the anticipation that they are going to die, but if they do not die, the gift can be returned to them. The donor can also change their mind and ask for it back and, if the recipient dies first, the gift is returned to the donor rather than given to the recipient’s beneficiaries. That seems a rather curious sort of gift, and one wonders how the donatio mortis causa process ever arose in the first place. However, the bill abolishes it as a legal entity. Gifts can still be made on that basis, but they do not require to be made in anticipation of death. As I said, it seems curious that somebody who thinks that they are going to die would make a gift, but then decide that they wanted it back just because they did not die.
As I said, the bill is very technical. I am sure that it will be of great benefit to the future understanding of inheritance law, and that we all look forward to whatever comes forward in the next session of Parliament that will build on the bill’s provisions.
I call John Scott—four minutes, please.
15:01
I welcome today’s stage 3 proceedings on the Succession (Scotland) Bill. As the bill completes its parliamentary passage this afternoon, I would once again like to thank the witnesses and stakeholders who have helped to inform the legislative process thus far, as well as the Scottish Law Commission for the considerable work that it has undertaken to see these reforms through to completion. I would also like to thank our DPLR Committee clerks and our legal advisers, who have worked above and beyond the call of duty.
I pay particular tribute to the witnesses who gave evidence for the second time to the DPLR Committee on the Scottish Government’s amendments on bonds of caution at very short notice this week. As members will be aware, that was an unusual step, and it broke new ground for the committee, if not for the Parliament.
Previously, the Scottish Government had decided to exclude bonds of caution from the scope of the bill, despite their abolition being one of the Scottish Law Commission's recommendations in its 2009 report, on which many of the bill’s provisions are based. The Scottish Government took that decision primarily because there was a lack of consensus surrounding the nature of the safeguards that would be required in the event of abolition. The prospect of having a second piece of legislation on succession law meant that there would be a suitable vehicle to implement any changes in the area of bonds of caution at a later date, allowing more time for inquiry and consultation on satisfactory safeguards. However, the Scottish Government’s hand was forced by recent developments, when Zurich Insurance, one of the two insurance providers of bonds of caution, announced that it will withdraw from the market from 1 February 2016, leaving Royal Sun Alliance as the sole provider, as the minister indicated.
The key issue is that Royal Sun Alliance makes the provision of a bond of caution conditional on a solicitor being appointed to administer the estate, whereas Zurich did not. That condition has cost implications for small estates with a gross value of less than £36,000, which currently benefit from the simplified small estate procedure. As we know, the Scottish Government introduced amendments at stage 3 to mitigate the effects of the recent changes in the market.
I was keen to explore the implications of those changes with witnesses earlier this week at committee. Evidence from all our witnesses indicated that the Scottish Government’s course of action in response to the withdrawal of Zurich, although a quick fix, is both proportionate and fair. Based on the evidence that we heard, it seems that that course of action is the correct one, particularly given the glacial pace at which legislation on succession law has been introduced and the uncertainties generated in the immediate future by the forthcoming election.
I echo the view of the convener of the DPLR Committee, Nigel Don, who said that the measures are
“not retrospective but transitional, because we are doing it now for the future, but only until we get to the next gate.”—[Official Report, Delegated Powers and Law Reform Committee, 26 January 2016; c 44.]
In such circumstances, it is incumbent on the successor DPLR Committee and the Parliament to undertake robust scrutiny of what can reasonably be described as stop-gap measures over the coming months and years as a clearer picture of the situation on the ground emerges. On that basis, we in the Scottish Conservative Party were content to support the amendments.
From the outset, the DPLR Committee’s scrutiny of the bill was collaborative and consensus driven. From a policy perspective, the majority of the bill’s provisions are non-contentious, and the legal profession has been strongly supportive of reform, particularly given that the Scottish Law Commission’s first report on succession law, on which the 2009 report was based, was published in 1990—almost three decades ago. I am therefore pleased that many of the SLC’s recommendations, which are broadly technical in nature, are being placed on a statutory footing, and I confirm that the Scottish Conservatives will support the bill at decision time.
That was perfectly timed.
15:06
I am glad that extending the Delegated Powers and Law Reform Committee’s remit has created additional parliamentary capacity for dealing with bills that come from the Scottish Law Commission. By their nature, SLC bills address matters on which the SLC has established that there is broad agreement on remedies for errors or omissions or updating existing legislation.
Our taking of evidence and our discussions on the Succession (Scotland) Bill have been interesting and informative, for me at least. Given that we will all die, I am sure that the bill will ultimately touch us all in the disposal of our assets or debts. Even those who have no assets and no debts cannot be assured that they will escape the bill’s provisions.
The complexity of and lack of agreement on some succession issues are the reasons why a future Government will have to grasp the nettle of a much more wide-ranging restatement and reform. If Elaine Murray is in Parliament in the next session and is again a member of the Justice Committee to do that, I am sure that she can look forward to that pleasure.
Personal circumstances illustrate things for me. My great-grandfather wrote his will—it was handwritten—in a mere 22 words. It said:
“I David Berry do appoint my granddaughter Helen Mary Berry McGregor my executor and bequeath to her my whole means and estate”.
Wills can be that simple. The only trouble was that, when he wrote his will, my mother—his granddaughter—whom he named, was one, and when he died, she was three. Therefore, she was not legally capable; she was legally incapable. However, the process meant that her father, who was administrator in law, became the executor dative to replace my mother, who had been the executor nominate. He was appointed. Things can be done in that particular way.
I have been touched by the winding up of estates in another way. Just over 10 years ago, a relative’s small estate had to be wound up. No house was owned; there were simply some moveable effects. She had written a little will that said that her two daughters were equally to receive the proceeds. That was simply done informally and there was no confirmation.
Through the passage of the bill, I can say that I will have apparently become, and will remain, a vicious intromitter. That means that, because we did not go through the formal process, I will remain liable for the rest of my natural life for any errors that I committed in winding up that little estate and not getting confirmation. The vast majority of small estates are dealt with on that basis. That illustrates some things that may be engaged the next time we look at this very complex area.
I am delighted that we are getting rid of the Parricide Act 1594, which is quite specific—it refers to fathers and sons. We have invented the legal fiction in the courts that, if someone is responsible for the death of the person from whom they will inherit, they are deemed—not withstanding that they are still breathing and consuming food, and so on and so forth—to have become legally dead before the person for whose death they were responsible. That works in proper terms, but it is a bit cack-handed, so it is a good idea to do something about it.
You really must close, please.
We had a huge and interesting discussion about common calamities and sequencing of death. The important thing is that we worked out a way in which we can be certain that we are uncertain, in which case the rules of uncertainty can be applied—but of course, only when we are certain that we are uncertain.
I must ask members to keep tightly to their four minutes.
15:10
I thank Stewart Stevenson for his speech, which as usual was educational.
As the minister said, the Succession (Scotland) Bill is mainly technical. As we have heard, it is part of the wider-ranging reforms that are to be made during the next parliamentary session. In effect, the bill is an exercise in tidying parts of the law in advance of further consultation and policy reform. However, in its evidence to the committee at stage 1, the Scottish Law Commission said that the bill’s description as technical
“should not in any way be seen as diminishing the importance or effect of the Bill’s provisions. Indeed for those who find themselves in situations to which the Bill’s provisions apply, they are likely to be highly important.”
The changes that are being made are to be welcomed, as they both modernise the laws of succession and bring us more in line with England. I have often found it odd that, even after the breakdown of a relationship, the spouse—if they are mentioned in the will—is entitled to assets. The bill alters that so that, in the event of a divorce, dissolution or annulment, the favourable status of a former spouse is revoked, unless otherwise stated by the testator. The same will now be true if the former spouse was appointed the guardian of the child. That shift means that Scotland and England now have broadly similar positions on the issue, which is to be welcomed.
The changes to survivorship in the event of common calamities are sensible. Currently, the rules state that in the event of spouses dying close to each other in time, the younger spouse is presumed to have survived the elder. Section 9 of the bill changes that so that, when two people die in such circumstances, neither is to be treated as having survived the other. In terms of fatal car crashes and other such events, those changes make sense.
I seek clarity on section 6, which makes provision to deal with the situation when a deceased person’s first choice of beneficiary in a will has died before them and the will makes no provision for what should happen in that situation. The rule had been unclear about nieces and nephews, but that was tidied up and the rule was narrowed to include the testator’s direct descendants only. However, I am unclear about what that means when there are no direct descendants or when the direct descendants have passed away before the will has been actioned. Will assets be passed to nieces and nephews in the event of there being no direct descendants, unless otherwise stated in the will?
I am happy to support the bill. The changes that it makes are sensible and provide a much-needed update to succession law. The changes attempt to deal with some of the more confusing elements of that law. On the whole, the bill is a technical but important piece of legislation, and I look forward to seeing what role it will play in the wider-ranging policy reform that is forthcoming.
We will have a brief contribution from John Mason.
15:14
Because the bill was a Scottish Law Commission bill, and because it was being dealt with by the Delegated Powers and Law Reform Committee, we know that it did not contain anything that was considered controversial. That is why we are having such a friendly and civilised debate this afternoon.
However, it has to be said that the committee received fairly strong legal opinion on each side of some of the points in the bill. For example, as Elaine Murray said, section 1 provides that the section will take effect if the testator “dies domiciled in Scotland.” There was respected legal opinion to support such an approach, but there was also respected legal opinion to support a change that would make section 1 apply as long as the testator was domiciled in Scotland when the marriage or civil partnership ended. That raised the question whether the matter should be considered under matrimonial law or succession law.
That is just one example of the kind of debate that we had in the committee. Other subjects that the committee considered included forfeiture and questions to do with the Forfeiture Act 1982, which will need to be considered again. It is to be hoped that more serious potential changes can be examined in a further succession bill before too long.
I was pretty uneasy when I heard about the stage 3 amendments on caution. Other topics in the bill had been consulted on to death, but that issue seemed to appear out of nowhere. However, we took evidence on Tuesday—like other members, I thank the people who gave us evidence and support—and I was greatly reassured. The concept of abolishing caution had been consulted and widely agreed on at an earlier stage, and it was largely on practical grounds that the matter had not been included in the bill, as the minister said. The added urgency as a result of one of the two providers of bonds withdrawing from the market meant that it was sensible to deal with the matter now, and I am happy to support the amended bill.
However, I think that the committee would stress that the lodging of amendments on completely new topics at stage 3 should not become a regular approach to legislation. I think that the Government probably agrees with that.
The DPLR Committee is very different from other committees. When members of the committee mention our membership to fellow MSPs, we tend to get either a sympathetic or a humorous response. I have to say that I have questioned whether the committee should exist. It has not been unusual to have a lengthy briefing for an hour or so, which is followed by a very short, formal 10-minute meeting. MSPs on the committee depend much more than members of other committees do on clerks and legal input, so we have to wonder whether MSPs add much value.
In that context, I should say how much I and, I think, other members of the committee appreciated the input of clerks, advisers and witnesses on the bill. I do not like asking questions that I do not understand, and it was getting pretty close to that at times. Now that the committee has experience of dealing with three bills—the Legal Writings (Counterparts and Delivery) (Scotland) Bill, the Succession (Scotland) Bill and the Bankruptcy (Scotland) Bill, which is a consolidation bill—I am more convinced that we need it to exist, and I see no reason why its remit should not be further revised.
Death happens to us all, but we tend not to talk about it. Many members of the public, perhaps including members of this Parliament, do not have a will. Therefore, although this is a technical area of law, it is also a practical one that affects many people. Any encouragement to people to have wills and otherwise prepare for their departure has to be welcome, as we said in our stage 1 report.
I very much support the bill becoming law, and I hope that the Parliament will be able to do so unanimously.
15:18
I thank members for a good—if controversial—debate. From the outset, the passage of the Succession (Scotland) Bill has been characterised by consensus and collaboration. That is testament to the DPLR Committee and its convivial but suitably robust approach to the responsibilities that fall within its remit.
I pay tribute to the Minister for Community Safety and Legal Affairs and his officials, who listened to the committee’s recommendations at stage 1 and implemented them by way of amendments at stage 2, which received unanimous support from members. The minister also proactively liaised with the committee on the stage 3 amendments on bonds of caution, which were unexpected, albeit that the changes were clearly necessary in the light of recent developments in the insurance market.
As I said in my opening speech, the bill is predominantly technical. However, as the Scottish Law Commission emphasised last year, such a description should not be thought to diminish the importance or effect of the bill’s provisions. For people who find themselves in the situations to which the provisions apply, the bill is likely to be highly important. Margaret McDougall said that, but the point is compelling and worthy of repetition. The bill might be relatively limited in scope, with a focus on technical matters rather than substantive policy change, but it will have a significant impact on important areas of Scots law in implementing changes that relate to wills, survivorship and forfeiture, as well as protections for executors, trustees and buyers of property.
Let us not forget that the reforms have been many years in the making. I am pleased that the changes that were made to the Delegated Powers and Law Reform Committee’s remit in 2013 to enable it to consider certain bills emanating from Scottish Law Commission reports, as mentioned by John Mason, have helped to expedite the placing of parts of the commission’s 2009 report on a statutory footing. Perhaps, in the future, that change to the committee’s remit will mean that some of the less contentious reforms that the Scottish Law Commission has proposed will be implemented expeditiously and timeously.
In that vein, I commend the Scottish Government’s approach of undertaking two separate projects on succession law. Although both projects are based on the Scottish Law Commission’s 1990 and 2009 reports, such a legislative approach recommends itself well to areas of the law where there are technical and potentially controversial proposals. However, as we move forward, I urge the Scottish Government to consider how it intends to consolidate the provisions in the bill and any future legislation that might come before the Parliament.
At stage 1, I referred to the comments of Professor Joseph Thomson, the lead commissioner on the succession project, who said at the publication of the 2009 report:
“The aim is to simplify the law radically by providing rules which are easily understood and which at the same time reflect the nature of family structures in contemporary Scotland.”
At stage 3, the test of the bill remains whether it achieves the radical simplification that was envisaged by the Scottish Law Commission. The Scottish Conservatives are satisfied that that is the case, and I reiterate my party’s support for the bill, which will be reflected at decision time.
I will end on a cautionary note by saying, as others have done, that the last-minute changes to the existing rules on bonds of caution must be subject to post-legislative scrutiny. Although I am reassured that the stage 3 amendments give ministers a range of powers to future proof the arrangements against any further changes in the caution market, I seek further assurances from the minister that this is very much a live issue and that the Scottish Government will endeavour to monitor the developing situation and keep the Parliament suitably updated.
15:22
It is my pleasure to speak on behalf of Scottish Labour in support of the Government’s approach to the Succession (Scotland) Bill and the amendments that have been presented today. It is right that I should thank Nigel Don and the other members of the Delegated Powers and Law Reform Committee for the work that they have completed on behalf of this Parliament with such speed and such attention to detail. Indeed, as someone who is not on that committee, today’s debate helped me to understand some of the complexities that the committee dealt with and the reasons why certain elements were presented at the last minute. I now understand more clearly the approach that was taken.
A number of speakers have talked about the technical nature of this piece of legislation. I am grateful to John Scott for saying that, although the bill has been described as technical, it is, nonetheless, vitally important, bearing in mind the impact that the issue has on people’s lives. When I first received the paperwork for the bill, the issues seemed arcane, distant and hardly relevant to day-to-day living. For that reason, I think that the Law Society and the Scottish Law Commission are to be complimented on the fact that they have maintained the pressure on the Government and this Parliament to deal with the bill. For six years, they have paid attention and waited patiently.
I have dealt with a will in the past 18 months as an executor and—because I am an only child—as the person who benefited from it. It should have been a simple process that I should have been able to cope with easily. However, even though there was no conflict involved in the process, I found it anything but simple and easy to deal with. The extremely technical issues that were described this afternoon are vitally important when people are trying to deal with something that they do not want to deal with and are seeking guidance on how to deal with it fairly and with equity, particularly when competing interests are involved.
We all know families that have been split irretrievably because of the way in which someone’s estate has been dealt with. The bill does the best that it can to avoid such splits in the future by offering direct guidance on the way in which wills and matters of succession should be dealt with.
The approach that has been offered on the validity of wills following the breakdown of relationships through divorce, dissolution and annulment is absolutely vital, particularly given the complex lives that we now live and the kinds of relationships that we create. I therefore welcome the approach that the committee has endorsed and that we are debating today.
I also note that, like buses in the city, one bill comes along and, before we know it, we are suggesting that there should be a second bill. It is important that we have had something of a superficial examination, at speed, of many of the issues that have cropped up and that the committee has done its best, on behalf of the Parliament, to deliver. However, in the next session, we need to check that the delivered outcomes are what we wanted and that measures to achieve any additional outcomes are included in a bill to be introduced in that session.
I will not go through the detail of the bill, as it has been rehearsed by other members with more clarity than I could bring, but I welcome the protection for trustees and executors, which has been commented on. I also think that the approach to succession forfeiture is much healthier than it was previously.
I commend the committee’s approach and reassure the minister that we will support the bill when it comes to the vote.
I call the minister, Paul Wheelhouse, to wind up the debate. Minister, if you could do so in less than seven minutes, I would be most grateful.
Oh, that would be wonderful.
15:27
That request seems to have been met with great acclaim among the members sitting behind me, Presiding Officer.
I thank all members who have spoken in the debate for their contributions and their interest in this important piece of legislation. It has been a short debate, but it has demonstrated the importance of the bill, not least in Graeme Pearson’s testimony of the fact that, in a distressing though simple scenario, the process should have been less stressful than it was. I very much take on board his point.
I welcome the support that has been expressed for the reforms, and I am grateful for the time that members have taken to engage with what, at times, can be a technically complex area of the law of succession. Our earlier debate on the stage 3 amendments perhaps gave a flavour of the careful consideration that has had to be given to the language and terminology in the bill. The bill has, undoubtedly, benefited from a willingness among stakeholders to participate fully in the development of the legislation. There has been little—if, indeed, any—disagreement about the need for these reforms, and the process quickly became one of ensuring that the provisions met the aims of the reforms. My first experience of the process for Scottish Law Commission bills was a very positive one, for which I thank the committee and all the stakeholders who participated.
I mentioned earlier the helpful input that was received from professional representative bodies. For example, in its stage 1 report, the committee echoed the concern of TrustBar that section 9 had the potential to result in more estates falling to the Crown. We subsequently enjoyed a helpful exchange with TrustBar and we are confident that the amendments that we made to the bill at stage 2 addressed that point, although not in the way that TrustBar suggested—indeed, we had some concerns about the practicalities of TrustBar’s proposed approach. Nonetheless, the opportunity to enter into an informed discussion with stakeholders about various issues undoubtedly enhanced our policy consideration and contributed positively to the formation of the final provisions.
I also mentioned that this is the second bill to be considered under the Scottish Law Commission procedure. It is worth making the point that this bill is very different from the first—the Legal Writings (Counterparts and Delivery) (Scotland) Bill—because the Scottish Law Commission’s report was much older and we needed to carry out our own consultation. Stage 2 for the Legal Writings (Counterparts and Delivery) (Scotland) Bill must have been one of the fastest on record, as there were no amendments, whereas this bill has had stage 2 and stage 3 amendments.
I have been struck by the helpfulness of the Delegated Powers and Law Reform Committee, led by Nigel Don, whom I thank for the positive and constructive approach that he took to the committee’s meetings, which has been reflected in the comments of other committee members. I include in that Richard Baker, who has moved on from the Parliament—I thank him for his input. As others have said, the committee was prepared to rearrange its schedule to accommodate late provisions. Its responsiveness has greatly assisted the scrutiny process.
I share the committee’s view that our laws need to be accessible to not just the legal profession, but the person in the street. Points were made in the evidence session this week about the need to give proper advice before people die, rather than just advise those who are affected by a death in the family. I have already given an undertaking to ensure that our guidance and websites are updated in user-friendly layspeak, and I reiterate that commitment today.
The phrase “the devil is in the detail” is probably an overused idiom, but it is apt when talking about the bill. Most of us will have had some experience of being caught out by the details. Details are important and, in succession law, we have learned that small differences in timings of deaths can make big and unexpected differences in the effects of death on an estate. The bill is therefore very important.
Previously and today, John Scott has made a point about the benefits of consolidating the bill with any future bill on succession. I remain open to that possibility and I undertake that I—or, I should say, my successor—will give it full consideration at the relevant time.
Much of what we have done in the bill amends the fallback position when a will does not make express provision about what will happen in a defined set of circumstances. One point that has struck me throughout the process and that will arise again in the consideration of any further reforms to this area of law is the importance of making a will. Stewart Stevenson made that point very clearly. I can understand why people shy away from that or put it off to another day but, as Stewart Stevenson said, a will can be quite a simple document. I am aware through letters that we receive at the Scottish Government of the misery and chaos that can follow when someone dies without a will. I hope that the debate on the bill has caused people to stop and think about their circumstances and to take whatever action they need to take.
I am entirely sympathetic to the view that it was undesirable to have to deal at stage 3 with the changes on bonds of caution. I whole-heartedly welcome the committee’s decision to take evidence on that earlier this week. I reassure John Scott that we will use sparingly the fairly wide-ranging additional powers that we have put in the bill.
I simply note that the evidence that we took led to the manuscript amendments that the Presiding Officer accepted today. That shows the validity of the process that the committee undertook.
Minister, please note that the debate is now eating into the time of the next debate, so be as brief as possible.
Absolutely.
I certainly agree with the sentiment that Stewart Stevenson expresses. I do not envisage such a situation occurring again, even on an irregular basis, in the context of the Scottish Law Commission bill procedure.
Of course, the situation is not of our making, as I hope the debate has clarified. Given the concerns about the impact of Zurich’s decision, it would have been remiss of the Scottish Government not to act quickly and do what it could to try to remedy the position. I hope that committee members take comfort from their involvement in that. Doing nothing would have placed a new and unwelcome burden on small uncontentious estates and it would have left the market further exposed should Royal Sun Alliance at some point also withdraw. It would also have created a position where a legal requirement was incapable of being met, resulting in estates being incapable of being wound up.
I will respond to a couple of points that colleagues have made in the debate. I assure John Scott that, if issues arose in relation to the change in bonds of caution, they could be addressed swiftly under the powers in the bill. There is no need to wait for a second bill to achieve that. Although there are plans for a second bill, we do not need to address that particular point through that route. I am grateful to Mr Scott for his kind remarks not just about me but particularly about my bill team, who have worked hard. I appreciate that sentiment.
Margaret McDougall asked where the inheritance would go if there were no direct descendants. I point out that the bequest would fall and go into the residual estate, which is the estate that is available to a named residuary legatee or legatees, or would be devolved under the laws of intestacy. I am happy to put that on the record, and I hope that that clarifies the matter for individuals who are interested in it.
The bill is a worthy one that will bring much-needed reform. I urge members across the chamber to support the bill and pass it at stage 3.
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Succession (Scotland) Bill: Stage 3