This briefing provides an introduction to inheritance law in Scotland, also known as succession law or the law of succession.

The briefing has two goals. First, it is intended to help MSPs and their constituency offices with casework relating to inheritance issues. Second, the briefing aims to be useful to those with a general interest in inheritance law as a policy area.

The briefing is divided into three parts:

• a short section on making a will and the practical issues that need to be sorted out after a death. This signposts to more detailed resources on these topics

• a description of the current law and practice

• a description of several previous government consultations on the possible reform of the law. With one minor exception, these have not progressed to legislative proposals.

This section of the briefing covers how to make a will and how to sort out the affairs of someone who has died.

If a person dies without making a will, everything that person owns will largely be divided up according to statutory rules (set out later in this briefing). This distribution may or may not be what the person wanted to happen.

If a person wants to make their wishes known in advance of their death, it is recommended they make a will. To make a will, or change an existing will, they should consult a solicitor. Otherwise, as Citizens Advice Scotland explains:

it is easy to make mistakes and if there are errors in the will this can cause complex problems after your death. Sorting out misunderstandings and disputes may result in considerable legal costs which will reduce the amount of money in the estate.

The Law Society of Scotland’s Find a Solicitor webpage allows a person to search for an individual solicitor or firm of solicitors. Searches can be done by geographical area and by legal specialism. For the relevant specialism, select wills, executries and trusts.

September is Will Relief Scotland month. Will Relief is a scheme which enables people to have a will drawn up by a solicitor in exchange for a donation to charity. Suggested minimum donations are £80 for a single basic will and £120 for a pair of basic 'mirror' wills. These are matching wills which are suitable for a couple whose main intention is to leave everything to each other.

Will-writing services are also available in books and, increasingly, on the internet. These services may or may not understand that inheritance law in Scotland differs significantly from the law in other parts of the UK.

These services are not regulated so there are few safeguards if things go wrong. The Legal Services (Scotland) Act 2010 would have regulated the will-writing industry but the relevant part of the Act was never brought into force.

For more detail on the process of making a will, see the website of Citizens Advice Scotland.

The mygov.scot website has comprehensive information on death and bereavement which is very useful in the initial period after a death. Topics covered include but are not limited to:

• bereavement support and advice

• an introduction to inheritance tax

• information on benefits, money and the home

• what to do if someone dies outside Scotland.

The Scottish Government also has a 2016 publication called What to do after a death in Scotland¹Scottish Government. (2016, November 16). What to do after a death in Scotland - practical advice for times of bereavement: revised 11th edition. Retrieved from <a href="https://www.gov.scot/publications/death-scotland-practical-advice-times-bereavement-revised-11th-edition-2016-9781786522726/" target="_blank">https://www.gov.scot/publications/death-scotland-practical-advice-times-bereavement-revised-11th-edition-2016-9781786522726/</a>, which, although not up to date in all respects, covers in detail what happens during the period from the time of death to the funeral and beyond.

Some issues or topics which are relevant during the initial period after the death include:

• the possibility of donating body parts for transplantation. Note that, at the time of writing, the Government's 2016 publication does not reflect the new law on organ and tissue donation which came into effect on 26 March 2021. This changed the system to one where a deceased person's consent to donation will be presumed unless they have indicated otherwise.

• the requirement to obtain a medical certificate stating the cause of death before a person can be buried or cremated.

• the Procurator Fiscal's role in investigating all sudden, suspicious, accidental, unexpected and unexplained deaths, as well as any deaths occurring in circumstances that give rise to serious public concern. Detailed information on this is available on the website of the Crown Office and Procurator Fiscal Service.

• the need to register the death - this must happen within eight days of the death. It must also take place before a burial or cremation can happen. Various people can register a death, including any relative of a deceased.

• how to plan a funeral - including the costs and possible sources of financial help to pay for it. Note that final funeral arrangements, involving fixing a date, cannot be made until it is certain the death does not have to be reported to the Procurator Fiscal.

This section of the briefing provides an overview of current inheritance law, covering the following topics:

• the main legal terms associated with this area of law

• the role of a key person called 'the executor'

• the law which applies when someone dies without leaving a will

• conversely, the law which applies when someone has made a will.

At the outset, it is helpful to be familiar with some of the key terms used by legal practitioners.

Where a person makes a will, he or she is called the testator by legal practitioners.

The deceased’s money, investments, property and possessions are usually referred to as the estate. The people or organisations that will benefit from the estate when it is distributed are called the beneficiaries.

When someone dies, the executor is the person who gathers in the estate, pays any debts and taxes due and distributes the remainder of the estate to the beneficiaries. There is nothing which stops an executor also being a beneficiary. In fact, in practice, it is very common for this to happen.

When a will aims to prevent a particular person from inheriting, the will aims to disinherit that person. Complete disinheritance of someone's spouse, civil partner or children, including their adult children, is not possible in Scotland.

If a person dies without leaving a valid will, then, on his or her death, that person is described as intestate, as is his or her estate. Statutory rules then determine what should happen to the estate.

The term cohabitant refers to a person who lived with the deceased as part of a couple. Where no will has been made, some cohabitants may have limited statutory rights on the death of their partner. Alternatively, a deceased person might have a made a will benefiting their cohabitant.

Inheritance law makes a distinction for various purposes between how it treats heritable property and moveable property. Heritable property, is land and buildings, such as the family home. Moveable property is everything else. For example, moveable property includes money, investments, cars, furniture and jewellery. Proposals to abolish the distinction between heritable and moveable property (at least in the context of inheritance law) have been controversial in the past.

This section considers the role of the executor, that is to say the person who gathers in and distributes the deceased's estate. The section covers:

• how it is decided which person should be appointed to the role

• the process by which the executor obtains the legal authority to undertake the tasks associated with the role.

A person may name somebody in his or her will that he or she wishes to be the executor (an executor nominate). On the other hand, an executor can be appointed by the court (an executor dative).

Appointing an executor dative will be necessary if there is no will. However, it may also be required in other circumstances, for example, if there is a will but the executor named in it is unable to undertake the role.

The law provides a set order of people entitled to apply to be appointed executor dative. It is usually the deceased's spouse or civil partner who will be appointed by the court. Indeed, where there is no will and the spouse or civil partner is entitled to inherit the whole estate, he or she will be the only person entitled to be appointed in that role.ⁱSuccession (Scotland) Act 1964, section 9(4).

Where there is no spouse or civil partner, the court will usually appoint another person entitled to inherit the estate.

Executors usually get their authority to carry out their role from a legal document known as the confirmation. This can be obtained from the local sheriff court.

Confirmation may not be needed where bodies holding money belonging to the estate, such as banks, are prepared to release funds without it.

Separately, there is a streamlined procedure for obtaining confirmation to small estates. These have a total value of £36,000 or less. In calculating the total value, one should not deduct any debts due by the deceased, such as the mortgage on a house.

Small estates procedure can be used without legal advice, although the executor is still liable for any mistakes. It may be helpful to talk to a Citizens Advice Bureau or solicitor on specific points. See also the Scottish Court and Tribunal Service's guidance on small estates.¹Scottish Courts and Tribunal Service. (n.d.) Small Estate Guidance Notes. Retrieved from <a href="https://www.scotcourts.gov.uk/rules-and-practice/guidance-notes/dealing-with-a-deceased's-estate-guidance-notes" target="_blank">https://www.scotcourts.gov.uk/rules-and-practice/guidance-notes/dealing-with-a-deceased's-estate-guidance-notes</a> Note the sheriff clerk (of the sheriff court in the area where the deceased last lived) will help prepare the forms for confirmation.

Small estates procedure is only regarded as suitable for the least complicated estates. Examples of estates where the procedure is not suitable are:

• where there is competition among individuals for the role of executor

• where there is a legal challenge to the validity of the will

• where the deceased died while permanently living somewhere other than Scotland

• where the deceased had no fixed permanent address.²Scobbie, E.M. (2011). Currie on Confirmation, para 11-11. Edinburgh: W Green.

This section of the briefing considers the legal rules that determine who benefits when someone dies without leaving a will.

The Succession (Scotland) Act 1964 (‘the 1964 Act’) sets out the main rules on who benefits and how an estate should be divided up between them when there is no will.

Section 29 of the Family Law (Scotland) Act 2006 ('the 2006 Act') has specific rules relating to cohabitants of people who have died without leaving a will.

There are various stages an executor must go through when distributing the estate of a person who has died without leaving a will. They must be carried out in a set order.

In the first place, the executor has to pay debts and meet certain liabilities from the deceased's estate. Specific beneficiaries then have rights to claim from an intestate person’s estate.

• Prior rights in favour of the deceased's spouse or civil partner must be satisfied first.

• The next priority is the legal rights of any spouse or civil partner.

• The legal rights of any children of the deceased are the third-ranked priority under the current rules. Grown up children can claim legal rights.

• Finally, the remaining estate, called the free estate, must be distributed according to a list of potential beneficiaries contained in the 1964 Act.

Any cohabitant of the deceased also has six months to apply to the court and the court has discretion to make a financial award to this person.ⁱFamily Law (Scotland) Act 2006, section 29.

This briefing will now explore the different categories of rights available to the beneficiaries in more detail.

Prior rights are a first claim on the estate. They exist in favour of the deceased person’s spouse or civil partner, if he or she had one.

The rights are to a share of the deceased’s house, furniture and money.ⁱSuccession (Scotland) Act 1964, sections 8 and 9. These shares are subject to maximum financial limits, revised from time to time by secondary legislation.

At present, the deceased’s spouse or civil partner has a right to the following:

• the deceased’s share of a house up to the value of £473,000

• the deceased’s share of the furniture and furnishings associated with the house up to a value of £29,000

• money up to £50,000 (if there are surviving children of the deceased) or £89,000 (if there are no surviving children).

In relation to the last bullet point, note that the sum of money can be generated from all types of available asset in the estate. For example, shares could be sold to raise the necessary cash.

The legal rights of the spouse or civil partner are to a share of the deceased's moveable property (e.g. money, shares and possessions).

A surviving spouse or civil partner is entitled to:

• one third of the remaining moveable estate, if the deceased left surviving children or remoter descendants

• one half of the remaining moveable estate, if the deceased person did not leave surviving children or remoter descendants.

The surviving children (or remoter descendants)ⁱSuccession (Scotland) Act 1964, section 11. are entitled to:

• one third of the remaining moveable estate split between them, if the deceased left a spouse or civil partner

• one half of the remaining moveable estate split between them, if the deceased did not leave a spouse or civil partner.

Legal rights do not make a distinction relating to gender or birth order. For instance, brothers do not rank before sisters; elder sisters do not rank before younger ones. As already mentioned, adult children can claim legal rights, as well as children under 16.

Under the 1964 Act, the free estate is the estate remaining after the prior rights and legal rights are satisfied.

For the free estate the categories of relatives of the deceased who can potentially inherit are, in order of priority, as follows:ⁱSuccession (Scotland) Act 1964, section 2(1).

1. Children

2. Parents and brothers or sisters. If someone survives from both classes each class takes half the free estate

3. Brothers and sisters (if no parents are alive)

4. Parents (if no brothers and sisters are alive)

5. Spouse or civil partner

6. Uncles and aunts (on either parent’s side)

7. Grandparents (on either parent’s side)

8. Brothers and sisters of the grandparents (on either parent’s side)

9. Ancestors of the deceased person more distant than grandparents (on either parent’s side)

10. The Crown.

As the list shows, where the deceased is survived by a spouse or civil partner and children, the children will inherit the free estate.

If there is a spouse or civil partner but no children, the spouse or civil partner will inherit the estate up to the prior rights limit. If any (free) estate remains, the spouse or civil partner may have to share this with the deceased's other relatives, such as the deceased's brothers or sisters. (This is due to the combined effect of the financial thresholds associated with prior rights and the operation of the above list associated with the free estate.)

Note categories 2 and 3 on the list associated with the free estate can include half siblings. However, if there are whole siblings of the deceased, the whole siblings will inherit in preference to half-siblings.ⁱⁱSuccession (Scotland) Act 1964, section 2(2) and (3).

As discussed earlier, someone who would have fallen into a category on the above list might have died before the deceased person whose estate is now under consideration. Unless the person on the list was a parent, spouse or civil partner, then that person's children (or remoter descendants) can inherit in their place.ⁱⁱⁱSuccession (Scotland) Act 1964, section 5(1).

Under category 10, if the executor cannot trace any of the deceased's relatives, the estate may pass to the Crown as the ultimate heir. The person in Scotland who acts for the Crown in this capacity is the Queen's and Lord Treasurer's Remembrancer (QLTR). The money raised by the sale of property falling to the Crown used to go the UK Treasury. However, since Scottish devolution, it has gone to the Scottish Government.

Any cohabitant of the deceased currently has six months from the date of death to apply to the court to ask it to exercise its discretion and give them a share of the deceased's estate.ⁱFamily Law (Scotland) Act 2006, sections 25 and 26.As the Scottish Government consultation in 2015 noted, the law in question has been criticised for not providing clear guidance on what factors are relevant in deciding what the size of that share should be.¹Scottish Government. (2015). Consultation on the Law of Succession, para 4.5. Retrieved from <a href="https://www.webarchive.org.uk/wayback/archive/20150828184326/http://www.gov.scot/Publications/2015/06/7518/downloads" target="_blank">https://www.webarchive.org.uk/wayback/archive/20150828184326/http://www.gov.scot/Publications/2015/06/7518/downloads</a>

Sometimes there is both a cohabitant and a spouse or civil partner for inheritance law purposes. This happens if the deceased was separated from the spouse or civil partner, but legally the marriage or civil partnership had not ended.

The general rule in the statute is that an award in favour of a cohabitant comes out of the estate which remains after the prior rights and legal rights in favour of a spouse or civil partner are met.ⁱFamily Law (Scotland) Act 2006, section 29(1).

However, this issue is sometimes dealt with in advance for a particular couple in a separation agreement. This sets out the arrangements for a couple for the period after separation but before divorce or dissolution of the civil partnership. Here the deceased and his or her spouse or civil partner can agree to give up their inheritance rights at the time of separation.

Section 29(10) of the Family Law (Scotland) Act 2006 suggests that the cohabitant's award can be taken out of the estate before 1) the legal rights of the children; and 2) relatives' rights relating to the free estate; have been satisfied.

On the other hand, other parts of section 29 say that the court should take into account other potential claims against the deceased's estate in exercising its discretion.ⁱFamily Law (Scotland) Act 2006, section 29(2)(a) and (3)(c).

Arguably, overall, the section does not provide clear guidance on how the cohabitant's claim should rank, compared to the claims of children and other relatives. Legal advice is recommended in individual cases.

This part of the briefing considers various aspects of the law associated with making a will, as well as what happens when someone dies having left a will.

As already mentioned, the person who makes a will is sometimes referred to as a testator.

The legal requirements for a valid will are found in the Age of Legal Capacity (Scotland) Act 1991, the Requirements of Writing (Scotland) Act 1995 and in the law set out in the decisions of judges in individual cases (case law).

In order for a will to be valid, it must be made by a person with legal capacity to do so. This has several elements to it.

First of all, it must be made by a person who is twelve years old or over.ⁱAge of Legal Capacity (Scotland) Act 1991, section 2(2). In practice though, it is thought very few young people make a will.

Second, it must be made by a person of sound mind. This means the person must be fully aware of the nature of the document being written or signed, the property involved and the identity of the people who may inherit.

A valid will must be in writing. It must also be signed by the person making the will at the bottom of the last page (a process known as subscription).ⁱRequirements of Writing (Scotland) Act 1995, sections 1(2)(c) and 2(1).

In addition, as standard practice, a solicitor will aim to have his or her client make a probative or self-proving will. Additional requirements must be satisfied for a will to be probative.

In the event of a legal dispute, a probative will can be very helpful to the person relying on it. On the other hand, if a will is valid but not probative, then, for example, an executor relying on that will to take out a grant of confirmation must first prove that the will was validly executed. So that person must (as a first step) produce, to the court, sworn written evidence (an affidavit) related to the deceased's handwriting.

The first column of the diagram below summarises the requirements for a valid will. The second column summarises the various requirements for a probative will:ⁱⁱRequirements of Writing (Scotland) Act 1995, sections 1(2)(c), 2(1), 3(1)(a), 3(1)(b) and 3(2).

Source: SPICe

The law recognises two further potential grounds on which a will can be challenged:

• if it was not made voluntarily, that is to say where there been undue influence from another person

• if affected by facility and circumvention. This is where a person has suffered some degree of mental deterioration, such as can sometimes happen in old age or illness. It is not sufficiently severe to prevent them from having capacity to write a will but it leaves them easily imposed on by others. In some circumstances, it can exist alongside a person exercising undue influence on a vulnerable person.

A key feature of a will is that it identifies all the people or organisations the testator wishes to benefit from his or her will and what he or she wishes them to receive. The parts of a will which achieve this are referred to as legacies or bequests. Other common (but not essential) features of a will include:

• who the testator wants to be his or her executor or executors

• who the testator wants to look after any of his or her children who are under 16

• the testator's wishes for his or her funeral

• whether the testator wants to donate all or part of his or her body to medical research or for transplant purposes.

A testator may wish to cancel (revoke) an existing will. The normal method of doing this is to physically destroy it.

A will prepared by a solicitor will almost invariably have a section in it saying that any previous will is revoked. This cancels an earlier will, even if it is not destroyed.

When a current will is revoked but no new will made it its place, it used to be the case that any earlier will could take effect again (revive). However, legislation from 2016 says revocation of a will does not revive an earlier will.ⁱSuccession (Scotland) Act 2016, section 5.

The 2016 legislation also sets out that a divorce or dissolution of a civil partnership means that the part of a will benefiting the testator's former spouse or civil partner will not apply. This legislation also says that the testator can choose in the will for this general statutory rule not to apply.ⁱⁱSuccession (Scotland) Act 2016, section 1.

A will can also be amended by the use of a codicil, that is to say a later document referring to the earlier will but varying its provisions. Because of potential difficulties in practice of working out the combined effect of these two documents, solicitors usually recommend destroying the old will and making a new one instead.

Even if a person makes a will, there is not complete freedom in Scotland to leave his or her estate to whomsoever he or she chooses.

Spouses, civil partners and children (including adult children) are protected from complete disinheritance by the concept of legal rights.

Legal rights operate differently where there is a will, compared to how they operate where there is not a will. Legal rights partially override the provisions of the will, rather than taking second place to any other type of right (as they do to prior rights on intestacy).

If a spouse, civil partner or child of the deceased is entitled to inherit as a result of a legacy in the will, they cannot have both their entitlement under the will and their entitlement under legal rights. They must make a choice.

As with the situation where there is no will, where there is a will, legal rights still only apply to moveable property, that is to say property other than land and buildings.

Furthermore, the proportions of the moveable property that any spouse, civil partner or any children are entitled to inherit under legal rights is the same, regardless of whether a will is left or not. The relevant proportions were outlined earlier in this briefing in The legal rights of the surviving spouse or civil partner and The legal rights of any children of the deceased.

The current restriction of legal rights to moveable property limits their effect in practice. They exclude what is many people's main asset, that is to say the family home.

They would also exclude, for example, a family farm where it has been owned directly by the deceased (as opposed to by, for example, a family-run company).

The restriction of legal rights to moveable property does provide a determined (and well-advised) individual with the opportunity to further limit the impact of legal rights. This would be done by attempting to convert as much of an individual's assets into heritable property prior to the individual's death.

This section discusses the reform of inheritance law.

• First, it looks at the policy case for reform to happen, as well as the challenges associated with such a move.

• Second, it summarises the Scottish Government's attempts at reform so far, where it failed to find a policy consensus among interested individuals and organisations on key proposals.

• Finally, the briefing considers what might lie ahead by way of reform in the current session of the Scottish Parliament.

The main piece of legislation on inheritance in Scotland, the Succession (Scotland) Act 1964, is almost sixty years old. The law is widely recognised as being overdue for reform, as society has changed significantly over the past half century.

People are living longer and many more people own their own homes. Families have changed too, with more 'blended families' and many people choosing to live with their partner, rather than marry. Just over a third of our population is single. Scotland's population is also ageing, with the percentage of those aged over 65 having increased fairly significantly.

There is a need for clear and fair laws which reflect modern society. In practice though, inheritance law is a difficult area to reform, particularly for minority governments concerned about policy controversy.

People disagree on many aspects of inheritance law, including how large a role governments should have in deciding what should happen to people's money and possessions on death. As the remainder of the briefing highlights, there are a range of key issues on which it is difficult to find public consensus.

This section of the briefing explores what happened when the Scottish Law Commission, and later the Scottish Government, tried to reform inheritance law.

Table 2 below provides a high level summary of attempts to reform the law over the last thirty years or so.

This section considers key policy proposals put forward by the Scottish Law Commission and the Scottish Government and why they failed to progress, even after several consultations.

The Scottish Law Commission and the Government looked at the law which would apply where a will has been made aiming to exclude certain family members.

There were two key areas of controversy. First, whether protection from disinheritance should continue to apply to adult children and, second, whether the protection should be extended to cohabitants.

The position of adult children proved a particularly tricky area for those involved in the reform efforts.

In 2009, the Commission had also recommended that, if a will was made which attempts to exclude a cohabitant, he or she should be protected from disinheritance.¹Scottish Law Commission. (2009). Report on Succession. SLC No 215. Retrieved from <a href="https://www.scotlawcom.gov.uk/files/7112/7989/7451/rep215.pdf" target="_blank">https://www.scotlawcom.gov.uk/files/7112/7989/7451/rep215.pdf</a>

When the Scottish Government consulted in 2015, it heard mixed views on this idea. Some people argued that someone might have deliberately chosen not to marry to allow other people or organisations to benefit from the estate. For example, this might be the case where there were children from an earlier relationship who the testator wanted to benefit.²Scottish Government. (2018). Analysis of Responses to the Consultation of the Law of Succession. Retrieved from <a href="https://www.webarchive.org.uk/wayback/archive/20181226070019/https://www2.gov.scot/Topics/Justice/law/damages/succession/analysis-of-responses-succession-consultation" target="_blank">https://www.webarchive.org.uk/wayback/archive/20181226070019/https://www2.gov.scot/Topics/Justice/law/damages/succession/analysis-of-responses-succession-consultation</a>

In 2018, the Government also announced that it had decided to retain the current legal position. In other words, a person can make a will which does not leave anything to their cohabitant.³Scottish Government. (2018, October 18). Scottish Government response to the Consultation on the Law of Succession. Retrieved from <a href="https://www.webarchive.org.uk/wayback/archive/20181226070023/https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati" target="_blank">https://www.webarchive.org.uk/wayback/archive/20181226070023/https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati</a>

On consultation in 2015, the Scottish Government found more consensus around the idea of reforms to the law which applies on intestacy, that is to say the law which applies where no will has been made.¹Scottish Government. (2018). Analysis of Responses to the Consultation of the Law of Succession. Retrieved from <a href="https://www.webarchive.org.uk/wayback/archive/20181226070019/https://www2.gov.scot/Topics/Justice/law/damages/succession/analysis-of-responses-succession-consultation" target="_blank">https://www.webarchive.org.uk/wayback/archive/20181226070019/https://www2.gov.scot/Topics/Justice/law/damages/succession/analysis-of-responses-succession-consultation</a> However, in 2019, it had to consult again on two key issues from the first consultation.²Scottish Government. (2019, February 17). Law of succession: consultation. Retrieved from <a href="https://www.gov.scot/publications/consultation-law-succession/" target="_blank">https://www.gov.scot/publications/consultation-law-succession/</a>

One such issue was how to divide up the estate where there was a spouse or civil partner and children.

This has particular significance for 'blended families', where there are children from an earlier relationship. The Commission's original proposals here received some academic criticism. One concern was they had the effect of step-children inheriting (via their surviving parent) everything, at the expense of the children of the earlier relationship.¹Reid, D. (2008, November 8). From the Cradle to the Grave: Politics, Families and Inheritance Law (2008). Edinburgh Law Review, 12 (3). pp. 391-417, 2008. Retrieved from <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2925441" target="_blank">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2925441</a>

The Scottish Government suggested two new (alternative) proposals,²Scottish Government. (2019, February 17). Law of succession: consultation. Retrieved from <a href="https://www.gov.scot/publications/consultation-law-succession/" target="_blank">https://www.gov.scot/publications/consultation-law-succession/</a>drawing inspiration from other countries.³Scottish Government. (2018, November 21). Intestate succession in British Columbia and Washington State. Retrieved from <a href="https://www.gov.scot/publications/intestate-succession-in-british-columbia-and-washington-state/" target="_blank">https://www.gov.scot/publications/intestate-succession-in-british-columbia-and-washington-state/</a>

In 2019, Government also suggested alternatives to the original approach proposed for cohabitants in 2015.¹Scottish Government. (2019, February 17). Law of succession: consultation. Retrieved from <a href="https://www.gov.scot/publications/consultation-law-succession/" target="_blank">https://www.gov.scot/publications/consultation-law-succession/</a> The original approach retained the court's discretion on whether someone qualified as a cohabitant and how much they should get from the estate if they did.

Some changes suggested by the Government in 2019 were aimed at creating a simpler scheme. The Government was also willing to revisit fundamental policy questions, such as whether cohabitants should have an automatic right to inherit and whether they should get as much as a spouse or civil partner.

On key policy issues, the overwhelming majority of respondents to the 2019 consultation agreed that the current law needs to be reformed. Despite this, the Government identified no clear consensus among those responding on the way forward. This was both in terms of what the reforms should aim to achieve and, furthermore, how those aims should be delivered.¹Scottish Government. (2020, May 19). Law of succession: consultation response. Retrieved from <a href="https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/" target="_blank">https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/</a>

In 2020, the Government did also highlight a variety of discrete topics on which there was policy consensus and on which it said there would be further work.¹Scottish Government. (2020, May 19). Law of succession: consultation response. Retrieved from <a href="https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/" target="_blank">https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/</a>

(Note the Government was not entirely breaking new ground here, as some policy commitments mentioned in 2020 had first been made in 2018.)²Scottish Government. (2018, October 18). Scottish Government response to the Consultation on the Law of Succession. Retrieved from <a href="https://www.webarchive.org.uk/wayback/archive/20181226070023/https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati" target="_blank">https://www.webarchive.org.uk/wayback/archive/20181226070023/https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati</a>

In 2020, the proposals the Government identified as falling into this category included:¹Scottish Government. (2020, May 19). Law of succession: consultation response. Retrieved from <a href="https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/" target="_blank">https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/</a>

• a review of the financial limits associated with the small estate procedure, the procedure that allows an estate to be wound up with less legal involvement than is required for larger estates

• a change to the law on executors so that someone convicted of murder or culpable homicide is not allowed to be an executor to the victim's estate

• further consideration of what personal information about the deceased and other family members should be publicly available from the documentation associated with the estate. Concerns about the risk of fraud have been raised with the current position

• a change to the existing law on prior rights, meaning that, where there is a spouse or civil partner but no children, the spouse or civil partner will inherit the whole estate. At present, it might have to be shared between the spouse or civil partner and other relatives.

• separately, a consultation on raising the various financial thresholds associated with prior rights, which were last increased in 2012.

In 2020, the Government said that, where legislation was necessary, it was committed to legislating at "the next available legislative opportunity."¹Scottish Government. (2020, May 19). Law of succession: consultation response. Retrieved from <a href="https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/" target="_blank">https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/</a>

However, while we can now reasonably expect some changes in these specific areas, more fundamental reforms to the system of inheritance law still seem some way off.