As noted earlier, 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 issues which arise with inheritance. Second, the briefing aims to be useful to those with a general interest in inheritance law as a policy area in Scotland.

The briefing is divided into three parts:

• a short section on making a will and on the practical issues which usually 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, including key provisions of the Succession (Scotland) Act 2016 and the Trusts and Succession (Scotland) Act 2024

• a description of the several previous Government consultations on more fundamental reforms to the law, which have not been progressed.

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 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, they should make a will.

A person can make a will on their own (a single will) or make a joint or mirror will.

While not compulsory, it is recommended that a person consults a solicitor to make a will or change an existing will. 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.

Will-writing services are also available in books and online. 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 also not regulated so there are few safeguards if things go wrong. The Legal Services (Scotland) Act 2010 would have regulated the will-writing industry. However, the relevant part of the Act (Part 3) was never brought into force.

As explained in the SPICe Briefing on obtaining and paying for legal advice,¹Haley, L. (2024). Legal advice - where to go and how to pay, SPICe Briefing SB 24-24. Retrieved from https://bprcdn.parliament.scot/published/2024/5/16/3d4eb61f-2f9e-4078-98b6-b161db1a65c2/SB%2024-24.pdf 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.

Sometimes a person might be eligible for a free or discounted will prepared by a solicitor specialising in Scots law through an insurance policy, an employer or a trade union.

It is common for solicitors to charge a fixed fee for drafting a will. However, a solicitor may choose to charge differently (for example, per hour's work), particularly if a person's circumstances and will are more complicated. Charging arrangements should be checked in advance with the solicitor concerned.

Some solicitors waive their usual fees for drawing up wills at certain times of the year when a person donates to charity or leaves a donation in their will. For example:

• Free Wills Month is a charity scheme that runs every March and October. See the Free Wills Month website.

• Will Aid runs every November. See the Will Aid website. Suggested minimum donations are £80 for a single basic will and £120 for a pair of basic mirror wills.

• More than 150 charities are signed up to the National Free Wills Network. They offer free simple wills written or updated by a solicitor.

A person might be able to get help with the legal costs of making a will via legal aid if a) a solicitor considers that they need advice on Scots law before they can make the type of will they need; and b) they are financially eligible. On the details of the legal aid system, see the SPICe Briefing, Legal Aid - how it works.

For more detail on the process of making a will see, for example:

• Wills (Citizens Advice Scotland)

• Making a will, including a consumer checklist (Scottish Legal Complaints Commission)

• Making a will (the Law Society of 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 https://www.gov.scot/publications/death-scotland-practical-advice-times-bereavement-revised-11th-edition-2016-9781786522726/. Although not up to date in all respects, it 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 the 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 general topics:

• the main legal terms and concepts

• the role of a key person called the executor

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

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

Finally, this section also covers three discrete, specialist topics in inheritance law, as follows:

• cross-border estates, that is those estates connected to more than one country or legal system, such as the legal system of England and Wales

• special destinations, which are effectively 'mini' wills relating to land and buildings. These sometimes appear in the official ownership documents associated with land and buildings

• unlawful killers - specifically, what happens when an unlawful killer of a deceased person stands to inherit, or be the executor of, their victim's estate.

At the outset, it is helpful to be familiar with some key terms and concepts.

This section covers inheritance law. It also provides a brief introduction to trust law, a related area of law of which it is useful to be aware.

The legal term for a person who has died and left a will is a testator.

As explained earlier, the deceased person'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 their death, that person is described as intestate, as is their estate. Statutory rules then determine what should happen to the estate.

Conversely, if a person dies having left a valid will, then, on their death, that person is described as testate, and this term also applies to their estate.

A cohabitant is a person who lived with the deceased before their death 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 generally land and buildings, such as the family home. Moveable property is everything else. For example, moveable property includes money, investments, cars, furniture, jewellery and other personal items.

A trust is a specific legal device for managing assets.

In the context of inheritance law it is helpful to have a basic understanding of how trusts work. This is because a trust can take assets which would otherwise have formed part of the deceased person's estate - and would have been distributed according to the normal rules of inheritance law - and treat those assets separately.

A trust enables assets to be legally owned by one person or entity (the trustee) while a different individual, entity or section of the general public benefits from those assets in practice (the beneficiaries).

Trusts can be set up for a wide range of purposes. For example, they can be set up to benefit a family member, such as a child (often on reaching a specified age) or an adult with incapacity. They can be set up for charitable purposes. They can also be the legal device underpinning investment vehicles, such as pensions, unit trusts and life assurance policies.

A trust can actually be created in a will, taking effect on a person's death. It can also be created in a separate legal document (a trust deed). Under a trust deed, a trust can take effect on a person's death, or during that person's lifetime, depending on the terms of the particular trust deed.

Assets in a trust are managed under the terms of the trust deed and in accordance with the rules of trust law. Other areas of law, such as charities law and pensions law, may also apply, depending on the nature of the trust.

The briefing now returns to its focus on inheritance law. This section considers the role of the executor, that is to say the person who gathers in and distributes the deceased person's estate under inheritance law. 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 their will that they wish 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 or unwilling 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 person'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, they 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.ⁱIntestates Widows and Children (Scotland) Act 1875 and Small Testate Estates (Scotland) Act 1876, both as amended by the Confirmation to Small Estates (Scotland) Act 1979; Confirmation to Small Estates (Scotland) Order SSI 2011/435, article 2(a). 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 https://www.scotcourts.gov.uk/rules-and-practice/guidance-notes/dealing-with-a-deceased's-estate-guidance-notes Note that an official known as 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 - see later in the briefing on the complexities of estates with a cross-border dimension

• 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 person's estate. Specific beneficiaries then have rights to claim from the deceased person’s estate.

• Prior rights in favour of the deceased person'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 person 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.

Separately, under the Family Law (Scotland) Act 2006, any cohabitant of the deceased person can apply to the court within a specified timescale and the court has discretion to make a financial award to this person.ⁱFamily Law (Scotland) Act 2006, section 29 as amended by the Trusts and Succession (Scotland) Act 2024, section 78.

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 they had one.

The rights are to a share of the deceased person's house, furniture and money. These shares are subject to maximum financial limits, revised from time to time by secondary legislation.ⁱSuccession (Scotland) Act 1964, sections 8 and 9; Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order SSI 2011/436.

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

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

• the deceased person'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 person) 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 person's moveable property (for example, money, investments and personal possessions).

A surviving spouse or civil partner is entitled to:

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

• one half of the remaining moveable estate split between them, if the deceased person 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 person who can potentially inherit are, in order of priority, as follows:ⁱSuccession (Scotland) Act 1964, section 2(1), as amended by the Trusts and Succession (Scotland) Act 2024, section 77.

1. Children

2. Spouse or civil partner (if no children or remoter descendants of those children)

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

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

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

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 person is survived by a spouse or civil partner and children, the children will inherit the free estate.ⁱⁱSuccession (Scotland) Act 1964, section 2(1)(a).

• if the deceased person is survived by a spouse or civil partner and no children, the spouse or civil partner will inherit the free estate.ⁱⁱⁱSuccession (Scotland) Act 1964, section 2(1)(ab).

Note that categories 3 and 4 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.^ivSuccession (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.^vSuccession (Scotland) Act 1964, section 5(1).

Under category 10, if the executor cannot trace any of the deceased person'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 King's and Lord Treasurer's Remembrancer (KLTR). 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.

Under section 29 of the Family Law (Scotland) Act 2006, a cohabitant of the deceased person 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 person's estate.ⁱFamily Law (Scotland) Act 2006, sections 25 and 26.

Not everyone who lived with a deceased person as part of a couple will qualify as a cohabitant of the deceased under the legislation. The 2006 Act says the court should consider various factors in deciding whether someone is a cohabitant, including their financial arrangements and the length of time they have been living together.ⁱⁱFamily Law (Scotland) Act 2006, section 25(2).

As the Scottish Government consultation in 2015 noted, the law on cohabitants has been criticised for not providing clear guidance on what factors are relevant in deciding what the size of the cohabitant's share of the estate should be.¹Scottish Government. (2015). Consultation on the Law of Succession, para 4.5.

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 person and their spouse or civil partner can agree to give up their inheritance rights at the time of separation.

Separately, there is the issue of how the cohabitant's claim ranks compared to those of other relatives.

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 person'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.

Facility and circumvention 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 their will and what the testator 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 their executor or executors

• who the testator wants to look after any of their children who are under 16

• the testator's wishes for their funeral

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

A person who has made a will 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, the Succession (Scotland) Act 2016 ('the 2016 Act') states that revocation of a will does not revive an earlier will.ⁱSuccession (Scotland) Act 2016, section 5.

The 2016 Act 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. The 2016 Act 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 their estate to whomsoever they choose.

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 in relation to prior rights where there is no will.

If a spouse, civil partner or child of the deceased person is entitled to inherit as a result of a legacy in the will, the spouse, civil partner or child 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 person.

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 person (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 on the current inheritance law concludes by looking at three specialist topics in inheritance law, as follows:

• cross-border estates, that is those estates connected to more than one country or legal system

• special destinations, which relate to who might inherit land or buildings in certain circumstances

• the status of an unlawful killer of a deceased person in inheritance law.

The focus of this briefing is on wills made under, and estates governed by, Scottish inheritance law.

However, there may well be a cross-border dimension to a person's affairs. For example, the person might make a will in another country and later move to Scotland. Someone who is permanently resident in Scotland may die leaving a holiday home in Spain or a flat in England.

Sometimes, because of a cross-border element to a person's affairs, there is the potential for more than one legal system to be involved in a particular case.

Each legal system has rules called the rules of private international law to try to deal with this. Despite the name, the rules can also be relevant in cases involving Scotland and another part of the UK.

The rules of private international law help resolve, for example:

1. which country's (or part of the UK's) inheritance law should apply to determine who inherits on a person's death, and in what order

2. which country's (or part of the UK's) courts have authority to consider and decide any disputes about a deceased person's estate.

Although a very technical area, it is probably helpful to be aware that there can be conflicts or clashes between different countries' or legal systems' rules of private international law. They may set out conflicting answers to the questions typically resolved by private international law.

In particular, some countries or legal systems' rules of private international law make a distinction for some purposes between the type of property at issue when deciding which country's (or part of the UK's) inheritance law should apply to determine who inherits. For example, Scotland takes an approach based on the type of property at issue.¹Gretton , G.L., & Steven, A.J.M. (2024). Property, Trusts and Succession, Fifth Edition, chapter 27, paras 27.62 and 27.63 . West Sussex: Bloomsbury Professional.

For most types of property, the Scottish approach says it is the inheritance law of the country (or part of the UK) where the deceased person made their permanent home (their domicile) which applies. In contrast, for land and buildings (including parts of buildings, such as flats), the Scottish position is that it is the inheritance law of the country or part of the UK where the property is situated which applies.¹Gretton , G.L., & Steven, A.J.M. (2024). Property, Trusts and Succession, Fifth Edition, chapter 27, paras 27.62 and 27.63 . West Sussex: Bloomsbury Professional.

On the other hand, other countries or legal systems' rules of private international law say that the same country's inheritance law should apply to the distribution of the estate regardless of the type of property concerned. An example of this second approach can be found in all the EU countries (except Denmark and Ireland).ⁱRegulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.¹Gretton , G.L., & Steven, A.J.M. (2024). Property, Trusts and Succession, Fifth Edition, chapter 27, paras 27.62 and 27.63 . West Sussex: Bloomsbury Professional.

As the above discussion hopefully helps highlight, sometimes when a person's affairs have a cross-border dimension the associated legal issues can be very complex. As noted earlier, specialist legal advice, including when the affected person is still alive, is recommended.

A special destination is traditionally used where the family home is to be co-owned by a couple. However, it can be used for any type of property which takes the form of land and buildings. It can also be used in any type of co-ownership situation, for example, when property is co-owned by a parent and a child.

The destination says one person automatically gets the other's share of the property on death. A variety of people might have had a claim to that share in the normal scenario, but this is overridden by the special destination.

To get rid of a special destination (before death) you have to evacuate it, that is, complete a legal process to pre-emptively stop its legal effect. This might be important, for example, if a couple later separate or divorce.

Problems arose with special destinations in practice because the legal process (of evacuation) was not completed in circumstances where it should have been.

Accordingly, section 2 of the Succession (Scotland) Act 2016 ('the 2016 Act') says a special destination will cease to have effect automatically on divorce or dissolution of a civil partnership.

Improvements to the drafting of section 2 of the 2016 Act, in order to better achieve its policy aims, were recently made by section 76 of the Trusts and Succession (Scotland) Act 2024 (a provision which is already in force).

This section of the briefing considers the legal status of a person in inheritance law where that person has unlawfully killed another, for example, by committing murder or culpable homicide. Such a person is usually referred to in inheritance law as an unlawful killer.

There are two main issues which can arise with unlawful killers, considered in turn in this section of the briefing:

• whether an unlawful killer can inherit any of their victim's estate

• whether an unlawful killer can be an executor in respect of their victim's estate.

The second issue has attracted particular policy attention in recent years due to a high-profile case on the topic.

On whether an unlawful killer can inherit, there is a rule of public policy, developed by the courts and by statute,ⁱParricide Act 1594 (now repealed); Forfeiture Act 1982; Succession (Scotland) Act 2016, sections 12-17. which, in certain circumstances, prevents an unlawful killer from acquiring a benefit from the deceased person's estate as a result of that unlawful killing. The unlawful killer is said to forfeit their rights to inherit in this situation.

The rule of forfeiture applies when a will was made benefiting the unlawful killer. It also applies when the unlawful killer stands to benefit under the statutory rules which apply when no will has been made.

However, the Forfeiture Act 1982 ('the 1982 Act') allows a civil court, on application by the unlawful killer, to grant relief from the effect of the main rule, except in cases of murder. Broadly, the court will apply the 1982 Act to grant this relief where the interest of justice requires this.

A further important policy issue is whether it is possible for an unlawful killer to be an executor of the victim's estate.

Prior to the Trusts and Succession (Scotland) Act 2024 ('the 2024 Act'), the law on unlawful killers as executors may have been somewhat uncertain. However, there was at least one example of a family of an unlawful killer having the person convicted later appointed executor.

The 2024 Act contains several sections clarifying and amending the law in this area.

Sections 7 and 8 of the 2024 Act (both in force) deal with the situation where someone has already been appointed executor of a deceased person's estate:

• Section 7 empowers the court, on application to it, to remove someone who has been appointed executor (or is a trustee under a trust) where they are unfit to carry out their duties.

• Section 8 says that an executor (or trustee under a trust) is to be treated as unfit to carry out their duties where the person in question has been convicted of, or is being prosecuted for, the murder or culpable homicide of the deceased person (or an equivalent offence in a different legal system).

Section 80 of the 2024 Act (also already in force) covers the situation where someone has applied to the court to be appointed as executor and the court is considering that application.

Section 80 inserts a new section into existing legislation on executors. The inserted section requires the court to refuse to appoint a person as executor where the court is satisfied that the person has been convicted of, or is being prosecuted for, the murder or culpable homicide of the deceased, or an equivalent offence in a different legal system.ⁱConfirmation of Executors (Scotland) Act 1858, section 6A inserted by the Trusts and Succession (Scotland) Act 2024, section 80.

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.

The main piece of legislation on inheritance in Scotland, the Succession (Scotland) Act 1964, is now 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.

First, Table 2 below provides a high level summary of attempts to reform the law over the last thirty years or so. Later sections of the briefing consider what happened in more detail.

This section considers key reform 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, they should be protected from disinheritance.¹Scottish Law Commission. (2009). Report on Succession. SLC No 215. Retrieved from https://www.scotlawcom.gov.uk/files/7112/7989/7451/rep215.pdf

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.

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.

On consultation in 2015, the Scottish Government found more consensus around the idea of reforms to the law which applies when someone dies intestate, 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. 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 https://www.gov.scot/publications/consultation-law-succession/

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 deceased person's step-children inheriting everything (via their surviving parent), at the expense of the children of the deceased person's 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 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2925441

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

In 2019, the Government also suggested alternatives to the original approach proposed for cohabitants in 2015.¹Scottish Government. (2019, February 17). Law of succession: consultation. Retrieved from https://www.gov.scot/publications/consultation-law-succession/ 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.

This section of the briefing looks at the outcome of the 2019 consultation in more detail.

In terms of the Scottish Government's 2020 response to the consultation,¹Scottish Government. (2020, May 19). Law of succession: consultation response. Retrieved from https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/ a distinction can be made between those policy areas in which there was no consensus among stakeholders and the public as to how to proceed and those policy areas where there was that consensus.

In summary, on the first category, fundamental reforms now seem a long way off. On the second category, there has been some progress, but several reforms remain outstanding.

A more detailed progress update is given in this final section of the briefing.

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 https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/

In its 2020 response to the consultation, the Scottish Government said it would carry out further research and evidence gathering on areas of difficulty.¹Scottish Government. (2020, May 19). Law of succession: consultation response. Retrieved from https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/

On 2 September 2024, the Scottish Government told SPICe that it had decided to work with the Scottish Civil Justice Hub (SCJH) to support research into aspects of inheritance law.³Scottish Government. (2024, September 2). Email from the Scottish Government to SPICe. The SCJH is a venture led by Glasgow University’s School of Law, in collaboration with the Scottish Government’s Civil Law and Legal System Division. It has been in existence since 2021.

At the time of writing, there is no published information on any relevant research on the SCJH website. In September 2024, the Scottish Government said to SPICe:

We don’t have a date yet for the completion of that work but it should help inform the next steps in due course.

Scottish Government. (2024, September 2). Email from the Scottish Government to SPICe.

(Note that 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.

As discussed earlier in the briefing, two of these have now been made via the Trusts and Succession (Scotland) Act 2024. These are changes to the law where no will has been made, benefiting spouses and civil partners, and changes to the law on unlawful killers as executors.

Proposals which the Government identified in 2020 and which are still outstanding include:¹Scottish Government. (2020, May 19). Law of succession: consultation response. Retrieved from https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/

1. 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

2. a consultation on raising the various financial thresholds associated with prior rights, which are relevant when someone dies without leaving a will

3. further consideration of what personal information about the deceased person 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.

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

On points 1 and 2 above, the financial limits associated with the small estate procedure and the financial thresholds associated with prior rights can both be amended by secondary legislation.ⁱConfirmation to Small Estates (Scotland) Act 1979, section 1(3); Succession (Scotland) Act 1964, sections 8 (1) and (3) & 9(1). On point 3, the Scottish Government recently told SPICe it has not reached a view as to whether the issue could be dealt with by primary or secondary legislation.⁵Scottish Government. (2025, January 23). Email from the Scottish Government to SPICe.