What is happening at Colstoun Mains? Land reform and agricultural holdings in microcosm

Martinmas is the latest of the four Scottish quarter days in the calendar year. It might not be a day or a date known to many – by statute it falls on 28 November – but those involved in Scots property goings-on sometimes have occasion to interact with it. For example, Martinmas 2004 is when the feudal system was abolished in Scotland. That is now the stuff of legal history. Of more relevance to current society is the fact that Scottish quarter days often crop up in agreements about land, such as leases of rural property.

One individual who is acutely aware Martinmas is fast approaching is a gentleman called Andrew Stoddart. The reason he knows Martinmas is imminent is because that is when his occupancy of a farm is due to end.* I am reticent to blog about individual cases, but I have decided to offer a few words here. First, I do this in the knowledge that the case is relatively well-known: there is a high profile petition about it, there was a demonstration at Holyrood about other his situation, and the Channel 4 News journalist Alex Thomson describes him as a “focal point“. [Update: see also this statement from the Scottish Tenant Farmers Association, which was published online after this blog was uploaded.] This makes me doubt that any blog by me will jeopardise what might be a sensitive situation. Second, I do so on the basis an increasing number of people have asked me what is going on (in conversation and online), so I have decided to offer an attempt to explain matters. Third, I am guessing from the spike of traffic to my blogs about the case of Salvesen v Riddell (see below) that people are interested in this and trying to piece it all together. That would be a tricky task without a central resource. So here goes.

A few quick disclaimers. For the lawyers reading this, I am pitching this to non-lawyers, so please don’t heckle too much. For the non-lawyers reading this, as noted I am aiming for you as a readership. If I confuse matters, please comment below and I will try to clarify.

Most importantly, please note I am doing all of this from a desktop level. I have not had sight of any lease or any partnership agreement. (More on partnership agreements below.)

Here are some key questions, and my attempts to answer them.

What is happening at Colstoun Mains?

An area of land was leased by the landowner to a business entity called a limited partnership. The people involved in that LP were the active farmer – Andrew Stoddart – and the landowner (or a representative of the landowner – I will use “landowner” throughout this blog). As with many similar arrangements across rural Scotland, the landowner had no particular role in this LP, other than an ability to bring the LP to an end. The reason a limited partnership was used rather than a more general partnership was to allow the landowner to financially insulate himself from the business – i.e. only the farmer’s investment would be on the line if the business failed. The landowner was thus the “limited partner”, the farmer was the “general partner”.

That sounds a bit weird. Why use such a complex arrangement?

Leases of agricultural land can sometimes attract something called security of tenure, which is a right for the tenant to stay on the land in most circumstances. That entitlement to remain can subsist even after the passing of what was originally planned to be the termination date. It is not possible for a landlord to body-swerve these rules.

A human being with a secure tenancy can basically use tenanted land until retirement or death, at which time that tenancy could go to a family member. That cycle could continue provided the farm is being used productively as an agricultural unit.

In a situation when land is not subject to such a tenancy (i.e. it is vacant), landowners might not want any new occupants to tie-up land in a way that has no end date in sight. The LP tenancy provided a work-around to the security of tenure regime. Whilst the landowner could not end the lease, he could end the tenant. No tenant, no lease.

The LP could have been set up for a set number of years, perhaps 15, or it would run from year to year but in such a way that the landowner (as limited partner in the LP) could serve a notice to end the partnership.

That’s quite a scheme. Does this still happen?

A law was passed in 2003 to stop partnership tenancies like this being valid, whilst at the same time providing new forms of fixed-term tenancies which meant further partnership tenancies were unnecessary.

So what happened to the existing LP tenants?

Here’s where it gets interesting. And potentially confusing.

In 2003 there was a perception that a strong right to buy land would be introduced for farmers who did not own the land they worked on. That did not quite happen – in 2003 a right was conferred, but the right was not given to farmers who were part of a limited partnership, and the extent of the right was only pre-emptive. That is to say a right of first refusal which could not be used to force a sale, it would only kick-in if and when a landowner decided to sell the land.

Be that as it may, the climate in the early noughties was such that some landowners took steps to wash their land of any farmers who might benefit from such a right. This meant steps were taking to bring existing limited partnerships to an end. Holyrood reacted by legislating to give farmers in that situation what was essentially a promotion: they would no longer be partners in a finite tenancy, instead they would be tenants in their own right, with security of tenure.

So they get to stay then?

No. There was a legal action brought by one landowner on a number of grounds, which eventually provided a decision that the landowner’s right to property under the European Convention on Human Rights had been infringed. I have blogged about this here, here, here, here, here, here, here, and here (my most recent blog being the first link). I also have three articles in the Scots Law Times about the matter.

Phew. That’s a lot of blogs and stuff. Can you explain that quickly?

Many factors were at play here, but the comparison with landowners who had taken no action to end a limited partnership was important. Such lazy, benign, indifferent or whatever landowners were faced with a three year extension to any LP arrangement – a time period that would allow business matters to be reorganised, perhaps. The comparison between those notional landowners and the landowners who acted was stark. Holyrood legislation cannot breach the ECHR (or, for that matter, EU law), so this law was declared to be ineffective by the Court of Session and then the Supreme Court. The leading opinion in the Court of Session was given by the recognised agricultural law specialist Lord Justice Clerk Gill (as he then was). I will return to that point below.

Does that mean a landowner’s human rights are more important than a tenant’s human rights?

No ruling was made about the tenant’s rights, so it would be a logical leap to reach that conclusion. Be in no doubt: tenants have rights too. A timely blog by Dr. Frankie McCarthy at the University of Glasgow details this, in relation to the private rented sector.

Actually, wait, I just asked about the tenant. Can we call the farmers “tenants”?

No but yes but no.

At the outset, the tenant would have been the legal entity, the limited partnership.

Then by [defective] law the farmer became the tenant outright.

When the law was struck down, one analysis of the Scotland Act 1998 (the founding statute for Holyrood) suggests that the law was never the law at all, but actually the UK Supreme Court delayed its decision for a little while for all of this to be sorted. Remedial legislation was passed to try to fix the guddle, in the shadow of knowing what was too much of an imposition in human rights terms on a landowner.

So does this mean the Scottish Parliament is unable to confer rights on tenants or similar categories of people in different situations?

No. For example, the Scottish Parliament has legislated to impose a liability (for asbestos exposure) on insurers when previously there was no liability and that survived a court challenge. The Court of Session under Lord President Gill (as he then was) ruled that the crofting community right to buy contained in the Land Reform (Scotland) Act 2003 was not a breach of a landowner’s rights under the ECHR. This was the same (now promoted) judge who was involved in the Salvesen case: it would be wrong to assume our judges are striking down legislation for the sake of it.

From this it can be argued with some confidence that Holyrood could have passed something called the “Upgrade of Farming Partners (Scotland) Act 2003”, provided it properly considered such legislation across the three stages of parliament whilst providing a fair, non-arbitrary, proportionate scheme with proper compensation. Such an act could have been acceptable in human rights terms.

Has the landowner done anything contrary to law?

No, as far as I can tell from the publicly available facts. It was neither illegal nor contrary to any agreement to take steps to end the partnership back in 2003, nor is it now. An initial statement from the landowner in question is available here.

No-one is really saying this is not legal. The strongest that might be ventured is it is not cricket.

Should the farmer lose his home?

I understand the farmer has been on the farm for some 22 years. That’s quite an innings: this is longer than I have lived anywhere and his children have spent all their lives there. Whether the landowner is engaging in effective farm management, and whether the landowner is being fair, mechanical, heartless or whatever, is not for me to judge. (The effective farm management point is mentioned in the Scotland 2015 broadcast from 10 November 2015, where the factor points out the landowner “has taken the view that they would like to farm the land in hand” (just after 10 minutes into the broadcast, available for 21 days from this blog’s publication).)

I will offer a few points for consideration. Some of this is quite academic, please forgive me for that diversion. (Sorry, I am an academic lawyer, this happens sometimes.) Skim on to the next question if you wish to dodge my musing.

First, the landowner can quite legitimately point to the duff legislation and say something like: “that defective law is the problem, not me. That legislation gave false hope that a 15 year agreement might become a longer and possibly perpetual right to possess, so look to the government for any compensation or interim alternative arrangements.

In fact, here is a further statement from the landowner that is roughly to that effect.

Second, a contrast. I understand in South Africa that when a landowner seeks to recover possession from an occupier there are rules about “just and equitable” evictions, meaning landowners have to wait for a reasonable period of time before a court order would be granted. This is detailed very briefly in my Storify of a presentation by Professor Anne Pope, from the University of Cape Town. Whether or not the landowner may get compensation from the state is another matter, but there you see the beginnings of a more social aspect to property law. This is far from an exact analogy to Scotland or indeed to this individual case (note also this further further statement from the landowner, stressing the farmer is not being made homeless), but comparative law can be instructive.

Scots law should not always be viewed in isolation. Building on that, consider also what Lizzie Cooke writes in her (English law) text, Land Law (OUP, 2012 at page 11):

The human rights affirmed by the [ECHR] are not by themselves property rights; they do not, by themselves, give anyone a right over a particular piece of land. Having property is not, under [the ECHR], a human right. By contrast the South African Constitution, for example, gives all its citizens the right to a home (although it has not yet been possible to make that right a reality). The [ECHR] gives you the right not to be deprived of your home only if you have one in the first place.

Professor Cooke is actually writing about Article 8, the right to a home; she then goes on to discuss how the protection of property (i.e. not just a home) is dealt with, including whether or not a landlord’s right to recover possession simply because a lease has come to an end and for no other reason is compatible with a tenant’s human rights. Cooke notes that until recently a court would never interfere in such a situation to allow a tenant to stay, but now it might when the landowner is a public authority. (See also McCarthy’s blog on this point, citing the extra-judicial comments of Lord Neuberger.) This wider analogy with South Africa, and Cooke’s further thoughts, are useful all the same. Can or should Scotland learn from this?

Third, a theory. I recently attended an event at the University of Glasgow by Professor John Lovett of Loyola University, New Orleans. Lovett drew my attention to the work of Joseph William Singer, who wrote about The Reliance Interest in Property, a 140 page article in the Stanford Law Review that analysed what property right if any a community might have in a resource it has come to rely on (the example in that article being two steel plants in Ohio – I was struck by an analogy with Upper Clyde Shipbuilders). The relevant union in the US sought to buy the plants. The relevant US courts recognised no right to do so. I suspect a Scottish court would not recognise a right in a similar situation either. Should there be such a right? (Note, the recently introduced statutory community rights of acquisition in Scotland may provide one mechanism to deal with such situations, but that is by no means clear.)

Now what?

Yeah, it must be nice referring to 140 page articles and highfalutin theories. What about the guy who needs to leave the farm he has been in for 22 years?

In 1886 occupiers of land in the Crofting Counties (the Highlands and Islands) were given the right to stay there. Around the Second World War, the national interest dictated that eviction of tenant farmers was not to take place. Landowner rights were curtailed by statute. Could that happen here?

Bluntly, there is no time for Holyrood to legislate for this particular case. Hence the frantic attempts to sort out mediation, but forced mediation is seen by some as a contradiction in terms. Outside looking in, it appears that this mediation would be played out with one party holding most of the cards. That party can let the clock tick, whilst the other party will be conscious of every tock that brings Martinmas closer, but even that is simplistic. The other player here is the Scottish Government, as this letter from an agent for the tenants shows. Martinmas might be an ending of sorts, but there could be more to come.

Is this indicative of a wider malaise in tenant farming?

Serious as it is, the post-Salvesen v Riddell bùrach does not affect a huge number of holdings. I understand the number of farm holdings facing this exact situation is eight. There is no doubt that those affected by it are affected profoundly, but there are other fundamentally important provisions about agricultural holdings in Part 10 of the Land Reform Bill. Absent any sea change in government or landowner policy in these specific cases, the focus now can only be on Part 10. I offer some final thoughts about that.

If that legislation does not get the balance right between a number of competing interests, tenant farming in Scotland might not be the vibrant sector that both the Scottish Government and the Agricultural Holdings Legislation Review Group hope it will be.

More importantly, if that legislation tries to do too much at a late stage of the Holyrood process, you can bet your bottom dollar someone will challenge the legislation in court. That makes the job of the Rural Affairs and Climate Change Committee, who are reporting on the Land Reform Bill, all the more crucial. With pressures of parliamentary time, that Committee is probably the last chance to give land reform a really thorough analysis in this Holyrood term.

How this will all square with the impending Scottish elections is something I offer no thoughts on, but I will be watching very carefully.

UPDATE: I was contacted by one of the interested parties in this case to note that I should have included comment from the Scottish Tenant Farmers Association on this matter. Here is a recent News Release. The most recent news release is linked to in the second paragraph.

* FURTHER UPDATE, 26 NOVEMBER 2015: A statement now appears on the Scottish Land and Estates website on behalf of Mr Andrew Stoddart and The Trustees of The Colstoun Trust, to the effect that mediation has taken place between Andrew Stoddart and the landowner. It states the terms for payment of Mr Stoddart’s waygoing claim and his occupation of the house, grazing land and farm buildings until January 2016 have been agreed. It also notes that any liability of the Scottish Government for its role in this situation has not been covered in this particular mediation.

A statement with more detail from Andrew Stoddart is available at Lesley Riddoch’s website.

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Coimisean Fearainn na h-Alba – Ainm Gàidhlig: sin e

Mar a sgrìobh mi anns a’ bhlog seo, tha clàsan anns a’ Bhile Ath-leasachaidh Fearainn mu stèidheachadh Coimisean Fearainn na h-Alba.

An-dràsta, chan eil feum air eòlas Gàidhlig a bhith aig ball CFA, agus a-nis tha e coltach nach bi feum air an seo. Thug Aileen McLeod, Minister for the Environment, Climate Change and Land Reform, fianais seachad gu The Rural Affairs, Climate Change and Environment Committee air 2 an t-Samhain.

Fhreagair i ceist bho Angus MacDonald BPA mar seo.

Angus MacDonald:

The evidence that we have received indicates that there is broad support for the appointment of commissioners who have wide knowledge of and expertise in the sector. However, can you confirm for the record that there will be a requirement that at least one of the commissioners is a Gaelic speaker? Also, how will the views and expertise of people in diverse sectors be taken into account as they are fed in?

Aileen McLeod:

The Scottish Government fully recognises that the Gaelic language is an integral part of Scotland’s heritage, contemporary culture and national identity. The members of the Scottish land commission will need to have a broad range of expertise and the bill requires the Scottish ministers to have regard to the desirability of the commission having expertise or experience in land reform; law; finance; economic issues; planning and development; and environmental issues. That is a non-exhaustive list, and nothing in the bill bars ministers from taking into consideration other areas of expertise when they appoint land commissioners or the tenant farming commissioner through the public appointments process.

Once the Scottish land commission is up and running, it will have regard to the national Gaelic language plan, and it may wish to appoint a Gaelic speaker as a member of staff.

Sin e, ma tha.

Ach nam biodh moladh bhon Chomataidh agus reachdas bho Phàrlamaid na h-Alba ag iarraidh cuideigin le eòlas Gàidhlig is dòcha gun taghadh CFA dìreach sin.


I have noted before that there is a strong argument that any new Scottish Land Commission should have explicit commitment to Gaelic. The extract of the Official Report above suggests that no such commitment will be included.

So that is that.

(Unless, that is, The Rural Affairs, Climate Change and Environment Committee were to recommend that there actually should be a requirement and the Scottish Parliament passed legislation accordingly, rather than leave matters as they are.)

Further analysis of why I remain of the view this would be a positive step is available at this BBC Naidheachdan story (Gaelic).

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University of Aberdeen School of Law Blog

The School of Law at the University of Aberdeen has launched a blog.

The inaugural post is about some minutes unearthed at the University’s Old Aberdeen campus, dating from 1919 to 1944. I have set up a static Page about this on my WordPress site, because I think it is of enough continuing interest to not be lost in the churn of ongoing blog posts. That being said, this blog post will serve to highlight the AberdeenUniLaw blog to anyone who follows my blog on WordPress.

What does this rival blog mean for basedrones fans, if I have any? To stumble into another World War II reference, this time via Dad’s Army, ‘Don’t panic!‘ Basedrones will continue to be a forum for my own research interests, not to mention those things that are not really for inclusion on a Law School blog: occasional Scottish politics and hopefully non-occasional cancer writing being two such examples. I hope you can find something of interest on one or both of the sites.

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Access to land in Scotland – disputes between access takers

I made a supplementary submission (PDF) to the RACCE Committee of the Scottish Parliament earlier this week.

As noted in that submission (which is also available online, along with others), I am comfortably past the original deadline. That may be so, but (as demonstrated by the supplementary evidence submitted by Scottish Land and Estates, the John Muir Trust and the Game and Wildlife Conservation Trust) it is possible to make additional representations, albeit any points you make after the deadline had better be good ones.

I will let my submission speak for itself. As for why I was late, I do not really have a good reason for that. I was mulling over some issues about the amendments to Part 1 of the Land Reform (Scotland) Act 2003 that can be found in the clauses of the new Land Reform Bill and suddenly thought: wait, I had a practical suggestion about reforming this (see this earlier blog).

In summary, I suggest it might be useful to have an intervening stage for disputes between access takers which do not necessarily merit full blown litigation in the sheriff court or indeed a call to the cops. That is all that the current scheme of legislation and the Scottish Outdoor Access Code seems to provide for.

My proposal would be to allow Local Access Forums to make some kind of initial decision on disputes between access takers in a quick, low-cost way. This proposed reform could slip effortlessly into the existing scheme without much controversy and address a slight but not insignificant gap in its dispute resolution mechanism. By making the change part of the legislation, that should elevate it to a requisite standing for access takers to be aware of Local Access Forums and to respect their decisions, without ruling out a judicial determination if matters still require to be litigated.

If implemented, this proposal could build on what is already a largely successful scheme for access to land in Scotland. In terms of how to make the change to the legislation itself, the introduction of a decision making role for Local Access Forums could be relatively simple to achieve, and a new “conduct” exclusion of crossing or being on land in breach of a Local Access Prohibition could be quickly added to the existing s.9(a) of the legislation, which excludes from responsible access that is in breach of an interdict or another judicial orders. (In fact, amendment to s.9 can be made by order under s 4, so that particular change would be relatively painless, but an amendment to the role of a Local Access Forum would be better dealt with in an actual piece of reforming legislation, hence why the Land Reform Bill could be an appropriate vehicle.)

All that said, there is quite a lot going on with the Land Reform Bill, so this seemingly technical reform might be low on the priority list. Be that as it may, I think it is important for academics to engage with reform processes when they are ongoing, even if that engagement is to only prompt a bit more thinking about the legal issues involved.

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A Square Foot of Old Scotland: Ownership of Souvenir Plots

In the most recent edition of the Edinburgh Law Review, you will find a short article by Dr Jill Robbie (of the University of Glasgow) and me on souvenir plots in Scots (and English) law. An open access version of the article is here.

I sometimes link to publications in my blog, just to signpost what I have been doing to those who may not be paying attention to legal journals. I did not bother doing that for this short article, but recent news coverage has encouraged me to do so now.

On 29 September 2015, a number of outlets carried a story about a conservation oriented activity for the Scottish wildcat.

The National: Become a laird – and help save the wildcat

STV: Bid to create Highland reservations for endangered Scottish wildcat

Further press is also available on the Wildcat Haven website.

This activity has been described as “crowdfunding”, a fundraising route that is increasingly common. Wildcat Haven is perhaps not an orthodox crowdfunder, in that it invites participants to purchase a square foot of land, together with a certificate, a “glossy booklet” and a DVD for £30. There is then a sliding scale of optional extra purchases, helping to pay for a lure stick, a radio collar or a camera trap.

A square foot of land,” eh?

So what else does that “Buy a Plot” bit of the Wildcat Haven website say?

Supporters obtain a personal right to a souvenir plot of land in Wildernesse Wood and may change John Smith to Lord John Smith of Wildernesse by using documentation we provide.

I offer no comment on how John Smith may decide to style himself after this purchase, and good luck to him: for all I care he can call himself Lady Nancy, whether he buys a gift pack or not.

From a property law perspective, note the lack of assertion about the acquisition of ownership. You “obtain a personal right“. You have a contract. You do not have a real right of ownership. That statement made about a personal right does not wind me up quite as much as a statement printed in the National, namely:

Wildcat Haven has borrowed a model from commercial sponsor Highland Titles, a gift company that sells micro plots of land in its nature reserves allowing any landowner to style themselves as a laird or lady.

Sorry, what? Landowner?

Yes, we have thrashed this out before, at length and sometimes in an entertaining fashion.

Dr Robbie and I tried to draw a line under it in our Edinburgh Law Review article, when we built up to a straight-forward final sentence including the words “sellers of souvenir plots are not providing their customers with ownership of land.

Do we need to have this chat again?

As for the Wildcat Haven scheme as a whole, Andy Wightman has blogged about that.

UPDATE: 1 October. The Wildcat Haven FAQ has some slightly familiar wording within it. Here is a comparison of the opening paragraph of the Edinburgh Law Review article and some text from the FAQ. The earlier FAQ text was even more familiar, as this comparison with 30 September‘s content shows (i.e. there was originally no extra sentence about pole squatting).

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The Reform of Succession Law in Scotland: Guest Blog by Roddy Paisley

On Tuesday 22 September, Professor Roddy Paisley gave evidence to the Delegated Powers and Law Reform Committee on the Succession (Scotland) Bill. This deals with technical issues on the law relating to inheritance, with a view to being enacted in the Succession (Scotland) Act 2016. Some more substantive issues are to be left for a second bill. Also giving evidence were Professors Janeen Carruthers and Elizabeth Crawford, both of the University of Glasgow, and Nick Holroyd and David Bartos from the Faculty of Advocates, who both specialize in trusts and succession law. David Bartos is the co-author of the most recent edition (the 6th) of Professor Michael Meston’s classic book on the Succession (Scotland) Act 1964 published just a few months ago.
What follows is a selection of observations from Roddy about his involvement in the proceedings. It is – unashamedly – technical and legal in its outlook (unlike my own recent blog on the recent consultation about further succession reform). Over to Roddy for his analysis.
The observations of Professor Paisley
Proceedings at the Committee opened with the panel being asked if we considered a complete codification of succession law would be a good idea. I indicated it would not, although a restatement of the existing statutory law in a single Act would be good. I also indicated the Forfeiture Act 1982 – based as it is on English law – might well be a prime candidate for repeal and restatement in a form more attractive to a Scottish reader (more on that below).
The particular matters discussed included the following:
(a) Survivorship. There is a new formulation of this for common calamities to remedy the various flaws in the 1964 Act, s.31. A point discussed is whether there should be an exception to prevent property in such a case going to the Crown as ultimus haeres and allowing any other human being to inherit. This would avoid the result that occurred in Drummond’s Judicial Factor v HMA 1944 SC 298. I think that is a good idea as it would be consonant with what most people want even if it involved their in-laws. I indicated to the committee that just under 1000 years ago the Spanish Jewish scholar Maimonides (1138-1204) confirmed that all people are related so this default inheritance by the state logically should never occur. Whether one accepts the narrative of the story of Adam and Eve or bases one’s view on a theory that we all came out of Africa with a single ancestor – DNA will show that the consequence of one of these is indeed true – the problem for a survivor is usually a lack of proof. So, the Committee were delighted to hear that each of their individual members could potentially inherit from each other. In contrast, the Crown as an institution never dies, so the dice are loaded against mortal human beings
(b) Rectification of wills containing drafting errors. It is intended to extend this statutory power to mortis causa deeds as present legislation is limited to inter vivos deeds. The Bill originally indicated the power was to be extended to these wills where they were “drafted” by a lawyer but the general view of those giving evidence was that this should be extended to a will “prepared” by a lawyer as this is wider. As yet there is no settled view as to whether it will be extended to “home made” wills. Personally, I would prefer if it did not as a house of a deceased may contain dozens of lists in preparation for a will and there is a difficulty of evidence for a lawyer who clears the house. I also indicated that there is a real chance of fraud and stated that whilst I am generally very impressed by the character of the average Scot, people are never quite so avaricious as when they have the chance to get something for nothing i.e. potential beneficiaries. However, I accept there is a reasonable case to be made for the contrary view and to allow rectification of home made wills and the contrary view is taken by very respectable people such as David Bartos and Nick Holroyd (members of the Scottish bar) who also gave evidence. The problems of proof of true intent with home made wills even without any prior documents to suggest another meaning are significant. However, this actually gives rise to a potentially bigger issue raised by the committee. What is a home made will? In this connection the issue of wills made by internet download begins to arise and that may be a very big issue for the future. There was no clear decision on the day but this issue will come back, I am sure.
(c) I am glad to say the originally proposed abolition of the conditio si testator was taken out of the present Bill for future consideration due, not least, to the fact academic colleagues (including the administrator of this blog) and Dot Reid wrote during the consultation. The Law Society of Scotland gave a submission to say it is now convinced by the academic analysis that it affords valuable protection to minor children. That is a major alteration from their previously expressed view. It would seem my three articles on the matter sent in as part of the consultation have had some “impact” – if I might dare to use that word (which is somewhat loaded in academic circles).
(d) Donationes mortis causa are to be abolished. However the present drafting in the bill abolishes donationes mortis causa but, in the same sub-section, allows gifts “in contemplation of death”. I indicated to the Committee that this English wording is a literal translation of the Latin phrase and is a little like abolishing one thing and then immediately permitting it. I think they saw the point.
(e) The conditio si instititus (the implied destination over to descendants in wills) is to be abolished and then promptly re-enacted in a Section spelling out almost all of its existing effects in English. I have no problem with this. However, I pointed out this new proposed section in its present draft starts with a phrase such as “where a direct descendant is named as a beneficiary in a will and predeceases the testator before the gift vests”. It is this word “named” that bothers me. I indicated that many grandparents may not know (or may have forgotten) the names of all their grandchildren so this wording “named” should be changed to read “identified”. So too a bequest to “all my grandchildren” would have the same problem. I want the section to work in all cases.
(f) The major existing flaws in the Forfeiture Act 1982 are to be remedied (it allows relief in certain circumstances to allow a killer to inherit). That 1982 Act is an Act that is drafted in English terms and is restricted to notions of public policy exclusion. I indicated the present drafting still does not deal with the Scottish concept personal unworthiness. I indicated this 1982 Act is a terrible piece of legislation from the UK Parliament that was altered late in the day to include Scotland. It treats Scotland like “Scotlandshire”. It really should be got rid of entirely and completely re-enacted in a Scottish form.
(g) There is to be a reform of survivorship destinations in titles to deal with difficulties on divorce. This contained phraseology that “where a survivorship destination is contained in a “document”… ”. I indicated that the present proposal of the Scottish government is to have all land in Scotland on the electronic Land Register of Scotland within ten years. As a result, there will be no more “documents” of title because the survivorship destination will be contained not in a deed or document but, instead, a Title Sheet. So, as it stands, this section of the bill would cease to be viable within ten years. A small technical alteration will serve to deal with this small but important point.
(h) Professors Carruthers and Crawford from Glasgow University gave evidence on technical aspects of private international law. I bow to their expertise on that matter. The evidence of Nick Holroyd and David Bartos was also very impressive and confirms a vibrant practice of the law that continues to engage with difficult legal issues. It is significant that all the contributors of evidence spotted different aspects of the Bill that could do with improvement. It confirms my view that academia and practice work well together on such an important area of law as the law of succession.

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Consultation on the Law of Succession – Some Thoughts

Let us begin with a variation of an old joke.

Tam Reid was a farmer and a shrewd man. Before leaving this mortal coil, he directed that his family should keep his death notice in the local newspaper short. After all, the local newspaper charged for each word in the notice. His preferred wording was as follows:

“Tam Reid, from Bogheid, is deid.”

On Tam’s passing, the bereaved family duly put the notice in the newspaper. Staff at the newspaper could not help but feel that this notice was short, and contacted the family to ask them if they wanted to include another few words, at no extra cost. The family gratefully agreed to this, and submitted the following death notice.

“Tam Reid, from Bogheid, is deid.


Welcome to the law of succession, also known as inheritance, which regulates what happens to your property when you die.

The rules of succession apply in circumstances where you have left a written note of your last will and testament – perhaps directing what is to happen to your farm, your tractor, your investments and your beloved collie called Dìleas – and when you have not. Tam’s story gives a brief insight into a situation where a will has been left. The wishes of a deceased person are important, but so too are the interests of the family of that deceased person, as are the interests of society as a whole. A properly functioning system of succession law will seek to balance those interests in a way that is suitable for contemporary society, but that is not always an easy balance to strike. And where there is no will, the property of a deceased person will need to, somehow, be distributed. Ideally that should happen in such a way that people close to or financially reliant on the deceased are not overlooked, but once again that involves the balancing of many different considerations.

Whilst the law of succession can be thought of as a standalone category, it touches on other areas of law and practice, including family, property and tax. (Inheritance tax is reserved to Westminster, so no more will be said of it here.) This can lead some people to gloss over succession, or perhaps view it through the prism of another specialism: for example, those interested in land reform might not be thinking about the modern place of the family unit when commenting on the ideal model of succession for a fair distribution of immoveable property across society.

It is also of crucial importance to everyone. As the Flaming Lips celebrate, “everyone you know some day will die.” If you are lucky enough to live to a healthy age in Scotland, you will almost certainly have to contend with an executry at some point. All of this makes getting succession law right very important.

The most recent Scottish Government consultation on the law of succession closed yesterday. It wrestled with a lot of different areas and I can do no better than to direct you to Dr. Dot Reid of the University of Glasgow’s analysis of it. In the headline of that blog, you will immediately see land reform and succession being mashed together. Land reform and succession reform have not always been analysed together in this ongoing pre-legislative process (see this from Reid’s colleague Dr. Frankie McCarthy), but it is fair to say the current land reform debate has reinvigorated the succession debate.

I swithered about whether or not to put a response in. With my own involvement with the Land Reform Review Group, I am more familiar with the land reform angles, and I almost felt I should leave this to others. Then again I have taught succession at university: former students reading this may recognise my bad joke and references to songs that reference the inevitability of death. Eventually I swithered towards responding, and at the eleventh hour, I put in a selective response (PDF).

From a property lawyer’s perspective, the headline news is the potential removal of the different treatment of immoveable and moveable property. At the moment, the effect of this differentiation is to allow land and buildings to be left in a will without fear of challenge from a surviving spouse, civil partner or child. This compares to a situation where moveables (perhaps a tractor, investments or a collie dog) are left in a will, and a partial challenge to the will could be made in relation to the moveable estate.

As already noted on this blog, this differentiation looks to be doomed, and in principle I think this reform does make sense. The differentiation is not generally found in other jurisdictions and it can have what appear to be arbitrary effects, that might stem from lifetime choices that were made without considering succession. This reform was advocated by the Land Reform Review Group.

Of course, there are always difficult cases. From a land reform perspective, this difficult case is flushed out in Chapter 3A of the consultation, which looks at agricultural units. The division of a large estate (where such a large estate is owned by a natural person) into two or more units might not seem objectionable to some, but what about a smaller family farm that simply could not function when sub-divided in that manner? Never mind Tam’s tractor, what would happen to Bogheid, assuming Tam is survived by two sons and two daughters where three of the children are keen farmers but two of them are so thrawn as to be unable to reach a resolution amongst themselves as to what to do with the farm?

Here I extract my responses:

Q31 Should there be exemptions (limited or otherwise) for certain businesses from claims for a spouse/civil partner’s legal share where there will compromise the commercial viability of the business?

[The options were Yes/No/Don’t know. Curmudgeon that I am, I did not answer.]

Please give reasons for your answer:

My answer adopts the form of “No, but…”.

In principle, I am in favour of a system that does not discriminate between different categories of immoveable property. That said, a narrow exception might be appropriate if the future of a viable unit was actually threatened. Guidance might be sought from section 13 of the Crofters (Scotland) Act 1993, which prevents a forced sale of a croft tenancy area from taking place where that sale would leave the remaining estate no longer viable.

32 If there were to be exemptions from claims for legal share, do you think it would be possible to define those types of businesses which would be exempt with precision?

[Again, I did not answer.]

Please give reasons for your answer:

I do not think it would be impossible, but I appreciate it could be tricky. This section of the consultation is about agricultural units, so perhaps linking the test to agricultural output (current and prospective, after a forced division).

A rule of blanket application could have an unwelcome impact on small units in the agricultural sector, so I offered one model where an apparently absolute system can be relaxed. There may be other examples, and indeed another thought occured to me post-submission in relation to co-owned property.

The law of Scotland already has a system in place to deal with the situation where owners of an item in shared ownership fall out. One or more of them can raise an action to either: a) divide the item; or b) where that is not possible, sell it. Division does not need to be impossible in the physical sense: one important case related to a co-owned estate on the Isle of Bute and the court chose not to parcel it up into smaller sections, as that would affect the viability of the estate as a whole. Perhaps something similar could be developed. There may also be a role for devices like lifetime renunciations of rights to a farm (for children who are not interested in farming), so a degree of flexibility could be built into the system to reflect what families agree to.

These are not simple issues to deal with and it is right that the consultation takes on the views of many different sections of society. Holyrood and its committees will have much to consider and any reforms will have a profound effect: as Bruce Springsteen notes, “everything dies, baby, that’s a fact“. Which leads on to the final point I made in my consultation (and elsewhere): if there is reform, this must be accompanied by a blitz of clear and comprehensible publicity to reflect its far reaching impact. Without that, Tam’s children might find themselves arguing about far more than the words of a death notice.

Posted in Land Reform, Law, succession | Tagged , , | 2 Comments