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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