Scots Law Outdated and Discriminatory: Scottish Law Commission

The Scottish Law Commission (SLC) has stated that current inheritance laws in Scotland are outdated and discriminate against widows ahead of new debate regarding inheritance.

With Westminster set to discuss new legislation to apply to the UK, experts have criticised the fact that the legislation in place in Scotland is 50 years old and has not been amended to take into account the ever-changing landscape of Scottish society.

The criticism from the Scottish Law Commission comes after the organisation twice made recommendations for updating the Succession (Scotland) Act 1964. Despite the proposals, the draft bill in 2005 never made it to statute.

In 2005, it was considered that some aspects of the SLC’s proposals would be taken into consideration, especially in regards to cohabitation rules. However, lawyers and those consulted at the time stated that the Scottish government had to accept the proposals as a whole or not at all.

Current Rules of Succession in Scotland

Under the current regulations in Scotland, those who die without a Will tend to pass on their estate to either children or spouses, with the rules currently favouring married couples.

However, according to recent data, around 67% of people who die each year have not made a Will with more than half of all people aged over 50 having no Will in place. Some experts have warned that wealthier couples who have not created a Will are often more at risk of nastier shocks or heavier penalties for not creating a Will.

Childless couples can see assets shared between widows, parents and even siblings, however, with the UK government seeking to close this loophole in England and Wales and simply the process, there have been calls for Scotland to follow suit.

John Kerrigan, of the Law Society of Scotland’s trust and succession sub-committee, said: “In some cases the surviving spouse will get the house and a cash payment, but the children will scoop the rest.

“If you speak to most lay people and ask if they know this will happen, most will say they don’t want their 12, 13 or 14-year-old to inherit most of the estate.

“The most common misapprehension is a couple who don’t have wills, who say if one dies the other will inherit.

“That’s not what the law states and never has been.”

He added: “People dying without making a will, who own their house, have a holiday home, a portfolio of shares worth half a million – the surviving spouse may get less than half of that and people just don’t realise.”

The Scottish Government said it would consult on a change to the law. “We envisage taking forward a ­formal public consultation exercise in the near future.”

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Although there have been calls to change the rules of inheritance in Scotland, the best course of action to take is to create a Will. Such a document can ensure that your loved ones are cared for once you are gone and that your assets are passed on to those you intend to. If you wish to create a Will or if you have a document but want to update it, contact our team of expert solicitors today using our online contact form.