Head 3: Who May Inherit?

Question 1

Who may inherit?

Answer 1

The rules of succession differ depending on the type of property (moveable / heritable). All such persons may inherit to the extent that a legacy has been left to them by the deceased.

Only the living can inherit: the dead cannot inherit. But small differences in the timing of deaths can make big difference in the effects of deaths.

If: Alice’s testament gives legacy to Brian.
⁃ (1) Alice dies on Monday and Brian on Tuesday.
⁃ Brian’s estate will inherit.
⁃ (2) Brian dies on Monday and Alice dies on Tuesday.
⁃ Brian’s estate will not inherit since he didn’t survive Alice.

Question 2

What are the four types of succession rights?

Answer 2

1. Intestate succession rights[ This is a right given to someone when there is no will.]
   ⁃ Certain relatives have rights on intestacy. Spouses and civil partners have rights.
   ⁃ Cohabitants don’t strictly have a right to succeed intestate, but they have a right to ask the court to make a discretionary award.
2. Legal rights
   ⁃ A type of succession right which applies on both intestacy or testacy - they cannot be defeated by a will. Only two groups of people are entitled to legal rights: issue[ Children.] and spouse/civil partner.
   - Can operate in both testate and intestate cases.
3. Legacies
   ⁃ A legacy is an instruction in the will that something should go to a particular person.
4. Special destinations
   ⁃ Sometimes described as a will-substitute. Technically speaking these are not testamentary writings (not a will). This alters the way that property will transfer on death from the way it normally would on. The purpose of special destinations is to get around the rules of succession.

Question 3

What is a common calamity?

Answer 3

Common calamity is when two or more people die in the same incident, such as a road accident or a house fire.

Question 4

How do you determine succession rights in cases of common calamity?

Answer 4

If survivorship can be shown by evidence, on the balance of probabilities, then this determines the order. This can be even if it can be proved that one died one minute before the other, then the second deceased technically survived him and so inherited.
⁃ However, if it is unclear who died first OR they died at exactly the same moment, then neither inherits from the other. However then there are statutory rules to follow in the Succession (S) Act 1964.

⁃ Under s 31(1)(b): the younger person is presumed to survive the elder; unless[ There are two exceptions where this general rule doesn’t apply]
⁃ s 31(1)(a): spouses/civil partners are presumed to die simultaneously[ This means that neither can inherit from the other.] with neither surviving the other.
⁃ s 31(2): ‘destination over’

Question 5

What is a ‘destination over’?

Answer 5

A destination over is an instruction where you leave your will to someone, ‘whom failing’ it goes to someone else.

In a common calamity if there is a destination over then the presumption is displaced and the money goes to the ‘someone else’.

Example:

Dan (30) wishes to leave property to Barry, but he is worried that Barry (25) might predecease him so he might leave a destination over so ‘whom failing’ Barry, the property would pass to Sue. So if Barry dies before Dan then Sue will get the property.

However in a common calamity so that Dan and Barry died at the same time, in the normal situation Barry would be presumed to survive Dan. However this would cause a problem because the property would then go to Barry’s estate. So the law takes the view that the purpose of the destination over was so that Barry could personally get the use of the property. Therefore there is an exception that in such cases of common calamity with a destination over, Barry is presumed to predecease Dan.] from elder to younger - then the elder is presumed to survive the younger; or if the younger is intestate or the elder left a legacy to the younger — then the rule is that the elder survives the younger.

Question 6

Lamb v Lamb 1976

Answer 6

John Grant left all in a will to his wife Agnes Grant. Agnes Grant had a sister called Lamb. John and Agnes died in a fire. Lamb had to establish that John Grant had predeceased Agnes because she could only inherit from Agnes if Agnes inherited from John. Section 31 would not have helped Lamb because it presumes J and A died simultaneously. But it was held that there was evidence in the case that John had died first, therefore the presumptions were irrelevant.

Question 7

What are the rules on children inheriting?

Answer 7

Children can inherit. There is no such thing as illegitimate children anymore as a result of the Law Reform (Parent and Child) (S) Act 1986 s 1 as amended by the Family Law (S) Act 2006, s 21.

Adopted children will only be able to inherit from their adoptive parents as a child of the actual parents(not their natural parents) - Adoption and Children (S) Act 2007 s 40.

Stepchildren and accepted children have no special status - they have no claim to legal rights (intestate succession rights) against their step-parent as they are not their child (unless they leave a legacy)

Posthumous children can inherit as a result of the ‘nasciturus fiction’. This allows the child of a deceased parent who is born after their parent dies is entitled to inherit as if they were alive when the parent died. (An unborn child is to be considered already born if to do so in in its interests).

Question 8

What are the rights of spouses and civil partners?

Answer 8

Spouses and civil partners

[Succession (S) Act 1964 ss 2,8 & 9; Civil Partnership Act 2004 s 131.

Not sure which sections apply to what so look this up.] have many rights:
⁃ Prior rights [A special type of right in intestate succession which allows you to obtain a great deal of property before anyone else.]
⁃ Legal rights [Forced heirship rights which you can claim regardless of testacy/intestacy.]
⁃ Intestate rights [If there is no will you can claim: prior rights, legal rights and intestate succession rights]

Question 9

Do you have any succession rights if you are divorced?

Answer 9

No - If you are divorced, you have no rights as a spouse. However you may still be entitled to something under the will, if your ex-spouse has not amended their will.

Question 10

Do you have any succession rights if you are a separated spouse?

Answer 10

If you are a separated spouse you have almost all[ Some qualifications concerning some prior rights concerning residence.] of the rights that you have as a spouse. Unless you have signed a separation agreement which renounces all succession rights. And, the non-cohabitation of spouses can affect intestate succession rights.

Question 11

GWS v KH

Answer 11

someone who was incapacitated and had separated from their spouse prior to this. The curator went to the court to raise an action of divorce, knowing that if this didn’t happen then the spouse still has many many rights to the estate of the incapacitated spouse. The court held that a guardian could not raise an action for divorce. Thus when the incapacitated spouse dies, the other spouse will succeed.

Question 12

What succession rights do cohabitants have?

Answer 12

Cohabitants have a discretionary right[ The court can allocate an amount.] in intestacy only under the FL(S)A 2006 s 29. Until 2006 cohabitants had no succession rights unless they left legacies in each other’s favour. The rule now is that in intestate cases the court may make a discretionary award to a cohabitant.

Question 13

What succession rights do juristic persons have?

Answer 13

Juristic persons/trusts e.g. charities are obviously not family members and so have no inheritance rights, but they can benefit from legacies.

Question 14

What succession rights do ‘unworthy heirs’ have?

Answer 14

Unworthy heir’s [Haeres indignus] are barred from inheriting from the deceased for policy reasons:

• At common law, anyone who unlawfully kills [This could be murder or culpable homicide.] another may not inherit anything from the estate of the deceased.
• Barred from
  (a) legal rights
  (b) legacies
  (c) intestate rights and
  (d) destinations.
• However if the crime is culpable homicide rather than murder there may be a discretionary power under the Forfeiture Act 1982 to modify the common law rule — modify suggests the court cannot waive the rule completely. 


It is not clear what the legal basis for this is. In some jurisdictions the unworthy heir is deemed to have predeceased the deceased (a legal fiction). It is not clear if this is the case in Scots law.

NB there has been a statutory modification of this common law rule.
⁃ Under the Forfeiture Act 1982 s2 the courts have discretion to modify the common law rule barring inheritance from unlawful killing.
⁃ This power is not available to the courts in the case of murder (s 5).

Question 15

Burns v Secretary of State for Scotland 1985

Answer 15

man was killed by his widow following years of domestic abuse by the man. The widow snapped and stabbed him to death and was convicted of culpable homicide but given the circumstances the sentence was two years probation. She claimed part of his pension allowance. Nonetheless she was unable to inherit because she was barred as an unworthy heir.

Question 16

Hunter’s Exrs Petrs 1992

Answer 16

man murdered someone so could not inherit as an unworthy heir. The court held that the murderer was not to be treated as having predeceased. This was very important because there was a destination over: to the murderer whom-failing to someone else. If Scots law had taken the view that the murderer predeceased the deceased then the destination over would have worked. But since Scots law did not deem the unworthy heir to have predeceased, the destination over did not operate.

Question 17

Paterson Petr 1986

Answer 17

Paterson had been subjected to 30 years of domestic violence. The wife killed the husband and was convicted of culpable homicide. The court held that modifying the rule would be appropriate. However the court didn’t deal with exactly what was meant by modifying (I.e. whether she could be awarded 100% of the estate).

Question 18

Cross Petitioner 1987

Answer 18

a son had killed his father and was convicted of culpable homicide. The judge held that in these circumstances he would have excluded the forfeiture rule entirely (e.g. allowing the son to inherit 100% of the father’s estate). However the Crown intervened and argued that the Act allowed the modification of the rule rather than the abrogation of the rule. So the judge modified the rule so that the son could inherit 99% of the estate.

Question 19

Gilchrist Petr 1990

Answer 19

wife killed husband. She was convicted of culpable homicide. The court modified the rule so that she could inherit 80% of the estate.

Question 20

Tannock v Tannock 2013

Answer 20

a man had been killed by his wife. Wife convicted of culpable homicide. Stepson of the deceased was convicted of attempting to pervert the course of justice by removing the knife from his father’s neck and disposing of it. The deceased had left a destination over (to the wife, whom failing to the stepson). The question arose as to whether the wife would be held to have predeceased. Court held that the son could inherit (the destination over was given effect) - he wasn’t banned from inheriting as an unworthy heir either, since he wasn’t the one who had killed his father.

Question 21

Do you have to accept your succession rights?

Answer 21

No one is obliged to accept anything by way of succession.

Question 22

What is a deed of variation?

Answer 22

A deed of variation provides that if it is entered into the register within two years of the death, it is treated, for tax purposes as if it had effect from the moment of death. This may be done when a family gets together after a death and agrees a new division for tax purposes.