Intestate Succession Flashcards
What is Intestacy?
When an individual dies with no will
What age does someone achieve testamentary capacity?
12, via the Age of Legal Capacity (Scotland) Act 1991 (s.2(2))
What is the main statute for intestacy?
The Succession (Scotland) Act 1964.
What are the 5 categories of rights on an intestate estate?
1) Prior Rights
2) Relict’s Right
3) Cohabitants right
4) Legitim
5) Free Estate
What are the three stages to a prior rights claim in the correct order.
1) Dwelling House Right (Section 8)
2) Plenishings Right (Section 8(3))
3) Financial Right
What is required for a dwelling house claim?
The deceased having a relevant interest in a house that the spouse or civil partner was ordinarily resident s.8(6)(d)
What is the cap on the dwelling house right?
£473,000, if the house is worth less, they get the transfer of the house, if more than this sum then they get the cash value of 473k
What is the monetary cap on plenishings?
£29,000 this is transfer of the property itself. If the property all together is less than 29k they take all plenishings, if not, they can pick items up-to that value.
NOTE: In co-ownership, the relict would already own half a share in the furniture.
What is the requirement for the plenishing right?
Again, the spouse or civil partner must be ordinarily resident.
What is the monetary entitlement if the deceased has children?
50k
What is the monetary entitlement if the deceased has no children?
89k
Where does the monetary right come out of?
Both heritable and moveable: Proportionately!
How can a cohabitant claim rights?
Family Law (Scotland) Act 2006 s.29(2):
The court can make a discretionary award taking into account the factors listed. This right cannot be more than what a spouse would be entitled to.
Where does a cohabitants right come in?
After prior rights and relict rights but before legitim.
Where is the law concerning who is entitled to the free estate?
Succession (Scotland) Act 1964 s.2
NOTE: free estate is subject to prior and legal rights! s.1(2).
Who is the ultimus haeres?
The crown! The King’s and Lord Treasurer’s Remembrancer administers the crown’s inheritances and has discretion as to award the estate to anyone who may make a claim.
What is artificial intestacy?
When an individual rejects a legacy for the whole estate and they reject it, to claim prior rights etc, this makes the estate fall into intestacy.
