Succession Basics

Question 1

What is the position of succession in relation to the ECHR?

Answer 1

Private law, including succession, must be compatible with ECHR.

Question 2

When is property transferred?

Answer 2

Upon registration of death. Death certificate.

Registration of Births, Marriages and Deaths (S) Act 1965

Question 3

What are the four types of succession rights?

Answer 3

• intestate
• legal rights
• legacies
• special destinations

Question 4

What occurs in a situation of common calamity?

Answer 4

Succession (S) Act 2016, s9

If two people die in these circumstances, neither is to be treated as having survived the other.

Question 5

Decision in Lamb v Lamb.

Answer 5

Evidence on balance of probabilities key question; presumptions only used if not clear Can only presume death if it is unclear.

Question 6

Can the following inherit in intestate succession?

i) illegitimate children
ii) step children
iii) adopted children
iv) posthumous children

Answer 6

i) yes
ii) no
iii) yes - from adopted parents
iv) yes

Question 7

What is the effect of divorce on a will?

Answer 7

Divorce impliedly revokes the will. S(S)A 2016, s1,2

Question 8

What is the legal position of a civil partner?

Answer 8

Entitled to same rights as a spouse under Civil Partnership Act 2004, s131

Question 9

Important provisions of Forfeiture Act 1982.

Answer 9

• unworthy heirs
• barred from inheriting: legal rights, legacies, intestate rights, destinations
  s2: modifications for unlawful killing
  s5: no modifications allowed for murder

Question 10

Cases where the unworthy heir rule has been applied.

Answer 10

Burns v Sec. of State for Scotland (widow convicted of culpable homocide not entitled to estate)

Question 11

Can the unworthy heir rule be disregarded?

Answer 11

Yes. S(S)A 2016 ss12.
Cross Petr - judgement occured before amendment but judge held he would have discounted rule if he could have
Tannock v Tannock - conviction in connection with murder does not bar from inheritance

Question 12

Definition of estate. What is included?

Answer 12

Totality of a persons assets and liabilities on death. Their patrimony.

S(S)A 1964 s36 - heritable and/or moveables

Question 13

How is an estate calculated?

Answer 13

Active transmissibility of assets - passive transmissibility of liabilities. ATA - PTL.

Deceased’s assets - liabilities

Question 14

What is included in the category real rights?

Answer 14

• ownership of property
• share of common property
• household goods
• certain tenancies

Question 15

What is included in the category personal rights?

Answer 15

• liabilities of debts of estate

Question 16

What 2 kinds of debts are there? How are they paid?

Answer 16

Personal debts: usually from moveables

Secured debts: e.g. rights in security born by house

Question 17

What are legal rights?

Answer 17

Indefeasible rights available to certain people in testate and intestate succession.
Monetary payment.

Question 18

Who is a relict? What are they entitled to?

Answer 18

Surviving spouse.
1/3 moveable estate if issue
2/3 moveable estate no issue

Question 19

Who is an issue? What are they entitled to?

Answer 19

Children.
1/2 moveable estate no relict
1/3 moveable estate if relict

Question 20

Cameron Trs v Maclean.

Answer 20

Legal rights are a monetary payment, not a particular piece of moveable property.

Question 21

What is the dead’s part?

Answer 21

Portion of the estate that can be disposed of by testament. Net estate - legal rights claims.

Question 22

What is the effect of renunciation?

Answer 22

Rejection of legal rights. There is no obligation to claim legal rights.

Question 23

When do you recieve legal rights?

Answer 23

When actively claimed. Heritable property is not affected by legal rights claims.

Question 24

What is the effect of renunication:

i) before death
ii) after death?

Answer 24

i) renounced party treated as if they do not exist, widow/issue may be entitled to more
ii) share of remaining claimants stays the same

Question 25

What is the rule of approbate and reprobate?

Answer 25

Succession (S) Act 1964 s13
Approbate: accept legacy
Reprobate: take legal rights

Question 26

Stewart v Bruce Trs.

Answer 26

Must be given time to consider whether to approbate or reprobate. Cannot claim legacy and legal rights.

Question 27

Naismith v Boyes.

Answer 27

Can claim legal rights in relation to intestate estate and legacy. Only in partial intestacy.

Question 28

How can partial intestacy occur?

Answer 28

• testament fails to dispose of entire estate
• due to lack of residuary legacy
• failed legacy

Question 29

Difference between:

i) per stirpes
ii) per capita

Answer 29

i) claimants not all same relation

ii) claimants all same relation

Question 30

S(S)1964 - representation provisions.

Answer 30

You are entitled to represent someone you would have claimed:
s5 - intestate
s11 - legitim

Question 31

Collatio inter liberos.

Answer 31

Collation. Advance sum of money from deceased before death.

Question 32

Duke of Buccleugh v Earl of Tweeddale.

Answer 32

Collatable advance can only be applied to moveables and money gifts.

Question 33

Coat’s Trs v Coats.

Answer 33

If there is only one claimant of legitim, you do not have to collate collatable advance.

Question 34

Can you disengage legal rights in Scots law?

Answer 34

No, impossible to compeltely disengage rights.

• get rid of assets - trust, company etc.
• reduce moveable estate
• artificial intestacy - renounce legacies