Succession Basics Flashcards
What is the position of succession in relation to the ECHR?
Private law, including succession, must be compatible with ECHR.
When is property transferred?
Upon registration of death. Death certificate.
Registration of Births, Marriages and Deaths (S) Act 1965
What are the four types of succession rights?
- intestate
- legal rights
- legacies
- special destinations
What occurs in a situation of common calamity?
Succession (S) Act 2016, s9
If two people die in these circumstances, neither is to be treated as having survived the other.
Decision in Lamb v Lamb.
Evidence on balance of probabilities key question; presumptions only used if not clear Can only presume death if it is unclear.
Can the following inherit in intestate succession?
i) illegitimate children
ii) step children
iii) adopted children
iv) posthumous children
i) yes
ii) no
iii) yes - from adopted parents
iv) yes
What is the effect of divorce on a will?
Divorce impliedly revokes the will. S(S)A 2016, s1,2
What is the legal position of a civil partner?
Entitled to same rights as a spouse under Civil Partnership Act 2004, s131
Important provisions of Forfeiture Act 1982.
- unworthy heirs
- barred from inheriting: legal rights, legacies, intestate rights, destinations
s2: modifications for unlawful killing
s5: no modifications allowed for murder
Cases where the unworthy heir rule has been applied.
Burns v Sec. of State for Scotland (widow convicted of culpable homocide not entitled to estate)
Can the unworthy heir rule be disregarded?
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
Definition of estate. What is included?
Totality of a persons assets and liabilities on death. Their patrimony.
S(S)A 1964 s36 - heritable and/or moveables
How is an estate calculated?
Active transmissibility of assets - passive transmissibility of liabilities. ATA - PTL.
Deceased’s assets - liabilities
What is included in the category real rights?
- ownership of property
- share of common property
- household goods
- certain tenancies
What is included in the category personal rights?
- liabilities of debts of estate
What 2 kinds of debts are there? How are they paid?
Personal debts: usually from moveables
Secured debts: e.g. rights in security born by house
What are legal rights?
Indefeasible rights available to certain people in testate and intestate succession.
Monetary payment.
Who is a relict? What are they entitled to?
Surviving spouse.
1/3 moveable estate if issue
2/3 moveable estate no issue
Who is an issue? What are they entitled to?
Children.
1/2 moveable estate no relict
1/3 moveable estate if relict
Cameron Trs v Maclean.
Legal rights are a monetary payment, not a particular piece of moveable property.
What is the dead’s part?
Portion of the estate that can be disposed of by testament. Net estate - legal rights claims.
What is the effect of renunciation?
Rejection of legal rights. There is no obligation to claim legal rights.
When do you recieve legal rights?
When actively claimed. Heritable property is not affected by legal rights claims.
What is the effect of renunication:
i) before death
ii) after death?
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
What is the rule of approbate and reprobate?
Succession (S) Act 1964 s13
Approbate: accept legacy
Reprobate: take legal rights
Stewart v Bruce Trs.
Must be given time to consider whether to approbate or reprobate. Cannot claim legacy and legal rights.
Naismith v Boyes.
Can claim legal rights in relation to intestate estate and legacy. Only in partial intestacy.
How can partial intestacy occur?
- testament fails to dispose of entire estate
- due to lack of residuary legacy
- failed legacy
Difference between:
i) per stirpes
ii) per capita
i) claimants not all same relation
ii) claimants all same relation
S(S)1964 - representation provisions.
You are entitled to represent someone you would have claimed:
s5 - intestate
s11 - legitim
Collatio inter liberos.
Collation. Advance sum of money from deceased before death.
Duke of Buccleugh v Earl of Tweeddale.
Collatable advance can only be applied to moveables and money gifts.
Coat’s Trs v Coats.
If there is only one claimant of legitim, you do not have to collate collatable advance.
Can you disengage legal rights in Scots law?
No, impossible to compeltely disengage rights.
- get rid of assets - trust, company etc.
- reduce moveable estate
- artificial intestacy - renounce legacies
