Scottish Government Consultation on the Law of Succession – Part 2

Earlier this week, I blogged about the proposals on intestacy and protection from disinheritance in the Scottish Government’s Consultation on the Law of Succession. The third major area covered in the consultation is succession rights of cohabitants.

Ten years ago, cohabitants in Scotland had no rights in respect of the estate of their deceased partner (subject to a couple of caveats that we don’t need to be concerned with here.) The Family Law (Scotland) Act 2006, s 29 enables a cohabitant (defined in s 25) to apply to court for a share of an intestate deceased’s estate. The section lists some factors the court should take into account when considering whether to make an award, and specifies that the total amount cannot exceed what a spouse would have received in the same circumstances. What the section does not do is clarify the purpose the court should be trying to achieve when making its decision. Should it be aiming to protecting financially vulnerable bereaved cohabitants? Or making sure contributions to the relationship by the cohabitant are repaid? Should the court be trying to do what the deceased would have wanted? It’s not clear. Sheriff Janys Scott QC pointed out the difficulty here in Windram, applicant, a case where the deceased left behind both a long-term cohabitant and a couple of kids. The greater the award to the cohabitant, the less the children would receive, so while it’s fine to say any award should be “fair”, the question is “fair to whom”?

The Commission propose repealing s 29 and replacing it with an entirely new two-stage process. At stage one, the court will determine whether the claimant was cohabiting with the deceased based on a list of indicative criteria – whether they shared a home, the stability of the relationship, the existence or not of a sexual relationship, whether they raised children together and whether they appeared to others to be a couple. If the claimant passes this test, the court will then determine the share of the estate they should receive as a percentage of what a surviving spouse would have received in the same circumstances. The “appropriate percentage” will be assessed based on three factors – the length of the cohabitation, the nature of the couple’s interdependence during that time and the contribution made by the surviving cohabitant to their life together. Where a couple have cohabited for 25 years, run a business together and raised two children (as in the Windram case), the cohabitant would receive 100% of what a spouse would have received in the same circumstances. In a shorter relationship, where perhaps the couple kept their finances largely separate and did not parent together, the percentage would likely be much less. Some examples are given in the consultation paper, and more in the original Commission report (pages 71-73).

The Commission also suggested that this right should be available whether the deceased left a will or not, which is a significant change from the current position.

I am generally positive about the Commission’s recommendations here, so much so that I have encouraged New Zealand to adopt a similar approach. (They don’t seem to have taken me up on that so far, oddly.) There is certainly space to argue about the particular factors to be taken into account at both stages of the proposed system, but the “appropriate percentage” idea would introduce much greater clarity into the law whilst still allowing for some exercise of discretion, inevitably necessary when dealing with the huge variety of relationships that fall under the banner of “cohabitation”. It is worth bearing in mind that in most situations of this type, the impartial judgment of the court will not be employed. Claims will actually be resolved “in the shadow of the law” by parties or lawyers negotiating a settlement. More defined parameters as to what a cohabitant can expect to receive are especially welcome from that perspective. I am also lucky enough to be supervising a research student, Ellyn Fyvie, who is writing her Masters thesis on succession rights of cohabitants at the moment – her work will be a great help in figuring out my own views on this, although I will be encouraging her to submit a consultation response of her own.