In depth notes on the succession portion of the Succession and Trust Law (Ord) course at the University of Edinburgh, complete with descriptions of the all the relevant case law and detailed explanations of statute.
Death of a Person
● Registration of Births, Marriages and Deaths (S) Act 1965
● Prior to the administration of an estate, the death of a person must be registered
with the Registrar of Births, Marriages and Deaths within eight days -
● Section 23:
○ It shall be the duty of
○ (a) any relation of the deceased,
○ (b) any person present at the death,
○ (c) the deceased’s executor or other legal representative,
○ (d) the occupier, at the time of death, of the premises where the death
took place,
○ (e) if there is no such person as is mentioned in the foregoing paragraphs,
any other person having knowledge of the particulars to be registered
■ to register the death.
● Section 24: Medical Certificate of Cause of Death
● Section 27: Death Certificate
● Fatal Accidents and Sudden Deaths Inquiry (Scotland) Acy 2016: There will be a
formal inquiry into deaths that is necessary in cases of accidents at work, deaths
in custody and in cases where there is a public interest in the death.
● Presumption of Death
○ Applies when there are no remains or if the person has disappeared.
○ Presumption of Death (Scotland) Act 1977
■ Section 1: There will be a declarator if either:
, ● The person is missing and thought to be dead (the person
will be declared to have died at the time of disappearance.)
● The person is not known to be alive after 7 years (the person
will be declared to have died at the end of the seven year
period after the person was last known to be alive.)
■ Section 3: Allows the administration of the disappeared person’s
estate and dissolves a marriage or civil partnership to which they
were a party.
■ Section 4 & 5: Provisions for the recall of a decree of death and its
effects whereby the court can make an order to redistribute a
person’s estate if it is considered to be fair and reasonable in all the
circumstances when an application has been made within five
years of the initial decree being made.
● The Deceased’s Body
○ C v Advocate General for Scotland 2012 SLT 103 - A soldier who had died
in Germany was flown back to the UK by the Minister of Defense and the
body was stored by a mortuary facility. The soldier had a spouse who was
nominated as a beneficiary under his will. However, while he nominated
the spouse as his beneficiary, he did not nominate her as his executor but
rather his mother. The spouse and mother had opposing views on what
should be done with the deceased’s body and the court held that the
widow was entitled to decide what should happen with the body.
○ Burial and Cremation (Scotland) Act 2016
■ Section 65: Provision that states that the directions of the deceased
for what they wish to happen to their body shall be followed, so long
that they are reasonably practicable to give effect to.
● Section 65(3): Establishes that there is a ranking order to
determine the nearest relative in the event that the deceased
provides no directions.
, Head 2: Who May Inherit
Types of Inheritance Rights:
● 1. Intestate Succession Rights
○ Involve rights to inherit when there is no valid testament/will or because it
does not dispose of the entire estate.
■ Relatives
■ Spouses/Civil Partners
■ Cohabitants
● 2. Testate Succession Right: Legacies
○ A bequest of a certain piece of property or amount which is to go to a
certain person or to be used for a certain designated purpose.
○ Legacies arise from the intention of the deceased and are created in
testamentary writings of the deceased.
○ The beneficiary of a legacy can be anyone (charities, friends, teachers,
etc.)
● 3. Legal Rights
○ Involve testate and intestate succession which cannot be defeated by a
testament/will and operate in spite of anything said or omitted by the
will/testament.
■ Children
■ Spouses/Civil Partners
● 4. Special Destinations
○ Rights constituted in favor of someone chosen by the deceased.
○ This is done through writing that alters the transfer of property after death
but that is not a formal testamentary writing.
, ■ E.g., a person who owns a house dispones the house in favor of
someone else and in that disposition says, whom failing, someone
else gets the property.
Survivorship
● Only the living can inherit; the dead cannot and thus, survivorship is crucial.
○ Example: Alice’s testament gives legacy to Brian.
■ 1. Alice dies on Monday and Brian dies on Tuesday → Brian will
inherit on Monday.
■ 2. Brian dies on Monday and Alice dies on Tuesday → Brian will not
inherit.
● Common Calamity
○ Refers to the complication when multiple persons die in the same event.
○ The standard of proof for survivorship shown by evidence is on the
balance of probabilities.
○ If survivorship is unclear, there are statutory rules that apply:
■ Succession (Scotland) Act 2016
● Section 9(1): Where two persons die simultaneously or in
circumstances in which it is uncertain who survived whom,
each is to be treated as having failed to survive the other for
all purposes affecting title or succession to property.
○ Thus, each deceased person is treated as having
failed to survive the other so that neither inherits
from the other.
■ The presumption will only operate if there is no evidence.
● Lamb v Lamb 1976 SC 110 - John Grant left his entire estate
to his wife, Agnes Grant. John had no family while Agnes
had a sister who was the pursuer in the case. A fire killed
both John and Agnes and the pursuer needed to show that
Agnes survived John to inherit the estate from Agnes. It was
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