Class notes from third lecture of the module Law of Succession and Trusts. Lecture intestate succession in Scots law. Important notes are highlighted, and case descriptions are given.
Author achieved first-class grade for the module.
Intestate succession occurs when a person dies with his or her estate “undisposed of by testamentary
disposition.” [s.36(1) Succession (S) Act 1964].
In other words, it occurs when someone dies without leaving a will specifying what should be done
with their property.
Intestacy can also occur in a couple of other situations:
• Partial intestacy occurs where a will only disposes of some of the estate. The part of
the estate dealt with in the will is treated as testate, but the rest is treated as
intestate.
• Artificial intestacy occurs when a beneficiary renounces the legacy (e.g. because a
spouse would get more by claiming legal rights) or where a legacy cannot be
completed (e.g. because the beneficiary has died).
In practice, most intestacies occur where the deceased died without leaving a will.
These rules are largely inflexible, and, of course, their effect may not be what the deceased would
have wanted. It is crucial to understand at the outlet that the rules of intestacy act as a “default” only
and can be overridden by leaving a will.
Why not make a will?
63% of people in Scotland have not made a will. Why not?
The two main answers are that people never thought about (28%) or that they had never got around
to it (46%).
Age is also a factor. The younger you are, the less likely you are to have a will.
Percentage, by age group, of those with testaments
18-24 25-34 35-44 45-54 55-64 65+
4% 14% 30% 40% 52% 69%
Wealth is also a factor. The richer you are, the more likely you are to have a will.
Sources of law on intestate succession
The key legislation on intestacy is the Succession (S) Act 1964. The law on this area is highly inflexible
and allows no judicial discretion. Judges have no discretion to change the law.
The 1964 Act was based on the Mackintosh Report of 1951 which states:
“[W]e have throughout kept in view that when a man dies without a Will the law should try to provide
as far as possible for the distribution of his estate in the manner he would most likely have given effect
to himself if he had made a Will.”
, This Act was predicated on the idea that men had property and they would leave it to their wives,
their children. It was predicated on the idea of a male provider, a male head of the family.
Part of the reason for Lord Mackintosh’s appointment was that he had four daughters and no sons
and it was thought that he would be fair to female successors. When they wanted to be fair to women,
they didn't appoint a woman. They appointed a man who had four daughters and said, "Well, of
course, he'll be fair to women."
The law before 1964
Before the 1964 Act, the law of succession was governed by the common law and was derived partly
from the mediaeval feudal law.
All heritable property passed the “heir-at-law”.
The “heir-at-law” was selected on the basis of primogeniture meaning that the eldest son inherited
everything.
Male heirs were preferred over female heirs, meaning that women could not inherit heritable
property unless there were no other living male successors.
The moveable property was divided among the heirs in mobilibus.
Spouses had no inheritance rights, but widows received “terce” (liferent over a third of the heritable
property owned by her husband) while widowers receive “courtesy” (liferent over all the heritable
property owned by his wife).
The intestate estate
The intestate estate is made up of any property not disposed of by a testament or some other legal
device.
In other words, if the deceased person has not left clear and legally binding instructions on how to
dispose of a piece of property, it will become part of the intestate estate.
Usually intestacy affects the entire estate because the deceased has left no testamentary device of
any kind.
The main device for disposing of your property is a testament, but there are various other devices
which we will deal with later in the course when dealing with testate succession.
Partial intestacy
Partial intestacy occurs when the deceased leaves a will but it does not dispose of all his/her property.
The basic rule is this:
• the deceased’s estate will be disposed of in accordance with the terms of the
deceased’s will;
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