Law of Succession and Trusts - Lecture 2 - Legal Rights
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Course
Law of Succession and Trusts (LAW09123)
Institution
Edinburgh Napier University (ENU)
Class notes from second lecture of the module Law of Succession and Trusts. Lecture covers legal rights of succession in Scots law. Important notes are highlighted, and case descriptions are given.
Author achieved first-class grade for the module.
The Succession (S) Act 1964 gives the spouse/civil partner and issue (i.e. biological and formally
adopted children) of the deceased certain automatic rights to a fixed portion of the deceased’s
moveable estate.
This is true whether deceased died testate (with a will) or intestate (without a will).
These rights are known as legal rights. They are preferred rights (meaning they take precedence
over claims made by others) and they are indefeasible (meaning they cannot be defeated, annulled,
lost or overturned).
These rights, even if you don't want your children or spouse to have them, they still have them, and
you can't do anything about it. It is not possible to completely exclude a spouse or civil partner and
children from inheritance by making a will which omits them.
However, these rights are not available to ex-spouses. Any claim to legal rights lapses automatically
upon termination of the marriage.
Nor are they available to cohabitants because there is no legal relationship, as well as stepchildren.
Legal rights: why have them?
The historical purpose of legal rights was to ensure that children and widows were not left destitute
by the death of the family’s main earner.
Legal rights effectively prevent disinheritance of a child or spouse.
Most countries provide some form of legal rights, though common law jurisdictions like England are
less likely to have them.
“I regard the right which our law gives to children in their Father’s estate, in common with the laws
of most civilised countries excepting England, as a very important check on capricious and unjust
treatments.”
- Lord Salvesen, Hutton’s Trustees v Hutton’s Trustees [1916] SC 60
Scotland is unusual in calculating legal rights purely on the basis of the deceased’s moveable estate.
Two forms of legal rights
Legal rights come in two forms:
• jus relictae/relicti (also known as the relict’s right) which is available to the surviving
spouse/civil partner;
• legitim (also known as legitima portio or the bairn’s part) which is available to the
children of the deceased.
, Jus relictae consists of half (1/2) of the deceased’s moveable estate if there are no surviving
children. Therefore, if you only have a spouse or civil partner surviving, then the portion that they
will get is half the movable estate; or a third (1/3) of the deceased’s moveable estate if there are
surviving children.
Legitim consists of half (1/2) of the deceased’s moveable estate if there is no surviving spouse; or a
third (1/3) of the deceased’s moveable estate if there is a surviving spouse as well as children.
Legitim is split per capita (i.e. equally) between all the deceased’s surviving children.
Relictae or Relicti?
Latin is a gendered language, so the endings of words change depending on whether they refer to
something masculine or something feminine. Thus:
• ius relictae is where the surviving spouse is a woman;
but
• ius relicti is where the surviving spouse is a man.
For practical purposes, you will not be penalised if you use the wrong ending.
And remember you can always play safe by just calling it the relict’s right. ☺
In other words…
You can think on legal rights as two separate pots of money.
If there is a surviving spouse and surviving children, each pot gets 1/3 of the moveable estate.
If there is only a surviving spouse and no surviving children, the spouse’s pot gets ½ the moveable
estate.
If there are only surviving children and no surviving spouse, the children’s pot gets ½ the moveable
estate.
The spouse gets to keep all his/her legal rights money.
The children must split their legal rights money equally among themselves.
These shares are fixed. The court has no power to vary them, no matter the circumstances.
Civil partners have identical rights to spouses under s.131 of the Civil Partnership Act 2004.
Guaranteeing civil partners exactly the same rights and inheritance as spouses have.
Legal rights are a right to money
Legal rights are not an entitlement to property. They are an entitlement to money.
Legal rights are calculated based on the deceased’s moveable estate, but that does not mean that a
recipient will receive the actual moveable property.
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