28 January 2016

S4M-15440 Succession (Scotland) Bill: Stage 3

The Deputy Presiding Officer (Elaine Smith): The next item of business is a debate on motion S4M-15440, in the name of Paul Wheelhouse, on the Succession (Scotland) Bill.

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Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

I am glad that extending the Delegated Powers and Law Reform Committee’s remit has created additional parliamentary capacity for dealing with bills that come from the Scottish Law Commission. By their nature, SLC bills address matters on which the SLC has established that there is broad agreement on remedies for errors or omissions or updating existing legislation.

Our taking of evidence and our discussions on the Succession (Scotland) Bill have been interesting and informative, for me at least. Given that we will all die, I am sure that the bill will ultimately touch us all in the disposal of our assets or debts. Even those who have no assets and no debts cannot be assured that they will escape the bill’s provisions.

The complexity of and lack of agreement on some succession issues are the reasons why a future Government will have to grasp the nettle of a much more wide-ranging restatement and reform. If Elaine Murray is in Parliament in the next session and is again a member of the Justice Committee to do that, I am sure that she can look forward to that pleasure.

Personal circumstances illustrate things for me. My great-grandfather wrote his will—it was handwritten—in a mere 22 words. It said:

“I David Berry do appoint my granddaughter Helen Mary Berry McGregor my executor and bequeath to her my whole means and estate”.

Wills can be that simple. The only trouble was that, when he wrote his will, my mother—his granddaughter—whom he named, was one, and when he died, she was three. Therefore, she was not legally capable; she was legally incapable. However, the process meant that her father, who was administrator in law, became the executor dative to replace my mother, who had been the executor nominate. He was appointed. Things can be done in that particular way.

I have been touched by the winding up of estates in another way. Just over 10 years ago, a relative’s small estate had to be wound up. No house was owned; there were simply some moveable effects. She had written a little will that said that her two daughters were equally to receive the proceeds. That was simply done informally and there was no confirmation.

Through the passage of the bill, I can say that I will have apparently become, and will remain, a vicious intromitter. That means that, because we did not go through the formal process, I will remain liable for the rest of my natural life for any errors that I committed in winding up that little estate and not getting confirmation. The vast majority of small estates are dealt with on that basis. That illustrates some things that may be engaged the next time we look at this very complex area.

I am delighted that we are getting rid of the Parricide Act 1594, which is quite specific—it refers to fathers and sons. We have invented the legal fiction in the courts that, if someone is responsible for the death of the person from whom they will inherit, they are deemed—not withstanding that they are still breathing and consuming food, and so on and so forth—to have become legally dead before the person for whose death they were responsible. That works in proper terms, but it is a bit cack-handed, so it is a good idea to do something about it.

We had a huge and interesting discussion about common calamities and sequencing of death. The important thing is that we worked out a way in which we can be certain that we are uncertain, in which case the rules of uncertainty can be applied—but of course, only when we are certain that we are uncertain.


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