Succession Course Work-Law, Lecture notes of Law

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3/7/25, 5:10 PM about:blank Succession Course Work 1. In most cases Intestate succession describes the process of distributing the estate of a deceased person who has not left a testamentary document commonly known as a will. However, intestate succession can also occur where there is a will but it does not outline what is to happen to all of the estate (partial intestacy), wills can also be invalid, fail or the beneficiaries could renounce their legacies. Intestacy can be total, partial or artificial. Artificial intestacy can happen when a will has been reduced or if there is a rejection of the legacy. The rules of intestacy are a mix of statutory and common law, with the statutory rules being contained in the Succession (Scotland) Act 1964. This is a fairly aged legislation and it may be updated in times to come but for now it is the main legislation to consult when considering intestate succession. It provides a fairly clear process to follow and attempt to tackle the difficult division of someones lifetime estate should any of the above occur. There is a specific order in which the estate will be distributed if no testamentary writing has been left. Firstly, even in death the deceased cannot escape their debts and so these must be paid off before the rest of the estate can be distributed. After the debts have been paid ‘prior rights’ must be given to those who are entitled, “prior rights are not, strictly speaking, rights of succession as such, but are preferential entitlements payable before the intestate estate may be distributed.” Prior rights are taken from the common law and a version called a ‘statutory legacy’ can be found in the Administration of estates act 1925 in English law. An example of a prior right can be found in section 8(1)(a) of the ‘Act where it describes a spouse of civil partner will be entitled to the estates “relevant interest” in a “dwelling house” up to a value of £474,000.2 Though this right is not absolute and certain conditions must be met. Section 8(4) states it must be the house in which the survivor was ordinarily resident.° Section 8(6)(d) states this is subject to any heritable debt secured on the property.* The spouse or civil partner will need to pay off mortgage or take the mortgage on. The right will be upheld even if the couple were 1 The Scots Law of Succession, Hilary Hiram, 2nd edition 2007, p140 2 Succession (Scotland) Act 1964 8(1)(a) 3 8 Succession (Scotland) Act 1964 8(4) “Succession (Scotland) Act 1964 8(6)(d) 119