Succession law reform has been busy recently. There has been consultation, Scottish Government response in 2018 and then further consultation this year on specific topics. The rights (or not) of cohabitants have been part of the consultation exercise.

My colleague Susan Black in her recent blog highlighted that the traditional definition of family has changed and considered the latest consultation by the Scottish Government on succession law. Following that The Law Society of Scotland published a report (the "report") on 5 March 2019 calling for a review of the Family Law (Scotland) Act 2006 stating that current laws on cohabitation are "problematic and disadvantageous".

The report considers the rules on separation during life as well as rights on death. Divorce and family law team member, Garry Sturrock's recent blog considered this report with a focus on cohabitant rights on separation. This blog focuses on the report's thoughts on cohabitant rights on death.

Time limit to make a claim following death of a cohabitant

Under current legislation an application to the court must be made within 6 months of the date of death of the cohabitant where they die without a will. The report considers this to be an insufficient period of time due to a number of factors:

  1. the surviving cohabitant will be grieving and dealing with the practical matters that arise on death;
  2. where the deceased's family wish to prevent or complicate an application they can delay the administration of the estate by delaying the appointment of an executor;
  3. a will can be challenged rendering a testate estate to become intestate;
  4. there is no discretion for the acceptance of a late application by the court.

The report recommends extending the time to make an application to 12 months from the date of death or where confirmation (aka 'probate') is obtained after 12 months, 6 months from the date of confirmation. The report also considers that the courts should have discretion to allow late lodging of an application 'on cause shown'. The Law Society's thoughts extend slightly the position set out in the Scottish Government's 2018 consultation by calling for discretion in accepting 'late' applications. The report says that one reason to extend the time period for validly making an application is to give more time for families to negotiate and arrive at an arrangement without the need for the court. We wholeheartedly agree that following the death of a cohabitant (where there is no will), an agreement among the cohabitant and the family members entitled under the default intestate succession rules is much more preferable, quicker and cost-effective.

Testate estates - rights for cohabitants where there is a will?

In Scotland spouses/civil partners and children are protected from disinheritance and can claim 'legal rights' regardless of whether or not the deceased left a will and irrespective of the terms of any will. The report notes that cohabitants do not currently benefit from this protection from disinheritance. The report does not make any proposals that the same protection should be afforded to cohabitants.

The report also considers whether or not a surviving cohabitant should be able to make a court application where the deceased did leave a will. As with Scottish Government, the Law Society has concluded there should be no extension of cohabitant court claims to situations where there is a will. The Law Society is of the view to change the rules would require a "substantive change in policy". It would also seem to us there is value in, subject to 'legal rights', allowing an individual's instructions in a will to be implemented and not subject to post-death discretionary claims that can lead to unexpected, uncertain and drawn-out litigation: for an example of what can happen in England see the Melita Jackson estate.

What action can cohabitants take? Write to your MSP or write a will.

The most simple and effective way cohabitants can ensure they provide for each other on death is to write a will. While a will is important for every individual there are automatic rights for spouses and children, there is no such right for a cohabitant. Cohabiting couples in Scotland must make a will and it is better to take control with that than waiting for a potential changes in the future and even if there are changes relying on what that law says, which might not suit your situation. As we have said before, "the advice remains the same: put in place the right form of will for your circumstances taking account of your overall estate planning. This will give you and your chosen beneficiaries as much control and certainty over inheritance as you can have."