Section 22 — Application to court by survivor for provision on intestacy

Family Law (Scotland) Bill: Stage 3 – in the Scottish Parliament at 5:00 pm on 15th December 2005.

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Photo of Murray Tosh Murray Tosh Conservative 5:00 pm, 15th December 2005

Group 17 is on provision for cohabitant dying intestate. Amendment 47, in the name of Pauline McNeill, is grouped with amendments 48 and 49.

Photo of Pauline McNeill Pauline McNeill Labour

Amendment 47 is designed to ensure that we are clear about how section 22 should be applied by the courts when estates are divided up.

There is no doubt that this is a complicated area—it is probably more complicated than the issues that we have previously discussed. The committee got itself into all sorts of knots trying to understand the provisions. The situation is straightforward if there is only the cohabitant to think about. However, if there are husbands, wives and children in the scenario, it becomes harder to understand how the provisions will work in law. Under section 22(11), debts and liabilities and the rights of the spouse are disposed of first. Normally, the children's legal rights would be disposed of next, leaving the rest to the free estate. However, section 22 gives the sheriff the discretion to consider the existence of other rights when deciding what sum to award to a cohabitant.

Amendment 47 tries to draw out whether the court should be required to take account of the length of the relationship for the purposes of determining whether it is a cohabiting relationship, which it has to do under section 18. The sheriff must take into account the size and nature of the deceased's estate, any benefit received by the survivor and the nature of any other rights and any other matter that the court considers appropriate.

The lesson for all of us is that we need to ensure that our constituents realise the importance of drawing up a will in every case, so that they do not die intestate and can avoid arguments and determine where their estate goes. However, where a will does not exist, we need to be clear. I am not arguing that the length of the relationship per se should be included in section 22, but I want to note where sheriffs are expected to take it into account. Section 22(3)(d) refers to "any other matter". If I am told that sheriffs are meant to consider the length of the relationship under that provision, I will be a lot happier. I realise that the consideration will not always apply, but I am concerned about the sheriff having total discretion in the situation in which the cohabitation was short and there are children. I would be concerned if no account was taken of the length of the relationship and a large capital sum was awarded to the cohabitant, but the children received nothing from the estate.

Amendment 48 seeks to avoid doubt. Once the sheriff has done all that, there is the Succession (Scotland) Act 1964, which states the order in which the free estate has to be divided, starting with husbands and wives, children, brothers and sisters and so on. Given that cohabitants are not mentioned in the 1964 act, I want to ensure that any decision that is taken by a sheriff under section 22 cannot be challenged using the 1964 act. I think that the answer from the Executive will be that that is not the intention, which is what I want to hear for the purposes of clarity. It would be wrong if, in giving discretion to the sheriff, we enabled children and brothers and sisters who were concerned about the decision to use the 1964 act. I should make clear that I understand that the legal rights concerned are common-law rights and that we are talking about the remainder of the estate and nothing else. If I hear the answers that I am looking for, I will not press amendments 47 and 48.

I move amendment 47.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Section 22(6), to which amendment 49 applies, states:

"Any application under this section shall be made before the expiry of the period of 6 months beginning with the day on which the deceased died."

Therefore, on intestacy, a cohabitant must apply within six months of the death. Amendment 49 would change "deceased died" to

"death of the deceased was established".

That seems like a small change, but it covers the situation where the cohabitant is a fisherman whose boat is presumed lost with all on board, but there is still hope. The death might not be established for seven months or seven years. The rights of the surviving cohabitant would be lost because the person would not be legally dead until more than six months from the actual date of death had elapsed. Amendment 49 aims to protect people who are in the position where death is established on a date that is significantly distant from the date on which the death is determined to have happened.

I accept that the minister wrote to the Justice 1 Committee on that point to explain that, notwithstanding what section 22(6) says, everything is okay. I confess to the minister that on that occasion I was unable to award a clear English award for the Executive's response—I did not understand more than three words and they were "Dear Stewart".

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I always thought that Stewart Stevenson was numerate.

Does the minister consider that the fact that cohabitants' rights upon death will apply only where there is no will is consistent with the Executive's aim of protecting the vulnerable? Especially if two cohabitants have fallen out in the period shortly before one of them dies, there is a great incentive for one to exclude the other from their will. The bill will not provide the necessary protection, because a cohabitant could be excluded entirely by a will. That is completely different from the situation between a husband and wife—a surviving spouse has indefeasible legal rights, which take priority under the Succession (Scotland) Act 1964, which Pauline McNeill mentioned. The wife has the protection of being entitled to a house, up to a fairly substantial value, and to a cash sum, but a surviving cohabitant will have no such right.

The current system for winding up estates has clear rules on intestacy, with various benefits. The law sets out a scheme under which estates are wound up. However, the bill will create a discretionary award, not a rules-based payment, which means that the sheriff will have to determine how much is payable, which will introduce uncertainty. Where uncertainty arises in the winding-up of an estate, it has at least the potential to encourage and generate acrimony. I take this brief opportunity to point out yet again that the bill does not do what it says on the legal tin.

Photo of Margaret Mitchell Margaret Mitchell Conservative 5:15 pm, 15th December 2005

I welcome amendment 48, which seeks to clarify the bill on the important point of prior legal rights. I also welcome amendment 49, in the name of Stewart Stevenson, which raises an important issue about the need to establish a recognised date of death when the actual date is difficult or impossible to determine.

Photo of Hugh Henry Hugh Henry Labour

In establishing a right for a cohabitant to apply to the court for a discretionary award when their partner dies intestate, we will introduce a degree of fairness into an unhappy situation, with provisions that are just and equitable. We have tried to ensure that any surviving spouse's or civil partner's position will remain intact and that the total award to a cohabitant will be limited to the amount to which they would have been entitled had they been a spouse or civil partner of the deceased. Beyond that, the courts will be expected to decide what is fair and reasonable in the circumstances of each case, within the rules that are set out in section 22.

The court will first of all refer to the definition of "cohabitant" in section 18. The applicant will have to satisfy the test that is set out there before the court considers the application for an award. The court will then consider the factors that are set out in section 22(3), which include

"the size and nature of the deceased's net intestate estate" as well as

"any benefit received, or to be received" by the surviving cohabitant from the estate and

"the nature and extent of any other rights against, or claims on, the deceased's net intestate estate".

Amendment 47 seeks to introduce an additional factor for the court to consider in determining the award: the length of time that the cohabitants lived together. That displays a wee bit of misunderstanding of the discretion that will be available to the court. Section 18 will determine whether the applicant is eligible to be considered for an award. Once that has been established, the discretion that will be available to the court will relate to the circumstances of the individual estate. Therefore, the court will not carry out an exercise in determining who is more worthy or deserving or whether someone who lived with their partner for 10 years is entitled to more than they would have got if their partner had died six years earlier; instead, the court will examine the size and nature of the estate and the other legitimate claims that can be made on it. A cohabitant who lived with someone for 10 years where the deceased has no surviving spouse or children might get a different outcome from a cohabitant who lived with a partner for 10 years but whose partner remained married and had children with the spouse and/or another previous partner.

Amendment 48 seeks to make matters clear by putting it beyond doubt that the calculation of any children's legal rights should be postponed until the discretionary award that is to be made to the cohabitant has been satisfied. However, that would fetter the discretion of the court in such matters. The issue is more complex than amendment 48 suggests; it is not simply an either/or situation. Among other matters, a child's claim on the estate would be taken into account in the decision on the award. In certain circumstances—for example if the cohabitant was entitled to a large pension settlement from the deceased's estate—the court might wish to set aside a sum to meet the child's legal rights in their entirety before deciding on the award to the cohabitant. In other cases, the circumstances described by the amendment would be appropriate. The matter must be left to the discretion of the court, which will take into account all the facts and circumstances.

Photo of Pauline McNeill Pauline McNeill Labour

I hear what the minister says. Would he expect sheriffs to consider the length of the relationship?

Photo of Hugh Henry Hugh Henry Labour

Clearly, that would be one of a number of factors that would need be taken into account; it is not appropriate to specify one factor.

I move to amendment 49, in the name of Stewart Stevenson. I am sorry that he understood only the three words "Dear Stewart". I will try to clarify the issue; I will write again to see whether we can provide more clarity.

As Stewart Stevenson said, he seeks to address an unusual situation in which there has been some time between the person dying and a declarator of death being made. We are satisfied—this is the nub of the letter, although the legalese may not have been understood—that the terms of section 22 are sufficiently wide and give the court sufficient discretion to ensure that all the circumstances that he raises can be covered. I urge Parliament to reject amendments 47, 48 and 49.

Photo of Pauline McNeill Pauline McNeill Labour

Having heard what the minister said, I take it that the length of the relationship is one of the factors that could be taken into account. I recognise that it is not the only factor and I am not saying that it should be taken into account in every case. I wanted that to be made clear.

I am happy with what the minister said on amendment 48. I am trying to ensure that there is no legal challenge once a sheriff makes a decision. I will seek to withdraw amendment 47 and not move amendment 48.

Amendment 47, by agreement, withdrawn.

Amendment 48 not moved.

Amendment 49 moved—[Stewart Stevenson].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 49 be agreed to. Are we agreed?

Members:

No.

Division number 11

For: Adam, Brian, Aitken, Bill, Canavan, Dennis, Crawford, Bruce, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Grahame, Christine, Hyslop, Fiona, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Morgan, Alasdair, Neil, Alex, Scanlon, Mary, Stevenson, Stewart, Sturgeon, Nicola, Swinburne, John, Swinney, Mr John, Turner, Dr Jean, White, Ms Sandra
Against: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Brownlee, Derek, Butler, Bill, Byrne, Ms Rosemary, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Fergusson, Alex, Finnie, Ross, Fox, Colin, Gillon, Karen, Glen, Marlyn, Goldie, Miss Annabel, Gordon, Mr Charlie, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, MacDonald, Margo, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Campbell, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Eleanor, Scott, John, Scott, Tavish, Sheridan, Tommy, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Tosh, Murray, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 34, Against 85, Abstentions 0.

Amendment 49 disagreed to.

Photo of Trish Godman Trish Godman Labour

I am minded to accept a motion without notice, under rule 9.8.5A of standing orders, to extend the total debating time for amendments by 10 minutes to five hours five minutes.

I inform members that if the motion is agreed to, I will not use my power under rule 9.8.5B to move forward decision time—it will stay at 6.30 pm.

Motion moved,

That the debate on group 20 be concluded no later than 5 hours 5 minutes after proceedings begin.—[Ms Margaret Curran.]

Motion agreed to.