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

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

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Photo of Fergus Ewing Fergus Ewing Scottish National Party 5:00 pm, 15th December 2005

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.