Why is it so Difficult to Reform the Law of Intestate Succession?

Abstract

When those interested in succession law look back in time the current period of its history in Scotland may be perplexing. We have been attempting to reform the law of succession for over thirty years, and although minor “technical” changes have been made the substantive law remains as it has been since 1964. Despite three Consultative Memoranda, one Discussion Paper (and accompanying consultation) and two Reports from the Scottish Law Commission, followed by four consultation processes by the Scottish Government, there has been no consensus about the way forward. Unless the most recent consultation process defies all expectation, we appear to be deadlocked. The issue that has proved most difficult is the division of an intestate estate between a spouse or civil partner and children of the deceased, a difficulty aggravated where there is competition between a first family and a second family. In view of the fact that consultation has generated “widely divergent views”, the Scottish Government now wishes to take a “fresh approach”. This article suggests that establishing specific and achievable policy aims and paying attention to existing empirical evidence may provide greater clarity going forward.