Succession (Scotland) Act 1964

Part I — Intestate Succession

Assimilation of heritage to moveables for purpose of devolution on intestacy.

1

• (1) The whole of the intestate estate of any person dying after the commencement of this Act (so far as it is estate the succession to which falls to be regulated by the law of Scotland) shall devolve, without distinction as between heritable and moveable property, in accordance with—

• (a) the provisions of this Part of this Act, and

• (b) any enactment or rule of law in force immediately before the commencement of this Act which is not inconsistent with those provisions and which, apart from this section, would apply to that person’s moveable intestate estate, if any;

and, subject to section 37 of this Act, any enactment or rule of law in force immediately before the commencement of this Act with respect to the succession to intestate estates shall, in so far as it is inconsistent with the provisions of this Part of this Act, cease to have effect.

• (2) Nothing in this Part of this Act shall affect legal rights or the prior rights of a surviving spouse or civil partner; and accordingly any reference in this Part of this Act to an intestate estate shall be construed as a reference to so much of the net intestate estate as remains after the satisfaction of those rights, or the proportion thereof properly attributable to the intestate estate.

2

• (1) Subject to the following provisions of this Part of this Act—

• (a) where an intestate is survived by children, they shall have right to the whole of the intestate estate;

• (ab) where an intestate is survived by a husband, wife or civil partner, but is not survived by any prior relative, the surviving spouse or civil partner shall have right to the whole of the intestate estate;

• (b) where an intestate is survived by either of, or both, his parents and is also survived by brothers or sisters, but is not survived by any prior relative, the surviving parent or parents shall have right to one half of the intestate estate and the surviving brothers and sisters to the other half thereof;

• (c) where an intestate is survived by brothers or sisters, but is not survived by any prior relative, the surviving brothers and sisters shall have right to the whole of the intestate estate;

• (d) where an intestate is survived by either of, or both, his parents, but is not survived by any prior relative, the surviving parent or parents shall have right to the whole of the intestate estate;

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (f) where an intestate is survived by uncles or aunts (being brothers or sisters of either parent of the intestate), but is not survived by any prior relative, the surviving uncles and aunts shall have right to the whole of the intestate estate;

• (g) where an intestate is survived by a grandparent or grandparents (being a parent or parents of either parent of the intestate), but is not survived by any prior relative, the surviving grandparent or grandparents shall have right to the whole of the intestate estate;

• (h) where an intestate is survived by brothers or sisters of any of his grandparents (being a parent or parents of either parent of the intestate), but is not survived by any prior relative, those surviving brothers and sisters shall have right to the whole of the intestate estate;

• (i) where an intestate is not survived by any prior relative, the ancestors of the intestate (being remoter than grandparents) generation by generation successively, without distinction between the paternal and maternal lines, shall have right to the whole of the intestate estate; so however that, failing ancestors of any generation, the brothers and sisters of any of those ancestors shall have right thereto before ancestors of the next more remote generation.

• (2) References in the foregoing subsection to brothers or sisters include respectively brothers and sisters of the half blood as well as of the whole blood; and in the said subsection “prior relative”, in relation to any class of person mentioned in any paragraph of that subsection, means a person of any other class who, if he had survived the intestate, would have had right to the intestate estate or any of it by virtue of an earlier paragraph of that subsection or by virtue of any such paragraph and section 5 of this Act.

3

Subject to section 5 of this Act, where brothers and sisters of an intestate or of an ancestor of an intestate (in this section referred to as “collaterals”) have right to the whole, or, in a case to which subsection (1)(b) of the last foregoing section applies, to a half, of the intestate estate, the collaterals of the whole blood shall be entitled to succeed thereto in preference to the collaterals of the half blood; but where the collaterals of the half blood have right as aforesaid they shall rank without distinction as between those related to the intestate, or, as the case may be, the ancestor, through their father and those so related through their mother.

4

5

• (1) Subject to section 6 of this Act, where a person who, if he had survived an intestate, would, by virtue of any of the foregoing provisions of this Part of this Act, have had right (otherwise than as a parent , spouse or civil partner of the intestate) to the whole or to any part of the intestate estate has failed to survive the intestate, but has left issue who survive the intestate, such issue shall have the like right to the whole or to that part of the intestate estate as the said person would have had if he had survived the intestate.

• (2) The right of any issue entitled to share in an intestate estate by virtue of the foregoing subsection to be appointed to the office of executor on the intestate estate shall be postponed to the right thereto of any person who succeeds to the whole or part of the intestate estate by virtue of the foregoing provisions of this Act apart from this section and who applies for appointment to that office.

6

If, by virtue of the foregoing provisions of this Part of this Act, there are two or more persons having right among them to the whole, or, in a case to which section 2(1)(b) of this Act relates, to a half, of an intestate estate, then the said estate, or, as the case may be, that half thereof, shall—

• (a) if all of those persons are in the same degree of relationship to the intestate, be divided among them equally, and

• (b) in any other case, be divided equally into a number of parts equal to the aggregate of—

• (i) those of the said persons who are nearest in degree of relationship to the intestate (in this section referred to as “the nearest surviving relatives”) and

• (ii) any other persons who were related to the intestate in that degree, but who have failed to survive him leaving issue who survive him;

and, of those parts, one shall be taken by each of the nearest surviving relatives, and one shall be takenper stirpesby the issue of each of the said persons who have failed to survive the deceased.

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7

Nothing in this Part of this Act shall be held to affect the right of the Crown asultimus haeresto any estate to which no person is entitled by virtue of this Act to succeed.

Part II — Legal and other prior Rights in Estates of Deceased Persons

8

• (1) Where a person dies intestate leaving a spouse or civil partner, and the intestate estate includes a relevant interest in a dwelling house mentioned in subsection (4)(a) of this section, the surviving spouse or civil partner shall be entitled , subject to subsection (2B) of this section, to receive out of the intestate estate—

• (a) where the value of the relevant interest does not exceed £30,000 or such larger amount as may from time to time be fixed by order of the Secretary of State—

• (i) if subsection (2) of this section does not apply, the relevant interest;

• (ii) if the said subsection (2) applies, a sum equal to the value of the relevant interest;

• (b) in any other case, the sum of £30,000 or such larger amount as may from time to time be fixed by order of the Secretary of State.

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• (2) This subsection shall apply for the purposes of paragraph (a) of the foregoing subsection if—

• (a) the dwelling house forms part only of the subjects comprised in one tenancy or lease under which the intestate was the tenant; or

• (b) the dwelling house forms the whole or part of subjects an interest in which is comprised in the intestate estate and which were used by the intestate for carrying on a trade, profession or occupation, and the value of the estate as a whole would be likely to be substantially diminished if the dwelling house were disposed of otherwise than with the assets of the trade, profession or occupation.

• (2A) Where the tenant of a croft dies intestate leaving a spouse or civil partner or, where he dies leaving no spouse or civil partner, leaving a cohabitant, and the intestate estate includes a relevant interest in a dwelling house mentioned in subsection (4)(b) of this section, the surviving spouse, civil partner or, as the case may be, cohabitant shall be entitled, subject to subsection (2B) of this section, to receive out of the intestate estate—

• (a) where the value of the relevant interest does not exceed the amount for the time being fixed by order under subsection (1)(a) of this section, the tenancy of the croft;

• (b) in any other case, the sum for the time being fixed by order under subsection (1)(b) of this section.

• (2B) If the intestate estate comprises—

• (a) a relevant interest in two or more dwelling houses mentioned in subsection (4)(a) of this section, subsection (1) of this section shall have effect only in relation to such one of them as the surviving spouse or civil partner may elect for the purposes of subsection (1) within 6 months after the date of death of the intestate;

• (b) a relevant interest in two or more dwelling houses mentioned in subsection (4)(b) of this section, subsection (2A) of this section shall have effect only in relation to such one of them as the surviving spouse, civil partner or cohabitant may elect for the purposes of subsection (2A) within 6 months after that date;

• (c) a relevant interest in both—

• (i) one or more dwelling houses mentioned in subsection (4)(a) of this section; and

• (ii) one or more dwelling houses mentioned in subsection (4)(b) of this section,

the surviving spouse or civil partner shall not be entitled to receive both the entitlement under subsection (1) of this section and that under subsection (2A) of this section and must elect within 6 months after that date whether to take the entitlement under the said subsection (1) or under the said subsection (2A).

• (3) Where a person dies intestate leaving a spouse or civil partner, and the intestate estate includes the furniture and plenishings of a dwelling house to which this section applies (whether or not the dwelling house is comprised in the intestate estate), the surviving spouse or civil partner shall be entitled to receive out of the intestate estate—

• (a) where the value of the furniture and plenishings does not exceed £8,000 or such larger amount as may from time to time be fixed by order of the Secretary of State, the whole thereof;

• (b) in any other case, such part of the furniture and plenishings, to a value not exceeding £8,000 or such larger amount as may from time to time be fixed by order of the Secretary of State, as may be chosen by the surviving spouse or civil partner:

Provided that, if the intestate estate comprises the furniture and plenishings of two or more such dwelling houses, this subsection shall have effect only in relation to the furniture and plenishings of such one of them as the surviving spouse or civil partner may elect for the purposes of this subsection within six months of the date of death of the intestate.

• (4) The dwelling house is—

• (a) in a case mentioned in subsection (1) of this section, any dwelling house in which the surviving spouse or civil partner of the intestate was ordinarily resident at the date of death of the intestate and which did not, at that date, form part of a croft of which the intestate was tenant;

• (b) in a case mentioned in subsection (2A) of this section, any dwelling house in which the surviving spouse, civil partner or cohabitant was ordinarily resident at the date of death of the intestate and which, at that date, formed part of a croft of which the intestate was tenant.

• (5) Where any question arises as to the value of any furniture or plenishings, or of any interest in a dwelling house, for the purposes of any provision of this section the question shall be determined by arbitration by a single arbiter appointed, in default of agreement, by the sheriff of the county in which the intestate was domiciled at the date of his death or, if that county is uncertain or the intestate was domiciled furth of Scotland, the sheriff of the Lothians and Peebles at Edinburgh.

• (6) In this section—

• (za) “ cohabitant ” means a person—

• (i) who was living with the intestate as if married to him; or

• (ii) who was living with the intestate as if in civil partnership with him,

and had been so living for at least 2 years.

• (a) “dwelling house” includes a part of a building occupied (at the date of death of the intestate) as a separate dwelling; and any reference to a dwelling house shall be construed as including any garden or portion of ground attached to, and usually occupied with, the dwelling house or otherwise required for the amenity or convenience of the dwelling house;

• (b) “furniture and plenishings” includes garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, articles of household use and consumable stores; but does not include any article or animal used at the date of death of the intestate for business purposes, or money or securities for money, or any heirloom;

• (c) “heirloom”, in relation to an intestate estate, means any article which has associations with the intestate’s family of such nature and extent that it ought to pass to some member of that family other than the surviving spouse of the intestate;

• (d) “relevant interest”, in relation to a dwelling house, means the interest therein of an owner, or the interest therein of a tenant, subject in either case to any heritable debt secured over the interest; and for the purposes of this definition “tenant” means a tenant under a tenancy or lease (whether of the dwelling house alone or of the dwelling house together with other subjects) which is not a tenancy to which the Rent and Mortgage Interest Restrictions Acts 1920 to 1939 apply.

9

• (1) Where a person dies intestate and is survived by a husband , wife or civil partner the survivor shall be entitled to receive out of the intestate estate—

• (a) if the intestate is survived by issue . . . the sum of £4,000 or such larger amount as may from time to time be fixed by order of the Secretary of State, or

• (b) if the intestate is not survived by issue . . . the sum of £8,000 or such larger amount as may from time to time be fixed by order of the Secretary of State,

together with, in either case, interest at the rate of 4 per cent. per annum or, at such rate as may from time to time be fixed by order of the Secretary of State, on such sum from the date of the intestate’s death until payment:

• (2) Where the intestate estate is less than the amount which the surviving spouse or civil partner is entitled to receive by virtue of subsection (1) of this section the right conferred by the said subsection on the surviving spouse or civil partner shall be satisfied by the transfer to him or her of the whole of the intestate estate.

• (3) The amount which the surviving spouse or civil partner is entitled to receive by virtue of subsection (1) of this section shall be borne by, and paid out of, the parts of the intestate estate consisting of heritable and moveable property respectively in proportion to the respective amounts of those parts.

• (4) Where by virtue of subsection (2) of this section a surviving spouse or civil partner has right to the whole of the intestate estate, he or she shall have the right to be appointed executor.

• (5) The rights conferred by the Intestate Husband’s Estate (Scotland) Acts 1911 to 1959 on a surviving spouse in his or her deceased spouse’s estate shall not be exigible out of the estate of any person dying after the commencement of this Act.

• (6) For the purposes of this section—

• (a) the expression “intestate estate” means so much of the net intestate estate as remains after the satisfaction of any claims under the last foregoing section; and

• (b) the expression “legacy” includes any payment or benefit to which a surviving spouse or civil partner becomes entitled by virtue of any testamentary disposition; and the amount or value of any legacy shall be ascertained as at the date of the intestate’s death.

9A

Any order of the Secretary of State, under section 8 or 9 of this Act, fixing an amount or rate—

• (a) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament; and

• (b) shall have effect in relation to the estate of any person dying after the coming into force of the order.

10

• (1) The right of courtesy of a surviving husband in his deceased wife’s estate and the right of terce of a surviving wife in her deceased husband’s estate shall not be exigible out of the estate of a person dying after the commencement of this Act.

• (2) The amount of any claim to legal rights out of an estate shall be calculated by reference to so much of the net moveable estate as remains after the satisfaction of any claims thereon under the two last foregoing sections.

10A

11

• (1) Subject to the next following subsection, where a person (hereinafter in this section referred to as “the deceased”) dies in circumstances where a child who has failed to survive the deceased has left issue who survive the deceased, and the child would, if he had survived the deceased, have been entitled . . . to legitim out of the deceased’s estate, such issue shall have the like right to legitim as the child would have had if he had survived the deceased.

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