A deceased Scots resident’s land outside Scotland cannot be taken into account when evaluating a surviving partner’s claim on the estate under s29 of the Family Law (Scotland) Act 2006.

This is from the judgement:

Background:

“Anthony Mangan cohabited with Margaret Kerr for twenty–two years before he died on 10 August 2007 but did not marry her.  He did not make a will.  However, the law had changed before he died and Ms Kerr was able to apply to the court for an order for money to be paid to her out of the net intestate estate of the deceased, even although she was not a surviving spouse.  The sheriff awarded her the sum of £5,502 but the sheriff principal, on appeal, decided that a house and land in Ireland which was owned by the deceased was not part of the net intestate estate. The result was that the award was reduced to nil. Ms Kerr now appeals to this court.”[1]

The issue:

“Does “net intestate estate”, in terms of section 29 of the Family Law (Scotland) Act 2006 (“the 2006 Act”), include heritable property outside this jurisdiction?  If it does not, the sheriff principal was correct to reduce the award to nil.  If, on the other hand, it does include such property, then the appellant’s claim will have to be remitted to the sheriff to consider, of new, what award, if any, to make.  I am persuaded, for the reasons explained below, that the deceased’s net intestate estate did not include his Irish property and that the result is, therefore, that no money is payable to the appellant.” [2]

Reasons for decision:

“Section 29 of the 2006 is about rights arising on a “Scottish” death.  In particular, it is about a right that arises where a deceased domiciled in Scotland has died intestate survived by a cohabitant; it gives a right to that cohabitant to ask the court to direct that some part of the estate be distributed to him or her. “Intestate” has to be construed in accordance with the Scots law of succession.  “Legal rights” has to be construed in accordance with the Scots law of succession.  “Prior rights” has to be construed in accordance with the Scots law of succession.  The definition of “net intestate estate” is an updated version of the definition of that phrase as it is used in the Scots law of succession.  The definition of “net intestate estate” accords with the approach that would require to be adopted by an executor–dative, under the Scots law of succession, in determining the extent of the free estate available for distribution to the heirs on intestacy.  The court’s power is limited by reference to an assessment of, amongst other things, what would have been the value of the rights of a surviving spouse under the Scots law of intestate succession.  The order of the court must be directed at the executor-dative appointed under the Scots law of succession, whose powers, duties and liabilities are as provided for by the Scots law of succession.” [35]

“It is, of course, true to say that section 29 does not, of itself, entitle the cohabitant to any part of the estate and it does not make a cohabitant a member of the class of persons upon whom intestate estate automatically devolves under Scots law.  Rather, it gives power to the court to confer benefit on the cohabitant where no such right arose under the Scots law of succession before the 2006 Act.  However, its provisions are clearly designed to enable a member of the family of the deceased who could not previously have benefitted under the Scots of succession to succeed to some part of the estate.  That omission was seen as a flaw. Social circumstances had undergone a transformation since 1964 and statistics showed that many couples, including those who lived in family together for many years, were, for whatever reason, not marrying.  Had they been married, the law of succession would have applied so as to confer a benefit on the surviving spouse in the event of an intestate death.  The same would have applied had they entered a civil partnership. There was a gap that required to be filled in some way; the cohabitant ought to be able to inherit. That was the easy part. Precisely how to fill that gap raised and raises difficult issues of policy, some of which are referred to above. One of the things that was and is, however, clear is that what was identified was a hole in the law of succession. The conclusion that section 29 reformed the law of succession and is, accordingly, a part of the Scots law of succession is inescapable. It is also, I would add, inherently unlikely that Parliament intended to establish a special regime that was independent of other legal categories, for the reasons which Lord Drummond Young explains at paragraphs 45 and 46 below.” [36]

The full judgement can be found here.