Surviving spouses, surviving children and the reform of total intestacy law in England and Scotland: Past, present and future

Abstract

England and Scotland have very different legal systems in relation to succession generally and intestacy in particular. Nevertheless, they have faced similar problems and tensions when attempting to reform the law of intestacy. This article considers the basic division of an intestate estate between spouses and children (and other issue). It is argued that prior to the twentieth century intestacy law in both jurisdictions was underpinned by a dynastic model in which the estate was preserved for successive generations. However, in the twentieth century the interests of the spouse became the primary focus of intestacy distribution. Recommendations (by law commissions in both jurisdictions) for further reform of the law are marked by a further intensification of the rights of the spouse (potentially leading to a further decline in the entitlement of children and issue). The Commissions have not only jettisoned dynastic intestacy, but also the earlier framing of intestacy rules based on the examination of wills and the ‘presumed intention’ of the intestate. Instead, the Commissions have preferred to formulate rules which are generally supported by empirical evidence such as public opinion surveys; and tempered by the aims of simplicity and administrative efficiency. This article contends that in order to create a division of assets reflecting acceptable standards, the aim of modern intestacy legislation ought to be the distribution of assets to those classes of family members who are likely to be the most economically vulnerable (such as aged spouses, minors and disabled adults). In any event, the ageing population and the needs of surviving aged spouses are likely to have a significant impact upon the framing of intestacy law in the future.