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This podcast explores death and law from a rich variety of disciplinary perspectives, including law, anthropology and philosophy. The podcast explores such issues as buried goods, data protection, dignity and memory. It forms part of a broader project in the University of Aberdeen's School of Law entitled, 'Death and Law – Interdisciplinary Explorations' and is generally sponsored by the Aberdeen Humanities Fund Staff Research Award 2024.
Hello. My name is Euan West. I'm a lecturer in the School of Law at the University of Aberdeen, and with me today are two colleagues in the School of Law. There's the Professor of Scots Law, Professor Roddy Paisley. There is Doctor Alisdair MacPherson, Senior Lecturer in commercial law.
And also, another colleague from the university is Vanessa Holmes, who is the university's Legacy Giving Officer. So the idea today will be to discuss certain legal issues to do with succession and also to discuss certain practical aspects as regards the specific context of legacies being given to the university. So I'm going to start with a very basic question, and I'm going to direct this at Roddy. What is the law of succession, in brief? The purpose of the law of succession is to enable property to pass from one generation to another when somebody dies, or it could be to enable property to pass from one life partner to another when somebody dies.
It's got nothing to do with the transmission of titles like king or queen. It's a type of law that can affect almost everybody. So as long as you die with something being owned by you, the law of succession potentially will apply to you. Excellent. And in Scotland, the law of succession is a compulsory part of legal education if you want to qualify as a lawyer.
That's not the case in other jurisdictions in terms of their LLB or equivalent, but in Scotland, it's a subject area that we value highly. It's also connected to the law of property and family law and also the law of trusts, amongst other areas of law. The great thing about the law of succession is that if you are a succession lawyer, it is true to say you have to know more law than just about any other area because when somebody dies, everything has to be picked up. It also deals with debt, for example, and you don't pass your debts onto your successors. That's the great thing about Scots Law.
There's no hereditary debt slavery. You actually just pass your property on. If there's a shortfall and you die effectively a debtor with nothing to pass on, well, that's the end of it. The creditors actually lose out, but the beneficiaries don't have to take on the debt of their parents. Yeah.
There's often a misunderstanding that the family members of the deceased person will have to pay the debts of the deceased but as Roddy says that isn't the case. And another aspect of succession law which we won't talk about in much detail today I don't think is the law of tax because obviously there's the possibility of inheritance tax, which is a significant issue, but we're not going to be delving into that in any great detail in this session. Yes. And on that subject, this is obviously intended for anyone who's interested in the law of succession, but it, of course, is not legal advice. It's just there for interest.
And, yeah, anyone who is interested in the subject will hopefully get something out of this podcast. If I were a student, I would suggest you definitely should study the law of succession because you'll come in contact with other areas of the law, whether it's, as Alisdair said, the law of property or whether it is the law of tax or whether it is the law of debt or any other sort of item that has to be passed on, and you get an insight into other areas of law, a complete overview of just about everything that isn't available in specialist subjects. There's there is a mistake amongst many students who want to study law that they immediately want to delve into what are so called advanced courses. The problem with advanced courses is the range of what they consider gets narrower and narrower. So you know more and more about less and less until you know everything about nothing.
And I would suggest that the law of succession is the best way to get into the law of succession. And the brilliant thing about it is you actually get to know clients far better than you ever would in just about any other subject because people tell you things about what is going on in their life and what they want to achieve. And they get down to the nitty gritty pretty quickly about their family and who's trustworthy and who is not and so on and so on. And their actual values come out pretty quickly, particularly if they want to leave some of their property to good causes, to institutions such as the university or anything else for that matter. That seems a good time...
Yeah. Sorry. That's okay. But I'm actually just backtracking just slightly because I appreciate that I can talk about the university being a charitable beneficiary. But one of the things that I've seen around writing a will, for example, is people worry well, not worry, but, you know, knowing that the Scots law is slightly different in terms of the succession piece.
And it's, I think, something around the, heritable property and things that are not land and so forth. So it's something that you in the law profession would probably be able to answer around that. Yes. Roddy, do you want to respond or shall I go first? You go ahead, Alisdair.
That's fine. Yes. So I mean picking up on both of the points that you've that you, Vanessa and Roddy, have just been making. An interesting aspect about succession law is it's not just a question of identifying and then applying specific rules. In a wider sense, it's a reflection of broader society.
And that means that, for instance, in Scotland, there are differences in comparison to England and Wales. So in Scotland, there is an entitlement that the children and the spouse have, so there's not the possibility of disinheritance broadly speaking. Whereas in England and Wales, there's more of a focus on so called freedom of testation. The idea that the deceased, someone who's writing a will, can determine exactly how their property is to be allocated. And there are certain parties including, the children who do have the ability to go to court if they have been disinherited to argue in favour of receiving inheritance, but it's not an automatic right that they have to that.
Whereas in in Scotland, you have what's referred to as legal rights. So a spouse has an entitlement to, if there are no children, half of the net moveable estate, so that's property other than land. And likewise, if there are children and no spouse, and then if there is a spouse and children, then they each have an entitlement, as a group to one third of the net moveable state. So there is this standard entitlement that they have, whether it's testate succession, so where there's a will, a valid will, or whether there's intestate succession. I will probably come on to some of the technicalities about that shortly.
All right. Roddy, anything you'd like to add. I'd like to use a phrase that you'll find commonly bandied about by advisers, and it's called succession planning. And succession planning is an entire discipline in itself, but it is very, very important. It's basically recognising the fact that the individual who has property is mortal and will die sometime and does have to hand property on. And succession planning takes into account not only the laws that apply at the moment of death and the division that applies then, but also it opens out to people who are generous to give things away whilst they are alive and receive the joy of seeing the person who receives it getting great fun out of it or actually using it for a good purpose. Now succession planning is very, very important for people who have land, and it involves this issue of taxation that we're avoiding scrupulously today.
But it's very, very useful to start thinking about this whilst you're in good shape mentally, and you're not about to go into a nursing home or something like this. You should be doing this. Honestly, even if you think you're going to live to 80, you should be doing this in your sixties. Or earlier. Or earlier, indeed.
Well, I would always encourage people to be not necessarily succession planning, but I guess that what I'm in what my work really involves is encouraging people to write a will. I know that that's very much part of what solicitors do, but you know, it's one of the things that I always encourage as part of my job, and not only to write a will, but then to think about where they want their property to end up, you know, as much say that they can. Clearly, from the position I sit in, I'm looking at people wanting to or potentially wanting to leave a gift to the university in their will. And we are a charity and not always known, because the obvious charities are, you know, Cancer Research, Macmillan, RNLI and so forth. And that's quite straightforward to leave a gift to those charities and people, you know, they have a purpose, an outcome, and it's very easy.
But when it comes to the university, my job is, very varied actually and can be quite interesting. Speaking to people around wanting to leave a gift to the university. Firstly, the awareness of that, and knowing that we are a charity, and then on top of that to sort of guide them gently because obviously I can't have any influence on how they leave what they do in their wills. But, you know, if they've come to me with asking about leaving a gift to the university, then, you know, then I can sort of guide them gently as to how that would look and if there's an area of interest. And you all work in the School of Law, so obviously you'd want any sort of charity, any sort of beneficiary, oh, sorry, any gift heading your way.
And we do encourage that, but, you know, we are looking to the university as a greater good. And, you know, I will speak to anybody around any area and we talk about - there's areas of research, so people are interested in the research that we do at the university. There's areas of, like, students who can't necessarily access university, so the widening participation piece. Now I'm conscious that people might not know what widening participation is but that's very defined by the Scottish government what that means but, you know that that people who basically wouldn't normally access university, so we have people who would support scholarships and things like that. So that's actually supporting our students.
And then we have a wide range of other things such as our we we've been around for five hundred and thirty years. We have a huge collection and an incredible and an incredible inheritance that we want to preserve and people are very passionate about that as well. So we, you know, I end up having great conversations around all sorts of areas and, you know people discussing what they want to leave in their will and you know trying to guide them. And I come to the likes of the Law School if they want to leave something there and I ask your opinion as to you know that sort of thing. So on that subject of people wanting to leave or considering leaving money to the university, what's the process?
How would someone go about doing this? Well, they firstly, hopefully find my name. Mhmm. So there is our website and it is there. To be fair, the website is so complex that they just probably need to search for university gift in will and they'll find it.
And they contact me. And from there, it's me trying to establish what they're looking to do, you know, what they want they want to support. If it's just to the university, it's straightforward. You know, if they've got an existing will, they can add a codicil, and we have a suggested wording. Now I say suggested because we are not lawyers.
We put this together with some advice to be fair and some experience, but, you know, I can provide a suggested wording, to somebody who just wants to leave it to, and we need to know our charitable name and our charitable number, and then that is pretty much the basis of a gift in their will. They can then, you know, and they can go to their solicitor, confirm that it fits within their whole will and it's legally acceptable, et cetera, and then go from there. And what we do encourage is for them to come back to us and tell us that they've done that. And we are - I know it sounds a bit strange because obviously we don't know when a legacy gift is going to come in, but it does help us to understand how many people are leaving a gift and for what purposes. And we can we got the opportunity to thank them, you know, and they get to see what the university is doing.
I keep them informed and so forth. So they become actually part of our - we have a membership circle, that look after all of those that have let us know they've got a gift in their will. And that's straightforward. We - those who want to leave a more specific gift, we encourage people not to leave too specific because if they're writing their will in their sixties, 10, 20, 30 years' time, things change. So we want them to put it into say, for example, they're interested in medical research and they're actually wanting, you know, to leave it to a specific, researcher, you know, who's researching perhaps breast cancer or whatever.
That person may not be around in twenty, thirty years' time. So we you know, I'm fine to say you know, I would encourage them to put, say, breast cancer research. I think that'll always be a priority in the university or just taking it a step back and saying medical research with a preference for cancer. And that and one of the phrases I do encourage is this 'with preference' because it allows the university to understand their wishes, so we understand the person's wishes. We can implement it in some sort of way for it to benefit the university and for us to actually use the gift when it when it comes, because that in itself is can be an issue.
We've had - we do have legacies that have come many years in the past, that we can no longer spend because the purpose is no longer, you know, relevant, and it would cost the university a lot of money to go back to get the Court of Session to change that and, you know, the fund isn't worth enough and so forth. So we want to avoid that because I know that somebody leaving a gift to the university doesn't want it not to be spent. They want it to be spent. Thank you. So this leads us on, I think, to a more general theme in the law of succession, testate succession specifically, which is, well, the hazards of leaving a will.
Do either of you or does either of you have an example of a hazardous area in testate succession, perhaps to do with conditional bequests or perhaps to do with something else? Well, I I'll mention one thing to get it out of the way. Some people want to get some things off their chest as it were when they write a will. And they write in all sorts of comments about the beneficiaries and say so and so was an x y z, therefore, they're getting nothing or whatever. Don't do that.
That actually is defamation. The estate can be sued for damages if you were to do that. So you could end up actually by the back door giving a lot of money to the person you want to get nothing. So please write nothing like that in a will. And in terms of different types of legacy supervision made in a will in terms of what beneficiaries are to receive, there are various types available as Vanessa was alluding to.
So sometimes people will state in a will that everything is to go to a particular person or charity or other organization. That's referred to as a universal legacy. And you also have general legacies, including what are called pecuniary, which is basically a sum of money to go to a particular person. And then your special legacies, which are particular items. And there are pros and cons of these different types of legacy.
And then you also get residuary legacies. So basically anything that's left over after all these other legacies are to be given will go to this particular party. And I think Vanessa as well mentioned that there are some risks involved if it's to be a special legacy, so a particular item or items are referred to. Because a lot can happen between someone writing a will and then actually dying. For instance, the item could be sold or transferred to someone else, in which case that legacy will almost invariably be invalid.
It will be void. A special type of legacy that crops up occasionally, particularly with pensioners, I have to say is that of an animal or a pet. And they are particularly difficult because they you really don't know if the beneficiary would wish a to keep the animal. Many people who'll be listening to this may have seen the film Aristocats, where there was a bequest left to maintain cats, and the butler tried to get the cats out of the way. You can leave bequests for the maintenance of animals, but you've got to leave it in the name of a person with the condition that they look after the animal or an institution.
Now I don't really think that the university would be delighted to receive a bequest of a hundred cows under condition that it would look after those hundred cows for the rest of their days in absolute luxury, but these type of bequests do exist. Now what unfortunately happens, and if you have something as complex as that or you want to set up Rover in a flat somewhere in the centre of Aberdeen, is the beneficiaries are entitled to say no. And they just say we're not having it. We don't want it. In which case, it falls into the law of intestate succession, and there are no conditions whatsoever.
If you really want to leave an animal to be specially looked after, find the person in advance before you die, long before you die, who will do that. And you give the bequest to them on a condition with some sort of suitable reward because that's an onerous position if you're looking after an animal suitably. Should some sort of suitable reward, probably a separate bequest. Just don't expect everybody to be absolutely delighted when they're told that Rover's coming their way. So that may be a good opportunity for us to talk about intestate succession.
So one of the things that the law tries to do, whichever area you're talking about, is achieve fair results but also results which are clear and predictable. And part of the reason for that is if the law is sufficiently clear, practitioners can advise their clients on what the outcome of litigation might be. I was I would be interested to know how the law of intestate succession tries to strike that balance between fairness and clarity, and whether both Alisdair and Roddy, you think it does this effectively? Well, let me disagree with you initially, if you don't mind. Yeah.
I think part of the purpose of the law of succession is not to get everything right. That's deliberate. Mhmm. It can't deal with everybody's particular circumstances. It's not acceptable for people to not make a will and then complain that the law of succession does not do what they want.
The whole point of the law of intestate succession is to give a general attempt at justice. And the very fact that it doesn't achieve perfect individual justice is the incentive for people to go and make a will. It's dead easy to make a will. It's the simplest thing in the world to make a will. It's the easiest document that anybody can make in Scotland at any level.
The law of testate succession is designed so individuals can make a will even in their own bedroom on their own. Now I have to say I wouldn't really recommend that, and I strongly would not recommend it because you can make serious mistakes. But if you think the law of intestate succession doesn't do what you think it's going to do or you can't understand it, and that's quite possible as well. It is complex. Go and get a simple will made.
A simple will is probably only two pages. It could actually say, as regards all my estate, I have four beneficiaries, and I want each to get 25% of whatever is left. It's as simple as that. You should appoint an executor of some sort, probably not a relative. All of this is dead easy, and I would get this professionally done.
I don't get anybody to open the bonnet of my car and just have a go. I'm not going to go to hospital and get somebody with a knife to have a hunt around my kidneys. I would definitely get someone who knows what they're doing. You can do a homemade will. Well, I don't do my own DIY when it comes to removing the floor of the house.
I mean, it's as important as that to get this right. So I'm not agitating for lawyers or some sort of union for lawyers to get them more business. But if you don't get a professionally drawn will, I guarantee I absolutely guarantee it will cost far, far, far more at the end of the day. The worst wills I have seen, and I see them repeatedly, are individuals who start off thinking this is dead easy. Well, it isn't.
It's taken me years to get some idea how the law of succession actually works, and I continually learn more every day because something crops up every day that I have never seen before. Now the really interesting thing in the law of succession is a will is always made before you die. That may sound obvious, but as soon as you walk out that door, the will starts to decay. The longer the period it is before you die, the more out of date the will is going to get, the more irrelevant the will is going to get, the more changes there are going to be. If you're writing a will, you're actually trying to predict what things are going to be like when you die.
Well, the simple answer to is that a sensible idea is nobody knows. So write a will in simple terms, in precise terms as regards your beneficiaries, and don't try anything too smart. There are obviously dangers when someone seeks to buy one of these wills off the shelf. Maybe they go shopping and a newsagent's, they say, okay. Well, I can see on the shelf there there's a will.
I'll buy that. That can be a recipe for litigation, and it's always helpful, I think, to seek some sort of professional legal advice when it comes to these matters. And if there is litigation, of course, then that can mean that the estate is less than it ultimately ends up being. The parties who you want to receive benefits under the will maybe will not get that. There's a danger of the whole will being invalidated, in which case you move into intestate succession.
Mhmm. Because that's the biggest divide that you have in succession law between testate succession where you have a valid will and you have things potentially like codicils, which are subsequent, alterations to the will, and then on the other side where you don't have a valid will or no will has been drafted in the first place. And in terms of intestacy, obviously, to some extent, the law is trying to determine using broad brushstrokes what someone might want to have happened. But in Scots law, it's clear fixed rules. There's no discretionary element when it comes to succession law in Scotland apart from cohabitants' rights.
So when it comes to intestate succession, there's basically an order of priorities to who gets what. And as Roddy was saying, if you don't agree with that and you want to make contrary provision, then you should write a will or have a will drafted for you. In terms of whether the law of intestate succession, for instance, the order of priority is the right one, I'm a little bit negative about the way in which it's currently structured because right at the top of the list, you have what are known as prior rights, and these are rights of a surviving spouse or civil partner, and that will often exhaust the entire estate. So they have an entitlement in terms of property, in which there's been ordinarily, the parties have been ordinarily resident of up to, I think, it's £473,000. They also have a so called plenishings right which is to furniture and plenishings in that home up to £29,000 and they have financial provision up to £89,000 if there are no children or £50,000 if there are children.
And you can see just from these values that I've mentioned that that in most instances will wipe out the entire estate, which will mean that the children and other parties won't get anything. And then you move down and the spouse again has another type of rights, so called relict's right, which is, a special legal right that I mentioned earlier. If there's a cohabitant separately, because someone could have a spouse and they can have a cohabitant, then the cohabitant also has a right. And then only after that do the children or the issue get legal rights, and then you move into what's known as the free estate with children at the top of that order of priority. But by the time you get to that, often there's nothing left. Nothing left.
In the estate. Generally speaking, in Scotland, if you have what you might call an average sized estate, which might be £300,000 or £400,000, if you die intestate, you will disinherit your children If you're married or if you have a spouse, you will disinherit your children. I don't think people realize that, but the policy of the government, to change the legislation in Scotland from the nineteen sixties onward was to give greater priority to the life partner as it were. In other words, the surviving spouse and so on and so on with the result that children frequently get absolutely nothing in Scotland. Now to add what Alisdair said, I agree with everything he's just said, and it's this.
The rulers of intestacy are modelled on some sort of notional Scot. And who is this notional Scot? What are they interested in? Well, if they're married or they have a cohabitant or they have children, well, those people are going to receive something unless, of course, the spouse and the cohabitant scoops the pool. But it's clear as a bell from that statute that the notion of Scot envisaged by the legislation has no interest whatsoever in the outside world.
It's going to give absolutely nothing to charities. If you die intestate, you will give nothing to charity. Worse still, you'll give nothing to your friends. Worse still, if you have stepchildren in your family who are the blood relative descendant of your second wife, for example, or your second husband, that child's going to get absolutely nothing. Now the vast, vast, vast bulk of Scottish people I've met, and with my accent you realize I'm a slight outsider, but the vast bulk of Scottish people I have met are very charitable.
So I find I find the notion that Scottish people are not interested in actually pursuing their dream to allow others to do with their money, something that's really valuable as not only absurd but completely repugnant. So one of the first things I do when I'm acting in any transaction, most solicitors would do the same. If you're going to buy a house, they'll say to you, have you made a will? At anything that's important in your life, if you're getting married, have you made a will? And so on and so on.
It's the big things in your life that happened to you, whether it's to do with property or status or changes of any sort, child being born, have you made a will? Now, Have you updated a will as well? Yeah. Exactly. That's a big thing.
Yes. Indeed. These things change all the time. Now my son's getting married next week. I'm not going to say to him, have you made a will?
But I'm gong to be sure some he will think about that because I've drummed this into him all his life. Mhmm. You should draft one as a wedding present for him, Roddy. And do it for nothing. Well, talking about nothing, the university actually have subscribed to, a free will provider.
And it's not perfect by any means, but the - it's through Bequeathed who, are an online will writing, facility. And, but what I do like, and I did my research as to why we went with the company, was that, they have a lawyer a solicitor, sorry, solicitor, behind it. And, a particular obviously, in Scotland, drafting a free will has to have it under Scots law. So I'm familiar with the solicitor who sits behind this free will option, and I'm very happy that he is there. And it is just for a simple will.
As Roddy and Alisdair have both mentioned, simple wills are the basis, and then you can work from there if you have more complex situations. But it does allow people to at least write a will, and that is a really important everything you've heard today, I think, so far in the podcast is that is the basis. You do not want to die intestate because the law decides how your estate gets divvied up, and you actually want to have some decision making in that. And having a will in place is a really good idea. And so we've done this provider.
We've we've seen people take it up. It's available to all the staff at the university, all our alumni, their spouses, and actually our supporters. It's actually available to anybody actually, but, you know, we encourage it mostly to to the staff and the alumni. So but, yeah, it is there, and it's a starting point. And you don't have to carry on with the existing provider.
You could go on and and carry on with any solicitor going forward. So it's just a starting point, and it's something that I would really encourage people to look at. Just as an aside, when we've been mentioning children in relation to inheritance, this is not just children who are dependents or who are under the age of 16 or 18. This is someone who has the status of a child throughout their life. The child in question could be 80 years old.
So I think it's just important to note that for our listeners so that when we refer to children, they don't think that we're just referring to those who are still children in other senses of the word. Yes. No. It is important to point that out, certainly. Most people these days most people these days inherit from their parents when they are in their fifties or their sixties because their parents live to 80.
But Alisdair's right. In your fifties or sixties, you're still a child, so you could still have these legal rights as such underpinning the will in Scotland. Now please note it's not just a will that's made in Scotland. If you are a Scot in the sense that the law says you're domiciled in Scotland, in other words, this is the closest legal system with which you have a connection. Basically, if you live here for a long time, the law of Scotland will govern the distribution of your moveable estate.
And if you've got a house in Scotland, a house in Scotland, the law of Scotland will govern that immoveable estate, Vanessa referred to as heritable estate. That's the technical Scottish term, but it's possibly better to just envisage it as immoveable. If if I've got a house in Northern Ireland, that'll be governed by Northern Irish law. If I've got a boat in Northern Ireland, that'll be governed by Scots law because it's moveable because I have a Scottish domicile. Now just to correct one thing that may appear in the minds of most people, it's got nothing to do with nationality.
Your nationality is - there is no such thing as a Scottish nationality. You're a citizen of The United Kingdom Of Great Britain and Northern Ireland with a passport or an Irish passport or whatever. You could have two passports, but there's only one legal system that governs your succession. Now this is a highly technical point, but it's pretty important. You don't become a Scot by wandering around with tartan trousers like Rod Stewart or saying you're a Scot and living in New York.
You just don't. You have to have this substantial connection with Scotland, and that is effectively living here. Excellent. Thank you. A question for you now, Vanessa.
What are the duties? What are the duties broadly speaking of the university when they receive a gift? Yeah. We are a charitable beneficiary and so we are governed by charity law. And so we we as, beneficiaries in somebody's estate well, firstly, it's it's incredible that somebody's done that, but, we do we do have to follow the fact that we need to maximize any estate that is coming to us.
So, any income that might be coming to us. And so when it's a pecuniary legacy, now Alisdair mentioned pecuniary, that's a cash sum. We have sort of fairly limited responsibilities. We know that that is coming to us assuming that that there's enough in the estate because that also can sometimes change. And, but yeah.
So assuming there's enough in the estate, we basically receive that income, and we have to use it according to the person's wishes in the will. And sometimes it's just to the University of Aberdeen, and that's fine. So then we can use it as we wish. Well, I say we. The University of Aberdeen can use it as they wish, and it will be for the greatest need at the time that the gift comes in.
But we are still bound by the fact that we need to use it for the university and that's fine. When it comes to, somebody putting some conditions on it, we need to actually follow that. So, you know, I recently have been dealing with an estate that, you know, has left the gift to illuminated medieval manuscripts, the upkeep and restoration of them. And that is quite interesting. It was an old will, something well, I say old, it was about 20 years old, the will, had not been updated and that is what's coming.
So it's coming to our collections, which is fantastic and it's a rather substantial legacy, but, you know, it's it's certainly, I would say our special collections team have to sit down and work out exactly how that can be used and whether we could first, we had to accept, decide whether we could accept that and whether it was something we could use. As as was alluded earlier, Roddy mentioned, you know, accepting it and so forth. So yeah. So we can accept it and we can use it, it's just how. And then the other aspect is as a residual beneficiary. Now we have much more input on this.
While the executors decide how the estate works and and so forth, and how things get, disposed of. We do actually have, an opportunity to see a copy of the will. And on top of that, you know that because we're a residuary beneficiary and by the very nature, that's after all pecuniary legacies are spent and are distributed, sorry, and also any liabilities of the estate, so debts and things like that are spent. So as a residual beneficiary, we we then get what's left basically. And in that case, we we do get an opportunity to see the estate's liabilities and assets, and we need to make sure that there's no expenses going on that that shouldn't be.
So, you know, solicitors have to be careful about their their expenses. Executors sometimes can claim for expenses. You know, so we have to be careful, you know. And also if there's a property involved, which we get quite involved in, There's a property to be sold. You know, the upkeep of that property in good order for it to be in a saleable condition and things like that.
We need to see all those expenses going out and make sure that the solicitor is doing their duty. And so when that, you know, I get an opportunity to to scrutinize the estate accounts and can challenge them. And also, you know, if we're if they're trying to sell a property, we need to make sure that they've maximized the possibility of that sale and so forth. So, yeah, so we as as charity beneficiaries is our ultimate aim is to maximize the income for the charity and the charity's purpose. Excellent.
Thank you. Okay. Now succession is well, it's an old area of law, and it's not known for moving very quickly in terms of law reform. I was wondering if there were any aspects of the law that had changed recently that either of you would like to talk about. Yeah.
Well, as you mentioned, Euan, the principal piece of legislation for succession law is an act from 1964. It has been amended to some extent over the years, and there has also been legislation from last year. So the Trusts and Succession Scotland Act 2024. It's a piece of legislation that's principally about trust law rather than the law of succession. But one particular change that Roddy and I have had involvement in is in relation to creating provision, express provision for the removal of executors who have murdered or otherwise unlawfully killed the deceased, by way of what's referred to as culpable homicide.
And this was a bit of a kind of long running campaign. There were some high profile stories, one of which involved someone from my hometown who had killed his mother. Yet even though he could not be a beneficiary because of long standing rules in Scots law about so called unworthy heirs, he became or sought to become the executor and there has not been a formal attempt to remove him and he was confirmed into that position despite him ultimately being convicted of the murder of his mother. And Roddy was strongly of the view, and I agreed with this, that any appointment of someone who had murdered the deceased as the executor would be void under Scots law. But elsewhere, others suggested the position was somewhat uncertain.
So he has basically remained as executor for the past decade. And so we, along with others who were campaigning on the issue, managed to convince the Scottish government to make provision for this in the piece of legislation that I mentioned. Roddy had previously spoken to the media about this, and we gave written evidence, and Roddy appeared in the Scottish Parliament arguing in favour of such a provision. And now in legislation, there is this provision where someone is being prosecuted for murder or culpable homicide or they've been convicted for one of those crimes, then they are considered to be unfit to be executors and can be thereby removed. There's potentially some residual uncertainty as to whether there remains something at common law in terms of any such appointment being void and maybe other circumstances involving unlawful killing where someone is, their appointment as executor is void, but that's a bit uncertain as the law currently stands.
Roddy, was there anything you wanted to... I I I would just mention this common law power that I am confident that it exists and the classic example of it comes from England where many people listening to this will have heard doctor Crippen who murdered his wife and tried to escape to go to America from England. This is over a hundred years ago, and that great day invention by Marconi radio was used to radio the ship as Crippen and his lover were going to America. They radioed the ship. The American authorities were waiting for Crippen when he arrived in America, and he was promptly shipped back, convicted of murder. But the lesser known aspect of that is Crippen was named in the will as his wife's executor.
Could he take up the role? The law said absolutely not in those circumstances, could he be the executor. There's also another case where a woman who was a member of the reserve forces of the British army in Northern Ireland culpably killed, I think it was manslaughter, in Northern Ireland, her husband then came to Scotland, and she was excluded as a beneficiary and also as an executor. So I'm reasonably confident had these authorities ever been presented to a court in Scotland, they would have said, to someone who wished to become an executor, that sorry you are disqualified because you're repugnant to public morals and public policy that it should be so.
Now, these are the extreme end of things. In general, right at the core of succession. It's absolutely critical that someone who is making a will should choose an executor who is responsible. I wouldn't put an executor into a conflict of interest. I wouldn't choose someone who is a beneficiary also to be the executor. I wouldn't really want the university to become an executor where they're getting a gift.
That, to me, is just going cause a bit of a mess as regards a conflict of interest. Now, conflict of interest doesn't mean that people are going behave badly. It just means you don't want to put them under that pressure that they're acting in two roles in relation to one situation. So you don't do that. Get a professional to become your executor.
If you want relatives to do it, pick more than one. Don't pick two because you could have a deadlock. Pick three so someone has the majority casting vote as it were. If you're making your will in your sixties, don't appoint your spouse, your wife, your husband to be your executor because by the time you die in your eighties, assuming that'd be the case, she or he also will be in their eighties and maybe unable to act. Pick someone from the next generation, who's trustworthy.
Now do you honestly think that you are better at choosing your executor or is some sort of abstract law set in statute in 1964 or the common law before that likely to pick a better person? Well, it's manifestly clear to me. I have a better idea who I can trust. So that is the primary reason. If there's no other reason at all, the primary reason for making a will is to choose someone who can be your executor and do it right.
But I think as well it's important to say that the executor's role is an absolutely vital one because they essentially step into the shoes of the deceased person and take control of the deceased's estate. And then they're involved in terms of administering it, in terms of selling off assets, working out who the beneficiaries are, who's due to inherit, and then distributing accordingly. And also, of course, doing things like paying tax and paying debts before anyone has any sort of entitlement to receive any property from the estate. How easy is it or, is it expensive to get rid of an executor? Oh, yes.
Again, it's you mentioned the Court of Session before. You can go to the sheriff court to do this, but again, all of this is wasted money. I would most definitely prefer the beneficiaries to receive the benefit of the estate rather than fees to go with court fees or lawyers fees or anybody else's fees. I'd much prefer the beneficiaries to get the full measure of what they are entitled to do. You can write complex wills about saying you will be an executor only if you have the following qualifications.
You can do that. Generally, I don't favour that. It's character I'm after. Mhmm. You want someone who's honest.
Because if someone who's honest who realizes they can't carry out the technical things, well, they just employ an accountant or a solicitor or somebody else to do the particular technical things for them. It's honesty, integrity, decency, getting out of bed in the morning, someone who's reliable, who just won't leave it lying under the desk. And I trust people more than I trust systems. So choose the person I give you. If you're picking a wife or a husband, you don't go down to a statute and say who's the most eligible.
You just look at the character and it's the same with an executor. And of course, succession law generally is a ripe forum for families to fall out with one another. Yeah. And possibly explains why it's often a plot device in films and TV shows where someone eventually comes outwith the will and reads it and then there's kind of panicked looks and people throwing their arms up in the air and arguing, sometimes even fighting with one another. And going back to what you were saying earlier, Euan, about reform, I think the prospect of broad, deep reform of this area of law is quite unlikely at the present time.
In recent decades, organisations like the Scottish Law Commission have made suggestions as to how the law could be reformed, including in terms of what we referred to before as legal rights, either in terms of children, limiting it to those who are dependent, or alternatively, giving them a share of the whole estate because it's rather artificial at the moment that they only have this entitlement in relation to the moveable estates because there are ways in which a deceased person could get around that. For instance, you can make investments in land rather than in, financial investments, for example. And it's also artificial because let's say rather than you holding or owning the land yourself, if you own it through a company, you actually have an interest in the shares and the shares are moveable. And therefore, that would actually fall under the, part of the estate that could be subject to, legal rights. So, yeah, there are certain issues with the law, but I think the difficulty is that there's no agreed consensus as to how it should be changed.
So as a result, we are currently left with it as it is. One change that is presently being contemplated, not in the substantive law of who gets what, but in how you actually make a will, is whether or not there should be electronic wills. At the moment in Scotland, you can only make a will effectively, I've got to say just on paper. Not quite that, but it has to be in writing. Mhmm.
You can actually write the will on the wall if you want or on a table, scrape it with a nail, but that's still in writing. But it it's almost certainly the case. Lawyers like a certain edge of doubt, but there's almost certainly the case that you can't write a will on a laptop and not print it off or on your phone and not print it off. So if you're writing a will at 11:00 at night because you're not feeling great and you're typing up a draft on your laptop, you've got to print it out and sign it. And then get a witness as well.
So make sure you print it out if you're doing that. But by and large, these machines are great for drafts, great for ideas, but you have to print it out. The last thing in the world you want to do is go on to the internet and download something from a different jurisdiction. Now, many people who are from abroad, who go abroad and are very successful would like to leave a gift to the university. Yep.
Now, I would always say to them, my recommendation to you is go and get some advice from a local lawyer. Don't go into the web and just pick anybody at all. Get a local lawyer. If they need to print it off, fine. There are one or two jurisdictions in the world that allow electronic wills.
There are not many of them. So get a local lawyer to print it off and you will be in safe hands. One interesting aspect of that part of the law I find is, although as you said earlier, you can make a will from your bed if you want to, although you've also made it very clear that's not a good idea, one of the reasons why it's not a good idea is you need the will to be witnessed for it to have so called self proving status. This ties in again with something you were talking about Vanessa which is expenses and not wanting your estate to be depleted by court expenses. Yeah.
And as far as I understand, one sure-fire way of doing that, of depleting your estate or diminishing it, is not getting your will witnessed because it will then have to be set up in court.
I have a broader question for both Alisdair and Roddy.
So if there's anyone listening to this who's maybe contemplating a law degree, maybe contemplating working as a solicitor in years to come and perhaps even in the law of succession, why should they consider doing a law degree, and why is succession a particularly interesting area? I would recommend doing a law degree for all sorts of reasons. It gives you an insight into life and it gives you an insight into people. Strangely enough, I would recommend you do a law degree because it's great fun. It really enables you to think.
It's unlike most other jobs that you'll come across. It's not just form filling. Succession, why would I recommend it in particular? But maybe I could tell you a very quick story. Every year I set exams for my students in the law of succession, if there are 250 students, five of those students will come up with an answer that I didn't even think of.
And that's the amazing thing about the law of succession. It's full of surprises. If you know, it makes it quite difficult to give advice to clients on some occasions. What's going to happen next is the worst question you can get as a lawyer because it involves people. But it is extraordinarily interesting working in the law of succession, and it's a tremendous privilege that people would come to you for advice on something that is troubling them, something that is really important to them, and something where they're actually putting in some senses, in some limited senses, the prosperity of their family and the people they love in your hands, and you've got to give advice.
Now this is where you don't act like a smart aleck. That's the worst thing you'd possibly do. Try to be too clever. This is why I've repeatedly said make a simple will. Try and keep things relatively straightforward, and you'll get far, far more out of life and you'll enjoy your legal career.
As listeners will hopefully have gathered from today's podcast, there are all sorts of practical, doctrinal, policy, historical issues concerning succession law, which we hope are of interest. And I think there are lots of opportunities for people to explore this area in more detail. There are also ways in which succession law interacts with other areas of law, including emerging areas, things like digital assets. So how do you deal with such assets, including things like cryptocurrencies, but also like email accounts and stored photographs, once someone dies. There are lots of different avenues that can be explored in this area.
My sister actually is a practising solicitor in this area as well, so my family has a direct interest in the practice of succession law. So, yeah, I would definitely recommend that those who are interested to get in touch with us, including if they're interested in undertaking a postgraduate research degree, a PhD even in this area, would certainly be happy to discuss such matters with them. Can I just add to something to that? I have to say from not being legally trained, I have found it a fascinating, part of my career effectively getting involved in estate administration, which I do. And I have learned an incredible amount, and I'm I am truly humbled when people come to me to ask how, you know, that they want to leave a gift in their will to the university and how trusting they are and how much they are how many things they ask and things like that.
And I find it fascinating, the whole legal aspect of it, as well as that trust that somebody is coming to have a discussion with me about that. And I end up being taken on a journey with them. I think Roddy mentioned that sort of, you know, the trust of that personal stuff that they were talking about, and that is fantastic. And I actually you know, if I wasn't the age I am now, I would probably go and do a law degree because I think it's fascinating. So it's something.
And actually in this area because I also found it really fascinating. So, you know, I'm not saying that's an advert for it, but I just think it's a really interesting area. People don't understand well enough. So Okay. Thank you very much, Vanessa, Alisdair, and Roddy.
Thank you. Thank you very much. Thank you.