Sunday, January 2, 2011

New Developments in UK Succesion Law

NEW DEVELOPMENTS IN UK SUCCESSION LAW

Hilary Hiram
It is clear that the main developmental trend of the law of succession within the UK, in terms of both enacted legislation and current law reform projects, reflects what Puelinckx-Coene in the General Report to the Sixth European Conference on Family Law refers to as a shift from the ‘logic of blood’ to the ‘logic of affection’. The general trend has been towards enlarging the rights or claims of adult partners of the deceased and reducing those of children, the rationale being that adult partners require increased protection from disinheritance while the welfare of children is primarily the responsibility of their surviving parent or carer. The trend is also explained as reflecting the ways in which most adults would wish their estates to be distributed as result of changing family patterns, changing expectations and changing ideas of entitlement. Reforms have not only widened the range of entitled or potentially entitled persons but have also increased the size or value of the share to which they are entitled. In England and Wales and Northern Ireland, it seems likely that, the framework of entitlement having been established by previous reforms, any further reform will be aimed towards increasing the value of claims. Since reform in Scotland has moved at a slower pace than reform in England and Wales and Northern Ireland, it is likely that the Scottish proposals will be more far-reaching and extend not only the value of claims which may be made but will also change their basic framework. In relation to testate succession and protection from disinheritance, the discretionary basis of the common law systems of England and Wales and Northern Ireland has given rise to a far stronger degree of protection to adult partners of the deceased than is available in Scotland. This situation is currently being reviewed under the current programme of law reform in Scotland (Seventh Programme of Law Reform (Scot Law Com No 198) 2005 ), but unless the underlying basis of the law is changed to the extent that either the system of fixed shares or the automatic entitlement of children is abandoned entirely, it seems likely that the disparity in the positions of surviving adult partners in each jurisdiction will remain. http://www.ejcl.org/103/art103-7.pdf
 
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