Claims by cohabitants on intestacy in Scotland (Private Client)FORTHCOMING CHANGE: The Trusts and Succession (Scotland) Act 2024 received Royal Assent on 30 January 2024, marking the first review of trusts law in Scotland in over 100 years since the principal legislation, the Trusts (Scotland) Act 1921, was passed. Some provisions relating to succession law came into effect on 30 April 2024, while others are not yet in force. The main changes to modernise the law are summarised in News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes on areas of Scottish trusts and succession law will be updated further to reflect this new legislation.This Practice Note discusses the provisions under section 29 of the Family Law (Scotland) Act 2006 (FL(S)A 2006) relating to the right of a surviving cohabitant to apply to the court for an order for payment from an intestate estate in Scotland. The court has discretion as to whether or not to grant an award where an application is made.The provisions apply to same or mixed sex couples, but only apply on intestacy or partial intestacy. A surviving cohabitant has no claim where the deceased left a valid Will, regardless of the terms of that Will.Succession legislation: generalThe Succession (Scotland) Act 1964 (S(S)A 1964) provides the scheme of division of an intestate estate in Scotland. It lays out a hierarchy of division, and gives spouses/civil partners and children rights to inherit particular assets.See Practice Note: Application for confirmation in Scotland—intestate cases.FL(S)A 2006 does not amend S(S)A 1964. Rather, it creates parallel provisions. The court has discretion as to whether to make an award to a cohabitant, and the nature of such award. When FL(S)A 2006, s 29 is applied, an order may have the effect of reducing or excluding claims under S(S)A 1964 and, particularly, may reduce the amount available to children of the deceased.FL(S)A 2006 came into force on 4 May 2006. The legislation created new rights in Scots law for cohabitants. As well as a right to apply where a cohabitant dies, the Act also provides for a claim for financial provision to be made when cohabitants separate. The definition of ‘cohabitation’ is common to both situations.Another point to note is that FL(S)A 2006, s 3 has largely removed the possibility of ‘irregular marriage’ in Scotland. There remains the possibility of marriage by cohabitation with habit and repute, but it is limited to situations where the cohabitation pre-dated the enactment of the legislation. Irregular marriage was mainly declared by the court for the purpose of creating spousal succession rights, or to allow financial provision on separation. FL(S)A 2006 may provide a financial remedy for a cohabitant, without such action.See Commentary: Marriage by cohabitation with habit and repute: Stair Memorial Encyclopaedia [533].Definition of cohabitationA cohabitant is defined as either party to a relationship in which two persons (of different sex or the same sex) are or were living together as if they were married, or two persons of the same sex who are or were living together as if they were civil partners.Section 25(2) sets out factors which the court should have regard to:•the length of the period during which the two persons lived together•the nature of their relationship during that period, and•the nature and extent of any financial arrangements subsisting, or which subsisted, during that periodThese factors are not exhaustive. No minimum duration is specified. There have not been many reported cases. A couple living together for 12 months was taken to suffice in Harley v Thompson 2015 Fam LR 45 (not reported by LexisNexis®), when considered together with the other factors. Obiter commentary suggests that shorter periods of living together may not create a cohabiting relationship.Applications under s 29Section 29(1) provides that the deceased must have died intestate, or partially intestate. The applicant must have been domiciled in Scotland and must have been cohabiting with the deceased immediately before the deceased’s death.Applications must be made within six months of the date of death, under FL(S)A 2006, s 29(6). The meaning of ‘application’ is not specified in the legislation and for the purposes of time bar the safest option is to have the claim raised and also served within the deadline. The tight deadline currently has only a very limited scope for extension, in instances of cross-border mediation (FL(S)A 2006, s 29A). Once in force, section 78 of the Trusts and Succession (Scotland) Act 2024 (TS(S)A 2024) will amend the provision so that the period is 12 months rather than six months.The application may be made to the Court of Session but would more usually be made to the sheriff in the sheriffdom in which the deceased was habitually resident. If that is uncertain, the application would be made to the sheriff at Edinburgh.The application names the executor as a defender. The applicant will require legal representation independent from any firm advising the executors.Problems may arise if no executor has been appointed, which might be done deliberately to attempt to frustrate a claim. In such a case, an action for decree cognitionis causa tantum may be raised against the deceased’s heirs on intestacy and then, in the absence of an executor, to seek confirmation as an executor creditor.Proceedings must be intimated to all parties with a potential claim on the estate. This can create conflicts of interest, particularly for a surviving cohabitant also seeking to secure the interests of children under the age of legal capacity. An alternative family member might be able to act as a child’s legal representative, or a curator should be appointed.In practice, the tight deadline often leads to actions being raised close to the deadline and then sisted, pending negotiation. Most claims are settled without proof.Orders under s 29The surviving cohabitant has the right under FL(S)A 2006, s 29(2) to apply to court for a payment of a capital sum, or the transfer of property (heritable or moveable) out of the deceased's net intestate estate. See Mackenzie v Mackay 1989 SLT 810 (not reported by LexisNexis®) and Wilson & Duncan, Trusts, Trustees & Executors 2nd edn Ch 35 (not reported by LexisNexis®).FL(S)A 2006, s 29(10) provides the definition of ‘net intestate estate’, being the estate after payment of inheritance tax, debts, and prior or legal rights of a spouse or civil partner. This means that the cohabitant claim ranks ahead of legitim claims by children.Kerr v Mangan confirmed that heritable property outside of Scotland should be excluded from the net intestate estate, for the purposes of a section 29 claim.Any order is made at the discretion of the court, having regard to matters including those set out in FL(S)A 2006, s 29(3). These are:•the size and nature of the deceased's net intestate estate•any benefit received, or to be received, by the survivor (i) on, or in consequence of, the deceased's death and (ii) from somewhere other than the deceased's net estate•the nature and extent of any other rights against, or claims on, the deceased's net intestate estate, and•any other matter the court considers appropriateThe size and nature of the estate would appear to be relevant where there is a surviving spouse/civil partner or children, but the court is directed to consider the competing rights. The appropriate balance between applicant and children was considered in Windram 2009 Fam LR 157 (not reported by LexisNexis®).‘Other matters’ may include financial inter-dependence.In Savage v Purches 2009 SLT (Sh Ct) 36 (not reported by LexisNexis®), the court rejected a claim by the survivor because a substantial pension benefit, outwith the net intestate estate, had already been paid to them as a result of the death.Importantly, FL(S)A 2006, s 29(4) makes it clear that the surviving cohabitant is not entitled to a larger amount than they would have been entitled to if the parties had been married or in a civil partnership. In this respect, the new provisions in TS(S)A 2024 are important in an intestate estate where the deceased is not survived by issue. TS(S)A 2024, s 77 amends the hierarchy of succession in S(S)A 1964, s 2, inserting paragraph (ab):Subject to the following provisions of this Part of this Act-where an intestate is survived by children, they shall have the 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 the right to the whole of the intestate estate; ...The change is in force for deaths on or after 30 April 2024, and is more generous to spouses and civil partners than the previous position where their rights were limited to prior rights (and the ‘ordinarily resident’ requirement for the dwelling and plenishings) and the relict’s right, and a claim on the free estate only where there were no close blood relatives who ranked above them in S(S)A 1964, s 2. A side effect of this change is that cohabitants will now also be able to potentially access the whole estate where there are no surviving children, albeit that their award is always subject to the discretion of the court.The discretionary nature of the award, and variable factors to be considered, make advising the estate or the cohabitant about the likely outcome very difficult. In a contentious and/or large estate, it is worth seeking counsel’s opinion. Advocates working in this area tend to be most up-to-date on how the sheriffs are deciding such matters in practice and what ‘other matters’ may be relevant in a particular case.Criticism and proposals for change The Scottish Law Commission, in its 2009 report, criticised the lack of guidance given to the courts in exercising their discretion under FL(S)A 2006, s 29. The legislation gives no indication of the principles and purpose of the award, nor the weight to be given to competing family interests.It may be noted that the Scottish Law Commission is examining FL(S)A 2006, ss 25–28 as part of their tenth programme of reform. Their focus is primarily on the financial provision for separating cohabitants, but they will be considering the definition of cohabitant in FL(S)A 2006, which is also the definition for FL(S)A 2006, s 29 succession claims.The Scottish government has previously been hesitant to act on succession due to the divided opinion on potential changes. The amendments to succession law in TS(S)A 2024 are limited in scope. For the most part the legislation focuses on trusts and not succession matters. The longer deadline for FL(S)A 2006, s 29 claims will be an improvement, but this is not yet in force.This content is produced in partnership with Scots law experts and is reviewed and updated periodically by its authors to reflect changes in law and practice.