[2014] CSIH 69

Lady Smith

Lord Drummond Young

Lord McGhie







in the cause





Pursuer and Appellant;






Defenders and Respondents:





Act:  MacColl;  Anderson Strathern LLP

Alt:  Leighton; Russel + Aitken LLP (Second Defender and Respondent)


25 July 2014


[1]        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[1], 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. 


The Issue
[2]        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.


Background facts
[3]        The facts were not disputed. 

[4]        The deceased was domiciled in Scotland and lived in Scotland. He died intestate.  The first to fourth defenders are the deceased’s children and are his nearest surviving relatives.  There was no surviving spouse; he was a widower.  The requirements of section 29(1) of the 2006 Act were, accordingly, met and so the court had power to make an order to the appellant for payment of a sum of money, or for transfer of property, out of the net intestate estate of the deceased.  It is self-evident that the court could not do so if there was in fact no net intestate estate.

[5]        The estate belonging to the deceased at the time of his death was:

  • An account with the Royal Bank of Scotland with a credit balance of £8,592.05;
  • An account with the Ulster Bank with a credit balance of 4,708.16 euros; and
  • Four small plots of land and a bungalow in Roybingham, County Mayo, together worth not less than 200,000 euros in January 2009.

Debts due by the estate were:

  • Funeral expenses of £6,052.23;
  • Capital Acquisition Tax (an Irish tax) of 23,067.23 euros;
  • Interest on a further Irish tax liability amounting to 9,899 euros;
  • An account for agricultural services in the sum of 272.05 euros; and
  • Fees for the administration of the deceased’s estate in Ireland amounting to 5,383.42 euros.

If the Irish land and buildings are excluded from the calculation of the net intestate estate, the debts would exhaust the moveable property and there would no assets from which an order under section 29 of the 2006 Act could be made.


The Family Law (Scotland) Act 2006: provision for surviving cohabitants
[6]        The answer to the issue in this case depends on the meaning of section 29.  Before examining its precise wording, however, it is important to understand the broad context of the legislation.  Before the 2006 Act came into force, a deceased’s cohabitant had no right to claim on an intestate estate.  Likewise, neither cohabitant could seek any form of financial provision from the other if their relationship came to an end during lifetime.  The provisions of the 2006 Act enabling such claims to be made have, accordingly, been referred to as being novel[2].  They are. 

[7]        The long title of the 2006 Act states that it is “to make provision conferring rights in relation to property, succession and claims in damages for persons living, or having lived together as if husband and wife or civil partners”. 

[8]        As regards “persons living”, section 28 of the 2006 Act entitles a cohabitant to apply to the court for payment of a sum of money by his or her partner where their relationship has come to an end other than by death. When considering what award to make, the court has to take fair account of the economic advantage derived by either party from the contributions by the other and the economic disadvantage suffered by either party in the interests of the other; those provisions are instantly recognisable as reflecting one of the five principles that apply to the determination of a claim for financial provision on divorce[3]. The court has to approach the task set for it by section 28 in the manner explained by the Supreme Court in the case of Gow v Grant 2013 UKSC 29, that is, looking at matters broadly and applying an underlying principle of fairness.

[9]        Section 29 of the 2006 Act is different.  It provides for what may happen where one of two cohabitants dies intestate:

29        Application to court by survivor for provision on intestacy


(1)     This section applies where¾

               (a)   a cohabitant (the ‘deceased’) dies intestate; and

               (b)   immediately before the death the deceased was¾

                             (i)   domiciled in Scotland; and

                             (ii)  cohabiting with another cohabitant (the ‘survivor’).


(2)     Subject to subsection (4), on the application of the survivor, the court may−

               (a)   after having regard to the matters mentioned in subsection (3), make an order¾

                             (i)   for payment to the survivor out of the deceased’s net intestate estate of a capital sum of such amount as may be specified in the order;

                             (ii)  for transfer to the survivor of such property (whether heritable or moveable from that estate as may be so specified;

               (b)   make such interim order as it thinks fit.


(3)     Those matters are¾

               (a)   the size and nature of the deceased’s net intestate estate;

               (b)   any benefit received, or to be received, by the survivor¾

                             (i)   on, or in consequence of, the deceased’s death; and

                             (ii)  from somewhere other than the deceased’s net intestate estate;

               (c)    the nature and extent of any other rights against, or claims on, the deceased’s net intestate estate; and

               (d)   any other matter the court considers appropriate.


(4)     An order or interim order under subsection (2) shall not have the effect of awarding to the survivor an amount which would exceed the amount to which the survivor would have been entitled had the survivor been the spouse or civil partner of the deceased.


(5)     An application under this section may be made to¾

               (a)   the Court of Session;

               (b)   a sheriff in the sheriffdom in which the deceased was habitually resident at the date of death;

               (c)    if at the date of death it is uncertain in which sheriffdom the deceased was habitually resident, the sheriff at Edinburgh.


(6)     [ Subject to section 29A, any ] application under this section shall be made before the expiry of the period of 6 months beginning with the day on which the deceased died.


(7)     In making an order under paragraph (a)(i) of subsection (2), the court may specify that the capital sum shall be payable¾

               (a)   on such date as may be specified;

               (b)   in instalments.


(8)     In making an order under paragraph (a)(ii) of subsection (2), the court may specify that the transfer shall be effective on such date as may be specified.


(9)     If the court makes an order in accordance with subsection (7), it may, on an application by any party having an interest, vary the date or method of payment of the capital sum.


(10)   In this section¾

            ‘intestate’ shall be construed in accordance with section 36(1) of the Succession (Scotland) Act 1964 (c.41);

            ‘legal rights’ has the meaning given by section 36(1) of the Succession (Scotland) Act 1964 (c.41);

            ‘net intestate estate’ means so much of the intestate estate as remains after provision for the satisfaction of¾

                    (a)   inheritance tax;

                    (b)   other liabilities of the estate having priority over legal rights and the prior rights of a surviving spouse or surviving civil partner; and

                    (c)    the legal rights, and the prior rights, of any surviving spouse or surviving civil partner; and

            ‘prior rights’ has the meaning given by section 36(1) of the Succession (Scotland) Act 1964 (c.41).


[10]      It is significant that the court’s power is to order that payment be made to the applicant “out of” the deceased’s net intestate estate and/or by way of property being transferred “from that estate”.  The mechanism envisaged is, accordingly, that the executor-dative will be directed by the court to make a monetary payment from the estate that is being administered or to transfer some part of that estate to the applicant.  There is no restriction on what type of property can be transferred but it must be property which the executor- dative has power to transfer to the applicant.  The wording is of sufficient width to permit the transfer of land as well as the transfer of moveable property. 

[11]      Turning - as section 29 directs one to do - to section 36(1) of the Succession (Scotland) Act 1964 (“the 1964 Act”), when construing “intestate”, “legal rights” and “prior rights”, the following can be identified:

  • “intestate” is to be construed in accordance with the definition of “an intestate” which means a person who has died leaving undisposed of by testamentary disposition the whole or any part of his estate ;
  • “legal rights” means jus relicti, jus relictae, and legitim;and
  • “prior rights” in relation to a surviving spouse or civil partner means the rights contained in sections 8 and 9 of the 1964 Act to a dwelling house, furniture and financial provision(to the maximum values set from time to time by secondary legislation).

[12]      Section 29(10) of the 2006 Act does not refer across to the 1964 Act for a definition of “net intestate estate” but it seems likely that that is because the definition of “net intestate estate” that appeared in the 1964 Act was not apt for adoption into the 2006 Act; it did not mention the prior rights of a civil partner.

[13]      Some indication of the background to the provisions can be found by looking firstly at the outcome of the research carried out by the Scottish Law Commission (“SLC”) referred to in their Report on Family Law (Scot Law Com No 135, 1992).  Following consultation and a survey of public opinion, they had concluded that there was a strong case for some, albeit limited, reform of Scottish private law to enable cohabitants to benefit financially on the termination of their relationships whether in life or on death.  Caution seems to have been the watchword because, as Lord Hope observed in paragraph 4 of his judgment in Gow v Grant : “There was a respectable body of opinion that it would be unwise to impose marriage-like legal consequences on couples who had deliberately chosen not to marry.”  At paragraph 16.26 of their report, the SLC stated:

“It is clear from the results of our consultation and public opinion survey that there is considerable support for giving cohabitants some succession rights on intestacy. Beyond that, however, no clear pattern emerges.”


Fixed rules were not the answer; the SLC recommended:



83. Where a cohabitation is terminated by death the surviving cohabitant should not have automatic rights of intestate succession or fixed rights to a legal share of the deceased’s estate but should be able to apply to a court for a discretionary provision out of the deceased’s estate under a scheme of the type set out in paragraphs 16.31 to 16.36.”


[14]      Secondly, I should refer to a passage in a written response to the Justice Committee’s Stage 1 Report on the Bill by the Deputy Minister for Justice, Hugh Henry because it was relied on by counsel for the appellant as showing that there was, underlying section 29, a general principle of fairness.  The response was provided in August 2005 and the Deputy Minister said:

“Our focus in policy terms is therefore on those cohabiting relationships which offer some evidence of the parties’ commitment to a joint life. It is that evidence that justifies a remedial intervention by law, the application of rights and obligations by the parties towards one another, and the redistribution of certain of their property. At the same time, however, we think it would be wrong to impose on cohabitants a legal requirement to support one another financially during the relationship; we can never know why people have not married and chosen not to incur that responsibility and in the absence of such knowledge we believe an obligation of mutual aliment would be unjustifiable. Our sense of a fair and just outcome when committed cohabiting relationships come to an end involves setting a framework for compensation where one partner can show that they have suffered net economic disadvantage in the interests of the relationship.”


[15]      Lord Hope, at paragraph 28 of his judgment in Gow v Grant, relies on it in support of an observation that the Deputy Minister was referring to the need for the law to provide a framework for a “fair remedy” when committed relationships founder “or the parties to them are separated by death.”  However, the provisions of section 29 of the 2006 Act do not – unlike those in section 28 - direct the court to consider whether either cohabitant suffered economic disadvantage or say anything about affording compensation to a surviving cohabitant.  Accordingly, either the Deputy Minister’s comments were in fact intended to relate only to the proposals for financial provision for cohabitants where the relationship is terminated other than by death, or matters changed. The latter may be the correct explanation since the SLC report No 135 did suggest that relative economic advantage/disadvantage might be taken into account by the court where the cohabitant’s claim arose on death[4] although, ultimately, that part of the recommendation did not find its way into the Act. 

[16]      Thirdly, for the same reason, I should refer to part of what was said by the Minister for Justice, Cathy Jamieson, when she spoke in the relevant debate in the Scottish Parliament, on 15 December 2005. She also referred to redressing net economic disadvantages suffered and ensuring that “one partner compensates the other for any net economic disadvantage that has resulted from the relationship that they formed together and that they will share the cost of caring for their children” so as to afford “fairness to both parties, while respecting their right to live as they choose without the Government imposing other financial obligations.” (Official Report, col 21922, as referred to by Lord Hope in Gow v Grant at paragraph 30).  However, the references were all to lifetime termination of cohabitation. The Minister’s observations cannot sensibly be read as referring to what was to happen on the death of a cohabitant when other considerations arise including, significantly and importantly, the competing interests of other family members.

[17]      Otherwise, there are the terms of section 29 itself.  They provide little, if any, indication of underlying principle.  The factors specified in subsection (3) are obvious but limited and the ability to have regard to “any other matter the court considers appropriate” gives no useful guidance at all.  Matters which might have been considered relevant, such as the length of cohabitation, the nature and extent of the surviving cohabitant’s own assets or marital status, the terms of any prior agreement entered into by the cohabitants, the interdependence of their finances, the needs of the surviving cohabitant, the interests of children, whether those interests should vary according to whether or not they are children of both cohabitants, the quality of the cohabitation, the nature and extent of any services provided by the surviving cohabitant, whether or not there was an intention to marry or to what extent it could be said overall that the surviving cohabitant deserves to have the benefit of being treated in the same way as a surviving spouse or civil partner, are not mentioned. A comparison can be drawn between it and the provisions of sections 2 and 3 of the Inheritance (Provision for Family and Dependants) Act 1975. Those provisions specify a detailed list of matters to which the courts in England and Wales must have regard when making provision for certain family members, including cohabitants, where a will or the law of intestacy fails to do so, in the exercise of what has been referred to as a “vigorous jurisdiction”[5] which seems to be demonstrably needs based[6]. As was observed by the SLC in their subsequent Report on Succession (Scot Law Com No 215, 2009), at para 4.3:

“The only express guidance is that the award cannot be greater than the amount the applicant would have received if she had been the deceased’s surviving spouse or civil partner rather than cohabitant.”


The provision for that “cap” under reference to the entitlements of a spouse or civil partner does not seem to help when it comes to trying to identify the correct characterisation of the purpose of the award.  It would be broadly consistent with a needs based approach, a compensation based approach, a ‘presumed intention’ approach, a purely pragmatic approach or, indeed, any other approach, so far as underlying principle is concerned. Even if the cap were to be interpreted as indicative of an approach which, at one end of the scale, enables the court to put the surviving cohabitant in as good a position as a surviving spouse/ civil partner either is or would have been, that does not equate with seeking to achieve fairness as between cohabitants since the intestate succession rights that accrue to a surviving spouse or civil partner have nothing to do with making fair provision. Depending on the circumstances of the marital/partnership relationship prior to death and of the survivor’s own finances, that entitlement may, in some cases, seem to be far from fair.

[18]      In the end of the day, the court’s discretion is so unfettered as to make it extraordinarily difficult, if not impossible, to predict accurately what may be the outcome, at first instance, of an application under section 29.  Further, on appeal, whilst recourse could no doubt be had to Wednesbury principles, it seems likely that the conclusion, on that approach, would have to be that the range of reasonable judicial responses to such an application must be a very wide one indeed.

[19]      So it is that, in their Report on Succession, the SLC stressed that section 29 has given rise to much genuine concern and made further proposals which would involve a repeal of section 29 and its replacement with a new structured scheme based on the principle that a cohabitant must have “earned” the right to a share in the intestate estate.  Whether or not that is the right principle to adopt as a matter of policy is not for the court to say. It is a matter for the Scottish Parliament.  It is, however, clear that something needs to be done. If clarity is to be achieved, the current section 29 needs to be replaced with a provision that gives a clear indication not only of the mischief which it seeks to address but also of the policy underlying whatever solution is adopted.

[20]      All that said, the issue that arises in the present appeal is not incapable of resolution.  To the contrary, as I explain below, it can readily be resolved since the lack of available relevant estate means that no sum can be awarded to the appellant; these difficult questions do not in fact arise. That, however, is happenstance.  They would have to have been addressed if there had in fact been net intestate estate available and, for the reasons explained above, that would not, given the present state of the legislation have been straightforward at all.


Proceedings in the Sheriff Court
[21]      The sheriff made an order for payment to the appellant of the sum of £5,502 on the basis that “the capital payment envisaged by section 29 is not a right of succession but a discretionary claim.”[7] Therefore, the international private law rules applying to heritable property were not relevant; the Irish property formed part of the net intestate estate.  He also apportioned the debts of the estate between the Scottish and Irish estate but parties were agreed that he was wrong to do so.

[22]      The sheriff principal disagreed. He considered that “net intestate estate” required to be interpreted as meaning the net intestate estate that devolves according to Scots law, including Scots private international law and that, therefore, the heritable property in Ireland would be excluded.


Scots Private International Law
[23]      Parties were agreed that, under the rules of Scots private international law, immoveable property abroad is not subject to the Scots law of succession; intestate succession to immoveables is governed, in all respects, by the lex situs[8] - the law of the place where the property is situated.  It is the lex situs which determines whether or not properly is immoveable, whether or not it has fallen into intestacy and if so, to whom it is to pass. It would, accordingly, not be open to a Scottish executor-dative to instruct the transfer of foreign heritable property to a person who would be the heir under the Scots law of intestacy if they would not also be heir under the relevant foreign law, or in any other manner which conflicted with such law. To put it another way, intestate succession to foreign heritable property cannot be determined simply by applying Scots law.


Submissions for the appellant
[24]      Whilst it is accepted that if the heritable property in Ireland were to be excluded from the net intestate estate, there could be no award, the appellant’s position is that it does not fall to be excluded at all; it would be artificial to do so. That is because section 29 of the 2006 Act is not part of the Scots law of succession.  It is an independent and novel statutory scheme: Simpson v Downie. The language of the statute is not restrictive, the court is afforded a broad discretion, and the expression “net intestate estate” is wide enough to include all the estate of the deceased. It is not tied to the definition in sec 36 of the 1964 Act. The sheriff principal ought to have applied a general principle of fairness, as discussed in Gow v Grant; it was unfair to exclude the Irish property from consideration.

[25]      Whilst any order under section 29 would have an effect on the eventual distribution of the foreign intestate estate, it would be a debt on the estate and the impact would be no different from that of any other debt. Debts were not, of themselves, an aspect of the law of succession.

[26]      Separately, the sheriff had erred in his approach to assessment of the cap. In arriving at the sum of £5,502, he had assumed that the award could not exceed the prior rights to which a surviving spouse would have been entitled.  That was wrong.  Section 29(4) fixed the cap at the whole amount to which a surviving spouse would have been entitled and that could always exceed a spouse’s prior rights.


Submissions for the respondent
[27]“Net intestate estate” is a reference to the estate governed according to Scots law, not to the global intestate estate.  That is clear from the title to the 2006 Act, from the fact that the right to apply for an order under section 29 can only arise on death and from the fact that the claim can only be satisfied by a payment from the estate or transfer of property from the estate.  The latter is important; whilst an executor-dative confirmed under Scots law has power to transfer Scottish immoveable property, such an executor has no power to transfer immoveable property situated abroad.  

[28]      Whilst a section 29 order might create a debt that would be due from the estate, that does not matter; the norm is that the death of a deceased does not (apart from funeral expenses) give rise to debts.  The discretionary nature of the right does not present an obstacle.  It would, for instance, within the law of succession be entirely possible to dispense with prior and legal rights on intestacy and rely entirely on judicial discretion, as is the position in England and Wales.  It is instructive to consider the various solutions discussed in the SLC Report on Succession, 1990 (No 124) from para 3.03.  In any event, legal rights are classed as debts on an estate; that does not mean that they are not an aspect of the law of succession.

[29]      The respondent’s position is that, in reality, what the appellant is trying to do is to create a charge over the heritable property abroad but there is no legitimate basis for doing so. There would also be practical difficulties such as obtaining valuations of foreign property and enforcement where the foreign jurisdiction may refuse to recognise a decree which conflicts with its domestic law of succession.

[30]      Passages in the SLC reports 124, 135 and 215  which demonstrate that the approach of the authors to circumstances where cohabitants claimed on termination of their relationship on death, in both the 2006 Act regime and the scheme proposed in the latest report, is that the normal rules of private international law would apply, are also relevant.

[31]      There is no reason not to apply the normal rules of statutory construction, namely that the normal rules of private international law are to be implied: Arab Bank plc v Mercantile Holdings Ltd and Anr [1994] 2 WLR 307.  The appellant’s approach would mean that an order of a Scots court could directly affect the devolution of immoveable property in a foreign jurisdiction. For such a surprising result to have intended, there would require to have been express provision in the statute. 

[32]      Overall, the provisions of section 29 complement those of the 1964 Act.  They emanate from legislation been intended to be only domestic in effect. Simpson v Downie does not conflict with these submissions.  Section 29 gave cohabitants the right to make an application but that does not mean that it is not an aspect of the law of succession. 

[33]      There is no principle of general fairness underlying section 29; the entire discussion in Gow v Grant was about sec 28.  The two sections are differently structured and, in the case of section 29, a power is conferred without identifying any goal to be achieved.  In any event, fairness is not a particularly helpful test - even if it was relevant, that surely could only be when it came to deciding on the level of any award, not as an aid to statutory construction. 

[34]      The sheriff had erred in his calculation of the figure for prior rights. 


Reasons for Decision

The terms of sec 29 and the background to it
[35]      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.

[36]      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.


[37]      I agree that sec 29 creates a jurisdiction which might be termed novel in the sense that it is a new jurisdiction and has empowered the court to order that there be certain distributions made from an intestate estate which the Scots law of succession did not previously permit.  I agree that it provides a procedure whereby an applicant can ask the court to order that some part of the estate be distributed to him or her.  I do not, however, agree with the appellant that the import of that analysis – which was drawn by the appellant’s counsel from the opinion of Lord Emslie in Simpson v Downie -  is that sec 29 is not part of the law of succession or that it simply enables the creation of a debt on the estate. Even if it is right to regard a sec 29 order as creating such a debt, that does not deprive it of being, essentially, an aspect of the law of succession.  The debt can only arise in the context of the statutory extension of the list of potential recipients of distributions from the estate so as to include cohabitants and where there is a surviving cohabitant, the executor will require to allow for the possibility of that person becoming entitled to a distribution of part of the estate if a timeous application is made to the court.

[38]      I also agree that the reference, in the long title of the 2006 Act to making provision relating to succession supports the conclusion that section 29 is an aspect of the law of succession; it is the only provision within the statute to which that part of the long title could relate.


Section 28 not relevant

[39]      Sec 28 demonstrates that a gap in family law was  identified and steps were taken to fill it.  Different considerations apply when considering family law entitlements as exemplified by, for instance, the adoption in section 28 of one of the principles used when determining financial provision on divorce.  That does not, however, mean that section 29 also falls to be regarded as part of family law just as, in the same way, the rights of a surviving spouse on intestacy are not part of family law either.  If not part of family law, the obvious conclusion is that section 29 is part of the law of succession.


What if sec 29 were not to be regarded as part of the law of succession?

[40]      If section 29 is not to be regarded as part of the law of succession, then the normal rules of private international law applicable in succession matters would not apply.  That would mean that a Scottish court had been given the power to order that foreign land be transferred to a cohabitant even if the relevant foreign law provides that it must devolve in a manner which excludes the cohabitant.  In such circumstances, there could be no reasonable expectation of this court’s order being recognised abroad; that also points to the appellant’s interpretation being incorrect. And it points to it being appropriate to adopt the normal tenet of statutory construction, as referred to in the Arab Bank  case, namely that a meaning should be preferred which avoids the creation of a jurisdiction wider than that which is recognised by international law.  


Whether a general principle of fairness applies?

[41]      Turning to the contention that the appellant’s construction should be preferred because it accords with fairness, as discussed above, whilst there is evidence that the principle underlying section 28 is one of general fairness, (Gow v Grant), that evidence does not, I consider, support the same conclusion being drawn in relation to section 29.  Even if it were to be assumed that the intention underlying section 29 is to do with fairness, that would  just raise other questions which are not answered by the current statutory terms.  Fairness as between the deceased and the cohabitant?  Fairness as between the position of a cohabitant and the position of a surviving spouse?  Fairness as between a cohabitant and other members of the deceased’s family?  Are, in fairness, any of the interests of family members to be given greater weight than others?  Fairness according to need?  Fairness according to the law of the foreign jurisdiction where any immoveable property was situated?  Moreover, even if a general principle of fairness of some sort arises, it must surely, I agree, only be relevant when it comes to determining the amount of the award. In any event, even if the concept of “fairness” was able to provide a guide to the application of the court’s power under this section, it cannot  have any bearing on the issue of whether or not the section falls to be construed as forming part of the law of succession.



[42]      For these reasons, the appeal should, in my opinion, be refused.  The issue of whether or not the sheriff erred in his approach to the application of the ‘cap’ does not, in the event, arise but had it done so, I would have been inclined to prefer the respondent’s approach.





[2014] CSIH 69

Lady Smith

Lord Drummond Young

Lord McGhie







in the cause





Pursuer and Appellant;





Defenders and Respondents:





Act:  G MacColl;  Anderson Strathern LLP

Alt:  Leighton;  Russel + Aitken LLP (Second defender and respondent)


25 July 2014


[43]      I agree with the opinion of your Ladyship in the chair that the appeal should be refused.  In my opinion it is clear that section 29 of the Family Law (Scotland) Act 2006 is concerned with the law of succession.  It applies following the death of a cohabitant, and applies to the deceased’s intestate estate.  It empowers the court to order payment of a capital sum out of the intestate estate to a surviving cohabitant.  Those features, which are central to the operation of the section, indicate that it is concerned with the disposal of a person’s property following his or her death.  That is the essential function of the law of succession.

[44]      The alternative argument was that section 29 provided for a special regime that was independent of other legal categories, and that it accordingly fell outwith the private international law rules governing succession.  I find that an unattractive argument.  Few, if any, legal categories are self-contained;  in almost any area of law it is necessary on occasion to supplement the rules proper to that area with rules derived from other parts of the law.  Thus an issue of succession may require reference to the rules of family law.  Private international law provides excellent examples of this.  When, for example, the facts of a case disclose a contract or an issue of personal law that affects more than one jurisdiction, the rules of the domestic law of contract or law of persons are supplemented by reference to choice of law rules derived from the system of private international law.  This process is sometimes referred to as supplementation by reference.  The advantage of the process is to enable a legal system to operate as a coherent whole, with different areas of the law integrated with one another.  If this were not done, the rules of the legal system would multiply enormously, and its basic intellectual coherence would be largely lost.  Anything that tends in that direction should, I think, be resisted.  The argument for the reclaimer was, however, that section 29 of the 2006 Act should operate without reference to other major areas of law.  That seems to me to be most undesirable.

[45]      I do not consider that the decision in Simpson v Downie, 2013 SLT 178, is in any way contrary to the foregoing views.  That case was concerned with details of the remedy that is available in section 29 and the time limits that apply to that remedy.  It must be read in that context, and I do not think that there was any intention to suggest that the jurisdiction conferred on the court by sections 28 and 29 of the 2006 Act should be regarded as self-contained, wholly independent of general legal categories.  In my view any attempt to construe those sections in that manner would give rise to significant difficulties, even greater than those that have been encountered in the practical application of the two sections.

[46]      I am accordingly of opinion that section 29 must be applied in accordance with the well-established conflict of laws rules dealing with succession.  In applying those rules, it is I think of some importance that individual legal systems vary greatly in their approach to succession.  Some have what are often described as “forced heirship” provisions, whereby substantial parts of a person’s estate pass automatically to defined categories of relative.  Other systems allow general freedom of testation.  The variation is illustrated by the contrast between Scots and English common law.  Scots law made provision for a range of compulsory rights in both immoveable and moveable property: terce, courtesy, jus relictae and relicti, and legitim.  The English common law, by contrast, permitted complete freedom of testation.  While those two systems have tended to move together, elaborate forced heirship provisions exist in the civil codes of various European countries (see Appendix B of the Scottish Law Commission’s Discussion Paper on Accumulation of Income and Lifetime of Private Trusts, DP No 142 (2010), where a number of systems are discussed; in the Spanish Basque Country strong forced heirship provisions and complete freedom of testation exist in adjoining areas).  The rules that apply on intestacy also vary greatly from system to system.  Yet another area where systems have varied to a considerable extent, at least in recent years, is provision for cohabitants.  Against this background of strongly differing legal systems, it is important in my opinion that the private international law rules that apply to succession should be clear and robust, so that it can be determined with certainty which system should govern any particular item of property.

[47]      The rule that applies to immoveable property is well established: succession to immoveable property is governed by the lex situs.  The rule appears to have existed since the sixteenth century; it is stated in Craig’s Jus Feudale, at 3.7.4 (Lord Clyde’s Translation), Vol II, p 1058.  It has been repeatedly restated and reapplied, notably in Macdonald v Macdonald, 1932 SC (HL) 79.  In my opinion that rule governs section 29 of the 2006 Act so far as immoveable property is concerned, with the result that that section only applies to land situated in Scotland;  it does not apply to land situated elsewhere.  That result can be supported by reference to the principle, stated in Arab Bank PLC v Mercantile Holdings Ltd, [1994] 2 WLR 307, that in construing a statute the normal rules of private international law are to be implied.  The fundamental principle, however, seems to me to be wider than a mere rule of statutory construction:  in the application of any rule of the law of succession the private international law rules that govern that area must be used to supplement the domestic law.  That must be done in the present case, and it clearly excludes the Irish land from the property that may be relevant for the purposes of section 29.  So far as immoveable property is concerned, “intestate estate” for the purposes of that section does not include land situated outside Scotland.

[48]      I accordingly agree that the appeal must be refused.  In conclusion, I would like to associate myself with your Ladyship’s observations at paragraphs [17]-[19] about the serious problems that arise in the application of section 29.  The lack of statutory criteria for an award makes the task of the court extremely difficult, as was revealed in the consultations that led to the Scottish Law Commission’s Report on Succession (Scot Law Com No 215, 2009).  In my view reform of the law in this area is clearly desirable.


[2014] CSIH 69


Lady Smith

Lord Drummond Young

Lord McGhie



in the cause





Pursuer and Appellant;




Defenders and Respondents:


Act:  G MacColl;  Anderson Strathern LLP

Alt:  Leighton;  Russel + Aitken LLP (Second defender and respondent)


25 July 2014

[49]      I have had the advantage of reading, in draft, the opinions of Lady Smith and Lord Drummond Young.  I am in broad agreement with both and have nothing of significance to add.  I am satisfied that the appeal must be refused.


[1] Family Law (Scotland) Act 2006 sec 29(2) and (10).

[2] See: Simpson v Downie 2013 SLT 178 at para 13 where Lord Emslie refers to “the court’s novel jurisdiction”.

[3] See: Family Law (Scotland) Act 1985 sec 9(1)(b).

[4] SLC no 135 para 16.33.

[5] See: article by Emily Exton and Julian Washington in “Private Client Business” 2008 issue 2 (Sweet and Maxwell).

[6] The approach adopted in England and Wales was rejected by the SLC on the basis that it was a “maintenance based” approach and they did not consider that the Scottish solution should confine itself to maintenance (see SLC Report 135 at para 16.30).

[7] See: Note appended to Sheriff Fletcher’s judgment dated 4 July 2011, at paragraph 42.

[8] See: A E Anton Private International Law (3rd edition) 24.30 -24.32; Macdonald v Macdonald 1932 SC (HL) 79 per Lord Tomlin at p.84-85 and per Lord Thankerton at p. 88.