From the Cradle to the Grave: Politics, Families and Inheritance Law
Edinburgh Law Review, 12 (3). pp. 391-417, 2008
28 Pages Posted: 3 Mar 2017 Last revised: 8 Nov 2019
Date Written: 2008
Inheritance straddles the core institutions of property and family, for it involves the transfer of wealth between family members. Whatever legal framework is adopted to govern inheritance involves political choices. First, and on the assumption that ownership includes the freedom to dispose of property as we wish in life or in death, a position has to be adopted on the extent to which the state will limit that freedom. Secondly, because creating inheritance rules involves conceptualising family life, choices must be made about the merits of particular forms of “family” and of particular relationships within that family. The law selects winners and losers on the basis of those political choices. The Scottish Law Commission’s recent discussion paper on Succession contains proposals for a radical reform of inheritance law. This discussion paper is, therefore, inherently political. This article seeks to evaluate the recent Scottish reform proposals in terms of the Scottish Law Commission’s own stated objectives of creating “a fair and rational system that adequately reflects majority views”. Those views will be examined in the light of recent research studies and of wider policy implications. And on a more profound level, the underlying ideology of the proposed reforms will be explored in order to assess whether they represent an appropriate inheritance model for Scots law in the twenty-first century.
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