 I welcome members to the 26th meeting in 2015 of the Delegated Powers and Law Reform Committee. As always, I ask members to turn off mobile phones, please. Gender item 1 is a decision on taking business in private. It is proposed that the committee takes items 7 to 11 in private. Item 7 will allow the committee to consider further the delegated powers contained within the health, tobacco, nicotine etc. in Care Scotland Bill. Item 8 is for the committee to consider correspondence with the convener of the Standards, Procedures and Public Appointments Committee on Scottish Law Commission bills. Item 9 is a report on the work that was considered by the committee during the parliamentary year 2014-15. Item 10 will enable the committee to consider a draft report on the delegated powers provisions in the Successions Scotland Bill. Item 11 will allow the committee to consider the evidence that was received on the Successions Scotland Bill. Does the committee agree to take those items in private, please? Gender item 2 is the aforementioned Successions Scotland Bill. Our next item today is further oral evidence on this bill. We will take the evidence in two panels. Firstly, a panel of legal academics and secondly, from trust bar, a group of Scottish advocates who specialise in the area of trust, executives, partnership directors, duties, agencies and other relationships of good faith. We look forward to that. For the moment, we welcome the academic panel, who is Professor Janine Carruthers, Professor of Private Law in the University of Glasgow, Professor Elizabeth Crawford, Honourage Search Fellow at the University of Glasgow and Professor Roderick Paisley, Chair of Scots Law at the University of Aberdeen. Thank you very much for coming to join us. We start the questions about sneaking suspicion with myself. Can I start, please, with just the structure of what we are doing in this legislation and to ask you how desirable it is, or possibly how undesirable it is to have two succession bills, not one, especially as the first one can be amended by secondary legislation by virtue of section 25? Should we be seeking, as some have suggested, to consolidate these at a later stage? Please. To start, I give a view. I think that in terms of seeing action and movement to bills is the sensible way forward. Once two bills become to act, it might be sensible to look at consolidating legislation so that there is not a risk of gap between two pieces of legislation or worse, some sort of inconsistency. In practice, it is easier to work from one consolidated statute. However, in terms of getting the legislation on the table, moving forward in two instalments is a sensible approach. Thank you. Can I just ask, in addition to that, whether you feel that it would be practicable when that consolidation occurs, assuming that it does, to try and consolidate absolutely everything in statute at that point or whether that might be just too big a task? I think that it gives rise to the question whether it is necessary to put into legislative form a rule that is already operating effectively at common law. Personally, I do not see the need to do that, but views will differ on that particular point. Do I think that we need a Succession Scotland Act to cover every element of Scots law of succession? No, is my personal view. I am sorry, I am not a succession lawyer, but there will be previous statutes that still interact. There might be several. I would rather imagine that there will be given the way that law is scattered across the statute book. Have we reached a point where, if we are consolidating the two that we are currently talking about, of which this is the first, we really ought to make sure that everything is picked up from all the other statutes in the next succession bill? My view is that it is better to have fewer pieces of a jigsaw that have to be put together. It is simpler to work from a smaller number of statutes than a vast number, but perhaps other people might want to express a view on that as well. I think that we will be doing well if we get the Succession Scotland bill and the next Succession Scotland bill consolidated. It might be a third tranche to look at mopping up what has gone before. I think that perhaps it would be too big a task to try to put absolutely everything into some compendious act in the future. After all, the formal validity of wills is very nicely situated in a wills act of 1963 succinctly put and one would not want to disturb that. Equally, there are provisions to do with Succession, for example, rights of cohabitants on intestine disabled. That might come in in part 2 of your consideration. However, there are succession points in family law statutes, and I would think that it is sufficient to have something if the Parliament wishes to take the place of the succession act 64, which was a watershed, and not to be more ambitious than that. I think that Stier wants to make a point on that. Professor Carothers, I just wanted to be clear. You used the phrase, in my personal opinion, do you have another hat that you might wear where you would have a different opinion, or is it just simply a conversational lubricant to use that phrase? That is exactly the latter. That is sufficient. I am giving the view of this panel. That is fine. Thank you. In my opinion, I think that it is possible to consolidate the existing statutory material on the law of succession into one act after those two bills are enacted, but I think that it would be a step too far in terms of getting it done at any timescale to try and consolidate the entirety of the law of succession because you bring in a vast amount of the law trusts and executive administration, much of which works pretty well at common law in any event, and I think that that would be unnecessary. I am grateful for those general comments, and if I could just pursue one other general comment, we will of course get into the details of what is before us. I am just wondering if any of you have any general comments on things that you feel maybe we have missed or anything in the bill that causes you, shall I say, a general concern rather than the detail of the questions on specific phrases which we will come to shortly. I think that it is an excellent idea to separate the technical from the more policy-driven or controversial issues, but, of course, the difficulty is drawing that dividing line at times, and I know that certain topics have been put on to the later discussion. For example, section 9, People Who Die in a Common Calamity, has perhaps a more fundamental aspect to it than perhaps should not be regarded as entirely a technical matter. I appreciate that, and section 9 is one that, undoubtedly, we will come to. I am pleased about the four-feature act of 1982. It is being amended in the succession Scotland bill. I am quite surprised at that. I think that it should have been dumped altogether because it is one of the worst pieces of legislation ever passed by the Westminster Parliament. It is one of the few pieces of legislation to do with the law of succession that is UK-based. Most legislation is Scottish-based. This piece of legislation treated Scotland like Scotland's shire, as if Scotland did not exist until about the second reading. It was a private member's bill and it then was remedied in large measure by very late in the day amendments. Section 15 of the succession Scotland bill is again attempting to remedy it again, but it is a bit like trying to build a building on a pile of rubble. I think that it should have gone completely. We should have started. The reform in section 15 misses out entirely the Scottish tradition of what is known as personal unworthiness. That is our tradition, not public policy forfeature. Public policy forfeature was foisted on us by the English. If we are going to amend the succession Scotland bill section 15, we have to expand it to deal with personal unworthiness, but my own preference was to get rid of the forfeature act 1982 altogether. It is, to use a technical term, terrible. Right. Thank you for that comment, which is very much appreciated. Can we then move on to Stevenson, who will look at the section 1 and the effects of DOAS? I want to probe the provisions of section 1 in relation to a guardian of a child and see whether the provisions in the bill cover where a will has appointed a former spouse or partner as a guardian of a will in the light of the increasing role of step parents and, indeed, the costs and timescale of going to law mean that the bill, as drafted, is to your satisfaction or otherwise. In its written evidence, the Law Society of Scotland has drawn attention particularly to inclusion of the word guardian section in clause 1A2 of the bill. I think that I would agree with the observation that the Law Society has made, but in terms of accepting that as an objection to the clause in itself, I wouldn't hold up the clause because of the inclusion of that guardianship issue. I think that it's quite a small issue in the bigger scheme of what clause 1 is endeavouring to do. If no one else wishes to contribute. The other thing that Trussbarr has raised the issue of whether it should take effect at the point that marriage and civil partnership ended if person was domiciled in Scotland. Last week, we had mixed views as to at what point and at what domicile, what residency should be used. I've given some thought to this. I tend to favour the characterisation and the manner of drafting that is laid down at present. It's always difficult to decide whether something of this matter is pertaining to the law of succession or pertaining to the law of marriage. That has been drafted as a categorisation in the law of succession. It seems to work rather well in that if on regards this rule of the effect of divorce upon a will as a rule of the succession law of Scotland, then it would apply where the deceased died domiciled in Scotland. I'm glad to see that in 5 it is provided that the divorce must be recognised by the law of Scotland. That seems to me quite neat. You've covered both bases there. I've tried to think how it could be drafted the other way as if it were a matrimonial matter. I find it difficult to see how one would do this. I don't know if you have any extra views on that. The evidence of the Faculty of Advocates, the written evidence, suggests that the clause D could be drafted according to the testator's domicile at the date of the divorce. The objection or the possible criticism is mounted that if the test is domicile at death, then a testator, an individual is not able to know the effect of the divorce or dissolution at that point. The question of certainty is in suspense until death happens. The point that Professor Crawford has said is that this is a rule of succession and that in a sense everything is in suspense until the point of death. Everything is inchoate until that point. As a rule of succession, the connecting factor is correctly at the point of death. It's really a nice point. There is a rule supported by precedent that the question whether a will is revoked by a marriage is a matter of matrimonial law to be decided by the domicile of the testator immediately after marriage. I would be inclined to draw a distinction between that and the situation in which we are looking at now, which is presumably the case where a will is discovered many years after a divorce and nobody thought to alter it. I think that that's a matter, the effect of the divorce. In my suggestion, it's more clearly put as a matter of succession and as drafted the connecting factor would be the domicile at death of the testator. Is there a practical issue here as well in the sense that first of all the point that was made by Professor Crawford is that it would be a divorce recognised under Scots law, which is restricting immediately, so there would be categories of divorce that are not recognised. Secondly, it would practically require inquiries to be made that might be inconclusive in their outcome and create uncertainty. Whereas death, notwithstanding what other parts of the bill are going to discuss, is substantially more certain and will certainly happen at some point. Yes, I think so. The cause one is about the applicability, the section that applies where and so tying it to the testator's domicile at death is really, it's a sensible one so far as only if the testator is domiciled at death in Scotland does the Scots law begin to have any relevance. It could become quite uncertain if the testator was domiciled at the point of the divorce in Scotland, but at the point of death was domiciled somewhere else and that the question of which country's law was applicable would potentially give rise to more ambiguity. So, simply to anchor it at death is the clearer approach as a choice of law rule. All right, that's simple. Do you have anything to add? Yes, I'd like to comment really on the way that the section is designed. This, I think, is really a provision of the law of succession and the real intention here, the guts of this legislation, the purpose of this piece of legislation, is to reflect what the testator would have wished to have happened when they died. The last person they want to inherit is someone who is their ex-spouse and it's intended to reflect the testator's intention. It goes about it in a slightly old way because it indicates that if the four circumstances in section sub-1 are complied with, the ex-spouse will be deemed or treated as having failed to survive the testator in other words, it's a bit like saying that the testator has got his wish and it's as if his ex-spouse was dead. It's probably a better way to phrase it in the law of succession rather than say, I wish she were dead, than a better way to do it would simply to say that every will interpreted by the law of Scotland will be deemed to include an implied term that the spouse in question will not receive this particular benefit. And just say that for every will that is interpreted by Scott's law, this will be implied. Now a testator can make an express contradictor to that should he or she wish to do so and it gets over a minor flow, I would have to say a minor flow in this particular section which is subsection 2 which says for the purposes of the will. Now please note it says will and not the provision. P is to be treated as having failed to survive the testator. Now that means the whole will. For the purposes of the entire will, not just the provision, the ex-spouse is treating it as having failed to survive. If I were to leave a bequest to my son on the basis that he would get £100 if my wife is alive and then leave a secondary provision that he will get £200 that if my wife is dead, if I then divorce my wife, this provision kicks in even though the provision is in favour of my son. It actually makes a change for the purposes of the will so it has a wider effect than is actually intended by virtue of the drafting of subsection 2. Now if this really is about succession, it really is about what the testator wants in a will and I think we should simply have provision that we have a deemed implied term. We have that in contracts, we have that in every other type of voluntary arrangement and I think that a testator would understand exactly what that meant. This remark sort of opens up some terminological difficulties I've had as we've looked at this in that there are two further places in this bill where you're deemed to have died when you've not necessarily died. First of all, where there's simultaneous or uncertain sequence of death, each is held to have died before the other from the point of view. I suppose that kind of makes sense at least because people are dead, but in relation to parasite and other provisions relating to inheriting when you've committed a crime to the person who, against the person who's died and controlling whether you can inherit, the provision again is in law that you're deemed to have died before the person. Is there a general difficulty around the way we describe and deal with these things because we create the fiction that someone's dead for one legal purpose while physically they continue to live? Personally I think the fewer legal fictions you have the better. What you should try and do is move the law so it is as consonant as possible with the actual intentions of the test data if you're dealing with testamentary succession. There are some benefits, some technical benefits of simultaneous death in treating someone who's already dead and there are some technical provisions where that would be appropriate, but I'm not sure that it's appropriate for this particular section. Different sections require different treatment. In relation to what Professor Paisley said and with regard to clause 1-2 for the purposes of the will, to save a lot of redrafting would it be possible to say for the purposes of the benefits or powers of appointment referred to in 1, P is treated as having failed to survive rather than for the purposes of the will, because as I see, you've pointed out, it's very general. And then you could take out a bit about the guardian if practitioners feel that this is indeed likely to be problematic. Yep, grateful for these very helpful evidence which is going from the very general to the very particular and it's all appreciated. I'm wondering whether we can leave that point or we can go on to rectification. Several people who have given evidence to the committee have suggested that the scope of sections 3-4 of the bill on rectification of wills should be broadened to include wills that have been drafted by the testata, such as handwritten wills, or wills created using templates which they found online. We'd just like to get your views and your opinion about this proposal. I personally would prefer that it were not widened out to deal with wills written only by the testata rather than prepared, and I would prefer that word in 1B rather than drafted, prepared by a third party. One of the reasons why rectification is important is certainly to reflect what the testata would certainly have wanted, but it is also to avoid negligent actions. It is simply the case that when a will is prepared by a solicitor for a client, the solicitor can be sued for negligence if he writes down the will wrongly. A testata can never be sued for writing down his or her own will wrongly or leaving somebody out. There's a big difference in law between a will prepared by a client on his or her own and by a solicitor, so I would not be minded for those reasons, but probably much more pragmatically, it is incredibly difficult to find evidence outside a solicitor's file or a will writer's file as to what a testata actually wanted. I've been in many houses where you go into the house and you find dozens and dozens and dozens of lists or receipts or half-baked wills or whatever, and you would open up an extraordinary hunt for what a testata actually wanted in these lists or these undated receipts, and in addition I have to say, I have a good estimation of the character of the average Scott, except when it comes to succession. People become incredibly avaricious when they're getting something for nothing, and it is absolutely extraordinary what turns up in an office of a solicitor as being a note written by the testata that really wasn't signed, but this is really what mum wanted. So I think this would be disastrous. Take the point that you made about it, therefore this could result in an increased number of challenges to wills, but also people, for example, the Law Society said, actually, though, these documents can reflect what a testata wanted, and in fact, so if somebody's gone to the effort of preparing this will, whether it be online or not, then if that reflects what they wanted, then surely the legislation should reflect that so it can be accurately, so their wishes can be fulfilled in that way. Well, I think you'll find the canons of interpretation of wills are extraordinarily malleable. Words can mean almost the exact opposite of what they say when it comes to wills. It's very unlike a contract. The courts go out of their way in an extraordinary measure to treat a will as the unique document of the testatrix, because that's what it is, and black can mean white, and red can mean blue when it comes to a will, because the courts do tend to investigate background circumstances, so I wouldn't go so far as to saying that there is an overwhelming need for rectification of home-made wills because the courts actually do it quite openly via a very open back door. Are there any other opinions from the panel on this? I agree with what Professor Paisley has said that in clause 3.1.b the will was prepared is preferable wording than drafted. Possibly also you mentioned online templates and such like. I think that's a bit of a red herring because if an individual accesses a template and then downloads it for his or her own purposes, the important point is whether he or she has taken professional advice in relation to that. If no advice has been taken the template might as well have been written by the individual personally. I've got another question on that. Well it was exactly that point that I wanted to just be clear what prepared might mean because clearly if you're traditionally visiting your lawyer drawing up your will there are two aspects to it the discussion and advice that might be provided which will be specific to the individual and their circumstances but then the expression of what is wanted in the drafting that the lawyer provides. It is being suggested in what I've just heard that the drafting is very much less important than the advice or is it that they have to stand together and if one part is absent while the other might be present then it is simply entirely the responsibility of the person the amateur who's written their own will. The act of consulting a solicitor means that one would hope there will have been advice that that advice will then be implemented in the drafting if there's a mismatch between what is drafted by the agent and then signed if there's a mismatch between that and the instructions that the client gave then it might not be a case of rectification of a will but it might well be a case that an intended beneficiary actually takes legal action by way of proceedings in negligence against the solicitor that's a different thing to rectifying the will but there is certainly a fairly substantial body of case law on negligence against solicitors for the failure accurately to implement the instructions but yes the provision of advice makes a difference So just to be absolutely clear if this bill as an act used the word prepared essentially as it's presently written that would be restricted you believe to circumstances where the lawyer has provided advice and undertaken drafting and other circumstances would not be caught I would prefer the use of the word prepared not by the testator rather than drafted not by the testator because I think that prepared encompasses the situation where a testator has downloaded some sort of pro forma or template whereas drafted does not potentially include that situation because the words are those of a separate entity into which the testator may have completed blanks effectively and that is a different thing than drafting a deed in his or her own words Are you? Follow along In all evidence to committee last week Alan Barr of Brody's raised a specific point but whether wills created using pro forma actually indeed currently fall within the scope of section 1 because the testator is interacting with software which in Mr Barr's opinion may or may not constitute a will being drafted by a third party so I just want to give in your comments to Mr students what is your view on Mr Barr's suggestion on that point? Well I think it all will depend very much on the caveats and terms and conditions of the website from which one downloads the document I couldn't give a definitive view on that but my expectation would be that the website from which an individual downloads these things or the pad of document paper which historically somebody bought a newsagent there will be a caveat in that sort of thing exempting the producer thereof of any liability or responsibility for the testamentary consequences I guess helpful Indeed I can't help the feeling that this is an area which is going to prove complicated simply because that internet generation and people are just going to believe that they can go and download something they can put in questions they will get the right answer and that will constitute advice from somewhere I'm not seeking to disagree with the answers that colleagues have just provided but I can't see this problem going away which is why we really must do our level best to make sure that what's in statute is as good as we can be at the moment However if we can go on to the question for rectification Thank you very much and can I take you now to section 4 on time limits if I may please and good morning a number of people giving evidence to the committee said it would be better if the relevant time limit for applying to the court for rectification ran from the date of death given that a grant of confirmation can take many years However, Ellie Scobey reminded the committee that till confirmation is granted a will is not a public record document She suggested that if the time period ran from the date of death executives could delay the grant of confirmation when it was in their personal interest to do so What are your views, if any, on that topic? Can I speak to that briefly? When someone dies in Scotland one of the first things that the visitor will do if the will is in the office is register the will in the sheriff court books it then immediately becomes a public document and confirmation follows at a later stage but it becomes a public document as soon as there is a public record because anybody can go and look at it so it becomes a public document as soon as it is registered now it's a voluntary act to register a will it's only registered so a certified copy that's treated as the original can be obtained but there is a possibility I suspect and you rightly bring it out that in the interests, the personal interests of someone stated to be the executor or even just a relative they hide a will or delay bringing it to the attention of the beneficiaries for ages and ages Personally, I take a view that you need a long deadline which is a fixed deadline by which you can't go beyond except in cause shown but I do think that that would actually be a high ranking candidate for cause shown for extending a deadline but quite apart from that someone who hides a will or destroys a will like that first of all is open to an action themselves on the part of disappointed parties possibly for some sort of delict and secondly there's another form of unworthiness in Scotland whereby any provision in respect of which they would have received under the will they're struck out as unworthy it's possible and I would regard a subsection 2 in clause 4 as the way that you could deal with that but I definitely would prepare a deadline running from death and not from the obtaining of confirmation from death thank you others of use with the permission of the chairman revert to a conflict of loss point section 3 it makes it clear that before this can happen the testator must have died domiciled in Scotland so that's clear and then later the court of session or the sheriff the jurisdiction to consider the possibility of rectifying the will according to habitual residents of the testator at death so that seems to me quite clear I do notice that in section 2 unlike section 1 and section 3 there's no reference to the testator having died in Scotland before the provision would apply and again section 6 is silent about the applicability of Scots law now this is possibly quite all right because Scots law applies if it applies in the view of the court which is hearing the case it doesn't always need to be stated but perhaps at the end of this process we ought to look at all these conflict of laws provisions to see that they are consistent with each other for that and that wasn't the question we were going to ask so I'm grateful if you bring it up or others adding to that when you mentioned emissions potential emissions from the bill in the early consultation stage reference was made to the fact that the UK has decided not to adopt into the EU regulation on wills and succession and the question was asked whether or not it would be prudent to adopt any of the provisions in that regulation within this legislation after the analysis of responses was produced it was indicated that the current legislative programme would not seek to deal with the cross-border elements but following up on the points that Professor Crawford has made in clause 2 of the bill for example to 1, this section applies where property is held in the name of now clause 231 makes clear that property includes any interest in property movable or immovable one imagines but it doesn't specify whether the property is restricted to property in Scotland or property anywhere situated and that is something that should be clarified specifically into in relation to clauses 3 and 4 that we've just been considering clause 4, 1 perhaps it should be clarified in sub-clause A that in a case where confirmation in Scotland is obtained is it really intended that a Scots court could be asked to rectify a foreign drone deed that could be a complicating factor if that is what is intended now should it be specified that this provision is restricted to deeds drawn in Scotland or not that's a question I'm not sure we should give a definitive answer to that today but I think the point should be considered at least I'm very grateful thank you all of these things need to be considered right I'm just thinking where we've got to and John are you carrying on thank you I'll move you on now to section 911 on survivorship if I may please and Professor Carothers and Crawford you suggested in your written response to the Scottish Government's consultation that the law of survivorship should not be included in a technical bill and indeed you've already hinted to that this morning do you wish to expand on this view, do you have any plans to offer on it one or all of you or any further opinions to offer on it the Ego Systems Barrier a great deal I think on this rule about death and a common calamity and the succession regulation I believe I'm right in saying is comparable to what is in the bill but perhaps attention ought to be paid consequences of this I don't see it as an entirely technical matter in 64 we had the rule that the younger survived the elder preserving possibly the natural order of succession so I'm merely suggesting that in my view perhaps greater consideration could be had of this in part 2 of your consultation I would agree with that I don't have any objection to the formulation of the rule per se but if one is a beneficiary who is affected by the operation of this rule then it's far from technical so it's to do with the characterisation of the provision as technical and therefore being dealt with in this current bill as having policy consequences and therefore more appropriately placed in the second tranche of legislation and I think that our policy implications as a result of the change to the survivorship rules that is proposed here Forgive me for being so dumb but what might those policy implications be rather than just the two beneficiaries whether or not how beneficiaries are treated or not That is the policy the manner of treatment of beneficiaries according to the order of death I think that there is a policy in that In a very classic exposition involving the law of Germany a mother and daughter died in the Blitz on London and a difference arose between how English law would treat that common calamity and how German law would and German law was applied that the daughter was not deemed to survive in order to take the inheritance from her mother so there are implications There are not this bill is before us is not strictly whether it has policy implications but whether or not those policy implications have appeared to be contentious where everybody's agreed on the policy implications because there are often policy implications then that was deemed to be something appropriate for this particular bill but I accept that there will be views as to whether or not that's correct I'm wondering whether the gentleman wants to take us on that I wonder if Professor Paisley has anything to say on this matter The provision to be in this bill I think it's pretty well drafted I would prefer I think it was something by trust bar originally suggested that there be some form an exception to Crown Estate or the rule of Ultimas IRAs which is really the inheritor of last resort it's really a forfeature provision if you can't find anybody else I would like to see a subsection here whereby this a deeming people not to survive doesn't apply where it's a choice between Ultimas IRAs and an individual a Crown never dies I've understood that correctly what you're saying is that the provisions seem to be fine as long as some human ultimately inherits but if it just goes to the Crown under intestacy or effectively in default let's not even fight about the legalities then plainly that would never have been the testator's intention and therefore the courts should find some default on the human consequence The very interesting point the policy intrudes because is it more likely if you have a rule of simultaneous death with neither surviving that there will be fewer humans to succeed and that it is more likely to go to the Crown as ultimate heir Well, the matter of logic it's absolutely impossible for the Crown to inherit anything in Scotland because everybody in this room is related it's just a matter of proof you're either descended according to one view from Adam and Eve and that's written down as long ago as mymonides in Spain or you're descended from somebody who came out of Africa and you can prove it by your genes there's a probability that all of us in here are more closely related than we are to the institution of the Crown so I would regard that as it's just a matter of proof so acceptance that the state shouldn't inherit seems to me to be what almost everybody would want in the law of succession I think that the point is very well made precisely what the default should be is maybe for others to worry about on another occasion John, does that complete what you want? No Perhaps not Okay, thank you If that wasn't uncertain enough can I take you now to the area of uncertainty that is uncertain What do you make of trust bars point supported by the law society last week that the word uncertain is likely to lead to unnecessary litigation? Do you concur with that given what you've just said or not? Yes, I do agree with that rule Does uncertain mean it is not certain? And if it isn't certain is it just clear? Certainty means 100% so I would agree with what the law society and trust bars say Others? I think that in terms of the semantics of drafting it could be more clearly stated what is intended so yes in which it is not certain Given you rarely help in that regard would you have any proposals to make in terms of more elegant drafting? It might be a form of words that would occur to you subsequently Should it do so? Do let us know please Thank you very much That's all I need to say tonight I think that brings us to Stevenson on private international law Just an observation I'm 38 generations and two marriages away from Malcolm Canmore. I shall now look more closely for the DNA connection which is presently not in my family tree Turning to section 22 and in particular where an executor is looking is to be sued section 22 creates where the confirmation has been in Scotland that they are caught by Scots law in that regard. Is that satisfactory to the panel? I think that this is useful and it does close a gap I think you were suggesting that if one is being very detailed about this that one would remove the brackets where confirmation has been obtained in Scotland I don't think that the brackets add anything helpful in that provision because it's very important that that is the link that justifies in Scotland taking jurisdiction because in theory jurisdiction should be taken on submission or residence or close connection so the confirmation is providing that justification so it should be there plain and simple without the brackets I think Just as a matter of general principle the punctuation is disregarded in interpretation anyway isn't it? As indeed the findings are OK That's it Thank you very much Is there anything else in there at all that you want to worry about? Professor Cruthers Add in relation to that clause 22 that is only a partial implementation of what was earlier proposed it's a helpful additional ground of jurisdiction but the earlier recommendations because why those additional grounds have not been implemented in the legislation in our initial response we were happy with the additional link based on the situation of immovable property in Scotland but in so far as we're asked for our opinion on the wording of clause 22 we're content with it subject to the removal of the parenthesis but we would have supported the expansive jurisdiction rule than this one Given that you've raised the point and it's absolutely fair could you put on the record why that's the case in the context of The initial provision I'm conscious you've written it down I don't think it's necessarily a matter of rereading the words of previous submission but I think it would be helpful to the committee to have in the relatively short terms recommendation 50 which provided that the court of session would have jurisdiction in relation to relevant proceedings not only where the deceased had died domiciled in Scotland but and this is the particular provision where the deceased died domiciled outwith Scotland and the estate includes immovable property situated in Scotland according to the current terms of the civil jurisdiction and judgments act 1982 schedule 8 contains the relevant rules of jurisdiction applicable to Scots law to the Scottish courts there is no particular rule on immovable property in the case of suing an executor who's domiciled outside Scotland that would provide what that recommendation 51B provides so we would have supported that in principle what we have is a narrower provision in clause 222 and have you any reason have you any understanding of why that recommendation has not been followed up? no so there's no reasoning which you can then comment on not we haven't seen any reasoning that's not to say that it's not somewhere in the documentation but we did look for it and didn't see anything thank you that's appreciated right John what are the issues that you would like to raise or not? I think the point that we would say that the UK decided not to opt into council regulation EU 650 2012 on the wheels and successions colloquially known as Rome 4 the fact that the UK as a member state decided not to opt into that instrument does not mean that UK citizens are unaffected by it there are various cross-border succession issues which will prevent for Scottish residents Scottish domiciliaries as far as the EU regulation is concerned we think it would be desirable for Scotland to act along with the UK in that rather than implementing specific provisions of the regulation within our own succession Scotland bill I think it would only add to the uncertainty in cross-border cases between Scotland and the rest of the UK if we had bespoke provisions akin to Rome 4 but not provisions that are matched by English law fitting consistency even if it's not always what you would have preferred yes, does the professor want to add anything to that? comments on other matters if that's possible could I take you back very briefly to something that's unique to Scotland the First Minister I think once again indicated it was highly desirable that all land should be registered in Scotland within 10 years and there is something that's directly relevant to that in section 2 3 of this bill to do with special destinations subsection 2 does not apply if the document under which property is held expressly provides all land that is registered is not held under any document at all it's held under a title of fair to a document in subsection 2 3 that will affect nothing as regards property you've got to delete that word and put in a registered title or title deeds it's not going to be the case anymore after land is registered that you've bundled the deeds it's an electronic title so it's very important that this word document is not there and you actually have a reference to an electronic title on an entirely different matter section 6 1a section 1a this section applies where a will names as a beneficiary a person who is a direct descendant well I could name my son as Robert Paisley and say that he's getting this but if I just say I'm giving my son and don't name him this won't apply that word should be when a will identifies as a beneficiary by any means at all because I'm not naming a person today I'm giving it to my son or my grandson they're not named at all there's a very great difference between naming somebody in a will and identifying them in a will yet I think this is intended to apply in every case particularly perhaps that might also cause a complication where people's normal names are not their given name and you might well I would normally refer to my son with a different name from the one that's actually on his birth certificate it's not uncommon and grandparents in my experience names wrong you'll forget names so it would be very important to get that out section 12 if you don't mind this rule about a person forfeiting to be treated as having failed to survive him this I repeat is an English rule which was imported into Scotland as a public policy rule there is a direct parallel in Scotland known as personal unworthiness which is a continental rule which we have from the European legal systems it's part of our law and the law confirms that our law is based on one or the other but it doesn't say it's just going to be public policy if all we do is to amend the 1982 act as regards the forfeiture rule at rule as defined in the forfeiture act 1982 we haven't amended the unworthiness rule in Scotland and we'll leave it intact and I think this should be expanded to deal both with the English version as we've imported via Northern Ireland if you could add and also the personal unworthiness rule it's basically a rule in Scotland where you say someone shouldn't inherit because the distater wouldn't have wanted them to inherit because they've done something so unworthy and very, just lastly if you would bear with me a minute close 20 I agree with everything that's been said in the submissions about 20 subsection 2 this is gifts made in contemplation of death the phrase in contemplation of death is absolutely meaningless and should be taken out thank you I think there's a final section of jurisprudence papers where that take that out and discuss I seem to recall being there once but it's not as good for me it's good to say why the contemplation of death should be taken out just for our Sure, Donatio Mortis Causa means a donation in contemplation of death it's a direct Latin translation so a gift in contemplation of death other than a donation Mortis Causa means a gift Mortis Causa other than a donation Mortis Causa it just is completely nonsense you're saying it has to be this but it can't be that at the same time it's logically incoherent fine, I think we'll we'll let the the draftsmen and women worry about that but thank you Father, since we have such eminent people in front of us would that be a view shared by others it has been around for quite some time in contemplation of death as a concept would you agree with Professor Paisley or would you being lawyers might you disagree I think I'm not quite so concerned about it as Professor Paisley would be but on that particular point to his view he's more expert in donations Mortis Causa than am I unless perhaps it's a cross-border one whatever it is whatever it is this gift that we're trying to allow is a gift made during life people contemplate their death occasionally I might do it this afternoon but it doesn't mean that it's a gift that only happens if I die most people if they're really sensible empty the bucket of everything away before they die so there's nothing left the richest person in the world is the person who dies with nothing indeed and one could easily argue that anybody who's writing a mill is contemplating their death because there's no other purpose for which one would write a will right on that is a taric point perhaps I'm looking at my colleagues and it looks as though we may have covered everything that we need to cover is there anything else that any of the panel would like to raise with us can I say that's supposed not only been very informative but actually quite an enjoyable discussion so thank you very much for your efforts ladies and gentlemen and I'll very briefly suspend just so we can change the panel over thank you thank you very much resuming it's my pleasure to welcome to the meeting David Bartos and Nick Holroyd who are here from Trust Bar and our first question is from Stuart Stevenson just going to the subject of guardianship and section 1 and should the provisions of a will appointing an ex-pous as a guardian fall within the scope of section 1 or otherwise I begin answering that question the first difficulty upon which I do not wish to dwell that I flag it up in any case is that very often in wills the phrase guardian is used in a multiplicity of different ways which do not always chime perfectly with the way in which they're used in a family law context and so far as Trust Bar could see and we welcome correction there wasn't any express definition of guardian the 2015 bill so on the assumption that what we're dealing with is a guardian in the family law sense and that's to say in terms of section 7 of the Children's Scotland Act 1995 that would contemplate a situation where one is dealing with someone who has parental responsibilities and rights and duties who is not a parent so it's just a clarificatory issue there when one considers the family law legislation and in particular section 7 of the Children's Scotland Act 1995 one doesn't find that that contemplates death or divorce prompting revocation so that section 7 refers to documents and that would be capable of including a will so it would be slightly at odds if divorce or annulment in a succession context did prompt the extinguishing of that provision it's not something I think we feel very strongly about but it's something which I think is worth thinking through it's something which David Bartas has also given considerable attention towards If I could elaborate on that section 7 of the Children's Scotland Act 1995 allows a person to make a document appointing another person to be guardian of their children upon their death section 7 does not say that it has to be in a will it's enough it can be in any document this appointment of the guardian can be in any document that's what section 7 provides there is no provision within section 7 of the Children's Act that the document is to become ineffective if the guardian to be becomes divorced from the grantor of the document there's no provision for the appointment to be revoked in section 7 the effect of the proposal in section 1 of the bill is that it would create an anomalous situation in the sense that if one made an appointment of a guardian in a document that was not a will and the grantee where it became divorced from the grantor then nevertheless that document would still remain valid but if the appointment happened to be made in a will the appointment would cease to be valid now it seems that that is an anomalous situation and isn't one that is in principle desirable but yet that will be the effect if section 1 includes the words or guardian and the second point and this really relates to how it is that we've got here with having the words or guardian within the bill and that is that essentially those words, the suggestion that appointments as guardian might be revoked by the divorce but that goes back to a Scottish law commission discussion paper in the mid 80s which was before the children act was enacted and it was simply put out for discussion a majority of people who responded to that consultation paper in the early 80s indicated that they would have no objection to that the matter then became incorporated the words or guardian then became incorporated in the 1990 law commission report and that was then repeated in the 2009 report so it seems that the matter has not really been given full consideration with all respect to the law commission and in any event it would create an anomaly which is the one that I've just said which is if the appointments made in a document is not a will and there's a divorce has no effect but it happens to be in a will and in a section it's revoked and that seems just inconsistent Can I just be absolutely clear absolutely clear when a guardianship is created by the family law piece of legislation that takes effect at that point It depends on how the guardianship is created it can be created by an application to the court Yes in which case it takes effect upon the court decree or it can be done in a document that document to take effect upon death So it's a contingent provision It's a contingent provision and as I indicated section 7 simply says that you can put it into a document it doesn't have to be a will Yes So when it's a contingent provision the effect in law logically you suggest should be the same in the two contexts Of course what section 1 appears to be trying to do is to catch those circumstances where no other provision has been made Is that how you read it? I would read it as restricted to wills So if the appointment of the guardian is made in a will and subsequent to that will the person appointed as guardian is divorced from the grantor then that appointment ceases to have effect Section 1 does not relate to non-will appointments but yet the children's act clearly contemplates you can have non-will appointments just a document does nothing else but make the appointment No other legacies it's not testamentary so therefore it's not a will on any normal understanding of that word So in that case the divorce would have no effect I think really what this is going into really a story of family law in a piece of succession legislation Can I just ask then if we finished up with two documents you've just described for me one the testamentary one and one the non testamentary one which trumps which and does it matter in which order they were created? I would I haven't thought about that question but I would have thought as a matter of general principle the latter would trump the former in whatever form it happened to be but that's just a That would sound like a good principle anyway That's a tentative view based on just general principle a latter will generally revokes a form or a latter contract which covers the same material as the previous contract supersedes the previous one At the very least there needs to be a harmonisation of these two pieces of legislation and I think that's a point well made which hopefully we will take note of Thank you Just the section one has issues related to domicile and I wondered whether you had any comments on that Yes, in broad terms trust sparrers of the view that one should focus if one is this perhaps I can preface this on the hypothesis that we are going to deal with guardians in the way that it's currently dealt with in section one one on that hypothesis which of course is one we are slightly querying but if one goes to look at the question of whether it should be domicile death or domicile divorce we favour the divorce approach and the reason for that is that one might analyse it in terms of a species of partial revocation partial revocation of the will arising by operation of a statutory provision and our understanding of the general law in this area is that you should look when you're considering whether or not an alleged act of revocation has been effective one should look at the domicile of the person allegedly revoking at the time of the act of the alleged revocation and we draw some support for this view by analogy to what happens where you have an international context and under the law of one country a marriage subsequent to the will gives rise to revocation and in those circumstances you could have a valid a will which was there's nothing wrong with it in terms of purely domestic scots law and there's no incapacity nothing like that and marriage if it was purely domestic to Scotland would not lead to a revocation of the will or a partial revocation of the will extinguishing the somebody else's rights but if there's an international context what you do is you look at the law of the domicile of the testator and a support for that view can be found in standard textbooks in relation to that marriage point for example Professor Crawford and Carothers in the third edition of their book touch on this paragraph 1834 and I'm very obliged to Professor Crawford I was allowed a glimpse of the fourth edition and it is now paragraph 1839 now the views I'm expressing are trust bars views and I think the professors, Crawford and Carothers have a different view on this particular issue but by analogy to that I think one could say one's dealing with a partial revocation arising from statute and when you're looking at that it would be my suggestion that we should look at the law of the domicile of the alleged partial revoker at the time they do the act is that sorry just so I can be clear on this before moving on to further complexities is there a distinction in this respect between heritable and movable assets and the answer might be no I don't understand there to be certainly so far as the leading Scots case common law at the moment on revocation what happened in that case there was a marriage of a lady who was in England and she later died domicile in Scotland at the time of the the time of the marriage she was in England and the court held that whether that marriage revoked her will was to be decided by English law as that was the law of her domicile at the time of the revocation so that's the common law already already the common law in the Scots case called Westerman against Schwab the common law already says that revocation of a will is to be assessed by the law of the domicile of the person at the time of the alleged revocation so again the common law is already there and the suggestion in section in the relevant section was to be adopted as it is in the bill then in effect again there would be two tiers would be created there would be one law relating to revocation generally but a separate law relating to revocation by divorce or annulment and it seems that it's inherently from a user friendly point of view idea to have to have too many different laws applicable for different types of revocation but the other point as well is that this idea that one looks to the applicable law at the act of revocation is something which is internationally recognised and we see that in the EU regulation that has been referred to the general law governing succession is the one of habitual residents of the deceased at death that's the general rule but then to that there are exceptions stated in that regulation one of which is the assessment of whether a will has been revoked and in terms of that regulation it says that that it is the law of the habitual residents at the time of the alleged revocation that is to apply so whilst we're not adopting habitual residents and we're not adopting the regulation I simply mention it as an indicator of internationally how these things are looked at and there's a good reason why it's done that way and that is that it allows estate planning people need to know where they stand and tying it to the date of the alleged revocation allows people to know with some certainty to receive clear advice as to whether that will has been revoked or has not been revoked otherwise one might have a floating a floating situation so in a nutshell the common already directs us to the to the act of revocation it's in line internationally and there's a good planning reason behind it I hope I'm not going to regret asking this but if the you're tying it to the date of revocation that clearly precedes whatever jurisdiction that revocation took place reallocation of assets to the now separated partners does that in effect draw that separation of assets back into the revocation as part of the consideration of the of the executive because it kind of to a lay person sounds as if that might there might be something in that I'm sorry, no doubt a slight difficulty following this scenario there well let me explain my layman's difficulty that if you have a will and that will is then overturned at the point it's overturned there will be assets but something in law happens to those assets before death occurs and the assets are now distributed to different parties if you're going back to the point as if the will had never been written is there any interaction with that and the simple answer might be no I wonder if I can take that point you've raised I think an extremely important point which has ramifications in various areas of divorce and succession law one in assessing who owns what when we need to look at the law of divorce law and of general law and for example in Scots law there are various presumptions where couples are married or couples are cohabiting slightly different in each case so you're absolutely right it would be very important to know what happens where the will is extinguished in favour of a particular person or is not effective in relation to a particular person then that as it were removes their opportunity to benefit under the will but I think it would be silent as to the question of the husband or the wife prior to the divorce or annulment what they owned but there would be some guidance for example in a Scottish domestic context there is guidance presumptions as to who owns certain assets in relation to household goods but very crudely there might be a presumption of equality I think the scenario which you laid out can easily be imagined would be seen is that when the divorce or annulment took effect then one would see that that will had been revoked at that point one would expect to know whether that person has been domiciled in Scotland at that time and so far as the distribution of the estate is concerned one would prima facie being a situation of intestacy unless then a fresh will was made and it seems that ultimately intestacy is the preferred fallback here rather than the rather than the the spouse inheriting but with one as I'm correct to remind it with one reservation and that of course is that if the will provides that failing the now divorced wife or husband somebody else is to inherit or there is a residue clause the person's entitled to inherit under those provisions or the residue clause will inherit will take the spouse's share and finally I hope that's clarified I think I'm getting there although I may have to read the official report to know if I have if there were for example if this couple who sadly get divorced if the couple had children and that might raise issues both in relation to the opinion precisely how one construed section one the possibility is that children might either take under the residue clause or on possibly on certain scenarios that they might take in place of the parent I just want to pick up that Professor Crawford made the point that I interacted with her that it's where it's a divorce recognised under Scott's law just for clarity where the divorce is not recognised by Scott's law in effect it has not happened from the point of view of our law right that's fine thank you okay I think that takes a certification with Richard does that right? In your written evidence along with others you suggested that the scope of sections three to four of the bill should be broadened to include wills crafted by the test data such as handwritten wills or wills that have been created using templates found online and I just want to probe that further with you because obviously there's not unanimity on this position you will have heard from the other panel so if you could just expand on why you've made that suggestion and also perhaps come back on some of the arguments that you made that counter to the position like earlier on? Yes if I can just outline the position our position is based both on issues of principle and on issues of practicality and to some extent there is an overlap between those two categories in relation to principle it seems to us that if someone makes a clerical type error or perhaps some other sort of error in a DIY will then their intentions are being defeated if there is not the opportunity for rectification there is an English case a case called Williams 1985 one weekly law reports 905 and it pages 911 to 12 912 the English judge and it's not a binding comment by him because it's not he's not directly concerned with it it's an aside but he makes the point that you don't need to have a clerk to make a clerical error so one can easily imagine somebody who is perfectly capable in the sense that they have capacity and is not being unduly influenced by anybody they're going to make their own will and they make a rough draft and they make annotations to it and then particularly those who are those who are OCD if I can use that phrase in a very loose and non-PC sense they may wish to make a fair copy of it and one can imagine it be very easy in the process of making a fair copy to miss something out so for example they may have identified their children whether by name or otherwise or their grandchildren and they've written them out and for no good reason other than they have made a clerical type error it doesn't appear in the version which they sign now I appreciate there could be evidential issues but trust me I don't consider that the evidential tale should wag the dog here so that's the point of principle there are also I would suggest practical reasons for favouring a wider approach and the first one of those is that there could very easily be difficulties in discerning whether one is dealing with a purely DIY will or one which has either been prepared or drafted depending on the terminology which one favours one tends at the moment to think of people either getting a will from the a will form from the post office and filling it in and signing it or perhaps a comparable online version but it seems to me that one could have different sorts of errors very easily one could have an online will system where one is asked questions and then the questions answers to the questions lead to a will being drafted and again either through problems with the software or perhaps and we've all done this having to fill in forms repeat your email address and one just copies it again copies and pastes it one can envisage a similar thing happening with that that a test data could imperfectly complete the answer so it seems to me there could be grey areas and if one is going to go and our view of course is that it should extend to DIY wills but if one is going to go down the route of excluding DIY wills I think what one would need to do would say something online that's wholly drafted or wholly prepared there's an even more mundane example where you could get the mixed situation and register drafts the will and perhaps it's a sophisticated will drafter and they use defined terms and the test data hasn't skims through the will and sees a reference to a particular defined term and says no that's not what I meant I meant and it changes it and it could have knock-on effects so again if we're anti rectification, statutory rectification for DIY wills we would have it wholly in it but we would favour the broader approach and the final points this is really a practical point as well if one were to exclude DIY wills from the statutory rectification regime and if the committee favoured trust spars position that statutory rectification regime should not prejudice the existing common law whatever that may be then what might very well happen particularly in light of Lord Hodges comments in an English appeal to the UK Supreme Court a case called Marley it may well be that someone who is faced with a DIY will Marley wasn't a DIY will it might be a DIY will someone might attempt to go down the common law route rather than the statutory route so it seems to me better on the whole if people's first support of call is the statutory regime and it's only if the statutory regime doesn't accommodate them that they go down the common law route so for those reasons which are a combination of matters of principle and I would suggest very practical matters we favour an approach which would allow rectification and bearing in mind also that in civil matters yes there will be evidential difficulties but one's always in civil or nearly always in civil matters dealing with a balance of probabilities anyway that's something which advisers and the courts have to face up to and no doubt there'll be the odd duff claim but equally there may be some very well grounded ones but it would be for the person seeking rectification to make out their case in a balance of probabilities there's a point which I'd very much like to pick up from Professor Paisley's evidence as well there was a suggestion that the court can use great imagination in interpreting wills and great skills of interpretation that is I think true however it seems to me much better if one can separate off interpretation of a document from rectification so what one might say is properly interpreted if the will means this and Johnny should benefit if the will doesn't bear that interpretation then it should be rectified to bear that interpretation so it seems to me that whilst there's merit in what Professor Paisley said it seems to me desirable to keep clear in one's own mind the distinction between interpretation and rectification one of the very fashionable things which has come from south of the border in which I am not wildly enthusiastic about is the idea of trying to treat the interpretation of wills in exactly the same way as the interpretation of contracts and one of the differences I would suggest is that in relation to the interpretation of wills there should be a general reluctance to try and have all sorts of evidence which from outside the will brought in yes you can put yourself on the seat of the armchair of the to-stater when you made the will but what you can't do is you can't have a generally speaking you can't have a troll over all the evidence to see what the person meant so I think we can keep interpretation separate from rectification and again I think that adds weight that it would more likely to produce a fair outcome if one could have rectification for DIY wills I appreciate that point that the matter of principle as well but you yourself mentioned grey areas earlier on in your response in terms of cases which may arise I mean isn't there a danger here that you're introducing a very wide range of legal complexity by including handwritten wills and internet template wills in this provision and also a practical issue that the broader the provisions are the risk that every disappointed beneficiary is going to use the powers in question I wonder how you would address those points Yes I think there would undoubtedly be difficult cases that I come back to the point that normally one would just take the view what is the evidence to support the position and then one would have to establish a balance of probabilities one's case but there would be difficult cases that trust and do you think it means more cases or challenges if this provision is included if the provision is broad and sorry I really into the realms of speculation and guesswork but I suspect the answer is yes but it's very hard to quantify that Finally for me in this convener in all evidence to the committee last week Alan Barr has raised a specific point about whether wills created using proformas on the internet currently forward in the scope of section 1 where arguing attestators interacting with software which in Mr Barr's opinion may or may not constitute in fact a will being drafted by a third party again you'll have heard the question put to the previous panel as well I wonder what your view was on that point I think this is again I think it's a very valuable point in which the committee has raised an Alan Barr address this was one of the practical difficulties which I touched upon in some cases it would be very difficult to know whether it's a whether it falls out with the regime by reason of not having been drafted or prepared by someone else so if a one was going to go down that root the root I don't favour and trust bar doesn't favour I think one would have to say wholly prepared I mean Professor Ford there's a thing sorry sorry yes if I can add to that I mean at the moment the provision says this section applies where it was drafted not by the test data but on the test data's instructions I think that a court would understand that as excluding the situation where somebody went on the internet and excluding it would not cover the internet situation so it wouldn't currently fall with section 1 the internet situation would not currently fall because I think the court would view that as covering only where one person instructs another person to carry out the drafting that's the background upon which this has been created and in fact it owes its origin to English provisions which predate the spirit owes itself to English provisions that predate the internet so my view would be the internet situation is not covered under the existing provision that we would say adds force to expanding the existing provision there is one other point I would wish to raise in relation to section 3 but I don't know if you have any further questions I'll go for the question raise that point now please do yes it relates to third parties and the effect that rectification of a will may have on the position of third parties who have arranged their affairs on the basis that the will is in its unrectified form to give an example for example a person leaves a property to their son B that's the basis upon which son B expects to take the property son B then obtains a loan which he expects to repay from the value of that property there upon somebody else comes in and says actually this will should be rectified so the property does not go to you but goes to me but yet the son has already acted on the basis of the unrectified will as the legislation stands at the moment it gives the court no guidance as to how it is to treat the prejudice being caused to son B and that it seems is a clear whole in the statutory provisions and the whole in a sense is emphasised by the fact that there are already rectification provisions on the statute book this problem is not new and these rectification provisions are contained in the law reform miscellaneous provisions Scotland act of 1985 sections 8 and 9 as those sections were enacted wills were omitted from those sections in the mid 80s because it was thought that there should be further consultation on whether wills should be included and so that was meant to be only a temporary thing those provisions themselves cover for example the granting of trust deeds during lifetime and that take effect during the lifetime those trust deeds in their effect other than they take effect during life are in fact extremely analogous to wills indeed many wills contain trust provisions the only difference between a will that contains a trust provision and a lifetime trust deed is that the will with a trust provision takes effect on death whereas the lifetime one takes effect during life but ultimately they do really the same they fulfil the same role and section 9 of the 1985 act provides protection at four third parties such as the son B that I have mentioned and that protection is in section 9 and we put it in the back of our back of our written evidence and section 9 provides that the rectification is to take place only if the court is satisfied that the interests of a person to whom the section applies would not be adversely affected to a material extent by the rectification or that that person is consented to the proposed rectification and the person in question simply put is the son B that I have mentioned in my example and we can see no reason why the provisions of section 9 should not apply to wills as they do to lifetime trust deeds Steve, do you want to I want to go back to just the internet briefly I think it's an important thing which is why I do wish to emphasise on it because it will arise in practice there will be third parties affected by rectification of deeds no question just something else because I'm not sure whether B has acted during the lifetime of the testator or after death and therefore on the expectation that the will will be carried forward because it does seem to me that if B has acted before his father has died then all sorts of very simple commercial caveat emptial kind of things apply and if the person who lent it to them protection against the asset then that's their fault quite frankly and that's what commercial is going to say if however B has acted after death and on the expectation and particularly if something has already been conveyed to him then can I just make the point that I think section 19 might well apply and therefore my question is does section 19 not apply in the circumstances that you're bringing to us section 19 relates to protection of persons acquiring property in good faith and for value the keywords being for value whether by purchase or otherwise in the example which I gave B the son who inherits under the unrectified will he simply acquires it without value so he doesn't get any protection from section 19 well not even section 19 to B because that talks about distributed that relates to that relates to persons who have acquired from B yep okay in which case thank you I just wanted to chat with that so B is still left with having to meet the loan in my scenario without having the property I just wanted to explore around that just thinking a little bit more about the internet exclusion I just wanted to test what that means and I will do so by starting where the interaction between the person writing will and the legal advisor has been by telephone that is okay that would be covered yes that's okay right where the telephone services provided by technology only available on the internet of which Skype would be an example it's not intended that the internet exclusion you refer to excludes that if the instructions are being given by if the instructions are being given to the will drafter over Skype then that would be covered by the existing provisions I think there's a nuanced a very slightly nuanced difference between David myself on this I think it's only a cigarette paper of difference in most cases I am at one with David in relation to the view that I ask currently worded a will made over the internet will buy the test data a sort of program type will or a downloaded proforma in most cases I think it would not be covered because the wording at present is this section applies then be the will was drafted not by the test data but on the test data's instructions so in most cases the test data will the test data will be having a hand in the drafting as it were and that would seem to to take it out of the rectification regime but where I think it becomes more difficult is the situation where you have situation which I postulated where you are asked a series of questions by over the internet and you give answers to questions and perhaps also inadvertently copy and paste something slightly wrongly so you are in a sense you are giving instructions to the computer and in turn I suppose the actual company behind the computer and you then get a will printed off at the end and you sign it it's difficult to say that might on my view might be a situation where the will was not drafted by the test data but on the test data's instructions I just wanted to be clear we've hung this on the internet and that seems to me to be unhelpful when it seems that what I'm hearing is that the test is whether there is a human being interacting with a person giving the instructions and it's the presence or absence of that human being mechanism of communication and the presence of computer systems that are helping and assisting in the drafting of the final document they are not really I'm capturing what I'm hearing You've raised a tremendously tremendously good point it seems to me to use it in a very glib sense if one is answering questions posed by a robot so to speak it might be and then the will is produced at the end and you sign it there's a non-human dealing with Q&A so the answers come from the test data, the human but the questions are posed by the robot but behind the robot in the sense there is the programmer and the company who's providing the service on that scenario it seems to me there is some scope for arguing that where the bill as currently worded would allow for statutory rectification because the will hasn't been drafted by the test data what's happened is answers have been provided by the test data but it has been on the test data's instructions because it's instructed the robot and the company behind the robot but the bigger point which I think you may be may be alluding to which is something which troubles me and that is the situation where the solicitor prepares the will and rightly or wrongly the test data thinks he hasn't the will drafter hasn't got it quite right and he tweaks it a bit on the paper and truly authenticates the tweaking and the question then becomes would that potentially there might have been an error by the solicitor which wasn't the thing which was altered by the testation as tweaking and as currently worded you couldn't have statutory rectification under section 3 because you couldn't say the will was not by the test data because in part the test data had done something to the will albeit the offending parts the error had been done by the solicitor so it seems to me there are grey areas most obviously when one's dealing with a robot but also less obviously when one is dealing with someone who has tried to improve the solicitor's drafting but the error in fact is not what they've tried to improve the error they've just overlooked the solicitor's big error and they've focused on something which is trivial Does this also touch on the matter of informal writings? Informal writings are a which are often provided for in wills They are I I have tutored in the last two years at Glasgow University and the standard style wills which the students are taught to use include informal writings clauses and what they tend to say is they tend to say that effect will be given to informal writings and there's usually a provision provided that they are signed that would be the style which tends to be recommended for use They raise horrifically difficult questions in their own right which I haven't been addressed in this consultation exercise but to outline some of the difficulties what happens to do with formalities of execution with a will you would normally to see each sheet signed as well as it's signed at the end and then it said the will is self-proving so you can rely on that and you take it along to get to the share of court and get confirmation where a normal will hasn't been signed on every sheet but only at the end to establish that that is the will of the test data and you jump through various hoops it's usually fairly easy to jump through the hoops but it can be a little more difficult that's section 4 where you have informal writings there are all sorts of collateral issues I suspect we're now travelling into it seems to me things that are not in the bill before which for this committee perhaps is for another day unless it is relevant I from the chair do need to point out we have strayed and interesting though it might be can we get back to the bill before us please in relation to purely interactification you could have a situation let us assume that the informal writing is effective there's nothing wrong with the informal we're just on that assumption the error lies in the parent will so the error is by the solicitor in the parent will on one view given that you look at the informal writing and the will as one document you would seem to be excluded from relying on rectification in that context I think perhaps there's one thing that is worth mentioning and it underlines my view and I think this is where Nick and I differ I take the view that there have to be instructions to a person, a human being I think as Mr Stevenson's you referred to whereas I think Nick takes the view instructions to a robot might suffice or instructions into the internet but the the reason why I take the view that a court would see instructions as being instructions to a person is tied in with the reason for this specific definition and that is a practical one it is contemplated that it may be easier to satisfy the requirements for rectification if one can then lead as a witness the person who has been instructed to draft the will and who can say well actually these are my instructions this is what I was asked to do but oops there was a slip and that was a slip that happened we put our hands up but it's quite clear that the testator intended it to be as per these instructions given to me and that's a sort of practical reason I think why the section 3 has been drafted in the way that it has been one can understand that we happen not to agree with it because it's too restrictive but one can understand that reasoning on the previous point that Halroyd was making if you think there's a gap in terms of the secretary in formal writings and while it's not part of the bill notwithstanding this is the reason for our consultation with you is for you to tell us of gaps and provision and therefore notwithstanding the convener's remarks about needing to stick to what we're here to do today would you perhaps consider writing on what you see you mentioned it is an area which is attended with considerable controversy is that it may ask the convener then is that the reason why it's not in this bill then I think that might be why it's not in this bill I think my point simply is that we really should be using our time to address things that can be altered reasonably within the bill I recognise that there is overlap with other issues and I wouldn't for one moment say to the committee else that needs to be added in written evidence please do recognising that some of that may be appropriate for other legislation or might not be acted on at all certainly don't want to be restrictive on that I cannot help thinking I'm just about to bring John Scott in on issues of time but I cannot help thinking that we've just heard enough this morning to recognise that the interaction between myself as a general citizen is now an issue which the law is going to have to address we're not going to answer those questions this morning but it is plain that that is what we're going to the courts are going to have to address that issue pretty soon and it might be very sensible if we as legislators and I'm talking as much to the government on the record here as I am to myself actually thought about how we're going to interact with that because it's banned out I think if I may say so convener I think you've raised an extremely important and valuable point I mean it's really focused in the up-section one by the words on the test data's instructions instructions in the past have always been seen as to individuals but now they might be being seen as to other things to use an entirely neutral word well okay but robots robots are only programmed and it's the programmer who is a human being doesn't matter how far back you go on who writes the programmes there's a human back there somewhere but that I suspect is for another day and another place John would you like to rapidly take us on the time limits before we actually run out of time as well? Yes indeed and return into section 4 one and the question already put the previous panel about stakeholders giving evidence committee including yourself said it'd be better if a relevant time limit for applying to court for rectification ran from the date of death however as you know Ellie Scobey reminded the committee last week that until confirmation is granted a will is not a public record notwithstanding what Professor Paisley said and I suggested that if the time period ran from the date of death executors could delay the grant of confirmation when it was in their personal interest to do so do you agree with that point? Have you any points to make around that? Far as the point that was made about an executor delaying in order to prevent rectification clearly that would be a breach of duty by the executor and if that could be established then that would it is likely amount to a cause shown for waiving the time limit I think that views have been expressed by a number of persons giving evidence and that would be our view on that as well what we think is extremely important is that the time limit be firmly anchored in the first place at the moment as the provision is drafted the time limit begins either from death or from the granting of confirmation it's really not clear which it is one has to go one way or the other one has to go either the English way which I think Alies Coby seems to prefer which is anchoring it to the confirmation which case as confirmations might not be obtained for a number of years de facto the time limit could go on for a long time or tie it to death as we prefer in order to try and give some measure of certainty subject to the provision of cause shown to waive that time limit so the other thing that has to be born in mind as well is that as a matter of general law there are six months for creditors to come forward to an executor to recover their debts from the deceased's estate the executor has to settle those debts at that point once they're settled or there's reasonable estate to settle them after six months the beneficiaries begin to be entitled to be paid beneficiaries will be aware of that and therefore one could reasonably expect that a will is going to come to light on any view in one year of the death there will be exceptions but one can reasonably expect that it is also quite common or not uncommon for individuals to seek to rearrange the inheritance particularly in order to avoid inheritance tax and that's done by documents known as instruments of variation and if these are executed within two years of the death then from the point of view of the revenue the will or the succession is taken to be as stated in that instrument of variation and they have to be done within two years of death so again that anticipates that everyone will be aware of that certainly well before that time so they've got time to actually arrange the instrument of variation so it seemed to us that first of all for certainty the period should be tied to death and secondly so far as the time scale involved bearing in mind the distress in the initial months and what have you six months was too little but two years seemed to us to be appropriate that deals with question 5 and question 6 has already been exhausted so if we could move on to John Mason please I think in your written submission you mentioned a retrospective effect that sections 5 and 8 of the bill might have now we did raise that with the Government and their clarification is that section 5 has intended to apply only in respect of wills revoked after commencement and furthermore it intends section 8 to apply to documents executed on or after commencement so I'm just wondering if you are satisfied with that or if you still have problems or reservations about that that would satisfy our concerns I would suggest that that is made explicit in the legislation there is a tension in Scott's law between on the one hand putting oneself in the the armchair of the testata and thinking what did the testata mean when he wrote the will and another principle which is that the will speaks from the date of death the second principle is associated with a case called calendar's trustees so it seems to me critically important that it is made clear that there is not retrospective effect intended because the likelihood is although David and myself have gone over the draft reports of this committee the likelihood is that's not going to be available to your average practitioner and it seems to me very important that it's actually user friendly and in the legislation so your feeling is that the bill as it stands could be interpreted in different ways I think it just would be sensible to make it crystal clear that these provisions only apply in such and such a situation it might well be I think how these things are often dealt with is that the transitional provisions or dare one say at some raft of regulations it seems to trust bar it would be desirable that it should just be made clear in the primary legislation okay thank you John Scott thank you yes and can I take you now to section 6 specifically section 6 2 of the bill which allows to state of the state in his or her will that section 6 should not apply and trust bar has made a specific point relating to section 6 2 of the bill suggesting that it needs to be revised to give greater clarity about the effect of a legacy of the residue in certain circumstances however an oral evidence to the committee the SLC said that it was happy with the drafting of section 6 2 as it stood accordingly and for the benefit of the record could you explain what your proposed changes are and why you think they are necessary and indeed important in practice please in we've put in a proposal in our original in our original submission and it is it's page 8 of the original submission in fact goes on to page 8 goes on to page 9 and it would be to insert as new subsection 3a which says and I just quote without prejudice to the generality of subsection 2 it is not to be regarded as clear from the terms of the will that the testata intended otherwise the testata provides for a legacy of the residue of the estate to a person other than the issue of A so the point that we were concerned with was a situation which commonly occurs where a legacy is left to person A and this can occur where the home maid will for example and there is a residuary provision to a person will call them D and in that situation if one is a lay person then one might think that in fact I want to leave this particular property to this son but if I'm not leaving the property to this son I want to leave it to all my children because I'm leaving the legacy the residue rather at the whole balance I'm leaving to my children so the view might be well if he pre-deceases or anything I'm leaving it to him it's specific to him otherwise it goes to all of them and it might be seen there might be an argument that the state is made its position clear if son A doesn't get it everyone else is getting it but it seemed to us that argument should be eliminated because the overall intention of this provision is that notwithstanding the policy here as I understand it is that notwithstanding the legacy to residue there is to be inheritance by A's children in preference to say the other siblings of A and that's the policy but it just seemed to us that there could be an argument again over the word clear and the proposed amendment we suggested was to put the argument to bed and to make it plain to any reader that a legacy of residue will not prevail over the issue of the specific legatee worth remembering that this provision is confined to issue of the test data so if the test data leaves a legacy to his son and there was no residue clause to complicate matters or if it was left out of account and the son died that it would then under this proposal it would go to the son's children letter saying he had one child to the son's child what concerns us is that we're where there is no express contemplation of this given by the test data what should happen if the son dies but there is a residue clause that could spoil the good intentions of the draft of this piece of legislation and create a doubt whether A's grandchildren should get the money there is another twist which we bring out in the memorandum at page 5 of the memorandum as distinct from the written evidence and that is fairly it's not a very common way of looking at things but it does happen where for example the test data wishes to leave as much as he can to keep it simple our child up to the point where inheritance tax would come into play and leave the balance to someone who can benefit from reliefs so for example the wife, the spouse or conceivably a charity now that would be dealt with in the residue clause now to take the situation where the test data's son has died it's very unlikely that he wouldn't have wanted to make that he'd have wanted all to go into the residue clause because ex-hypothesis that has been planned against in a tax funding context that he's wanting to benefit from reliefs for the balance, either in favour of the spouse or in favour of a charity so all we're really saying is that the residue clause should be neutral and it shouldn't weigh against the test data's deceased son or daughter so it's perhaps not the most exciting thing but it does seem to me it could create problems again if you imagine a solicitor reading the will, reading the legislation well there is a sort of a there is a provision as to what's to happen it's to go to residue and what we want to make clear is that residue clause doesn't displace the good intentions of the draftsman by allowing it to go to the grandchildren of the test data if the child has died I think it's fair to say in context as advocates in practice we are very conscious of arguments appearing on the back of words as it were where perhaps at first glance people didn't think that those arguments were available and we're also conscious that sometimes these arguments can actually gain traction with courts and different views can arise so really at the cost of cutting off maybe a very small line of work for us we would suggest that matters be clarified I think that we would always endorse the view that makes sure that things do not finish up in courts I have great respect for lawyers but the less work we can give you as legislators the better we do our legislation John, does that complete that? I'm wondering whether I could take us on to the difficult issue of uncertainty not mercifully in any mathematical sense but you have already heard the discussions and of course you've raised it yourselves in evidence I think there is a general point accepted that where legislation talks about certainty or its absence that may itself constitute an uncertainty but I'm wondering if as practitioners you could lead us down the line that's going to get to a good answer here please Yes the the word uncertainty is already in the existing legislation in relation to common calamity and it has already given rise to litigation in the shape of a case in the mid-1970s called lamb against the Lord Advocate and in that particular case the judge at first instance analysed the English authorities on the use of the word uncertainty and found that in England in the leading case a number of different judges had expressed quite conflicting views as to what was or was not uncertain that judge then reached a particular view it was then appealed up to the inner house of the court of session the appeal court and the appeal court held in a nutshell that that uncertainty simply means that it cannot be established on a balance of probabilities that one person survived the other that was the outcome now it seems to us that in the light of that case and what was observed about the word uncertainty that outcome established on a balance of probabilities should really be the wording used in this new statutory provision one should not have to go back to lamb against the Lord Advocate in order to actually understand what uncertainty means and on page 10 of our written evidence we suggest that it should say in circumstances where it cannot be established who survived whom where it cannot be established who survived whom the established would be understood as being on the balance of probabilities I don't think it would have any difficulty in the words balance of probabilities being used but established if one establishes something then in any civil law matter one does so on a balance of probabilities that was the outcome ultimately of the lamb case one had to go there and it seemed to us why use a word which causes issues and I think the point that Professor Paisley made earlier this morning I think was extremely well put I'd also like to take you back to last week's evidence and Alan Barr who I think in this context said that sometimes it almost doesn't matter what the answer is common calamity kind of situations as long as one's certain what the law is telling you because I think I'm reading into this into what was behind it really that nobody contemplates these things and therefore all you need to be able to do is to sort out the horrible mess rather than try and work out what was intended because it was never going to be in contemplation and nothing was ever intended I'm sure there are exceptions to people's attitudes but the thing is probable in most cases is that there is no desire that the estate should go to the Crown hence the suggestion which just was made and I think has met quite a lot of approval in some quarters so maybe the bottom line is that we should be sure comes back to the previous conversation this morning that it goes to a human beneficiary rather than the Crown and maybe at that point you would endorse Alan Barr's comment that it probably doesn't really matter in contemplation anyway As long as it does go to a to a human I mean the uncertain thing is a drafting point but what is important here are the consequences of the new rule and what we drew attention to was in fact the difficulty with the old common law which led to the 64 reform which is now to be changed and highlighted in the Clydebank Blitz case which we mentioned in the written memo this was 1941 where there was a father, mother, husband, wife and two children she owned national savings the whole house was bombed and they all died and it couldn't be established who survived whom she herself did not have any other blood relatives and did not leave a will there was a claim put forward by her brothers-in-law that's the husband's siblings to the to the national savings on the basis that on the basis that they were the uncles of the children and I think also the on the basis that they were the sisters of the wife neither of those arguments was successful before the court because the common law was essentially the one that's being sought to be re-established now which was it could not be proved who survived whom couldn't be proved who survived whom it was intestate no other blood relative could be identified therefore it went to the Crown it actually fought that quite hard and it just seemed to us that whilst the argument for moving away from doing everything by age is a good one we should not have to be revisited with the Clydebank Blitz outcome yes okay, John give me if I've got this completely wrong but in evidence last week and I'm not certain that I'm even referring to the right thing but did Lord Wheatley not make some judgment on this more recently than the Clydebank? He was involved in the lamb case with uncertainty he was involved in the lamb case and it was ultimately his opinion in a house which said that all that has to be established for uncertainty is that it cannot be proved on a balance of probabilities that one person survived the other that was his role in the mid-seventies in the lamb case and that would be a view that you would presumably share that would be a view that we would share but I suppose the view we take is that his view should really be put into statute so we move away from that word uncertainty Excellent Right I think after a very interesting morning we've actually finished this evidence section can I say thank you very much indeed to Mr Barthas and Mr Holroyd and to the gathered company if anything more does occur to you possibly in the small hours of the night feel free to write to us but hopefully not extensively because I think we've probably pretty much received all the evidence we're going to be able to cope with Thank you very much for inviting us to give evidence I was very much appreciated the opportunity and it's very committed to trying to assist the committee in promoting the ideas of legislation which is clear and user friendly and what we've tried to do in providing that assistance is also tried to promote the idea of the legislation in this area chiming with other areas of the law so far as possible Professor Paisley mentioned at the end he made comments about Donatio and Mortis Causa we'd entirely associate ourselves with those comments of Professor Paisley at the end Thank you very much indeed can I just briefly suspend while we allow the witnesses to leave us and we'll resume shortly Thank you Let's move on to agenda item 3 Instrument subject to Affirmative Procedure No points have been raised by our legal advisers on the international organisations, immunities and privileges Scotland amendment order 2015 draft Members may wish to be aware that this instrument was withdrawn and subsequently relayed following correspondence with our legal adviser as the committee content with this instrument please Cue agenda item 4 Instrument subject to negative procedure the sea fishing EU control measures in 2015 it says I-2015 320 this instrument contains a provision which is unclear article 231a could more clearly provide that the court is not enabled to order the detention of a boat its gear and catch for a period after the date when a fine is paid the purpose of the detention being the recovery of that fine instrument also contains a drafting error in part 1 of the schedule at inserted entry 1da column 3 of the table specifies a requirement in relation to EU fishing boats with an overall length of 10 metres or more contravention of which constitutes an offence the requirement at B is to submit the landing obligation as soon as possible but this should refer to a landing declaration does the committee agree to draw the order to the attention of the Parliament on the following reporting grounds 1 on ground H is the meaning of article 231a could be clearer and 2 on the general reporting ground in respect of the drafting error it does the committee also agree to call on the Scottish Government to lay an amendment to correct those matters in due course no points have been raised by illegal advisers on the land and building transaction tax open ended investment companies Scotland regulations 2015 SSI 2015 322 nor on the water environment relevant enactments and designation of responsible authorities and functions Scotland amendment order 2015 SSI 2015 323 nor the police plenchins scheme Scotland amendment regulations 2015 SSI 2015 325 nor the schedule of wonderment solicited buildings miscellaneous amendments Scotland's regulations 2015 SSI 2015 328 is the committee content with these please gender item 5 instruments not subject to any parliamentary procedure no points have been raised by illegal advisers on the private rented housing Scotland act 2011 commencement number 7 order 2015 SSI 2015 326 nor on the procurement reform Scotland act 2014 commencement number 1 order 2015 SSI 2015 331 is the committee content with these please gender item 6 the alcohol licensing public health and criminal justice Scotland bill the purpose of this item is for the committee to consider the delegated powers revisions in the bill at stage 1 the committee is invited to agree the questions it wishes to raise with the member on the delegated powers in written correspondence committee will have the opportunity to consider the responses at a future meeting before the draft report is considered section 2 imposes a new mandatory sorry imposes new mandatory conditions which would prohibit in license premises or as part of an occasional license the sale of alcoholic drinks with a caffeine content in excess of such amount as may be described by regulations the bill would insert new paragraphs into the license in Scotland act 2005 which would require Scottish ministers to prescribe a maximum amount of caffeine in caffeinated alcoholic drinks no later than 12 months after the royal assent the delegated powers memorandum does not explain the reasoning behind requiring Scottish ministers to prescribe a maximum amount no later than 12 months equally the member's intentions regarding different levels sorry regarding levels of caffeine in relation to premises licenses and occasional licenses are not outlined does the committee agree to ask the member in charge of the bill for explanation of the following matters in relation to the powers in sections 2, 3 and 4 inserting paragraph 81 of schedule 3 and paragraph 7a 1 of schedule 4 to the 2005 act a Scottish ministers must prescribe an amount a maximum level of caffeine in caffeinated alcoholic drinks under these powers no later than 12 months after the data royal assent to the bill why has this timing been chosen as suitable and b, it appears that these powers would enable ministers to prescribe either the same or different maximum amounts for the purposes premises licenses and occasional licenses under the 2005 act why is this considered to be appropriate the commencement powers provide for certain provisions as listed in subsection 1 to come into force on the day after royal assent the other provisions are proposed to automatically commence 12 months after royal assent and less ministers bring any of them into force earlier by regulation under subsection 2 those commencement powers are relatively unusual as they set out when certain provisions coming to force and less regulations are made to commence these provisions earlier such powers take into account that this is a member's bill rather than a Government bill does the committee agree to ask the member in charge of the bill for explanation of the following matters in relation to the commencement powers in section 34 a subsection 1 of the section less various provisions which could be brought into force sorry which come into force on the day after royal assent subsection 2 provides that the other provisions come into force at the end of 12 months from the day of royal assent or on such earlier data Scottish ministers may by regulations appoint it's the committee content to seek clarification why various provisions as listed in subsection 1 have been selected as suitable commencement on the day after royal assent with the other provisions coming to force by regulations and b why is the timing of 12 months from royal assent to the bill being selected as a suitable long-stop date by which Scottish ministers must have commenced the remaining provisions at which point I move the meeting into private thank you very much