Scottish Law on Intestacy and Probate: Borrowing from the United States and Canada to Bring Scottish Law Out of Flux

This article will consider the rules of intestacy and the grounds upon which legal reform is being proposed to amend the law in Scotland. The intention is to compare the benefits of adopting legal provisions from other jurisdictions in common law countries that can serve as a framework for possible legislation. This article will evaluate the jurisdictions that can serve as models for adoption, defining their laws, and evaluating the community property bases for the distribution of property.

First, the laws in England and Wales will be compared to Scottish law, showing the relative issues Scottish nationals may face. Instead of simply adopting English laws, this article will explore the possibility of adopting succession legal approaches from North America, namely the community property system in some of the United States and the threshold approach from British Columbia, Canada.

Next, this article will address how Scotland could address conflicts of law when applying succession laws. It will show that there are current methods available to Scottish nationals through the already-existing Brussels IV law, as part of the European Union, even though the United Kingdom has opted out. It will then show how the United States and Canada have addressed their own conflict of law issues, and how Scotland could consider borrowing from those approaches.