Head 2: Succession Flashcards
How is the law of succession influenced by the ECHR?
⁃ Marckx v Belgium 1979 - question of whether discrimination under Belgian law against illegitimate children was compatible with the ECHR. ECtHR held it was a breach of Article 8, 14 and A1P1.
⁃ Even 20 years later this question is still being litigated:
⁃ Mazurek v France (2006) - similar situation to Marckx. Illegitimate child was only entitled to a small share of his mother’s estate, whereas his legitimate brother was entitled to more. ECtHR again held that French law was incompatible with Article 14 and A1P1 since there was no objective or reasonable aim behind the discrimination.
⁃ And again in 2013:
⁃ Fabris v France (2013) - again France was held to be discriminating against illegitimate children.
⁃ Pla v Andorra (2006) - court asked to consider discrimination between adopted and natural children. A will had been left granting a liferent in favour of one individual and his ‘son of a lawful canonical marriage’. Question of whether an adopted child was such a ‘son’. ECtHR held that an adopted son can be a ‘son of a lawful canonical marriage’ since otherwise this would be discrimination between an adopted and natural child.
⁃ Pla has been followed in the recent English case of In Re Erskine so it is likely that a Scottish court would follow it too.
s 22 Registration of Births, Marriages and Deaths (S) Act 1965
requires that all deaths in Scotland must be registered.
s 23 1965 Act
The mechanics of registration of a death are set out in s 23 in particular who is responsible for ensuring that a death is registered. This registration must occur within 8 days of the death.
[ “It shall be the duty of (a) any relation of the deceased, (b) any person present at the death, (c) the deceased’s executor or other legal representative, (d) the occupier, at the time of death, of the premises where the death took place, (e) if there is no such person as is mentioned in the foregoing paragraphs, any other person having knowledge of the particulars to be registered” to register the death.],
s 24
a Medical Certificate provided by a physician stating the Cause of Death will be given to the person who registers the death. They will take that certificate to the Registrar of Births Marriages and Deaths who will issue a technical document called a Death Certificate[ This is necessary to], under s 27.
What is a “Fatal Accident Enquiry”?
Fatal Accidents and Sudden Deaths Inquiry (S) Act 1976, s.1(1)(b):
Sometimes a formal inquiry before the sheriff will be conducted by the procurator fiscal, in order to determine the circumstances of the death. It is governed by the Fatal Accidents and Sudden Deaths Inquiry (S) Act 1976, s.1(1)(b) which states that this happens in three types of case:
1. Accident at work 2. Deaths in custody 3. Cases where it is “expedient in the public interest”.
A “Fatal Accident Enquiry” is a judicial process which must be held when there is a death to ascertain the cause of the death. In some circumstances it will be very clear what happened so a full enquiry will not be necessary. However if there is an accident then a full enquiry will be necessary.
⁃ The death itself will have been reported to the Procurator Fiscal.
⁃ s 1 tells us some circumstances under which these deaths occur in:
⁃ employment, custody, military service (s 1A)
⁃ Under s 6, the outcome of a fatal accident enquiry is a shrieval process[ By a sheriff] and findings which establishes:
⁃ a) where and when the death occurred
⁃ b) cause of death
⁃ c) precautions missed
⁃ d) defects in work practices / employment
Can a dead body be owned?
It is very unclear.
C v Advocate General for Scotland 2012
a private in the Black Watch was killed in a training exercise in Germany, probably as the result of an assault. The soldier was survived by a widow and his mother. The soldier’s will left everything to his widow. But his mother was nominated as the executor of the estate. This posed a problem - to whom should the body be given? Both the widow and the mother wanted the remains. The MoD were unsure who to give the body to; they eventually decided to return the body to the widow. The mother brought a JR against the MoD.
⁃ The Lord Ordinary made some obiter observations about the ownership of the body. He makes very clear that these are obiter: “The question that this opinion singularly fails to answer is who has the better claim to determine where and how the deceased is to be buried or his remains otherwise disposed of.” para 72, per Lord Ordinary. Nevertheless he said that the mother and widow have ‘some kind of right’ to the body, and that the ECHR was relevant. He also said (obiter) that neither right of the mother or widow trumped the right of the other.
⁃ He made it very clear that you could not own a dead body.
How is the disposal of a body determined?
If no one takes any steps to dispose of a body, the LA can do so. Otherwise, the disposal of a body is determined by ownership:
What does Burial Grounds (S) Act 1855 regulate?
⁃ This Act regulates the burial of bodies in Scotland.
⁃ Most burials occur on commercial or local authority land but burial on private land is allowed, as long as it doesn’t cause a nuisance[ In this sense it essentially means that the body must not decompose and affect e.g. the water supply.].
What does National Assistance Act 1948 s 50 regulate?
⁃ This Act applies if there has been a death but nobody has claimed the body.
⁃ The local authority is responsible for ‘disposing’ of the body. This basically means cremating the body, however they cannot cremate the body if they know it would be contrary to the wishes of the deceased.
What does Public Heath etc (S) Act 2008 regulate?
⁃ This Act governs the position if the body has potential to affect public health (e.g. If the body has a contagious disease etc). In this situation the Sheriff is empowered to order an immediate burial.
What does Cremation Acts 1902 and 1952 regulate?
⁃ This is the governing legislation on cremation, but most of the substance is in the Cremation (S) Regulations 1935:
⁃ Regulation 6: a certificate of death is required before a crematorium will cremate a body.
⁃ Regulation 8: the cause of death must be certified by at least two physicians.
⁃ Regulation 9: a medical referee must consent to this (to check the physicians are doing there job), and the exact rules for the medical referees are set out in Regulations 10-12.
What does the Human Tissue (S) Act 2006 regulate?
⁃ This regulates organ donation.
⁃ s 3: organs may be removed for transplant, research, education, training etc if they comply with s 6 which requires written or verbal request to that effect by the deceased.[ So the deceased must have consented and given a written (more likely) or verbal notification of this.]
⁃ s 7: a relative can authorise organs of the deceased being used also
⁃ s 8-9: special rules for children
What does Anatomy Act 1984 regulate?
⁃ This Act deals with donating your entire body. Under s 4(1A) if you wish to donate your entire body then this must be in writing and there must be a witness.
What does Presumption of Death (S) Act 1977 regulate?
⁃ This Act explains what is to be done in situations where a person is missing and presumed dead.
⁃ Under s 1 you can seek declarator if a person is missing and thought dead or not known alive for 7 years.
⁃ s 3 sets out the effects of such a declarator, one of which is that the normal laws of succession can apply
⁃ s 4-5 provides for the situation of reappearance - the court can vary or recall the declarator of death and can suspend and reopen the succession process but only if it is fair and reasonable in all the circumstances.
