26 November 2014

"The buggers are out to get us."

On first glance, it sounds like a wee thing. A technical thing. On page ninety-two of Nicola's new Programme for Government, under the heading of land reform, the dry civil service prose notes:

"As part of this modernisation the distinction between movable and immovable property would be removed to give children, spouses and civil partners appropriate legal rights over both forms of property. This should ensure a just distribution of assets among a deceased’s close family to reflect both societal change and expectations."

I can feel your eyelids drooping, but the implications of this dreary little sentence are eye-popping -- if you happen to own great tracts of land and wish to bequeath them to your beloved son and heir. It'll have the Tatler class in the Borders and the Highlands buckled in grief. Ragged strips of tweed, the only remains of a popping laird, will be fluttering over rural Perthshire. But to see why, you have to know a thing or two about the Scottish law of succession as it stands. 

When you feel the cold hand of the Reaper feel your collar, or sense him hovering near, you have a few options. You can scribble up a will, setting out how you'd like your property and assets to be distributed after your death. Alternatively, you can leave the distribution to the law of intestacy, which sets out rules about who gets what after you are under the clod. Generally speaking, if you write your will, effect will be given to your testamentary wishes. Uncle John's gold watch will go to wee Jimmy, who always loved its ticking so. Your bungalow will transfer to the cat and dog home, to keep the nation's unloved moggies in the manner to which they have become accustomed. 

But you don't have limitless freedom under Scots law. Your close relatives - your spouses and children - have certain legal rights over your property. They can forswear whatever legacy you grant them in your will, and claim their legal rights from your estate instead. But here's the crunch. At present, these legal rights only extend to your moveable property - money in the bank, gold bullion in the shed, shares and so on. They don't extend to heritable property - to land and the houses built upon them. At least, not yet

If you wanted to be a cruel, cold-hearted Scottish patriarch, and to write your hated spouse and children out of your will, you had to drink the profits while alive, or invest them in land. But if you maintain a healthy surplus in your bank account, and try to exclude one child from inheriting any of it, they can override your will and claim their legal rights from your estate. Nicola's plans kibosh those aspirations. And these legal rights aren't paltry sums. A single child whose mother survives is entitled to claim a full one third of his father's moveable estate. That may amount to six bob and a pickled egg, or hundreds of thousands of pounds. 

The exclusion of heritable property from the bairn's part has obvious consequences: it allows large, landowning interests to keep their estates together, generation to generation, by immunising testamentary intent from legal challenge. It gives the dead landowner the final word on where their hunting estates, and farms, and stately homes end up. Second sons and daughters don't get a look in. If they are unhappy with the generosity of their legacies, they can claim their legitim rights, but the land itself is exempted. Which is why Nicola's proposals today, despite their untrumpeted delivery, have real radical potential.

If introduced, those disgruntled second sons and daughters would have the right to have land - potentially very large tracts of land - factored into their legal rights, whatever the deceased's will had to say about it. Perhaps these siblings would want to honour their father's wishes, and for the eldest boy to inherit the title and the property -- but I dare say others would want to vindicate their legal entitlements in the teeth of dearly departed's desire to disinherit them. If those making wills know that their wishes will not and cannot be enforced against their children, that too is likely to encourage changes of behaviour, and the gradual erosion and division of the country's biggest estates.

There are doubtless canny corporate workarounds and expensive trust work which could defeat the simple logic of the Scottish Government's policy here -- but extending legal rights to land is more than just a technicality. It strikes at the heart of the legal system of succession which is instrumental in upholding and maintaining landownership in its current form. Before the referendum, "one of the country's pre-eminent dukes" fretted in Tatler that "the buggers are out to get us." When His Grace chews through the implications of today's announcement, I dare say he'll be confirmed in his opinion.


13 comments :

  1. Aahhh....the joys of having a Socialist lawyer at the heart of Government! Gaun yersel' Nicola!

    ReplyDelete
  2. Good to see that those estates stolen from the people will now be broken up. Such a shame that they are not being nationalised

    ReplyDelete
    Replies
    1. Would that be nationalisation with fair-value compensation (an interesting use of billions of pounds of taxpayers' money, I'll grant you) or nationalisation without compensation (a.k.a. the Mugabe option, enthusiastically fantasised about by unreconstructed Scottish Socialists who so admire his splendid achievements in improving the economy of Zimbabwe but unfortunately non-compliant with key obligations in international law to which Scotland's government would remain committed)?

      Delete
  3. Unfortunately, this causes collateral damage amongst ordinary working farmers and crofters whose tracts of land may be less vast than dukes' ...

    BTW, @ Unknown, can you name me an actual estate which was stolen from the people?

    ReplyDelete
    Replies
    1. You'll have never heard of the Seven Men of Knoydart then?

      Delete
    2. Mr King is being disingenuous. He'll be well aware of the dubious circumstances under which the families of current landowners acquired their land. He'll no doubt have read Andy Wightman's excellent "The Poor Had No Lawyers".

      Delete
    3. The Telegraph is squealing 'Think of the Workers!' in true hypocritical fashion...

      Delete
    4. Working farms can be protected, as Peat Worrier suggests, by vesting them in corporate vehicles, such as companies, or partnerships. And given the protected legal status of crofts I would be very surprised if there was not a carve-out for them, at least.

      Delete
  4. However wondrous this reform, in a democracy you are supposed to put huge questions about land reform to, err, us, before putting them into law. It would at least be a courtesy.

    More seriously, i'm not leaving my bungalow to the cats' home if it's going to benefit some dogs as well.

    ReplyDelete
    Replies
    1. You are at liberty to use your democratic right to vote for the landholder's party who shall without doubt pledge to reverse this should they gain (ha!) control of the Treasury Benches. Also Land Reform was iirc in the last SNP manifesto, or at least the establishment of a commission to report, which it has done so, if you were paying attention. This is a consequence of that, perfectly legal and democratic process. You could have made representations.

      Governments must be allowed to govern. You also have the right to request a judicial review should you consider the process to have legal flaws. Go get 'em tiger!

      I may have been born here but my father's family comes from a long line of tenant farmers in Northamptonshire. We paid rent to the Spencers, generation after generation. The place is now a private home, gentrified. Had a large rangerover in the drive last I was in the village. The M1 is close by, handy. So you will perhaps forgive me for my proletarian attitude to those who acquired large tracts of land by dubious and heavy handed means thus depriving those whose ancestors* tilled it generation after generation of it and making them pay rent just to drive it home.

      *Yes, okay my surname indicates Danish Viking origins and said village is bang on Watling St and the border of the Danelaw. The Danish side of it. Bloody Normans, coming over here, stealing the land we stole . . .

      Delete
    2. I generally support freeing people from the land, so I'm very happy that you've been liberated from a lineage of tenant farmers, who had eked out their lives of monumental drudgery in the Northamptonshire mud.

      I was struggling to put my finger on what was annoying me about this story and I think it is these Nats who go on and on about the land. If some laird owns 30000 acres of the Highlands, I simply don't feel envy I'm afraid. In fact. I'm rather glad that he is left to look after this and not me.

      Delete
  5. This will of course not result in any big bang breakup of estates. But over time, generation by generation they will be broken up, making the parcels more accessible to be bought by the communities inhabiting them. Very clever. Slowly, slowly catches monkey.

    I read a good back some time ago: A Farewell to Alms by Gregory Clark. It seems the poor in the Middle Ages tended not to leave descendants (judged by wills, a great many of which survive). The understory of society got replenished by the younger children of the emerging middle classes (millers, brewers etc) and of course the gentry and the aristocracy. Once the heir inherited the others had to find their own way in life. Maybe Daddy would marry them off to a Miller's son or daughter. Being better fed and not so overworked they in turn had more kids and so the same process happened.

    The same thing will happen to the land. Talent and advice are not endless. People can be feckless and become bankrupt, maybe by trying to live in the style accustomed on a diminished rent. It will take time. But the big estates will be gradually broken up and with the current community help to buy scheme. The communities will be able to buy it. Legal capitalist transfer of title. Little by little will also be affordable. An important consideration.

    ReplyDelete
    Replies
    1. 'The understory of society got replenished by the younger children of the emerging middle classes (millers, brewers etc) and of course the gentry and the aristocracy. Once the heir inherited the others had to find their own way in life.'

      Yes Evelyn Waugh's grim little story 'Winner Takes All' shows how it was still working in the 20th century - see also George Fraser's Franklin family in Mr American.

      Delete