Friday, April 26, 2013

MacLeod and Zimmerman, "Unworthiness to Inherit, Public Policy, Forfeiture: The Scottish Story"

"Unworthiness to Inherit, Public Policy, Forfeiture: The Scottish Story" is the title of a new paper by John MacLeod (University of Glasgow) and Reinhard Zimmermann (Max Planck Institute for Comparative and International Private Law). It is forthcoming in Volume 87, No. 4 of the Tulane Law Review (2013). Here's the abstract:
The concerns addressed by the civilian rules on unworthiness to inherit (indignitas succedendi) must be addressed by any legal system. When they arose in Scotland, responses tended to be found by the extension or development of other rules. Even where there was reference to the idea of unworthiness, as in the Parricide Act 1594 and in Buchanan v Paterson (1704), the result was later reconceptualized along different lines. In recent years, the Scottish courts have been more receptive to the public policy principle that no-one is to benefit from his own wrong, taken from the English common law. Even there, however, the Scottish courts have shown a reluctance to follow foreign authorities too closely. The result is a series of shoots, each taking a slightly different direction and none of them growing to maturity. Thus, whatever might be said about Lord Cooper's characterization of Scottish legal history as a story of "false starts and rejected experiments" on a general level, it is certainly an accurate description of the story told in this paper, i.e. of the treatment of persons who do not deserve to inherit in Scots Law. 
It is remarkable how much of the discussion in Scots Law is focused on cases involving the killing of the deceased. The differences between the unworthiness and the public policy approach do not in fact play a role in this situation, and that is probably the reason why they have not elicited much comment. Beyond killing there is hardly any case law. One of the main reasons for this appears to be that other legal devices are available to take care of many, perhaps most, of the practical problems that may be raised in other instances of unworthiness to inherit.
The abstract also contains this notice/disclaimer: "[t]his pre-print version is published in this Research Paper Series with the permission of the Tulane Law Review in accordance with its Author/Journal Publication Agreement and Copyright License. The publisher's version of the article will be available for download as of October 2013." The paper is available for download here, at SSRN.

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