The rules of mandatory family protection in Scotland date from the late Middle Ages and were a close copy of the rules then (but no longer) in force in England. Originally they comprised two distinct ‘legal rights’ (as they came much later to be known). In the first place, the surviving spouse had a usufruct in the immovable property of the deceased, known as ‘terce’ (for widows) and ‘courtesy’ (for widowers). Courtesy extended to the whole immovable property, terce only to one-third. In the second place, the movable property of the deceased was divided into three equal parts. The surviving spouse had a claim (the ‘relict’s right’ or jus relictae) to one part, and the surviving children to another (‘legitim’). The final one-third (‘dead’s part’) was the testator’s to dispose of in his will. Terce and courtesy were abolished, rather unthinkingly, in 1964. Today, therefore, the surviving spouse and children are protected against disinheritance only in respect of movable property – a weak form of protection made weaker still by the absence of anti-avoidance measures that would prevent testators giving property away during their lifetimes. The law is widely acknowledged to be unsatisfactory, but there is less agreement as to how it should be changed. One view is that legal rights should be extended to immovable property. Another view is that legitim should be replaced by a maintenance claim for dependent children (only). In the face of these competing views, the Scottish Government has recently decided to leave the law unchanged.
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