Succession (Scotland) Act 1964

8 Prior rights of surviving spouse, on intestacy, in dwelling house and furniture. S

(1) Where a person dies intestate leaving a spouse, and the intestate estate includes a relevant interest in a dwelling house to which this section applies, the surviving spouse shall be entitled to receive out of the intestate estate—

(a) where the value of the relevant interest does not exceed [F1 £30,000 or such larger amount as may from time to time be fixed by order of the Secretary of State]—

(i) if subsection (2) of this section does not apply, the relevant interest;

(ii) if the said subsection (2) applies, a sum equal to the value of the relevant interest;

(b) in any other case, the sum of [F1 £30,000 or such larger amount as may from time to time be fixed by order of the Secretary of State]:

Provided that, if the intestate estate comprises a relevant interest in two or more dwelling houses to which this section applies, this subsection shall have effect only in relation to such one of them as the surviving spouse may elect for the purposes of this subsection within six months of the date of death of the intestate.

(2) This subsection shall apply for the purposes of paragraph (a) of the foregoing subsection if—

(a) the dwelling house forms part only of the subjects comprised in one tenancy or lease under which the intestate was the tenant; or

(b) the dwelling house forms the whole or part of subjects an interest in which is comprised in the intestate estate and which were used by the intestate for carrying on a trade, profession or occupation, and the value of the estate as a whole would be likely to be substantially diminished if the dwelling house were disposed of otherwise than with the assets of the trade, profession or occupation.

(3) Where a person dies intestate leaving a spouse, and the intestate estate includes the furniture and plenishings of a dwelling house to which this section applies (whether or not the dwelling house is comprised in the intestate estate), the surviving spouse shall be entitled to receive out of the intestate estate—

(a) where the value of the furniture and plenishings does not exceed [F1 £8,000 or such larger amount as may from time to time be fixed by order of the Secretary of State], the whole thereof;

(b) in any other case, such part of the furniture and plenishings, to a value not exceeding [F1 £8,000 or such larger amount as may from time to time be fixed by order of the Secretary of State], as may be chosen by the surviving spouse:

Provided that, if the intestate estate comprises the furniture and plenishings of two or more such dwelling houses, this subsection shall have effect only in relation to the furniture and plenishings of such one of them as the surviving spouse may elect for the purposes of this subsection within six months of the date of death of the intestate.

(4) This section applies, in the case of any intestate, to any dwelling house in which the surviving spouse of the intestate was ordinarily resident at the date of death of the intestate.

(5) Where any question arises as to the value of any furniture or plenishings, or of any interest in a dwelling house, for the purposes of any provision of this section the question shall be determined by arbitration by a single arbiter appointed, in default of agreement, by the sheriff of the county in which the intestate was domiciled at the date of his death or, if that county is uncertain or the intestate was domiciled furth of Scotland, the sheriff of the Lothians and Peebles at Edinburgh.

(6) In this section—

(a) “dwelling house” includes a part of a building occupied (at the date of death of the intestate) as a separate dwelling; and any reference to a dwelling house shall be construed as including any garden or portion of ground attached to, and usually occupied with, the dwelling house or otherwise required for the amenity or convenience of the dwelling house;

(b) “furniture and plenishings” includes garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, articles of household use and consumable stores; but does not include any article or animal used at the date of death of the intestate for business purposes, or money or securities for money, or any heirloom;

(c) “heirloom”, in relation to an intestate estate, means any article which has associations with the intestate’s family of such nature and extent that it ought to pass to some member of that family other than the surviving spouse of the intestate;

(d) “relevant interest”, in relation to a dwelling house, means the interest therein of an owner, or the interest therein of a tenant, subject in either case to any heritable debt secured over the interest; and for the purposes of this definition “tenant” means a tenant under a tenancy or lease (whether of the dwelling house alone or of the dwelling house together with other subjects) which is not a tenancy to which the Rent and Mortgage Interest Restrictions Acts 1920 to 1939 apply.

Textual Amendments

F1 Words substituted by Succession (Scotland) Act 1973 (c. 25), s. 1(1)(a)

Modifications etc. (not altering text)

C1 S. 8 saved (25.7.1976) by Prescription and Limitation (Scotland) Act 1973 (c. 52), s. 6(2), Sch. 1 para. 2(f)

C2 S. 8(1)(a)(b): it is provided that the fixed amount shall be £110,000 (26.11.1993) by S.I. 1993/2690, art. 2 (which S.I. was revoked (1.4.1999) by S.I. 1999/445, art. 3)

C3 S. 8(3)(a)(b): it is provided that the fixed amount shall be £20,000 (26.11.1993) by S.I. 1993/2690, art. 2 (which S.I. was revoked (1.4.1999) by S.I. 1999/445, art. 3)