Article on Unworthiness to Inherit in Scotland

John MacLeod(Lecturer, University of Glasgow) & Reinhard Zimmermann (Professor,Bucerius Law School, Hamburg) recently published an article entitled, Unworthiness to Inherit, Public Policy,Forfeiture: The Scottish Story, 87 Tul. L. Rev. 741 (2013). Provided below is the abstract to thearticle: 

The concerns addressed by the civilian rules on unworthiness toinherit (indignitas succedendi) must be addressed by any legal system. Whenthey arose in Scotland, responses tended to be found by the extension ordevelopment of other rules. Even where there was reference to the idea ofunworthiness, as in the Parricide Act 1594 and in Buchanan v Paterson (1704),the result was later re-conceptualized along different lines. In recent years,the Scottish courts have been more receptive to the public policy principlethat no one is to benefit from his or her own wrong, taken from the Englishcommon law. Even there, however, the Scottish courts have shown a reluctance tofollow foreign authorities too closely. The result is a series of shoots, eachtaking a slightly different direction and none of them growing to maturity.Thus, whatever might be said about Lord Cooper’s characterization of Scottishlegal history as a story of “false starts and rejected experiments” on ageneral level, it is certainly an accurate description of the story told inthis Article, that is, of the treatment of persons who do not deserve toinherit in Scots law.

It is remarkable how much of the discussion in Scots law isfocused on cases involving the killing of the deceased. The differences betweenthe unworthiness and the public policy approach do not in fact play a role inthis situation and that is probably the reason why they have not elicited muchcomment. Beyond killing there is hardly any case law. One of the main reasonsfor this appears to be that other legal devices are available to take care ofmany, perhaps most, of the practical problems that may be raised in otherinstances of unworthiness to inherit.