It would probably come as a shock to most people to discover that a convicted murderer can act as the executor of their victim’s estate.

That is the position as the law currently stands in Scotland. Whilst a murderer cannot inherit anything from their victim’s estate, the law does not prevent them from being executor and therefore having access to and control over the assets belonging to the victim.

In practice, that means they can access the assets, and control, delay and create barriers in the administration of the deceased’s estate – with beneficiaries having very limited recourse to force the executor to progress the administration.

Following a number of recent cases where convicted murderers controlled the estates of their victims, resulting public campaigns for reform, changes to the legislation in this area have been proposed this week.

The Trusts and Succession (Scotland) Bill is currently passing through the Scottish Parliament, and specific amendments have been proposed which are twofold. Firstly, in the case of a person dying without a will (intestacy) the new law would prevent sheriffs from appointing as executor a person who is being prosecuted for, or has been convicted of, the murder or culpable homicide of the deceased (where they would otherwise be entitled to be appointed as an executor under intestacy rules).

Secondly, the new legislation would create a route by which co-executors or beneficiaries could apply to the court to have the person removed as an executor where they have been appointed as one (whether under a will or under intestacy rules).

If these amendments are approved and the bill becomes law, these new rules would be in force next summer, and would have retrospective effect.

This anomaly that the draft legislation seeks to address is an extreme example, but just one of many rules under succession law which are surprising to many. The fact that a particular outcome seems to be a reasonable and common sense one does not mean that is what the law actually says.

Many clients find that their expectations as to who can benefit from or exercise control over their estate are misconceptions – which can result in the rights, control and inheritances landing in the hands of people who the deceased would never have intended. Having worked hard their whole lives to build up wealth to pass on to their chosen beneficiaries, it is vital that clients take the necessary advice and put in place the correct documentation to ensure that their assets up in the right hands.

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