Lecture 1- Death - Leslie Dodd PDF

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Leslie Dodd...

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Law of Succession and Trusts Lecture 1 Death Establishing death In order for succession to occur someone needs to have died, and legally it has to be proven that they have died. --> In most cases, this is easy and can be accomplished by producing a death certificate. The governing legislation => Registration of Births, Marriages and Deaths (S) Act 1965 s.23 all deaths in Scotland must be registered within 8 days of death or of body being discovered. s.27 certificate of registration of death can be issued free It is possible that someone could be declared dead and then evidence could be led showing that they're alive. --> death certificate would not be conclusive evidence of death. Suspicious deaths Where a death is considered to be suspicious or unusual, the procurator fiscal will investigate it. > this will often require a post-mortem exam, autopsy and a public inquiry. Governing legislation = the Inquiries into Fatal Accidents and Sudden Death (S) Act 2016 Gives us 3 situations where there must be a public inquiry into the death. 1. s.2(3)- fatal accident at work 2. s.2(4)- death in legal custody 3. s.4- where a death is deemed, sudden suspicious or unexplained and it would be public interest to hold an inquiry In these situations where,   

A fatal accident has happened at work and you want to find out if there has been negligence There has been death in legal custody, and you want to find out if the death involved any malfeasance or negligence on the part of the authorities. The death is sudden, suspicious or unexplained and you want to check that it's not a murder.

In these cases, we hold public inquiries, enough to know that they occur --> don’t need to know too much. Situations where a body might not have been found or may not be recoverable, I.e. if someone rushes into a burning building and it collapses, someone is sailing a yacht around the world and the ship sinks and no body is recovered, someone runs away without a trace. What happens then? How is their estate handled?

--> governed by the Presumption of Death (Scotland) Act 1977 Covers areas where we don’t have a body, we don’t have definite proof of death but a person is thought to have died. s.1- after 7 years, can ask the court to look at evidence and declare that the individual has died. > once this has been done the estate can be distributed. s.2- ‘In an action of declarator, the court, having heard proof and being satisfied on a balance of probabilities shall grant decree accordingly’. > balance of probabilities is not beyond reasonable doubt, 50.1% is enough proof that the missing person has died. > if someone has gone missing for a period of time and you convince the court that they are most likely, on balance of probabilities, to have died, then the court will hold that they died at the end of the period. If a person has not been known to be alive for a period of at least 7 years, the courts shall find that missing person died at the end of the day, occurring 7 years after the date that they were lasr known to be alive and will grant decree accordingly. SUMMARY 

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If a person is missing and there is reason to believe they are dead, or if a person has been missing for 7 years. Then anyone with an interest may ask the Session to declare the person dead. The decision is made based upon balance of probability. So, if you have a period of time and the person could have died at any point within that period, then the end of that period will be fixed as the time of death. If that person has been missing for 7 years, then the date of death will be exactly 7 years after the person was last seen.

Death and the body Generally speaking, we dispose of dead bodies in one or two ways – by burial or cremation. --> Burial and Cremation (S) Act 2016 You must apply for permission before cremating or burying someone. When you are seeking to cremate someone, the application form will ask whether the deceased left any written instructions about the mode of burial --> this allows the deceased to veto cremation. (mainly related to canon law of medieval Christianity). YOU CAN'T VETO BURIAL The body itself has no property value; it doesn’t exist as a property. Robson v Robson 

Established that there is no right of property over a body.

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The executor or next of kin will have custody of the body for purposes of ensuring burial, btu they won't have ownership.

Hunterian Museum in Glasgow,  

Has a mummy on display. How are they allowed to ‘own’ it? Limited cases, donation for scientific research, transplants or parts of human bodies.

Where death is suspicious... The sheriff can take possession of the body and/or forbit cremation. --> if you poison someone then, you could do other things to kill them. Burning the body/ cremating it would be a very good way to get rid of evidence. So, if the death is suspicious cremation can be forbidden until cause of death is properly established....