The Law of Succession, with Professor Gillian Black

Clan Hay's lecture series continued on Saturday 19 March with an enlightening session from Professor Gillian Black on the theme of succession to hereditary titles and coats of arms.

Professor Gillian Black

Gillian Black is Professor of Scots Private Law at Edinburgh University, specialising in family law and contract law. Her work in family law brings together her interests in the legal regulation of families with her long-standing interest in heraldry. She is a member of the Heraldry Society of Scotland, the Lord Lyon Society, and a Fellow of the Society of Antiquaries of Scotland.  In 2021 she was appointed as Linlithgow Pursuivant Extraordinary by the Lord Lyon. She also enjoys exploring graveyards and runs a Twitter account for Scottish Graveyard Heraldry!

Her lecture was titled The significance of status and genetics in the succession to titles and coats of arms; is there a case for law reform?    Professor Black explains the purpose of the talk: "In this lecture l examine the current laws which govern succession to titles and coats of arms, and the jus sanguinis, and then contrast this with family law. Scots family law now recognises the parent/child relationship in an increasingly wide range of situations. If donor-conceived, adopted and surrogate-born children are legitimate heirs as far as the law is concerned, can we justify a different approach in the succession to titles, honours, dignities and coats of arms? By examining the legal and social principles which come in to play, we can consider whether there is a case for reform."

She looked at this complex subject under five headings: illegitimacy, gender, adoption, gender reassignment, and surrogacy together with assisted conception.  In all of these cases, Scots law no longer makes any distinction on any of these grounds, and indeed the status of illegitimacy has been legally abolished.  However each Act of Parliament which recognised the legality of the parent child relationship in each of these situations specifically excepts succession to titles and coats of arms.  The purpose, it seems, is to protect the blood line in these cases and also to avoid the many complex and unforeseen consequences that may result from sweeping away these ancient requirements.

However Professor Black argues that substantial reform is now not only inevitable, but necessary if the hereditary succession to arms and titles is to have any relevance in modern society.  With around 50% of children now born to unmarried parents, the status of illegitimacy no longer has relevance.  Discrimination on the basis of gender is no longer accepted in society so it is overwhelmingly likely that reform is overwhelmingly likely, to end male line preference and make the eldest child the heir; exactly that change was made in the succession to the British Crown in 2013, shortly before the birth of Prince George.

The matter of gender was of particular interest to Hays, as succession to the chiefship of the clan has three times passed through the female line, as has equally been the case with over half the chiefs currently recognised by the Lord Lyon King of Arms.  However it remains the case that a younger son will be preferred to an elder daughter.  Several unsuccessful attempts have been made to challenge this in the Scottish courts.  In the case of one Spanish title, the claimant took her case to the European Court of Human Rights, where the court ruled that because a title cannot be defined as a possession, no gender-based discrimination had taken place.  However, it is noteworthy that Spain changed the law to allow female line succession very shortly afterwards.

In cases of assisted conception, the birth mother is the legal mother, regardless of whether she is also the genetic mother, ie whether or not her egg has been used.  Currently, the law requires a child to be the full genetic and gestational child of married parents, in order to succeed to a title or honour. Where there has been donor conception, using donor sperm or eggs or both, or where a surrogate has carried the child, there will be a break in the bloodline - the legal parents will not be the genetic and/or gestational parents and although regarded as the legal child of its mother and father in every respect, that does not extend to succession to titles.

Professor Black went on to look at the Pringle of Stichill baronetcy and chiefship, where DNA evidence came to light which proved a genetic break in the line linking the then chief to his predecessors.  The result was that on the death of the chief, his son was not allowed to succeed; the new chief is a cousin.

Professor Black outlined a number of potential legal solutions that might reconcile these conflicting objectives with social and scientific developments of recent years.  It was clear, though, that it will take much thought and debate to achieve a solution that is workable in all cases.  We are grateful to her for bringing these issues to our attention, and for making a difficult and involved subject so accessible to an audience that largely had not previously given it much thought.