What Happens When You Die - Reforming the Law of Succession

• What's next?
• When will this come into force?
• Rectification of a Will where the effect differs from the intention
• Automatic entitlement of children of a deceased (grand)child who is a beneficiary
• Survivorship Destinations
• Wills

In the field of Private Client law, the year started with a bang as the Scottish Parliament approved the long awaited Succession (Scotland) Bill, which was passed on 29 January 2016. 

There has been little modification in the law of succession in Scotland since the Succession (Scotland) Act 1964, yet the overall transformation in social and family life since then has merited the need for steps to be taken in order to enhance the ongoing relationship between older Scottish law and modern social norms.

Why do we need these amendments?

In the more than 50 years since the previous legislation was passed, it's fair to say that society has changed somewhat.  Civil partnerships have been created, and divorce and separation have become more common.

You may be surprised to discover that, up to now, a divorce or a dissolution of civil partnership in Scotland has not had the automatic effect of invalidating a Will that leaves everything to the former spouse / civil partner.  Nor does it nullify a survivorship destination leaving the property in which you live to your ex-spouse on your death (even if your Will has provided for everything to pass to your children or new spouse).  

In the absence of people updating their legal affairs on divorce or separation, many have been caught out by the misguided assumption that the end of a marriage or civil partnership meant that nothing would pass to their former partner.

So, what’s changed?

What's next?

The above summary of some of the changes due to take place is a small indication of the forthcoming modifications expected in private client legislation.   The next stage of the consultation process will deal with the law of intestacy for people who don’t leave a Will, the rights of a cohabitant on the death of their partner and provision for children, spouses or civil partners who have been disinherited under a Will.

Notwithstanding the new changes, it is still advisable to review your Will, title deeds and any arrangements you may have entered into with your spouse or civil partner in light of any separation or subsequent divorce / dissolution of civil partnership.

Consider the beneficiaries in your Will and whether it is your intention for the children of any potential beneficiaries to inherit your estate should their parent die before you.  It may be necessary to clarify your wishes in your Will, particularly in the absence of any retrospective provisions in the Succession (Scotland) Bill.

Does your Will clearly reflect your intentions?  Does it need to be updated in light of recent circumstances, family situations or changes in the law?  If in doubt, ask!

If you would like to review your legal affairs or believe it’s time to make your first Will please contact a member of our Private Client team: Ian Macdonald, Annie Pearson, Dara Richards or Kirsten Brass.

Back To Top

When will this come into force?

Provided there are no issues, the Succession (Scotland) Bill looks set to become an Act of the Scottish Parliament around the middle of March 2016.  There do not appear to be any retrospective provisions although there is likely to be a Commencement Order in the autumn of 2016 which will set out the transitional provisions. 

Back To Top

Rectification of a Will where the effect differs from the intention

Where a person domiciled in Scotland has instructed a Will - but not prepared it themselves - and there is clear (but not necessarily written) evidence that the Will which has been produced does not reflect their intentions, an application can be made to the court to have the Will rectified.

The time limit for an application for rectification is six months from the date Confirmation (Probate) is granted or, where there is no Confirmation, six months from the date of death.

Back To Top

Automatic entitlement of children of a deceased (grand)child who is a beneficiary

Where a person who makes a Will (the testator) names their child or grandchild as the beneficiary of a share of the estate, and the child or grandchild dies before the testator leaving children, it will automatically be assumed that the testator’s intention was for the children of the deceased beneficiary to take up the entitlement of their predeceased parent in such legacy or share of residue (unless the Will specifically excludes these individuals from benefit and, even then, a claim of legal rights could still be possible).  

This automatic entitlement is already the case under Scots Law but the entitlement previously extended to any children of nieces and nephews of the deceased who had been due to benefit. 

Now the entitlement will be restricted to direct descendants only (ie. children and grandchildren) and it cannot be presumed that the children of a niece or nephew will be entitled to benefit in their parent’s place unless the Will says this should be the case.

Back To Top

Survivorship Destinations

This ‘revocation on divorce’ effect shall also extend to survivorship destinations – the provision where it is written into a property’s title deeds that the title is owned in joint names (usually by spouses or civil partners) and that the property shall pass directly to the survivor of them.  

Prior to this amendment, a separate document needed to be drafted, which required the consent of both parties, to evacuate the survivorship destination.  Under the new changes, a divorce, dissolution or annulment shall render the survivorship destination ineffective.

Back To Top

Wills

For the first time, an action of divorce, dissolution or annulment will now have the effect of cancelling any benefit to the former spouse where the Will was written prior to the divorce (unless the Will expressly provides otherwise). 

Equally, an appointment of the former spouse or civil partner as executor, trustee or guardian of children will also fail as the impact of divorce on a Will shall have the effect that the former spouse or civil partner will not be presumed to have survived the deceased spouse.

Back To Top