Succession (Scotland) Act 2016
1 November 2016 saw the coming into force of The Succession (Scotland) Act 2016. The 2016 Act represents the first major reform of the law in this field since the 1964 Act of the same name. Some would say that the reforms which the Act implements are long overdue.
The 2016 Act implements certain of the recommendations made by the Scottish Law Commission, although there is much more to come in the next phase of what seems certain to be a programme of reform which will extend into dealing with the laws of intestacy, the rights of co-habitants and the question of legal rights.
So, the 2016 Act is only the beginning and the following is a summary of some of its key points.
Divorce, Dissolution or Annulment
Under the old law, none of these had any effect on a Will under Scots Law. As a result of the 2016 Act a divorce, a dissolution or an annulment of marriage will now have the effect of revoking any provision in a Will dated prior to the divorce, dissolution or annulment and which benefits the former spouse or civil partner, unless the Will specifically says otherwise.
The same applies to any appointment of the former spouse or civil partner as executor/trustee or guardian of the testator’s children.
Not only are Wills impacted in this way, so too are survivorship destinations. These are clauses fairly commonly found, especially in older, joint names title deeds, which operate to transfer to the surviving owner, on first death, the relevant share in a jointly owned property. Following divorce, dissolution or annulment, survivorship destinations will be deemed to have been revoked so that the respective owners’ shares in the property will devolve under their respective Wills.
Children of Predeceasing Beneficiary
Children of a predeceasing child or grandchild benefiting under the Will will now receive the legacy which otherwise would have passed to their parent had that parent survived. It is now automatically assumed that the testator’s intention was to benefit the children of such a deceased beneficiary, unless this is specifically excluded.
Previously, this provision would also have applied to nieces and nephews for whom the testator stood “in loco parentis”. That will no longer be the case unless the Will specifically says so.
There are now rectification provisions which would allow an application for the rectification of a Will within six months from the date on which Confirmation is granted (or six months from death where there is no Confirmation) where there is clear evidence that the Will produced does not reflect the intentions of the testator but only if the testator did not actually prepare the Will themselves.
The new rules now provide that a Will revoked in whole or in part expressly or impliedly by a later Will will not be revived at the subsequent revocation of that later Will unless the testator expressly re-signs that earlier Will.
The above is simply a short summary of some of the key changes. A further update shall follow. In the meantime, if you have any questions on any of the above, or if you wish to make or review an existing Will, then please contact Neil Speight in our Private Client Department.