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The Scottish rules of succession have remained largely unchanged since the introduction of the Succession (Scotland) Act 1964. This sets out in detail the basis upon which estates should be distributed when a person dies without a Will. Critics claim the rigid rules it imposes are not fit for purpose in modern Scotland.

Attempts at reform have been made before (particularly by the Scottish Law Commission in 1990) but real change has not been considered until relatively recently. The Scottish Government has taken a two-pronged approach to reform, with one approach focusing on overall policy which is likely to make significant changes to the law and the other focusing on clarifying and improving certain aspects of the existing law. The second approach is the first to appear on the legislative horizon and takes the form of the Succession (Scotland) Bill 2015, which entered Stage 2 of the Committee process in the Scottish Parliament in December 2015.

The Bill seeks to clarify certain aspects of the law which are ambiguous or uncertain, or are thought to be unnecessary or inappropriate. These include reforms on the impact of divorce on existing Wills, how Wills are interpreted, the rectification of Wills by a court, survivorship (which deals with the consequences of a beneficiary dying before the person who makes a Will), forfeiture (which deals with unlawful killing and the impact on an inheritance) and statutory protection for Executors who act in error, but in good faith.

The main reforms in the Bill can be summarised as follows:

1. Divorce after a Will has been signed will invalidate any benefit in favour of the former spouse or civil partner, including his or her appointment as Executor or Trustee, unless the Will provides otherwise. This reverses the current position. A previous draft also revoked an appointment of a former spouse as a guardian for children, but this has not been retained in the Stage 2 version of the Bill.

2. Where a married couple or civil partners hold assets on a “joint and survivor” basis (that is, when one owner dies the deceased’s share passes to the surviving owner automatically) a subsequent divorce or dissolution will reverse the automatic entitlement and the deceased’s share will remain with his or her estate, to pass in accordance with his or her Will. This rule already applies to houses owned on a “survivor” basis but will be extended to other assets.

3. A court order can be sought to correct mistakes in a Will if it can be shown that the Will did not reflect the deceased’s true intentions. This will only apply to Wills prepared by someone else on the deceased’s behalf and will not apply to Wills made by the deceased personally. We would hope that this may discourage the use of “DIY” Wills which are never to be recommended.

4. The revocation of a new Will will not revive an old Will if the “new” Will is itself later revoked or destroyed. The existing law relies on finding out the intention of the person who made the Will in this situation.

5. If a legacy is left in favour of a child and the child dies before the testator, the children of the deceased child will inherit in the child’s place unless the Will says otherwise. This gives an existing common law rule statutory effect.

6. Similarly, but with the opposite effect, where a testator leaves a bequest to a nephew or niece and that nephew or niece dies before the testator, the children of the nephew or niece will no longer inherit in their parent’s place unless the Will expressly states that they should. Under the existing law the presumption is that the children of nephews or nieces will inherit in place of their parent.

7. Where a person is given an entitlement to benefit from all or part of the estate for their lifetime (legally known as a “liferent”) and someone else has the right subsequently to become owner of the estate without restriction, then unless a Will is carefully drafted, there can be uncertainty if the liferent is voluntarily given up. Unless the Will provides otherwise, the proposal is that the person with the right to become owner of the estate without restriction will then become entitled to it immediately.

8. If two or more people die in the same incident and it is unclear who died first, the presumption for inheritance purposes will be that neither survived the other. This presumption formerly applied only to married couples but is to apply regardless of how persons are related.

9. If a Will requires a beneficiary to survive for a certain period to qualify for their inheritance (for example, 30 days after the death of the testator), and it cannot be proved that the beneficiary lived that long, the presumption will be that he or she did not.

10. If a person unlawfully kills a testator but the court is satisfied that he or she does not deserve to forfeit their whole inheritance as a result, the court may grant them their inheritance in full. Previously, it was thought that a court could grant them only a part of the inheritance. The children of the person who unlawfully killed the testator will no longer be barred from inheriting.

11. Where Executors fail to distribute an estate to all of the correct beneficiaries and are not at fault, they will be entitled to statutory protection against claims. They must however have acted in good faith and taken all reasonable steps to identify entitled beneficiaries. This reflects a similar existing rule.

The final provisions of the Bill are yet to be published and the provisions highlighted above may change before it becomes law. Even if some of the proposed reforms are enacted it will bring a welcome change, with clarity brought to concepts which have for too long remained uncertain. Some fear that the opportunity to try and rectify “mistakes” in a Will may lead to a surge in court cases raised by disappointed beneficiaries seeking to alter Wills in their favour. The risks of error and dispute can be greatly reduced if professional advice is taken from the outset.

Chambers UK 2106

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