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In January we reported on the provisions of the Succession (Scotland) Bill 2016, which went on to receive Royal Assent on 3 March 2016. While some administrative provisions came into force on 4 March, the remaining sections will come into full effect on 1 November.  

This insight reports on the main changes.

Wills and Divorce

For deaths occurring on or after 1 November, where a person dies leaving a Will in favour of a person who was once a spouse or civil partner but from whom the deceased was divorced or had a civil partnership dissolved by the time of their death, the provisions in favour of that spouse or civil partner will no longer be effective, unless the Will says otherwise. An appointment as a guardian to a child would however still be effective.

We have a number of clients who are divorced but who still wish to make provision for their former spouse or civil partner. Careful drafting is required to achieve this. If you have any clients in the same position, we would be happy to meet with them and take their instructions to update their Wills to ensure their wishes continue to be met.

Rectification of Wills

A new procedure is now in force to rectify errors in Wills where a Will is prepared by someone else on behalf of the person making the Will (the testator).  A court order can be sought after the person’s death to correct any mistakes made in the Will, if it can be shown that the Will did not properly reflect the testator’s wishes.  Unless the court directs otherwise, the application must be made within 6 months of the death or within 6 months of the date that Confirmation is granted to the estate.

Revival of old Wills

Where a Will is revoked and the revocation is itself later revoked in a further document signed on or after 1 November, the previous Will will not be revived.  This section changes the previous law which revived the earlier Will unless the testator’s contrary intention could be proved.

Children of deceased beneficiaries

For Wills signed after 1 November, where a legacy is left to a direct descendant (i.e. a child, grandchild, great-grandchild, etc.) but the descendant dies before the testator or otherwise does not live long enough to inherit, the children of the descendant will inherit in their place, unless the Will provides otherwise.

A Will will be deemed to provide otherwise if a legacy is left to two or more persons and the
survivor of them, or to one person, whom failing another person. Wills must therefore be carefully drafted to include the children of a deceased child, if this is the testator’s intention.

Previously, a similar rule applied to the children of nephews and nieces mentioned in a Will but the rule is now to be restricted only to direct descendants of the testator.

Again, if you believe this change affects any of your clients we would be very happy to check the terms of their Wills to ensure that they are appropriate in the circumstances.


Where a Will leaves the right to use of an asset, or the income generated by it for the lifetime of a beneficiary and thereafter to another person or persons, there was previously doubt about what would happen to the asset if the liferenter gave up their right while still alive.  Would the other beneficiaries have to wait until the liferenter actually died?  The Act clarifies that from 1 November, when a liferenter gives up their right, the assets will pass to the ultimate beneficiaries immediately.

Survivorship periods

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.

Where two persons die together in the same incident or otherwise die simultaneously and it is impossible to tell which one outlived the other, for the purposes of their Wills the presumption will be that neither survived the other. This rule formerly applied only to married couples but now extends to any situation where the persons are named in each other’s Wills.

Similarly, but separately, where a legacy is left in favour of a group of persons (for example, brothers and sisters of the testator) and two or more members of the group die in the same incident and/or it is impossible to know which members died first, the legacy will be shared between the respective estates of the deceased members, equally, unless the Will provides otherwise.

Protection for Executors

Where Executors fail to distribute an estate to all of the entitled beneficiaries but have acted in good faith and have made reasonable enquiries before distribution, they will not be personally liable to any beneficiary who makes a claim against them.  The beneficiary remains free to seek recovery of the assets or a share of them from the actual recipients.

Further Reform?

A Scottish Government Consultation on the further, and more fundamental, reform to Scottish Succession law closed on 18 September 2015 and the likelihood is that further change will be enacted. Watch this space for further updates.

Magnus Mackay, Associate

Chambers Leading Firm 2019

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