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Briefing on the Succession (Scotland) Act 2016

The law of succession relates to what happens to a person’s assets after they die. In Scotland, this law remained generally unchanged for a half-century after the Succession (Scotland) Act 1964. However, following recent pressures to update the law the Scottish Parliament recently passed the Succession (Scotland) Act 2016, with most of its provisions coming into force in November 2016.
The new provisions most prominently relate to:
Former Spouses or Civil Partners
Under the old law, if an individual provided for their spouse or civil partner in a will but then died after completing a divorce or dissolution, then the surviving spouse/civil partner would still be entitled to their share as specified in the will.
Now, any provisions in a will which benefit a spouse or civil partner will automatically lapse upon the completion of a divorce or dissolution. Similarly, if the will appointed a surviving then-spouse/civil partner to be an Executor, then this too will be discharged upon divorce/dissolution.
Any provisions relating to care for a child after a parent/guardian’s death contained within a will shall remain unaffected.
However, it is still possible for a person to seek to benefit their ex-spouse/civil partner if they expressly wish so in the will. Also, the new provisions do not apply if the deceased was domiciled in Scotland at the time of their death but the divorce/dissolution was completed elsewhere in the UK.
Rectification
If a will was drafted upon a deceased’s instructions and it transpires that the will was not completed incorrectly, there is now a procedure available whereby the court can rectify the error contained in the will. The court is given quite wide discretion on what evidence is presented to prove this and also as to who may raise such a motion.
As in all civil cases, proof must be conducted on a ‘balance of probabilities’ basis. Furthermore, the deceased must have died in Scotland in order to make a claim for rectification.
Death of Beneficiaries
It is now accepted in law that if someone who stood to benefit from a will dies before the testator, then the benefit will pass automatically to their children, unless the will expressly requests for this not to happen.
Survivorship
In past cases where two spouses died simultaneously (in a car accident for instance) then the older spouse was presumed to have died first for succession purposes. The new law changes this so that in such cases, both spouses have their legal succession rights respected on the basis that they both died simultaneously.

Overall, this legislation makes substantial changes to Scottish succession law, that both practitioners and the general public should become aware of. The Scottish Government has announced in its 2017-18 ‘Programme for Government’ that it plans to change succession law further in 2018 in which case the legal sector in Scotland must be prepared to register its concerns.

This blog post was written by Michael White, LLB (Hons), currently undertaking the Diploma in Legal Practice

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