Succession (Scotland) Bill

The Succession (Scotland) Bill is currently at stage 3 of the parliamentary process and aims to clarify certain elements of the law surrounding succession. The Scottish Law Commission has identified previously in both 1990 and in 2009 that the law of succession is in need of change. The last major changes came in 1964 with the Succession (Scotland) Act 1964.

One of the more controversial issues that the Law Commission has dealt with is the removal of the distinction between heritable and moveable property which will mean that the claim for legal rights will be over the entirety of the deceased’s estate.

Some of the more major changes to the law are set to be far reaching for everyone involved in succession law, and that is not just lawyers. Certain areas of the law such as presumption of death and trustee’s duties have left people involved in the administration of a deceased’s estate scratching their heads s the law surrounding these areas is unclear.

Some of the more interesting provisions of the bill can be summarised however, a short piece cannot do the proposed changes to the law, justice. Ambiguity has often arisen where a testator has drafted a Will but, upon reading the deceased’s Will the instructions are not clear or would appear to be what the testator wished for. Section 3 of the bill proposes that the court can decide to rectify the Will making provision for what they believed the testator to have wished. Extrinsic evidence can be led on this. The Trusts (Scotland) Act 1921 is also to be amended in section 18 to reflect instances where the trustee makes a distribution of the trust assets, and gets the beneficiary wrong, the trustee making the decision cannot be held personally liable. The law surrounding special destinations on divorce, dissolution or annulment would be clarified under section 2 of the bill where is a person dies after one of the 3 types of mentioned marriage termination, then the spouse or civil partner of that person is treated as having died before the person who died. Finally, another major change is the ascertainment of the order of death. There would be a presumption of death under sections 10 and 11 which clearly illustrate the order of death if there is uncertainty for example, in a car accident.

What certainly is the conclusion of all of this is: given the substantial changes that are to be in place, people should seek advice from their solicitor in order to obtain the best instructions as to how to deal with their estate upon their death.

Author: Blair Duffy, LLB, currently studying for the Diploma in Legal Practice

The views expressed are those of the author and do not necessarily reflect the views of the firm.