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The Succession (Scotland) Bill Passes Final Stage

The way in which individuals domiciled in Scotland propose to pass on their property following death is to be altered by recent changes to our succession law.

On the 29th January 2016 the Succession (Scotland) Bill passed its final stage in the Scottish Parliament. This Bill is the first in a two-stage reform endeavouring to modernise succession law and ensure “the law is up to date, fairer, clearer and more consistent”.

The necessity of reform in this area of the law was highlighted in the Scottish Law Commission (SLC) Reports of 1990 and 2009 with the majority of Scottish succession law being contained in the Succession Act of 1964. The Bill brings to fruition numerous proposals recommended by the SLC.

What are the crucial reforms in the current bill?

  • An ex-spouse or civil partner will no longer be able to inherit under a will following a divorce or dissolution, unless the will makes specific provision for them.
  • The courts will have the power to ‘rectify’ a will where it can be established that the individual’s intentions as to the distribution of their estate were not imitated in the will.
  • Currently earlier wills can be revived if a later will is subsequently revoked but this is to be abolished.
  • There will be an assumption that a person making a will automatically wishes a child or grandchild’s own children to inherit if their parent is stated as a beneficiary and predeceases the testator.
  • There is now protection for executors, trustees and individuals obtaining property as a result of a mistake in the distribution of property.

The second stage of this succession reform will include more fundamental reforms such as changes to the law distributing an estate where a person died without a will and the rights of cohabitants upon the death of their partner. A draft Bill is anticipated on these additional changes.

Make a will or check an existing will

While being appreciative of the new reforms it remains advisable to make a will if you do not already have one. Writing a will allows you to stipulate exactly how you want your property and money to be distributed upon death. You also have the opportunity to nominate an executor who will ‘wind up your estate’ which includes paying your debts and valuing your assets. This will be an individual you have chosen and trust to carry out your wishes.

Furthermore, if you have already made a will it would be worthwhile for you to ensure the exact wording of your will mirrors your wishes. While the Succession (Scotland) Act 2016 will be enforced sometime in the future it is more important than ever to seek legal advice due to the number of reforms being implemented and the effect that this could have on an existing will.

For advice on wills and executries contact Hamilton Ross today.

Author: Stephanie Hands, LLB Hons, 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.

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