Scotland's New Succession Laws: What you need to know

Late last year, the law on succession was updated for the first time in 50 years by the Succession (Scotland) Act 2016, marking the first stage in a phrased approach aimed at gradually modernising this complex, and often controversial, area of law. These new rules, which apply to deaths on or after the 1st November 2016, make important changes that are likely to affect many of our clients. Here we provide a brief overview of what has changed. If you would like more information about how these reforms may impact you and your family, and whether any arrangements you have made need to be updated or clarified, please contact our expert family law and private client solicitors.

An Overview of Changes to Succession in Scotland

The Effect of Divorce, Dissolution or Annulment on a Will

It used to be the case that if a Will was made when a couple was still together, their subsequent divorce, dissolution or annulment had no effect on the Will. The new Act reverses that law, so that any bequest made to a spouse or civil partner, or their appointed as an executor or trustee, falls if the couple divorces, their partnership is dissolved or their marriage is annulled. This means that if you want your Will to include any bequest made to an ex-spouse or ex-civil partner, or for them to be appointed as an executor or trustee, even though you are no longer in a formal legal relationship (i.e. married or in a civil partnership) you will need to expressly say so in your Will.

Earlier Wills Don’t Revive

Under the previous law, if you made a new Will to replace an old Will, and then decided to cancel the new Will, the old Will would be revived to determine how your estate would be distributed. Under the new Act, any new Wills made on or after 1 November 2016 have the effect of cancelling older Wills, so they cannot be revived. While this is clearer, it also means that an individual who fails to re-execute or make a new a Will before they die will be taken to have died intestate, i.e. without a Will. This means their estate is distributed according to the rules of intestacy and not their wishes. To avoid this scenario, it’s vital that if you cancel your current Will, you take action to replace it, either by creating a new Will or expressly re-executing an earlier Will.

Mistakes or Errors in a Deceased’s Will May Be Rectified

The law used to be very strict when it came to amending a Will to correct a mistake or error after someone had died – it simply wasn’t possible. Now, however, it is possible to ask the court to correct a simple mistake or obvious error (such as missed wording that has an affect contrary to the deceased’s clear intention) if:

• the deceased was domiciled in Scotland;
• the Will was prepared by someone else (such as a solicitor); and,
• there is clear evidence the Will doesn’t give effect to the deceased’s instructions.

As well as meeting these strict criteria, any application to rectify a deceased’s Will must be made within six months of the date of death or when the executor is granted the right to distribute the estate (known as confirmation). It’s important to emphasise that a very strict approach is likely to be taken to this change in the law, and any attempt by a person to change a Will simply because they feel they should have been included will not be entertained by the courts.

Mourning Clothes Can No Longer Be Claimed from the Estate

Not everyone will be aware that a widow used to have the common law right to claim an allowance from the estate for special mourning clothes. Understandably, this outdated rule has been abolished, not only for being ‘anachronistic and out of place in the context of the modern law of succession’ (as the Scottish Law Commission described it in their 2009 report), but also because it didn’t extend to widowers or surviving civil partners and was therefore discriminatory.

Changes to Expect in the Future

Although the above overview highlights some important changes to the law that mean many individuals will need to reassess the arrangements they currently have in place, this isn’t the end of the reform of Scotland’s succession law. The Scottish Government has been consulting on more politically-sensitive and potentially controversial issues such as intestacy (what should happen when there is no Will), the rights of cohabitants and protection from disinheritance.

The consultation closed in September last year, with a Government response expected in the near future. Yet whatever the outcome, a draft Bill is likely to propose a substantial overhaul of the current law. As noted in the Ministerial Foreword:

‘Society has changed significantly over the past half century…

What hasn’t changed is the inevitability of death and the need for there to be clear and fair laws in place, which reflect our modern day society and deal with the aftermath which can be a very difficult time for those family and friends of deceased. To paraphrase Thomas Mann – a person’s dying is more the survivor’s affair than their own’.

Family Law Solicitors, Glasgow & Paisley

At Macnairs + Wilson, our solicitors understand that our clients need legal advice and assistance that responds to the complexities of modern family life. If you have a succession or family law matter you would like to discuss with us - call us on 0141 887 5181 for our Paisley branch or 0141 551 8185 for our Glasgow branch, or click here to get in touch. Our family lawyers are based in Paisley and Glasgow and have helped thousands of clients, just like you, to resolve their family matters.