11 October 2016

The Succession (Scotland) Act 2016, with the exception of a few minor provisions which came into force the day after Royal Assent was granted, will come into effect on 1 November 2016.

This first Act in the reform of the law of succession is considered more of a technical tidying up exercise and we still await the expected generational changes that will arrive after much consultation in the next Succession Act.

However the 2016 Act still contains important provisions. Some of these are as follows:-

• Spouses who divorce or have a marriage annulled or dissolved will no longer be able to benefit from provision in an ex-spouse’s Will where the Will was written prior to divorce unless the Will specifically provides otherwise;
  
  
• The same will apply to survivorship destinations (where title to joint property passes automatically to the survivor on death);
  
  
• A law to allow rectification to Wills will be introduced, where it can be established that the person’s intentions as to the distribution of their estate were not replicated in the Will;
  
  
• Wills revoked by new Wills will no longer revive if the new Will itself is revoked;
  
  
• It will be assumed a person making a Will automatically wishes a child or grandchild’s own children to inherit if their parent is mentioned as a beneficiary and predeceases the testator. This is already a presumption in Scots law but under this legislation the presumption will no longer apply to nieces and nephews or where an alternative beneficiary is named.

Although the last 2 paragraphs seem fairly simple, the way that the Act has been brought into force does create a few complications: -

• Wills revoked by new Wills will no longer revive if the new Will itself is revoked but only if the new Will has been revoked on or after 1 November 2016.
  
  
• The presumption in Scots law mentioned above will only be replaced by the new rules for Wills executed on or after 1 November 2016. It is likely therefore that the old and more complex rules will be relevant in Scotland for a generation to come.
  
  Anyone who currently has a Will that makes provision for children, grandchildren or nieces and nephews and who does not want that provision to pass to the children of a predeceasing beneficiary should review their Will to check it expressly states that.

For further information or for advice on Wills please contact Ross Brown, Associate rbr@bto.co.uk T: 0141 221 8012