HM Insights

Who inherits your estate under Scots law? Changes to the law of succession in Scotland

The law of succession in Scotland – which govern who receives your assets when you die - have not kept pace with changes in society. The Scottish Government is proposing to change this, with new legislation intended to clarify the situation and make it fairer. 

A changing society

The law of Succession has remained somewhat stagnant over the past 50 years. Since the last examination of succession there have been significant changes in Scottish society. Some of these societal changes have already been reflected in new legislation, i.e. the Civil Partnership Act 2004 and Cohabitant’s rights in the Family Law (Scotland) Act 2006.

Today more and more couples are choosing not to get married while second families and step families are also becoming more common. The current law and rules governing succession, in some cases, do not always accommodate for these societal changes - the results being that those who you would wish to inherit your estate are not always the ones who do.

New law of succession

On the 16 June 2015, The Scottish Parliament introduced the new Succession (Scotland) Bill, which implements some of the recommendations put forward by the Scottish Law Commission Reports.

The aim of this new Bill is to modernise and clarify some technical aspects of the law relating to succession. The Minister for Community Safety and Legal Affairs, Paul Wheelhouse said “The law of succession affects society as a whole in Scotland and this Bill will make sure it is up to date, fairer, clearer and more consistent.”

The new Bill has 27 sections and a Schedule which cover the following key areas:-

  • Establishing a process for the rectification of a will in certain circumstances.
  • Reforming the law relating to revival of a revoked Will.
  • Making changes to how survivorship should operate in Scotland where there is uncertainty as to the order of death.
  • Testamentary provisions and special destinations in favour of a former spouse will automatically be revoked on divorce.
  • Reforming the law relating to forfeiture.
  • Full protection against claw back for anyone who has bought any estate assets after Confirmation
  • Closing a number of jurisdictional gaps to ensure the Scottish Courts have jurisdictions where the applicable law is Scots Law.

Watch this space

Other recommendations in the Scottish Law Commission Reports have either been rejected or put on hold while further consultation is conducted. The Scottish Government is also considering the abolition of the traditional distinction between moveable and heritable property, which could dramatically change how children and spouse’s Legal Rights are calculated.

There is no doubt that the proposed changes will affect the law on succession and therefore succession planning for clients. Will these proposed changes be for the better, only time will tell?

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