HM Insights

Succession (Scotland) Act begins to impact

Most provisions of the Succession (Scotland) Act are expected to commence this autumn, with only having so far come into force. This relates to bonds of caution (read more here).

The majority of the other provisions are expected to come into effect this autumn. A brief summary of the main changes follows.

  • Following divorce, the former spouse will be presumed to have predeceased the testator for the purposes of inheritance and any appointment as executor or trustee within a will. Additionally, a divorce will render any survivorship destination within title deeds in favour of a former spouse ineffective.
  • The Act has introduced a provision for rectification of wills following the Supreme Court decision in an English case, Marley v Rawlings, where a husband and wife accidentally signed each other’s will. Provided the conditions set down by s 3 of the Act are satisfied, a will can be subject to rectification.
  • Previously, where there was a common calamity and it was not possible to determine who survived, the youngest would be deemed to have survived the eldest (unless spouses were involved in the common calamity, in which case neither was deemed to have survived the other). Under s 9 of the 2016 Act, irrespective of relationship, neither is presumed to have survived the other.
  • Equally, where a will contains a condition that a beneficiary was to survive for 30 days, but there is insufficient evidence, they will be deemed to have failed to survive.
  • The Act also provides protection for executors acting in good faith and protects third parties who acquire property in good faith where there have been errors in distribution.

The presumptions introduced by the 2016 Act can be rebutted provided that the testator expressly so states.

Further changes to Scottish succession law are afoot and there will be further updates in the months ahead.

Get in touch

If you would like to know more about the changes to the law on succession, are considering making a Will, or would like any other assistance, please don’t hesitate to get in touch with our private client team

We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.