Succession (Scotland) Act begins to impact

Only one area of the Succession (Scotland) Act 2016 has, so far, come into force. This relates to bonds of caution, which is covered in another of our articles in this edition. 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 coming newsletters.