Additional documentation will be required with applications for confirmation to an estate from today (1 November), due to the coming into force of the Succession (Scotland) Act 2016.
Under the Act, divorce, dissolution or annulment of marriage nullifies a bequest to a spouse or civil partner, or a special destination in their favour in a title to property, unless the contrary intention appears. This chage from the previous law applies to anyone dying on or after today.
As a result, the Scottish Courts & Tribunals Service (SCTS) has confirmed to the Law Society of Scotland that "Where an application for confirmation nominate (including an application in terms of section 3 of the Executors (Scotland) Act 1900) is received, [it is expected] that every declaration, other than those where a professional body is appointed as executor, will contain a statement setting out the relationship between the deceased and the applicant, and any other named executor, at the date of death.
"Where any executor nominated jointly ‘fails’, as a result of divorce, dissolution or annulment in terms of the Act, the declaration will make an averment to that effect.
"Where the person seeking appointment as executor is not the spouse or civil partner of the deceased, and is relying on the marriage or partnership having been terminated to set up their right to the appointment, the declaration shall make an averment to that effect and the relevant extracts shall be produced as signed, docqueted and referred to therein.
"The declaration with such a statement included should provide sufficient information to the sheriff clerk to satisfy the requirement to ensure the appropriate person is applying for confirmation."
The advice adds that the new rule relating to special destinations "will require the solicitor to consider whether or not the special destination still applies to the property following divorce, dissolution or annulment of any marriage or civil partnership of the deceased, and, if not, to enter the property as an item of the estate in the inventory, to be included in the total to be confirmed".